Report on Search and Surveillance Powers
Rt Hon Sir Geoffrey Palmer
President, Law Commission
Release of Law Commission Report on Search and Surveillance Powers
“The Law on Search and surveillance in New Zealand is a mess”, Sir Geoffrey Palmer, the President of the Law Commission said today. He was releasing the Law Commission’s report on this subject that was tabled in Parliament today.
Sir Geoffrey said “the rule of law in our society depends upon having certain and principled law enforcement powers. New Zealand does not currently have that.”.
“This is a massive report of five hundred pages with three hundred recommendations. It took the Law Commission five years”.
“Present statutory provisions are not fit for their purpose. They are sometimes too restrictive and prevent police and other law enforcement agencies from gathering the evidence they need to prosecute offenders. But they also often contain insufficient safeguards to ensure the rights of innocent citizens are protected.”
“Powers are scattered through the statute book, many in legislation enacted up to 50 years ago. Reform is long overdue.”
Sir Geoffrey said that search and surveillance powers have not kept in touch with changing trends in crime and rapid developments in technology. “As a result,” he said, “law enforcement does not have available the powers that are necessary to deal with organised criminal activity that has become increasingly sophisticated and which makes full use of available technology.”
“Legislation relating to search and seizure is still framed as if most information is held in hard copy. Recognition of the existence of electronic information is patchy and inadequate.”
“Legislation dealing with surveillance is also unsatisfactory,” he said. “The law allowing police to use interception and tracking devices is much too cumbersome. In contrast, there are no controls on visual surveillance activities at all. This makes no sense.”
Sir Geoffrey said that in a liberal democratic state like New Zealand, clear controls on the use of search and surveillance powers by law enforcement officers are necessary.
“We have set out to bring order, certainty, clarity and consistency to the existing legislation. We propose new provisions to address present gaps. We have recommended measures to bring the law up to date by keeping up with development in modern technology.”
“We have tried to achieve a proper and principled balance between the rights of people to be free from the unreasonable exercise of coercive power by the state and the requirements of good law enforcement,” Sir Geoffrey concluded.
Search and Surveillance
The Law Commission has prepared this as an accurate summary of the most significant recommendations in a 500 page report on Search and Surveillance Powers.
The major reforms to existing law proposed in the report can be grouped under four headings:
- Changes to the law and procedures relating to existing search and seizure powers;
- Significant reform of law enforcement powers to use surveillance devices;
- More explicit powers to search computers and seize electronic data;
- Use of production and monitoring orders by law enforcement agencies.
Existing search and seizure
A group of chapters in the report are concerned with substantive search powers and the procedures relating to the application for warrants, warrantless powers, the execution of search powers, post-execution procedures and reporting (see chapters 4, 5, 6, 8, 9, 13 and 15). A number of recommendations in these chapters clarify and consolidate existing law (both legislation and judicial decisions) and fill in gaps in the law.
There are, in addition, proposals that involve significant additions to or modification of existing law in seven areas:
1. “Plain view” seizures. A police officer should be able to seize evidence of an offence that comes into view in the course of the lawful exercise of a search power even though seizure of the item is not authorised by the search power. For example, a police officer executing a search warrant for controlled drugs who comes across property stolen in a burglary should be able to seize that property. The existing common law does not authorise such a seizure. (Paragraphs 3.119-3.148 and recommendation 3.11).
2. Consent searches. Law enforcement officers often seek the consent of a person to conduct a search. At present, there is no clear guidance to either law enforcement officers or members of the public as to what constitutes a valid consent search. The Commission proposes that enforcement officers should first have a valid law enforcement reason for undertaking a consent search, and that they should advise the person whose consent is sought of the reason for it, and that he or she may refuse consent. (Paragraphs 3.62-3.91 and recommendations 3.5-3.7).
3. Electronic warrant applications. In urgent circumstances, an enforcement officer should be able to apply for a warrant electronically, and where the issuing officer agrees, without personally appearing before the issuing officer. The issuing officer should be able to transmit the warrant (or orally dictate its terms and conditions) to the enforcement officer. (Paragraphs 4.50-4.67 and recommendations 4.11-4.16).
4. Specially appointed issuing officers. At present, a search warrant can be issued by Judges and by any Registrar, Deputy Registrar or JP regardless of their training or experience. The Commission proposes that warrants should be issued only by Judges or authorised officers (specially trained and appointed JPs, Registrars and other appropriately qualified and experienced people). The pool of issuing officers should be enlarged to include the appointment of other people who have the appropriate knowledge, skills and experience. (Paragraphs 4.93-4.122 and recommendations 4.22-4.25).
5. Notification of search. For most searches, there is no statutory obligation on an enforcement officer to notify an occupier of premises that a search has taken place if the occupier is absent at the time it is undertaken. The Commission recommends that in such a situation enforcement officers should be required to provide notification of the search. However, where a judge is satisfied that giving that information to the occupier could prejudice ongoing or future investigations, or endanger the safety of any person, the judge may postpone the notification requirement, or in some circumstances dispense with it. (Paragraphs 6.129-6.144 and recommendations 6.31 and 6.34-6.36).
6. New powers for enforcement officers. Several new provisions are proposed to complement existing law enforcement search powers. These include:
* A power for police officers to enter and search a place where they reasonably believe that evidential material relating to an offence punishable by 14 years’ imprisonment or more will be found and where the delay caused by obtaining a warrant will result in the item being concealed, destroyed or impaired. (Paragraphs 5.75-5.78 and recommendation 5.13). A similar power is proposed in respect of the search of people (paragraphs 8.45-8.50 and recommendation 8.12) and vehicles (paragraphs 9.15-9.16 and recommendation 9.4).
* A power for an enforcement officer to establish a crime scene and to give directions to people at the scene to ensure that evidential material is not concealed, destroyed or impaired while a search warrant is being obtained. (Paragraphs 6.99-6.103 and recommendation 6.20). A similar power the give directions to preserve a search scene is also proposed. (Paragraphs 6.104-6.107 and recommendations 6.22 and 6.23).
* A power for police and other enforcement officers to apprehend and search a person who is to be searched, but who flees before the search can be carried out, so long as the officer is freshly pursuing that person and believes on reasonable grounds the person still possesses the item that was the object of the initial search. (Paragraphs 8.51-8.54 and 8.100 and recommendations 8.13 and 8.28).
* A power for police officers who are
searching a place or vehicle to search anyone who is in or
arrives at the place or who is in or gets out of the vehicle
if there are reasonable grounds for believing that the
person concerned has possession of:
(a) the item that is the object of the search; or
(b) a dangerous item that poses a threat to safety and immediate action is needed to address that threat.
(Paragraphs 8.10-8.17 and 8.19-8.22 and recommendations 8.2 and 8.5-8.6).
* A power for customs officers investigating the unlawful importation of drugs to search places and vehicles in the course of a controlled delivery. (Paragraphs 5.71-5.74 and recommendation 5.12).
* A power for non-police enforcement officers who have arrest powers (eg customs and fishery officers) to search persons whom they have arrested. (Paragraphs 8.101-8.102 and recommendation 8.29).
Privileged material Codification of the procedure to be
followed where the exercise of search and surveillance
powers involves material that could be the subject of a
claim of legal or other privilege is recommended. Specific
proposals are directed to facilitating the making of a claim
of privilege, securing and isolating the relevant material,
and ensuring it is not examined for law enforcement purposes
until the claim is resolved.
(Paragraphs 12.1-12.148 and recommendations 12.1-12.28)
Developments in technology have resulted in specialised surveillance equipment being available to law enforcement agencies to assist the investigation of increasingly complex offending. In the Commission’s view, law enforcement officers should be able to take advantage of these developments if the use of the equipment is properly authorised and regulated. Chapter 11 outlines the features of a statutory framework to regulate the law enforcement use of surveillance devices.
Recommendations are made to provide powers for law enforcement officers to use surveillance devices, and safeguards for the individual liberties of those who are the targets of surveillance.
A single surveillance device regime to authorise the use of audio, visual and tracking devices is proposed. The existing statutory provisions applying to interception and tracking devices should be consolidated into that regime.
In relation to visual surveillance, only the use by law enforcement officers of devices that interfere with reasonable expectations of privacy should be regulated. Such a situation would arise where the device is used:
* to observe any activity in a private building where any of the parties could reasonably expect that they would not be observed;
* to observe any activity in the curtilage of a private building for more than three hours in a 24-hour period or for more than 8 hours in aggregate where any of the parties could reasonably expect that they would not be observed;
Features of the scheme regulating the use of audio, visual and tracking devices include:
* except in some urgent cases, where a surveillance device could be used without warrant for up to 48 hours, a warrant would be required;
* a surveillance device warrant would be available for any offence for which a search warrant could be obtained;
* the surveillance device regime should be available to any enforcement agency that has a search warrant power for law enforcement purposes;
* surveillance device warrants should be issued only by judges.
(Paragraphs 11.1-11.120 and recommendations 11.1-11.23).
The Commission does not recommend a separate regime for the searching of computers and the seizure of electronic data. However, a number of specific modifications and extensions to search powers relating to tangible items are necessary to recognise the differences in searching for and seizing intangible evidential material:
* there should be specific powers for enforcement officers to access and copy material held on computers or data storage devices;
* the cloning (or forensic copying) of electronic data should be expressly permitted;
* existing powers to require assistance from a
person to access data should be extended.
(Paragraphs 7.1-7.73 and 7.128-7.134 and recommendations 7.1-7.6 and 7.14).
Enforcement officers should be able to have remote access to data pursuant to a search power in only two situations:
* where the data that is the object of the search is on a computer network that can be accessed from the place that is being searched;
* where the search is
for data that is not held at a known physical location (such
as information held on an internet hotmail account) so long
as the parameters of the search can be specified by
reference to access information.
(Paragraphs 7.74-7.108 and recommendations 7.7-7.11).
Production and monitoring
Production orders – judicially issued orders requiring a person or firm to produce specified information relating to an offence – have a number of advantages for law enforcement agencies and for the person or firm to whom they are directed. They are of particular benefit where the information sought (such as banking records) is held by a party who, on receipt of a demand backed by statute, would be expected to cooperate with the enforcement agency. They allow the person or firm to whom the demand is directed to locate and provide the relevant material without the enforcement agency needing to enter the premises.
The Commission recommends that production orders should be available where the prerequisites for a search warrant are met. (Paragraphs 10.7-10.32 and recommendations 10.1-10.5).
Monitoring orders - judicially issued orders requiring a person or firm, on an ongoing basis, to retain and supply specified information relating to an offence – are not available for law enforcement investigations in New Zealand. They are, however, available on a limited basis for financial information in proceeds of crime investigations. A similar process, a call data warrant, which requires a telephone company to supply call associated data to the relevant officer over a specified period, may be applied for by police and customs officers.
Monitoring orders provide enforcement officers with a means to access account transaction information, such as text messaging data, that is not readily available under a search warrant. It recommends they should be available to law enforcement officers on a similar basis as a search warrant. (Paragraphs 10.52-10.78 and recommendations 10.12-10.16).