Crime Prevention Unit

Organised Crime

Office of the Minister of Justice
Cabinet Business Committee

LAW COMMISSION REPORT SEARCH AND SURVEILLANCE POWERS

Paper 2: Interception and Surveillance

Proposal

1. The Law Commission report on Search and Surveillance Powers (NZLC R97) was tabled in Parliament on 7 August 2007. This paper is part of a suite of 8 papers in relation to that report and proposes the introduction of a surveillance device warrant procedure (contained in chapter 11 of that report).

Executive Summary

2. The current law provides detailed controls over interception and tracking and, in some respects, unduly limits law enforcement activity. However, there is no effective regulation of visual surveillance. Thus the citizen has little protection against visual surveillance of private activities which give rise to reasonable expectations of privacy.

3. There is no reason to distinguish between different forms of surveillance which may equally impact upon the rights of citizens. The law should be rationalised to minimise inconsistencies between different forms of surveillance. It should provide the ability for law enforcement agencies to investigate increasingly complex offending by using technology now available if this is properly authorised and regulated. The law should also provide greater certainty for law enforcement officers and citizens.

4. I therefore propose a surveillance device warrant regime that will replace the present interception and tracking device regimes with a single surveillance device warrant governing all forms of surveillance (audio, tracking and visual) for law enforcement purposes. This warrant may be sought by police and non-police enforcement agencies whenever a search warrant may be applied for.

5. A residual warrant regime is also proposed to cover the use of devices, techniques and procedures that interfere with reasonable expectations of privacy but for activities which will not be covered by the proposed surveillance device warrant regime.

Background

6. The concept of physical trespass against people or property is well understood. However, there is substantial debate as to what forms of non-trespassory surveillance (where property need not be entered and people may be observed without their knowledge) should be regarded as a search or seizure for the purposes of section 21 of the New Zealand Bill of Rights Act 1990, which provides protection from unreasonable search and seizure. There is also considerable uncertainty about what constitutes reasonable surveillance. Developing technologies allow intrusion on private activities to an extent that could not be foreseen only a few years ago. Legislation that does not recognise the impact that evolving technology may have on reasonable expectations of privacy runs the risk of quickly becoming obsolete. The courts and legislatures have only recently grappled with issues arising from non-trespassory surveillance for law enforcement purposes, and this has occurred in a piecemeal and inconsistent manner. It is against this background that the current consideration of a single integrated interception and surveillance regime has occurred.

Current Approach

New Zealand legislation

7. Legislation has been enacted in this country in relation to audio surveillance. Part 9A of the Crimes Act 1961 makes it unlawful to intercept a private communication by interception device. However, there is authority in Part 11A of the Crimes Act and under the Misuse of Drugs Amendment Act 1978 for police to use such a device to intercept a private communication in tightly prescribed circumstances. A warrant or emergency permit is required and may only be issued by a High Court Judge. Interception is only permitted for a limited number of offences including terrorism, serious violent crimes, organised crime and drug dealing. A significant number of pre-conditions must be met before a warrant or permit can be issued, making the interception regime far more restrictive than the ordinary search warrant regime.

8. There is also provision in sections 200A to 200P of the Summary Proceedings Act 1957 (inserted in 2003) for the installation, use and removal of tracking devices, which would otherwise constitute a trespass and be unlawful. A tracking device is defined as a device that may be used to help ascertain (by electronic or other means) the location of a person and/or whether a thing has been opened, tampered with or dealt with in some other way. A High or District Court judge can issue a tracking device warrant, upon application from an authorised police or customs officer. A tracking device may be used without warrant for up to 72 hours only if an authorised officer believes that a judge would issue a warrant if time permitted.

9. Both the interception and tracking regimes have a range of reporting requirements in respect of individual warrant applications, the use of devices without warrant and the general use of such devices.

10. In contrast to interception and tracking, visual surveillance has been subject to little statutory regulation. The Summary Offences Act 1981 prohibits a person “peeping and peering into a dwelling house” at night-time. The Private Investigators and Security Guards Act 1974 makes it an offence for a private investigator to take photographs or make a videotaping of another person without that person’s consent. The prohibition has no application to law enforcement officers. The Crimes Act 1961 (following the enactment of the Crimes (Intimate Covert Filming) Amendment Act 2006) makes it an offence to undertake covert visual recording of a person who is in a place which in the circumstances would be expected to provide privacy and the person is naked or engaged in certain activities. With these exceptions, visual surveillance that does not involve a trespass is essentially unregulated; it is left to the courts to determine the reasonableness of the search retrospectively when there is a challenge to the admissibility of the evidence.

New Zealand case law

11. There has been little case law on the impact of section 21 of the Bill of Rights Act on non-trespassory surveillance. The Court of Appeal has adopted a case-by-case assessment of the reasonableness of the surveillance. To date it has not found any particular audio or visual surveillance technique to violate section 21 in the circumstances of any case it has been required to consider. It has, however, indicated that Parliament should act to regulate visual surveillance and that it is unsatisfactory for both the citizen and police for the law in this area to be uncertain.

Approach overseas

12. Australian legislatures have been active in regulating the use of tracking, audio and visual surveillance devices. While many states and the Federal Government have prohibited the use of listening devices (with law enforcement exceptions) since the 1970s and 1980s, more recently those statutes have been overhauled to include tracking devices and visual surveillance devices. Western Australia has enacted the Surveillance Devices Act 1998 (WA) which comprehensively regulates the use of listening, optical surveillance, and tracking devices by generally prohibiting their use, but providing for law enforcement exceptions. Similar legislation exists in other states and the Federal Parliament has enacted the Surveillance Devices Act 2004 (Cth).

13. In the United Kingdom the Regulation of Investigatory Powers Act 2000 (together with other more limited legislation such as the Interception of Communications Act 1985 and the Police Act 1997) regulates the interception of postal and telephone communications and the use of certain types of surveillance devices and methods and covert human intelligence sources. Different types of regulation exist depending on the type of surveillance and the urgency of the situation.

14. The Canadian Criminal Code prohibits the interception of private communications but permits interception by enforcement officers for the investigation of a wide range of offences. The Criminal Code provides for a general warrant regime which may be used for law enforcement activities (including video surveillance) that, if not judicially authorised, would unreasonably interfere with expectations of privacy. In the United States of America many states have enacted laws that authorise and regulate visual and audio surveillance by enforcement officers.

Problems with the current approach

15. There are three fundamental problems with the present legislation dealing with surveillance. First, some of it is cumbersome and outdated. The legislation relating to the use of interception devices in drug dealing investigations dates back to 1978 and is complicated and unnecessarily restrictive. A virtually identical regime was later enacted in the Crimes Act to deal with organised crime and terrorism offences. The complex procedural requirements that were appropriate when the police were given the power to use listening devices to tap telephones 30 years ago are no longer necessary.

16. Secondly, while existing legislation regulates the use of interception and tracking devices, it generally does not cover visual and other forms of surveillance. The absence of regulation of visual surveillance means that such activity may lawfully be undertaken by enforcement agencies without prior independent assessment. That is undesirable as it does not adequately protect citizens’ reasonable expectations of privacy. It requires the citizen to rely on the court’s retrospective determination on the reasonableness of the activity. That also creates uncertainty for law enforcement as the court may find, after the event, that the surveillance activity was unlawful or unreasonable and that the evidence so obtained is inadmissible. That represents a significant waste of law enforcement time and resources and reduces public confidence in the law.

17. Thirdly, the current regimes that regulate interception and tracking contain different procedures, preconditions and requirements. This conflicts with the principle of simplicity, which the Commission’s report strives for. The Commission sees no reason to maintain different approaches to different forms of surveillance or, in general terms, between the law enforcement exercise of search powers and the use of surveillance devices. Accordingly, a generic code governing the law enforcement use of surveillance devices is recommended.

Options for the proposed regime

18. Existing legislation takes two approaches to the use of surveillance devices. The first, taken in the Crimes Act and Misuse of Drugs Amendment Act, makes it an offence for anyone to intercept a private communication by means of an interception device, but provides a law enforcement exception. The second, reflected in the Summary Proceedings Act tracking device regime, regulates the use of such device by police and customs officers, but provides no complementary criminal offence.

19. The second of these two approaches is commonly found in legislation in overseas jurisdictions. It was favoured by the Commission in relation to visual surveillance because the extent to which such surveillance should generally be proscribed is better considered as part of the wider review of privacy that is underway. I agree with the Commission’s view. However, the existing offence for unlawful interception of a private communication should remain (see further discussion in Paper 7: Remedies and Immunities, paragraph 9).

Features of proposed regime

Coverage

20. Under the new regime, I propose that law enforcement officers should generally be required to obtain a warrant before they can undertake surveillance of private activities by means of a surveillance device. A surveillance device should incorporate interception and tracking devices as they are currently defined in statute. However its definition should be extended to cover visual observation. Visual observation should be defined widely to include observation, recording, and monitoring by a visual surveillance device. Such device should be defined to include equipment that is used or is capable of being used to visually observe an activity, but should exclude spectacles and contact lenses used to overcome impaired sight.

21. The key concept of private activity should, subject to qualifications discussed below, comprise any activity carried on within a private building in circumstances where any of the parties to the activity should reasonably expect to be observed only by themselves. The more difficult issue is the extent to which other activities also amount to private activities in respect of which surveillance should be regulated. I do not think that a person who undertakes activities in public places and buildings can reasonably expect that they will not be observed by others, including enforcement officers. Accordingly, there should be no warrant requirement for surveillance in such places (see paragraph 51, below).

22. A different approach is required for activities that occur outside buildings but on private property. In many statutes the curtilage of a private building (such as the garden around a house) is regarded as falling within the area of greatest protection afforded by search and seizure law. However, in my view, activities that occur in the curtilage, being more susceptible to visual observation by others, are not as private as activities that occur inside a private building. It would be unreasonable to require enforcement officers to require a warrant for the use of a device that involves a mere fleeting observation of a curtilage.

23. Nonetheless, members of the public should expect that prolonged visual observation of activities that take place in areas such as their private garden or decks be authorised by warrant. It is therefore proposed that where enforcement officers visually observe the curtilage of a private building for more than three hours over a 24-hour period or more than eight hours in aggregate, and any part of that observation involves the use of a surveillance device, then (subject to the exceptions discussed in paragraph 51) a warrant must be obtained.

Range of offences and prerequisites to issue of a warrant

24. Under current New Zealand law the use of interception devices is limited to the investigation of a range of serious offences, such as serious violence, terrorist offences and certain drug offences. In contrast the tracking device regime is available for investigating any offence. Overseas surveillance devices, while variable in scope, can generally be used in respect of a far wider range of offences than that to which the New Zealand interception device regime applies.

25. Consistent with the general approach of the Commission, it is proposed that surveillance device warrants ought to be available on the same basis as search warrants (in relation to the threshold to be met before the warrant may be issued and the type of offence for which it is available). The former are not intrinsically more intrusive than the latter. The extent to which each of them intrudes on privacy depends very much on the circumstances, the manner in which they are executed, and the nature of the information or evidence obtained as a result of their execution. Accordingly the prerequisites necessary to obtain a surveillance device warrant should, as far as is possible (and subject to the exceptions discussed below), be the same as for search warrants. It is not proposed that a surveillance device warrant should only be available if evidence cannot be secured through executing an ordinary search warrant.

26. Enforcement agencies should be able to apply for the type of warrant that will obtain the evidential material sought in the most efficient and effective manner. Different circumstances require different law enforcement responses. There will be circumstances where use of a surveillance device will be more consistent with privacy values and will be less intrusive than the execution of a search warrant. It is therefore proposed that whenever a statutory search warrant power for law enforcement purposes exists, it should be extended to include a surveillance device warrant power for the same range of offences for which the search warrant power is available.

Specifying the target of surveillance

27. Standard search warrants authorise entry into a particular place or thing and specify the place or thing to be searched and the items that the enforcement officer is authorised to search for and seize. Similarly, a surveillance device warrant should generally specify a particular person, place or item that is to be subject to surveillance. However, surveillance work does not always lend itself to specificity on all aspects of the target. Surveillance may need to focus on a particular individual suspected to be a drug dealer or drug courier. That person’s movement from one location to another may necessitate observing multiple premises, the location of which may be unknown and impossible to specify in advance. The identity of the courier known to be arriving on a particular international flight may be unknown. The precise nature of the package which needs to be followed may be unclear. And the precise nature of the offending in question may not be revealed until the surveillance has occurred.

28. In such cases the applicant law enforcement officer should specify the circumstances in which the surveillance of people, places or objects is to be undertaken with sufficient particularity to enable the judge to be satisfied about the parameters for using the surveillance device. The applicant should in every such case specify the objective of the surveillance in terms of the evidential material (defined in Paper 1: Overview to include items of relevance to the investigation of the specified offence) sought to be obtained by the use of the device.

Who may issue a warrant

29. Under the current interception device warrant regime only a High Court judge may issue a warrant. A tracking device warrant may be issued by a High Court or District Court judge. It is proposed in Paper 6: Clarification and Codification that ordinary search warrants should be able to be issued by adequately trained persons, comprising a cadre of specialist issuing officers, as well as judges.

30. In my view one form of intrusion on reasonable expectations of privacy is not necessarily of such greater consequence as to require that only certain judicial officers be able to issue a warrant for surveillance purposes. Indeed, a case can be made, given the integrated search and surveillance framework proposed and the need for all issuing officers to be specifically warranted for the purpose and adequately trained, that any issuing officer should be able to authorise the use of any type of search or surveillance warrant.

31. However, the public perception is that interception and surveillance are more intrusive and have greater impact on privacy rights than traditional search powers. Accordingly (with the exception of national security warrants, authorised by the Prime Minister) a surveillance device warrant should be issued only by a District or High Court judge.

Elements of the warrant

32. It is proposed that:

A surveillance device warrant should have a duration of up to 60 days. This is longer than the proposed 14 day period generally proposed for standard search warrants; the nature of investigations that can be expected to require surveillance activity justifies a longer period;

It should be able to be issued in anticipation of the existence of evidential material that is sought to be obtained. Surveillance necessarily involves ongoing monitoring so that evidential material can be obtained when it comes into existence;

It should authorise entry into premises and vehicles, by reasonable force if necessary, to install, maintain or remove the device and the use of electricity to power the device. This is consistent with the current tracking device regime. The use of electricity from the target premises is permitted in some Australian surveillance legislation;

Unlike the current and proposed position for execution of search warrants, there should be a mandatory report to a judge on the exercise of a surveillance power, including execution under a surveillance device warrant. This is consistent with the current interception regime, to be replaced by the proposed surveillance regime. (For further discussion on this issue, see Paper 1: Overview, paragraphs 67 to 69.)

Agencies to which regime should be available

33. The new regime should be available to any enforcement agency that has a search warrant power. It would be nonsensical to regulate, and therefore restrict, the visual surveillance operations of certain law enforcement agencies, while leaving others with the ability to undertake lawful surveillance in a totally unregulated manner.

34. Concerns may be raised about extending audio surveillance and tracking to non-police agencies that cannot currently exercise such powers. However, there are four reasons why the availability of audio surveillance and tracking should not be distinguished from visual surveillance powers:

Visual surveillance is not inherently less intrusive than any other form of search and surveillance. Audio surveillance and tracking may be more efficient and less intrusive in some circumstances than physical search or visual surveillance;

It is not anticipated that interception of communications will become widespread amongst non-police law enforcement agencies, since there are significant resource implications in developing and maintaining interception capability;

If non-police law enforcement agencies wished to undertake an activity such as tracking, they would need to ask the police to obtain a warrant on their behalf. In that event, the judicial officer issuing the warrant would be required to assess applications from officers who might not have first hand knowledge of the information upon which it was based. That would be undesirable;

A distinction between visual and other forms of surveillance might become increasingly difficult to maintain as the availability and use of multi-function devices become more common.

35. Any enforcement agencies which do not currently have surveillance capability and which intend to use the proposed powers will have to ensure that they have robust and legally compliant procedures in place (for example, to ensure privileged communications that are intercepted are properly protected). Further, such agencies will need to implement thorough training for staff exercising surveillance powers and will need to ensure that their agency has the technical support in place to enable the powers to be properly exercised and the required post-exercise reporting to a judge and Parliament to be complied with.

Use of surveillance devices in emergency situations

36. The current interception regime permits police to use an interception device in two emergency situations without warrant. The first is where it is reasonably believed that a suspect is threatening the life of, or serious injury to, any other person in the immediate vicinity and a commissioned officer, who reasonably believes the use of an interception device will facilitate the protection of the threatened person, authorises use of the device. The second situation is where the judge is satisfied that an interception warrant should be granted but the urgency of the situation requires that interception should begin before a warrant may be obtained. The judge may issue an emergency permit which is valid for 48 hours.

37. The tracking device regime also allows a tracking device to be installed, monitored or maintained without warrant if it is not practicable to obtain a warrant and the officer reasonably believes that the judge would issue a warrant if time permitted. Unless the device is removed within 72 hours, the officer must apply for a tracking device warrant.
38. Overseas surveillance regimes also contain a range of mechanisms allowing devices to be used in emergency situations, often without prior judicial authorisation.

39. Consideration of the current New Zealand and overseas law requires scrutiny of three critical issues as to the circumstances in which surveillance without warrant should be permitted: the applicable offences /situations in which the power may be used, the approval process and the period for which warrantless surveillance should be permitted.

Applicable offences/situations in which the power may be exercised

40. In Paper 4: Warrantless Powers, a number of situations are outlined when a warrantless search power may be exercised in situations of urgency. Those are:

in relation to certain drug offences under the Misuse of Drugs Act 1975 where it is not practicable to obtain a warrant;

under specified sections of the Arms Act 1983;

in the course of a controlled delivery of drugs;

in relation to serious offences carrying 14 years or more imprisonment where there is a risk of impairment to the evidential material;

in situations that may endanger the life or safety of any person or cause serious damage to or loss of property.

41. It is proposed that surveillance without warrant may be conducted in those circumstances with some adaptation to the surveillance environment.

Approval process

42. In its report the Commission did not consider that a report to a judge on the exercise of such powers would be of particular benefit. However, other agencies believe (and the Commission now agrees) that a reporting requirement has benefit if the judge is able to give specific directions on the basis of the report. It is therefore proposed that there be a mandatory report to a judge whenever a surveillance power is exercised. The judge will determine whether the power has exercised lawfully and may make a number of directions in relation to material obtained by exercise of the power. (For further information on that proposed procedure see Paper 1: Overview, paragraphs 67 to 69.)

Period for which warrantless power may be used

43. The final issue is the maximum period for which the warrantless use of a surveillance device should be used. A 72-hour period is proposed. That should provide sufficient time for short-term exigencies. Where the circumstances giving rise to the emergency require the use of surveillance devices on an on-going basis, judicial authority should be required.

Notification

44. In its report the Commission proposed that the target of the surveillance operation should be notified that he or she has been under surveillance at the end of the period for which the power may be exercised if there is no risk of prejudice to on-going or subsequent law enforcement investigations. However, Police and Customs believe that there would always be the potential for prejudice to on-going or subsequent investigations (including those involving overseas enforcement agencies) if a subject of surveillance were notified. I therefore propose an alternative regime. Notification will only occur if a judge to whom the exercise of a surveillance power is reported is satisfied that there has been a serious breach of the power and that, having regard to the gravity of the breach, the public interest in notification outweighs any potential prejudice to on-going or subsequent investigations or to the safety of informants or undercover officers. (For further discussion on this issue, see Paper 1: Overview, paragraphs 67 to 70 and 78).

Residual regime

45. The surveillance device regime outlined above will significantly strengthen the statutory regulation of law enforcement surveillance. It is not, however, a comprehensive regime. It is limited to surveillance conducted by devices. Furthermore the proposed regulation is based on the function of those devices, namely to hear, observe and track and to record each of those activities. Any other functions, such as surveillance by smelling, is not covered by the proposed surveillance device warrant regime. Accordingly, a residual warrant regime is proposed to authorise the use of a device, procedure or technique for purposes other than permitted by a surveillance device. For example, a warrant may be sought by enforcement agencies for installation and use of “key-stroke loggers” (hardware or software that electronically captures passwords to computers or entry codes to buildings as the user inputs that information) under this regime.

46. A “general warrant” scheme exists under the Canadian Criminal Code allowing the use of any device, investigative technique or procedure or to do anything described in the warrant that, if not authorised, would constitute an unreasonable search or seizure in respect of a person or person’s property. A residual warrant system taking the best aspects of the Canadian model and adapting them to the proposed New Zealand regime is recommended.

47. A residual regime is desirable because it reinforces the point that any law enforcement intrusion on reasonable expectations on privacy should generally only be permitted pursuant to warrant. Further, obtaining prior judicial authorisation has benefits from a law enforcement perspective. It increases the prospect of evidential material obtained by warrant being found to be admissible and may reduce challenges to the use of the technique in criminal trials.

48. The elements of the proposed residual regime would largely incorporate the features of the surveillance device regime (discussed above), but there would be a number of differences. A residual warrant should:

require the issuing judge to consider the availability of any alternative power that may suit the purpose for which the residual warrant is sought; but such warrant should not be invalid solely because the technique or procedure authorised is governed by some other legislation;

clearly outline, with as much specificity as is possible, what enforcement officers are authorised to do under the warrant;

be available for all imprisonable offences.

49. It is not proposed that a warrantless power be created by statute for the undefined or emerging technologies or procedures for which a residual warrant will be available. It is impossible to specify the type or scope of activities that could be performed by a residual and undefined technique without warrant with a sufficient degree of specificity to place appropriate limitations on its use.

Activities not requiring warrant

50. Some surveillance activities will not amount to intrusions on reasonable expectations of privacy or will be reasonable intrusions on such expectations. The legislation should specify that certain activities do not require authorisation under the surveillance device warrant or residual warrant regimes. A statutory list that specifically excludes certain activities from the warrant requirement would provide a measure of certainty for enforcement officers in making clear that not all surveillance activities require prior judicial authorisation before being lawfully undertaken.

51. Those surveillance activities not requiring warrant are those that occur:

in public or public parts of buildings;

where an enforcement officer has entered a private place lawfully and records what he or she lawfully observes or hears;

by way of surreptitious audio recording of a voluntary conversation (even if the identity of one of the parties is unknown to the other), as long as one of the participants consents to the recording;

by way of unaided smelling in public or in private places when the officer is lawfully in that place;

by way of unaided visual observation or overhearing of people, activities or things.

Recommendations

I recommend that the Cabinet Business Committee:

1. Agree that certain specific forms of non-trespassory surveillance by enforcement officers be statutorily regulated by a new generic surveillance device warrant regime, replacing the current interception and tracking device regimes;

2. Agree that the proposed surveillance device warrant regime:

require that law enforcement officers obtain a warrant for the use of interception and tracking devices, as currently defined in legislation;

require that enforcement officers obtain a warrant in order to observe any activity in a private building by means of a visual surveillance device, where in the circumstances any of the parties to the activity ought to have a reasonable expectation that they are being observed only by themselves;

require that enforcement officers obtain a warrant to observe any activity in the curtilage of a private building for more than three hours in a 24-hour period or more than eight hours in aggregate, where any part of that observation involves the use of a visual surveillance device and in the circumstances any of the parties to the activity ought to have a reasonable expectation that they are being observed only by themselves;

3. Agree that the proposed surveillance device warrant should:

be issuable by a District or High Court judge (except for national security warrants, which may be issued only by the Prime Minister);

have a maximum life of 60 days (not precluding subsequent applications);

be able to be issued in anticipation of the existence of the evidential material that is sought to be obtained;

authorise entry into premises and vehicles, if necessary using reasonable force, for the purposes of installing, maintaining or removing the device and to use electricity to power the device;

not require mandatory on-going judicial supervision;

4. Agree that whenever a statutory search warrant power for law enforcement purposes exists, it be extended, subject to the same prerequisites with necessary modification, to include a surveillance device warrant power to obtain evidential material in respect of any offence covered by the warrant power;

5. Agree that a surveillance device warrant specify the people, places or objects that are to be subject of the surveillance and the evidential material relating to a particular offence that is to be obtained by the device. Where specificity is not practicable, the warrant should describe the circumstances in which the surveillance is to be undertaken with sufficient particularity to identify the parameters of, and objectives to be achieved by, using the device;

6. Agree that in a situation of urgency where obtaining a warrant is impracticable, an enforcement officer be able to use a surveillance device without warrant or other authorisation for a period of not longer than 72 hours where warrantless powers exist under the proposed legislation to:

conduct a search for specified drugs under section 18 of the Misuse of Drugs Act 1975;

conduct a search under sections 60 to 61 of the Arms Act 1983;

conduct a search in relation to a controlled delivery of drugs under section 12A of the Misuse of Drugs Amendment Act 1978;

search for evidential material at risk of being concealed, destroyed or impaired relating to an offence punishable by 14 years imprisonment or more;

enter a place to prevent offending that may cause injury to any person, serious damage or loss to property or to avert a situation that presents a risk to the life or safety of any person;

7. Agree that a residual regime be enacted to authorise the use of devices, techniques or procedures that interfere with reasonable expectations of privacy, but which are not governed by the surveillance device warrant regime;

8. Agree that a warrant issued under the residual regime should:

only be granted by a judge if satisfied of the grounds that support the issue of a surveillance device warrant;

be available to obtain evidential material relating to any offence in respect of which a search warrant could be obtained;

prescribe in detail the scope of the action that may be taken pursuant to the warrant;

have a maximum life of 60 days;

9. Agree that a residual warrant is not invalid by reason only that it may authorise law enforcement activities that are governed or authorised by other legislation;

10. Agree that the surveillance device warrant regime and residual device regime be available to any enforcement agency that has a search warrant power for law enforcement purposes;

11. Agree that certain activities that either do not amount to intrusions on reasonable expectations of privacy or that are reasonable intrusions on such expectations be specified in legislation and should not require either a surveillance device warrant or residual warrant to be obtained. The specified surveillance activities that do not require warrant are those which occur:

in public or public parts of buildings;

where an enforcement officer has entered a private place lawfully and records what he or she lawfully observes or hears;

by way of surreptitious audio recording of a voluntary conversation (even if the identity of one of the parties is unknown to the other), as long as one of the participants consents to the recording;

by way of unaided smelling in public or in private places when the officer is lawfully in that place;

by way of unaided visual observation or overhearing of people, things or activities;

12. Note that the question as to whether additional regulation or prohibition of surveillance activity or imposition of liability for such activity beyond that proposed in respect of law enforcement agencies in this paper was outside the scope of the terms of reference for the Law Commission’s Search and Surveillance project and is better considered as a part of the current wider review of privacy being undertaken by the Law Commission.

Hon Annette King
Minister of Justice

Date signed: