Crime Prevention Unit

Organised Crime

Office of the Minister of Justice
Cabinet Business Committee

LAW COMMISSION REPORT SEARCH AND SURVEILLANCE POWERS

Paper 7: Remedies and Immunities

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 deals with remedies for unlawful search and surveillance by enforcement agencies and the immunities of those who issue warrants or exercise search or surveillance powers or assist in their execution.

Executive Summary

2. At present several types of remedy may be available against enforcement officers who unlawfully exercise search and surveillance powers, including criminal proceedings, monetary compensation and exclusion of evidence. Remedies should continue to be developed by the courts, and not incorporated into statute. The immunities for those who authorise and exercise search and surveillance powers and those who assist in the exercise of those powers vary greatly. These should, as far as possible, be made consistent.

Background

3. Rights are often meaningless if there are no remedies for their breach. A range of remedies exist to ensure that breaches of a person’s rights are vindicated. Currently the criminal law prohibits certain interferences with privacy, such as intercepting private communications by an interception device (except in narrowly defined circumstances), trespass and harassment. An unlawful search or surveillance can be remedied through the award of monetary compensation by way of the torts of trespass, assault, battery, conversion and invasion of privacy. A court has the discretion to exclude unlawfully obtained evidence, and an interference with privacy that breaches section 21 of the New Zealand Bill of Rights Act 1990 (protecting people from unreasonable search and seizure) can also result in evidence being excluded. A threatened or on-going breach of privacy by enforcement officers can be restrained through an injunction, identified by declaration or result in an order for the return of unlawfully seized items.

4. Statutory and common law immunities protect an enforcement officer from civil or criminal liability while acting within the scope of his or her powers conferred by statute. There is wide variation in the terms of such statutory immunities. In relation to the judiciary, High Court and District Court judges enjoy complete civil and criminal immunity regardless of the nature and extent of the unlawfulness in question. Few statutory regimes deal with the legal position of those who assist in a search or surveillance or who analyse or examine seized items. In relation to the Crown, the Court of Appeal has held that where a police officer has personal immunity in tort and the Crown has vicarious immunity, the Crown may nonetheless be directly liable to pay compensation if the officer acted in breach of section 21 of the Bill of Rights Act.

Remedies

General approach

5. The Commission has recommended that remedies for unlawful acts arising from search or surveillance should continue to be developed by the courts and not incorporated into statute. I agree. The courts have demonstrated the willingness and ability to develop, tailor and apply remedies to meet the circumstances of the particular case by reference to the nature of the right, the seriousness and consequences of the breach and the existence of bad faith. Application of the courts’ common law powers and the Bill of Rights Act have allowed a systematic approach to the development of a range of remedies to vindicate citizens’ rights.

6. The Commission concluded that, as no one form of interference with privacy is necessarily more objectionable than another, the framework for the granting of remedies for unlawful search and surveillance should not differ depending on the type of law enforcement activity in issue. Given the common approach that the recommendations made in this suite of papers will achieve in a number of important respects (such as prerequisites to obtaining a warrant), courts should be able to achieve a reasonable degree of consistency where a remedy is sought for unlawful and/or unreasonable search or surveillance, irrespective of the type of state activity in question.

Repeal of provisions inconsistent with that approach

7. Consistent with that approach, it is recommended that section 312M of the Crimes Act 1961 and section 25 of the Misuse of Drugs Amendment Act 1978 be repealed. Subject to some minor exceptions, these enactments provide that evidence that has been obtained directly or indirectly through the unlawful interception of a private communication cannot be admitted at trial. When the interception (listening device regime) was introduced in 1978 it may have been seen as politically necessary to adopt a strict exclusionary approach. That approach is now anomalous. There is no principled argument in favour of an absolute exclusion of such evidence but not, for example, evidential material found during an illegal strip search of a person in public. The issue of admissibility of evidence obtained through unlawful interception should be determined by application of the general principles recognised by the Court of Appeal and the Evidence Act 2006 in balancing the consequences of exclusion of the evidence against the circumstances, in particular the seriousness, of the breach.

Use of criminal law to protect privacy

8. The issue of protection of privacy by creating criminal offences of general application to members of the public was beyond the terms of reference of the Search and Surveillance report. It is a difficult area that raises complex issues affecting the relations between private citizens. This topic is being considered as part of the wider privacy review currently being undertaken by the Commission and it would be premature to address it in this context.

9. Similarly, I am of the view that the question of whether a specific offence should be enacted for any enforcement officer knowingly disclosing information acquired through exercising a search power, except in the performance of the officer’s duty, should be considered as part of the wider privacy review. However, section 312K of the Crimes Act 1961 already makes it unlawful for any person to disclose intercepted private communications, other than in the performance of the person’s duty. Given that the greatest public concern may arise in the area of surveillance, I recommend that a similar offence be enacted in relation to any information acquired by the use of any surveillance device (which will replace the current interception regime). However, the maximum penalty, currently a maximum fine only of $500, should be increased to $10,000 in the case of an individual and $50,000 in the case of a corporation.

Challenges to warrants or orders

10. The validity of warrants or orders authorising the exercise of law enforcement powers may be challenged in court proceedings. Presently, the most common form of challenge arises in the course of criminal proceedings where the accused person seeks an order that the evidence obtained as a result of the execution of a process is inadmissible. Other less common forms of challenge can be made by the subject of a warrant or order applying for the judicial review of the issue of the process, or for a declaration that it was unlawfully issued. As the subject of a warrant or order is not heard by the judicial officer before it is issued, the opportunity to test its validity subsequently is a significant procedural safeguard.

11. It is nevertheless important that a challenge to the validity of the process is not able to be used to delay the execution of a warrant or order, thereby frustrating progress in the investigation. Accordingly, I propose that it be made clear that where there is a challenge to the issue of a warrant or order (whether by an application for judicial review or otherwise), the warrant or order may continue to be executed pending the final determination of the challenge.

Immunities

Justices of the Peace and other issuing officers

12. There are variations in the protections the law presently provides to officers who issue warrants. Judges enjoy complete immunity, whilst the protection of registrars who issue warrants is left to the common law. Justices of the Peace have statutory protection under section 173 of the Summary Proceedings Act 1957, unless they exceed their jurisdiction, or act without jurisdiction, a matter that can give rise to legal difficulty.

13. Challenges to the validity of warrants by defendants in criminal proceedings are not uncommon, especially where the execution of the warrant has resulted in the seizure of evidence that is critical to the prosecution. There are a number of reasons why the protection afforded to judges should be extended to JPs and others who issue warrants. Judicial immunity protects judicial independence. Further, exposing a JP or other issuing officers to liability has potentially adverse consequences. It could discourage some well qualified and suitable people from undertaking this important function and could result in an overly risk-averse approach from those issuing officers in considering and issuing warrants. Nor is it necessary for an aggrieved individual to be able to personally sue the issuing officer to challenge the decision to issue a warrant; other mechanisms (such as exclusion of evidence and judicial review) are available.

14. The Commission proposes that the level of oversight given to the issue of warrants be strengthened by ensuring that only specially trained and appointed Justices of the Peace and Registrars be authorised to perform that duty. It further recommended that the pool of issuing officers should be supplemented by the training and appointment of other suitably qualified people. The volume of warrant applications considered by issuing officers other than judges and their increased level of expertise has led the Commission to conclude that officers other than Judges who issue warrants should enjoy the same level of protection as Judges.

15. I agree, and propose that people appointed to issue warrants (authorised Justices of the Peace, Registrars and other suitably qualified people, as discussed in Paper 6: Clarification and Codification, paragraphs 16 to 19) should have the same immunities as judges in respect of the issuing of warrants and other orders authorising the exercise of search and surveillance powers.

Enforcement officers

16. Current legislation protects enforcement officers who exercise search powers in good faith from personal liability in three ways:

• when the officer is executing a warrant issued by a judicial officer (sections 26-29 of the Crimes Act 1961);

• by specific provision in the legislation that vests the officer with a particular search power;

• through generic provisions such as section 86 of the State Sector Act 1988 (employees protected for acts or omissions in good faith in intended pursuance of their powers or functions).

17. While existing provisions commonly require the officer to have acted in good faith, the level of protection and other prerequisites are expressed in a variety of different ways. The Commission also identified gaps in some provisions. The Commission proposed that a uniform and principled approach should be taken to questions of immunity and identified the features that should underpin the statutory protection afforded to enforcement officers exercising search or surveillance powers.

18. Where an enforcement officer exercises a power that has been authorised by a search or surveillance warrant, the officer should not be civilly or criminally liable if the warrant has been obtained and executed in good faith and in a reasonable manner – even if the judicial officer is found to have been in error in issuing it. The officer would remain liable if, in applying for the warrant, he or she knowingly provided false information, or if the authorised search is carried out in an unreasonable manner.

19. Where an enforcement officer exercises a warrantless search or surveillance power, the issues are more finely balanced. There will have been no prior independent judicial consideration and the decision to act will be the officer’s. Nonetheless, a broadly consistent approach to immunity should be applied to the exercise of both warrant and warrantless powers. I agree with the Commission’s recommendation that immunity should be available for acts done in good faith in exercising a warrantless power, if the prerequisites for the exercise of the power were satisfied and the power is exercised in a reasonable manner.

20. In view of the absence of a warrant, the law enforcement officer should be required to bear the onus of establishing the basis for the claim of immunity. If a criminal prosecution is brought against an officer arising from his or her exercise of a search or surveillance power, he or she should have to discharge an evidential onus to put in issue the reasonableness of his or her actions; in a civil suit the officer should bear the onus, on the balance of probabilities, of proving reasonableness.

Assistants

21. People who assist enforcement officers in the exercise of search and surveillance powers should be provided with protection from liability that recognises that they are removed from the principal responsibility for taking the enforcement action. This should extend to those who are asked to undertake tests on seized material and those who hand over material that they reasonably believe must be provided by virtue of a production order or falls within the ambit of a search power.

22. Some existing provisions extend the protection afforded enforcement officers to assistants who help with the exercise of the power, but a large number do not. There is no reason why a uniform approach should not be adopted regardless of the power being exercised or the type of assistance provided.

23. Accordingly, I recommend that people who assist with the exercise of the power should be immune from civil or criminal liability for acts done in good faith, whether they act under the direction of the enforcement officer or not. Those who undertake tests on seized items should be similarly protected for acts done in good faith, even if the item was unlawfully seized. Those who hand over material should be protected in respect of items they reasonably believe to be covered by the warrant or falling within the scope of the power. The immunity of those who assist should not be dependent on the immunity of the enforcement officer; they should be protected in their own right.

The Crown

24. At common law, the Crown is not directly liable in tort; it can only be sued vicariously as the employer of the primary wrongdoer. Where the wrongdoer has immunity, so has the Crown. In addition, section 6(5) of the Crown Proceedings Act 1950 provides that the Crown is not liable for the acts of those who execute judicial processes, such as a search warrant. However, in Simpson v Attorney-General (Baigent’s Case) the Court of Appeal held that notwithstanding that a police officer had personal immunity in executing the warrant (and thus the Crown was not vicariously liable), the Crown was nevertheless directly liable to pay compensation if the officer’s actions amounted to a breach of section 21 of the New Zealand Bill of Rights Act 1990.

25. The purpose of immunities is to strike a balance between the competing public policies of encouraging compliance with laws that limit the extent to which citizens should be subject to intrusion on their privacy and ensuring that enforcement officers are not dissuaded from exercising their powers for fear of facing criminal or civil action. That balancing exercise should not be determined by whether the ultimate liability lies with the Crown or the individual officer.

26. Accordingly, it is recommended that, where an enforcement officer has immunity in respect of his or her actions in applying for or executing a warrant or exercising a warrantless search or surveillance power, the Crown (which for these purposes includes any of the bodies employing enforcement officers who exercise search or surveillance powers) should have the same immunity, unless the Crown has acted unreasonably. For example, if the Crown has acted unreasonably in issuing instructions that an individual officer has followed, the Crown should nonetheless be held liable even if the individual officer has immunity. The proposed limits upon the Crown’s liability will not undermine remedies for a breach of the Bill of Rights Act, since those remedies only arise in the event of unreasonableness on the part of the Crown or its agents. The Crown Law Office has advised that the immunities discussed in relation to this final section of the paper will require scrutiny for Bill of Rights compliance when the draft legislation is vetted.

27. I do not propose any change to existing arrangements for indemnifying enforcement officers who are defendants in proceedings arising out of the course of their employment. In terms of Appendix 3 of the Cabinet Manual, where an officer is a defendant in civil proceedings, the Crown bears the expense of the officer’s defence. Where an officer is charged with a criminal offence, any claim for reimbursement of legal costs is considered by the officer’s chief executive.

Recommendations

I recommend that Cabinet Business Committee:

1. Agree that remedies for unlawful and unreasonable acts arising from the exercise of search and surveillance powers continue to be developed by the courts and not incorporated into statute;

2. Agree that section 312M of the Crimes Act 1961 and section 25 of the Misuse of Drugs Amendment Act 1978, providing for automatic exclusion of unlawfully intercepted communications, be repealed;

3. Note that the extent to which conduct that unreasonably interferes with privacy expectations ought to be criminalised is an issue that is to be considered as part of a wider review of privacy protection in New Zealand currently being undertaken by the Commission;

4. Agree that it should be an offence, punishable by a maximum fine of $10,000 in the case of an individual and $50,000 in the case of a corporation, to knowingly disclose information acquired from the exercise of a surveillance power, otherwise than in the performance of duty;

5. Agree that notwithstanding a challenge to the issue of a warrant or order (whether by an application for judicial review or otherwise), the warrant or order may continue to be executed pending the final determination of the challenge;

6. Agree that officers issuing search or surveillance warrants have the same immunities in respect of that function as judges;

7. Agree that an enforcement officer be immune from civil and criminal liability for acts done in good faith in obtaining a search or surveillance warrant, or in executing such warrant in a reasonable manner;

8. Agree that an enforcement officer be immune from civil and criminal liability for acts done in good faith in exercising a warrantless search or surveillance power where the prerequisites for the exercise of the power were satisfied, and the power is exercised in a reasonable manner;

9. Agree that in a criminal prosecution against an enforcement officer arising from his or her exercise of a search or surveillance power, the officer have an evidential burden as to the reasonableness of his or her actions, while in a civil case he or she should be required to prove reasonableness on the balance of probabilities;

10. Agree that a person who assists in exercising a search or surveillance power, or who examines or analyses any item seized, be immune from civil and criminal liability for all acts done in good faith in respect of his or her assistance, examination or analysis;

11. Agree that the proposed immunities replace all existing statutory immunities, in so far as they relate to the exercise of search and surveillance powers, for law enforcement officers and their assistants;

12. Agree that except where the Crown is found to have acted unreasonably, where an enforcement officer has immunity in respect of his or her actions in applying for or executing a search or surveillance warrant or exercising such a warrantless power, the Crown also have that immunity.

Hon Annette King
Minister of Justice

Date signed: