Introduction

Part 1: Are powers of entry and search necessary?

Part 2: Are the powers conferred justified, and have appropriate safeguards been included?

Background

Substantial consideration has been given to the principles which should govern and the practice which should apply to powers of entry and search. Section 21 of the New Zealand Bill of Rights Act 1990 gives everyone the right to be protected against unreasonable search or seizure of the person, of property or of correspondence. Section 21 reflects New Zealand's international obligations (A17 International Covenant on Civil and Political Rights) as well as provisions in other international instruments such as Article 8 of the European Convention on Human Rights.

The Court of Appeal has described a s 21 inquiry as "an exercise in balancing legitimate state interests against any intrusions on individual interests. It requires weighing relevant values and public interests." (R v Grayson & Taylor [1997] 1 NZLR 399 at 407.) A similar inquiry should be adopted in determining when legislation should confer a power of entry and search and the legislative safeguards applicable to any such power. The principles enunciated and recommendations made by both the Public Administrative Law Reform Committee and the Search and Search Warrants Committee in the 1980's assist in this exercise. Those principles are summarised in the guidelines below.

Issues discussed

The following issues are discussed in this chapter:

Part 1: Are powers of entry and search necessary?

Part 2: Are the powers conferred justified?

An initial question is what constitutes a search. A related question is what is a seizure. The issues arise because, except where an entry on to property or search is by consent or is authorised under a statute or under the common law, it is unlawful and an actionable trespass (Grayson & Taylor).

A search includes an examination of a person or property and a seizure is the taking of that which is discovered. If it is intended that such powers be exercised, it will generally be necessary to provide for that in legislation.

Consideration also needs to be given to whether electronic surveillance, video recording, long distance photography and noise detection constitute a search and require legislative authorisation. The court decisions leave some doubts on these issues. Both participant surveillance (R v A [1994] 1 NZLR 429) and video surveillance (R v Gardiner (1997) 2 HRNZ 12) have been held to be lawful activities since there is nothing which expressly forbids them and nothing which requires permission to be given (outside of the situations described in Part XIA Crimes Act 1961 and Part II of the Misuse of Drugs Act 1978).

It may be preferable to legislate where it is intended that any powers will be exercised which may be regarded as powers of search or seizure, to avoid any doubts as to lawfulness.

Some activities are so invasive and can be so destructive of individual liberty (for example, the taking of blood samples as dealt with under the Criminal Investigations (Blood Samples) Act 1995) that a detailed procedure should be required by the statutory provisions which empower the intrusion.

Any search and entry is "an invasion of property rights and intrusion on privacy. It may also involve a restraint on individual liberty and an affront to dignity. Any search is a significant invasion of individual freedom." (Grayson & Taylor p407). However, it is also clear that there may be other values and interests, including law enforcement considerations, which justify a statutory power of entry and search. The issues here are when such powers are justified and in what terms should the legislation confer these powers.

Essentially what is required is a balancing of the relevant interests. The values that may be relevant are an individual's property rights, privacy interests and individual liberty on the one side, with law enforcement considerations on the other. Privacy values are those held by the wider community and not the subjective values held by the individual in question. Reasonable expectations of privacy may be affected by whether the activity is taking place in a public or private place, in the home or in the surrounding land, and the nature of the activity. The guidelines below identify how the balance should be struck and the desirable form of legislation conferring such powers.

When should powers of entry on to private property be conferred?

• Only if it is essential to achieve a purpose of the Act concerned.

How should powers of entry be expressed?

• A power to enter should be conferred expressly (in the "plainest" terms - Choudry v Attorney-General [1999] 2 NZLR 587).

• The purpose that justifies an entry should be expressed in terms that are as precise as the subject matter permits.

• The grounds for an entry should be objective not subjective.

When should a warrant be required?

• Every search should be by consent or under a warrant unless there are compelling reasons to the contrary.

• All searches of dwelling houses should be by consent or under a warrant.

General warrants should be avoided

• The Court of Appeal in Bill of Rights cases has affirmed the law's aversion to general warrants. Warrants should not be able to be used to authorise fishing expeditions.

Principles relating to warrants

When a warrant is required and there is a belief that an offence has been committed, -

• the warrant should be issued only after independent judicial consideration of the application;

• an applications for a warrant should be made in writing and on oath;

• persons applying for a warrant should disclose previous applications made in respect of the same matter;

• a warrant should be issued only if there is reasonable ground for believing that an imprisonable offence has been committed or is intended to be committed or where a power of search under a warrant is given by any Act in relation to a non-imprisonable offence;

• the person or persons who are to execute the warrant should be specified by the authority issuing the warrant;

• the issuer of a warrant should be empowered to impose reasonable conditions on the execution of the warrant;

• the warrant should authorise entry for search and seizure on only one occasion at a time reasonable in the circumstances within a determined period from its issue;

• persons executing the warrant should have it with them and produce it upon initial entry and response to any reasonable request thereafter;

• persons executing the warrant should be permitted to have such assistance as is reasonable in the circumstances;

• persons executing the warrant should be permitted to use such force as is reasonable in the circumstances;

• persons executing the warrant should be permitted, on reasonable grounds, to search persons present when the warrant is executed;

• persons executing the warrant should be empowered to search for and seize anything specified in the warrant;

• persons executing the warrant should be empowered to seize anything else seen that is evidence of an offence for which such a person could have obtained a warrant;

• information provided to support an application for a warrant should be made available only if a Judge orders.

Principles relating to searches

• Where the owner or occupier of the place or thing searched is not present at the time the search is made then that person should be informed promptly of the search unless a Judge, on application, orders otherwise.

• Persons who have searched a place or thing should provide the owner or occupier with a schedule of any items seized, indicating the place from where they were taken and where they are held unless a Judge, on application, orders otherwise.

Evidence

• Evidence obtained in breach of the statutory rules of search and seizure should normally be inadmissible.

Other principles relating to searches

In all other cases ie whether or not there is a threshold requirement of reasonable belief that an offence has been committed, the following principles apply:

• The power shall be exercised only at a time which is reasonable in all the circumstances.

• Persons authorised to exercise such a power shall produce a means of identification and shall also give notice of the legal source of the power being relied upon before the power is exercised and also in response to any reasonable subsequent request.

• The power shall be exercised in a manner that is reasonable in all the circumstances, having regard to the terms and purpose of the power.

• A power to use force should not be given unless its absence would frustrate the purpose of the entry.

• In any case where the owner or occupier against whom the power is used is absent at the time the power is exercised, a notice must be left at the scene informing that person that the power has been exercised, unless a Judge subsequently confirms that the requirement can be waived because such a notice would unduly prejudice subsequent enforcement activity.

• The relationship between the privilege against self-incrimination and an official's power to ask questions should be clarified in respect of each separate power, preferably by expressly affirming the privilege.

• Where, consequent upon a power of entry, individuals are required to carry out work or pay for its completion, they should be entitled to challenge the need for the work, and the cost of it, in the courts.

• Where an enactment provides for compensation for damage occasioned by entry, and the amount of that compensation is assessed by a-Minister or official, then, in case of dispute, the amount should be determined by an independent tribunal or court.

• Within seven days of seizure an inventory of things seized should be supplied to the person from whom the things were seized, unless a Judge orders otherwise because of exceptional circumstances.

• As a general rule, any thing or information obtained in breach of these principles should be inadmissible in evidence.

The Search and Search Warrant Committee in addition recommended generally:

• A constable should be able to search without a warrant a person who has been arrested and things that person has readily to hand where that is prudent.

• Consensual searches should be recognised.

• A person from whom property has been seized, or who claims to be entitled to it, should be able to apply to the court at any time for the immediate return of the property, subject to such conditions as the court may impose.

Where there needs to be a deviation from any of these principles there should be clear and principled reasons for doing so, which should be set out in supporting documentation.