On why the deal on Police covert video surveillance is a travesty

protest against the Video Camera Surveillance Bill – photo by Anne Russell
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At Saturday’s protest against the bill in Wellington. Photo by Anne Russell.

So a cosy deal has been reached between National and Labour on the shape of the interim legislation governing the Police use of covert video surveillance.

The retrospective part of the government’s proposed Video Camera Surveillance Bill has been dropped. That’s the bit that would have meant that illegal Police covert surveillance would be deemed legal in all of the Police investigations currently underway or in the cases now before the courts.

However, that’s a concession without consequences – because simultaneously, it has been decided that anyone already convicted on the basis of illegally obtained covert video surveillance evidence will be unable to cite that illegality as grounds for appealing their conviction.

In future, it will be left to the courts to use the powers it always had under section 30 of the Evidence Act to weigh whether such covertly obtained video evidence is admissible. The sunset clause in the amended interim Bill will now be six months, instead of one year. By that time, the government will need to have passed into law its omnibus Search and Surveillance Bill, which will formally establish the surveillance powers of the Police and other agencies, on very much the same basis.

In the meantime, the Police will be able to resume its covert video surveillance, and the courts will ultimately decide whether such activities were justified, and whether the evidence is admissible.

Last week, Professor Andrew Geddis of the law faculty at Otago University lucidly summarised the extent to which the Crown Law Office had overstated the problem that the recent Supreme Court decision had created for the Police.

Yes, the Supreme Court did find – as most people would hope – that covert video surveillance cameras planted by Police on private property in the course of executing a search warrant was illegal. As Geddis points out, it is quite a stretch to then read into the Supreme Court judgement the dire conclusions that the Crown Law Office put in its explanatory note to the interim Bill eg.

b) all covert video camera surveillance, including use of “over the fence” covert video camera surveillance (ie, non-trespassory surveillance, for example, by filming private activity from public land or from private property with the consent of the owner), is also likely to be held to be unlawful:
(c) if video camera surveillance is unlawful, it is likely to be found to be unreasonable and in breach of section 21 of the New Zealand Bill of Rights Act 1990. Any evidence obtained is at high risk of being held to be inadmissible:
(d) this will jeopardise both current prosecutions in cases already before the courts and ongoing investigations by the Police and other law enforcement agencies.

Well, no. None of the above follows, and the deal that Labour and National have reached proves it.

What has been agreed is that covert video surveillance by Police on private property will be judged as a trespass and will probably be rejected by the courts on Bill of Rights grounds, and/or under the s30 provision of the Evidence Act. However, the courts will retain discretion and presumably in cases where the severity of the offence and/or the weight of other evidence has been taken into account, it could still allow even the evidence gained by such means to be put before the court.

Contrary to the Crown Law Office’s leaps of logic, there is also no reason for thinking that evidence obtained by covert video surveillance in a public place, or via non-trespassory means ( eg by cameras pointed over the garden fence of an adjacent property) would be ruled out in future.

The claims that the Police and government were taken by surprise by the Supreme Court decision – and the suggestions by politicians that this was some aberrant, nit picking decision reached by the Court – should be rejected outright. As Geddis points out, the courts had never given the Police any reason to believe that such actions were legal – and in fact, in a separate decision last year, had given the Police good reason to believe that their actions were probably illegal.

There was no reason for the Police to feel ambushed, or surprised. If anything, it was the Court of Appeal decision last year (that the Supreme Court overturned) that was the outlier. The government has done itself (and its relationship with the courts) no favours by signalling its preference for the Court of Appeal position.

And what of the wondrous numbers quoted by Prime Minister John Key that 40 police cases and 50 police operations had been placed in jeopardy by the Supreme Court decision? Those numbers were never confirmed, not even by the police before the select committee. To Labour’s Charles Chauvel, Key’s numbers were an attempt to bully Labour into supporting the original interim Bill. As Greens MP Keith Locke argued in his minority report, it is actually quite rare for Police to use evidence gained from covert video surveillance in the ways legitimised by this legislation.

Meanwhile, the privacy rights of innocent third parties caught up in such surveillance remains something of a grey area – but again, this would presumably be weighed by the courts against any greater good arguably being achieved.

Leaving aside the content… the damage done by the rushed process to any residual respect the public might have for Parliament is another matter entirely. As Keith Locke said last Saturday during a protest march against the interim legislation, he received the proposed Bill at 5.15 pm, 45 minutes before being expected to speak on its contents.

Similarly, the people wishing to make submissions on the Bill were expected to get hold of a copy of the Bill, analyse it, write up their response and be ready to appear before the committee by 9am the following morning.

Locke succinctly explained to Scoop the reasons for feeling outraged at this Parliamentary travesty:

“At no point have specific examples been given of why they [the police] need this Bill. Not a single example. We have been told there are a number of cases using video surveillance. We have not been told of how many are using covert video surveillance involving trespass [even though] the whole issue in relation to this Bill is around video surveillance involving trespass.

“It’s a Bill without any explicit justification, other than the Police saying ‘We’ve broken the law. We’ve got some operations under way. We won’t give you any details. We won’t give you any justification. We just want the powers of Parliament to overthrow this decision of the Supreme Court – and retrospectively, to prevent anyone from bringing as part of an appeal, the fact that they’ve been spied on illegally prior to the passage of this Bill.’”


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