24 October 2007

"Please step out of your vehicle so I can snap a photo..."

> CampbellLive: "Police defend Ruatoki roadblocks" The question of whether the Police had any power to photograph people stopped at road blocks in the big "terrorism" raid is interesting. My intuitive response was like many commentators: first, there is no express power to do so and therefore the action is unlawful; secondly, although consent would authorise the action, factually it's unlikely that real consent was present (the actions are generally tacitly coercive). However, I now wonder if it's more complicated than that. The relevant section is section 314C of the Crimes Act 1961:
s314C Powers incidental to stopping vehicles under section 314B (1) This section applies whenever a vehicle is stopped under section (2) Any member of the Police may do either or both of the following: (a) Require any person in or on the vehicle to state his or her name, address, and date of birth, or such of those particulars as the member of the Police may specify: (b) Require that the vehicle remain stopped for as long as is reasonably necessary to enable a statutory search power to be exercised. (3) This section does not limit or affect the exercise of any other power, whether express or implied, that is incidental to the applicable statutory search power.

(Section 314B provides a power to stop vehicles for the purpose of an authorise search.) Now, it's clear that there is no express authorisation to photograph in this context. But that might not be the end of the matter. There is High Court authority that has held that officers can rely on implied ancillary powers to authorise coercive action. In Jaffe v Bradshaw (1998) 16 CRNZ 122 the High Court ruled that the Serious Fraud Office was entitled to require interviews with interviewees to be videotaped, even though there was no express legislative power authorising the action. I must say I have some difficulties with the decision in Jaffe (a research student I am supervising is presently writing a paper on these issues) but it presently stands as a precedent for this approach. Adopting this approach though, it is arguable that the statutory scheme is capable of being read so as to implicitly authorise the taking of photographs for identification purposes. Section 314C is directed at identification of people stopped and photographing is related to this purpose. Further, section 314C(3) specifically addresses implied powers - expressly leaving them open to implication. (The counter argument might be that s314C addresses ancillary powers to s314B powers and it's contrary to the scheme of the legislation to imply further ancillary powers from the ancillary powers in s314C. That is, s314C(3) is directed at the implication of ancillary powers from the primary search power in s34B.) On the basis of the Jaffe case, an implied power to photograph appears open to argument (but I'm not saying that that necessarily means that the power will necessarily be found - the interpretative outcome is not clear). Of course, even if the power exists, it would be subject to limits - most obviously the requirement that it be exercised reasonably; but that's a different point.

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Course Outline

Lord Justice Lawton in Maxwell v Department of Trade and Industry [1974] 2 All ER 122 said:

"From time to time ... lawyers and judges have tried to define what constitutes fairness. Like defining an elephant, it is not easy to do, although fairness in practice has the elephantine quality of being easy to recognise. As a result of these efforts a word in common usage has acquired the trappings of legalism: 'acting fairly' has become 'acting in accordance with the rules of natural justice', and on occasion has been dressed up with Latin tags. This phrase in my opinion serves no useful purpose and in recent years it has encouraged lawyers to try to put those who hold inquiries into legal straitjackets.... For the purposes of my judgment I intend to ask myself this simple question: did the [decision-maker] act fairly towards the plaintiff?"

This course examines the elephantine concept of fairness in the law, along with other contemporary legal issues.

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