21 September 2011

Covert surveillance: if it ain't unlawful then it's lawful?

A quick comment on one point arising from the debate about covert video surveillance.

The Police, Police Union and some others are peddling a line that the retrospective validating legislation is justified because of previous uncertainty about whether covert video surveillance was authorised or not.

They admit covert surveillance wasn’t expressly authorised but argue they could rely on the fact it wasn’t illegal .  If it wasn’t unlawful then, they say, like ordinary people, the Police were entitled to engage in the activity.  But this was turned on its head, they say, by the Supreme Court decision in the Urewera case.


Let me explain briefly.

First, we need to differentiate between the two modes of video surveillance: trespassory and non trespassory.  It’s a distinction drawn in the Law Commission report on surveillance and is usually understood to raise different legal issues.

Trespassory surveillance involves entering private property, without permission from the occupier, to undertake covert filming.  Think breaking into your house and installing a hidden camera in your lounge.

Non-trespassory surveillance involves engaging in covert filming from public property or, with consent of the occupier, from private property.  Think a stake-out with telescopic cameras peering into the house opposite or a hidden camera installed on a power pole tracking movements into and out of a house.

And let’s acknowledge here that the surveillance in the Urewera case was all trespassory.  The surveillance in question all involved the Police entering private property without permission of the occupier.

So, for trespassory surveillance, let’s test the Police’s proposition -- as put by Assistant Commissioner Malcolm Burgess in the NZ Herald today -- that "Police acted on the common law assumption that if our actions were not forbidden by the law, they were therefore lawful."

Now, let’s assume this common law presumption has some legal foundation.  (It’s actually quite controversial, and a point judges disagreed about in the Urewera case and an earlier case, Ngan v The Queen [2007] NZSC 105. But let’s be benevolent and accept that it’s a fair account.)

Hmmm.   Spot the problem?

By definition, trespassory surveillance involves a breach of the common law – it is necessarily unlawful because it involves a trespass!

To avoid trespassing and breaching the law, the Police need to either obtain the consent of the occupier (unlikely here) or be authorised by law to enter that property.  Hence, the usual need to obtain a search warrant – this provides the legal trump which negates the trespass.

If you don’t believe me, let’s go back to the words of Lord Camden CJ from 1975.  Entick v Carrington 
(1765) 19 St Tr 1030 is one of the most famous legal cases – one of the first cases taught each year in both Public Law and Tort Law.  He said:
“By the laws of England, every invasion of private property, be it ever so minute is a trespass. No man can set his foot upon my ground without my licence, but he is liable to an action, though the damage be nothing. … If he admits the fact, he is bound to shew by way of justification, that some positive law has empowered or excused him. The justification is submitted to the judges, who are to look into the books; and see if such a justification can be maintained by the text of the statute law, or by the principles of common law. If no such excuse can be found or produced, the silence of the books is an authority against the defendant, and the plaintiff must have judgment. According to this reasoning, it is now incumbent upon the defendants to shew the law, by which this seizure is warranted. If that cannot be done, it is a trespass.”
In other words, if agents of the state enter private property, they must demonstrate that their entry was authorised by statute law or the common law.  If it is not, it is a trespass and therefore unlawful.

Really quite simple and straight-forward. And known and understood for years.  Centuries, in fact.  And, indeed, this passage was recently adopted and re-endorsed by the Supreme Court in Ngan v The Queen [2007] NZSC 105.

Just to recap.  All the covert video surveillance in the Urewera case involved trespassory surveillance.  In the absence of any legal authorisation (because Parliament had not provided any power or mechanisms to authorise such entry and conduct), it was inevitable that covert video surveillance would be found to be unlawful.  Hence the key focus in the case about whether the illegally obtained evidence should be admitted regardless.

Now, non-trespassory surveillance is a different kettle of fish – it isn’t inherently unlawful because there is no trespass at common law.  Here, a claim about uncertainty or lack of clarity gets some traction.  As the Law Commission explained:
“11.25 There has been little case law to date on the impact of section 21 of the Bill of Rights Act on non-trespassory surveillance. The Court of Appeal has even refrained from expressing a definitive view on whether or not non-trespassory audio and visual surveillance amount to searches or seizures for section 21 purposes. Moreover, the Court has resisted calls from defence counsel (based on European and Canadian precedents) to use section 21 as the source of a principle that non-trespassory surveillance that is not specifically authorised by statute must necessarily be unlawful. Rather, in the absence of statutory regulation, the Court has preferred to adopt a case‑by‑case assessment of reasonableness under section 21.”
Covert surveillance was ruled lawful in two cases: Gardiner (visual surveillance, using a long lens video camera positioned in a neighbouring property and trained on a room of the target premises) and Fraser (placing the external door of a house under video surveillance, when the area could be observed by the naked eye, from neighbouring properties).  But, notably, both cases were non-trespassory.

Now, to repeat, the ruling in the Urewera case related to trespassory surveillance only.  Any implications for other cases will similarly be restricted to cases involving trespasssory surveillance.  But there’s been no doubt, I think, about the legal position on that point.  Certainly, the Police – when trespassing -- can’t just claim that if it ain’t prohibited, then it’s lawful for us to do it.

Whether or not the Urewera case has any implications for non-trespassory surveillance is less clear.  At best, any implications can only arise by way of obiter (tentative expression of opinion, rather than a definitive ruling).  At least one judge seemed to suggest the distinction between trespassory and non-trespassory should be collapsed, and a higher standard imposed for non-trespassory surveillance.  But I’m not sure that that obiter comment received majority support.

And, in any event, for non-trespassory surveillance, it’s fair to say the value-judgement about whether any unlawfully obtained evidence should still be admitted will usually be different.  If the actions of criminals were readily observable from public spaces or neighbouring property, then the extent of the violation of their privacy interests and other rights will be much less – meaning it is usually less likely the evidence will be excluded.

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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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