Search and surveillance powers modernised

Justice Minister Annette King says the Government has taken decisions on a comprehensive package of reforms relating to the exercise of search and surveillance powers by law enforcement agencies.

Speaking at a Sensible Sentencing Trust forum in Wellington, Ms King said: “The Law Commission has taken five years to produce the recommended reform package, and a Bill will be drafted and introduced to Parliament in due course. There are many problems with existing law. Core police powers are scattered around statutes, and many were enacted more than 50 years ago.

“Law has failed to keep pace with technology. For example, existing legislation sanctioning law enforcement use of interception and tracking devices is cumbersome and outdated, and is silent in relation to visual surveillance devices.”

Ms King said the Law Commission proposed comprehensive codification of the powers of police and other enforcement officers “designed to strike a balance between providing powers needed for effective law enforcement, and protecting individual freedoms through strict controls and procedural requirements.

“The Cabinet is satisfied that its decisions strike this appropriate balance. The new package will considerably assist law enforcement agencies but at the same time will offer fair protection to the public from the use of coercive police powers,” she said. Significant changes include:

· Reform of the law enforcement use of surveillance devices

· More explicit powers to search computers and seize electronic data

· The availability of production and monitoring orders and examination orders for law enforcement agencies

“The Law Commission described the present law as a mess. The Government has taken decisions to fix this mess. The law will be brought together in a single generic statute so everyone will know where to find it.

Ms King said the Government thanked the Law Commission for its work, and also many other agencies which had contributed much time and effort to reviewing the the large volume of law on this issue.

Contact: John Harvey (04) 471 9305; John Saunders (04) 470 6851.

Search and Surveillance Powers questions and answers

 

What is “evidential material” that can be obtained through search or surveillance?

 

“Evidential material” is:

* Something that tends to prove or disprove one of the elements of the offence;
* Any other item of relevance to the investigation of the specified offending.

 

What are the main changes proposed to applications for search warrants?

Written applications will be able to be transmitted to the issuing officer electronically and oral applications will be possible in certain urgent circumstances. The requirements as to the information to be included in an application for a search warrant will be specified in legislation.

 

What will be the standard for obtaining a search warrant?

Currently the threshold for obtaining a warrant varies between different search powers. The search and surveillance legislation will set out a single standard for all law enforcement search powers which will require enforcement officers to satisfy the issuing officer of the existence of two factors before a warrant will be issued:

a) reasonable grounds to suspect an offence has been, is being, or is about to be, committed; and

b) reasonable grounds to believe that the evidence sought is in the place to be searched.

 

Who will be able to issue search warrants?

At present a search warrant can be issued by Judges and by any Registrar, Deputy Registrar or Justice of the Peace regardless of training or experience. Under the new legislation search warrants will only be issued by Judges or authorized officers known as “issuing officers” (specially trained and appointed Registrars, JPs and other appropriate qualified and experienced people). These issuing officers will be available on a 24/7 basis.

 

What new powers are proposed for enforcement officers exercising search powers?

Several new provisions are proposed to complement existing law enforcement search powers. These include:

* A power for police officers to enter and search a place without a warrant where they reasonably believe that evidential material relating to an offence punishable by 14 years’ imprisonment or more will be found and where the delay caused by obtaining a warrant will result in the item being concealed, destroyed or impaired;
* A power for an enforcement officer to establish a crime scene and to give directions to people at the scene to ensure that evidential material is not concealed, destroyed or impaired while a search warrant is being obtained;
* A power for police and other enforcement officers carrying out searches of places or vehicles to detain a person who is at that place or vehicle or who arrives there during the search for a reasonable period while the search is undertaken to enable the officer to determine whether the person is connected with the offending being investigated;
* A power for an enforcement officer to copy any document or any part of it where that document may be lawfully seized;
* A power for an enforcement officer searching a place to take photographs or to record images or sounds in the place searched or of any thing found in the place searched where such photographs, images or recordings are reasonably believed to be relevant to any subsequent proceedings.

 

What protections and safeguards are proposed in terms of search powers?

There are a number of protections and safeguards proposed which include:

* Enforcement officers carrying out a search of premises when the occupier is absent will be required to provide notification of the search (there is currently no statutory obligation to do so with most search powers);
* Where items are seized as a result of the exercise of a search power, an inventory of the property taken should be promptly prepared and provided to the person concerned;
* A procedure will be included in the search and surveillance legislation to deal with privileged or confidential material or communications to ensure that such material or communications are appropriately protected from disclosure where they are discovered in a search or by surveillance;
* The search and surveillance legislation will contain provisions to deal with items seized pursuant to a search power to ensure, amongst other things, they can be retained for investigatory or evidential purposes, and are returned to the person entitled to possession at an appropriate time or disposed of where that is appropriate (such as where the item is unlawful).

 

What is a “consent search”?

Law enforcement officers often seek the consent of a person to conduct a search. At present, there is no clear guidance for either law enforcement officers or the public as to what constitutes a valid consent search. The amended law will make clear that enforcement officers should first have a valid law enforcement reason for undertaking a consent search and that they should advise the person whose consent is sought of the reason for it, and that the person may refuse consent.

 

What is a “plain view” seizure?

It is where a police officer may seize evidence of an offence that comes into view in the course of the lawful exercise of a search power even though seizure of the item is not authorized by the search power. For example, a police officer executing a search warrant for controlled drugs comes across property stolen in a burglary. The existing law would not authorise the officer to seize that property. It is proposed that plain view seizures should be permitted where the officer has jurisdiction to deal with the offences to which the seizure relates.

 

What about searches of computers and seizures of electronic data?

While the general search and seizure regime will apply to computers and electronic data, a number of specific amendments and extensions to search powers will be made to account for the differences between searches for and seizures of electronic data compared to other types of searches and things searched for. These will include:

* Specific powers for enforcement officers to access and copy material held on computers or data storage devices;
* The current provisions requiring certain persons with possession, control or other knowledge of a computer or computer system to assist with a search of a computer will be extended and strengthened to ensure enforcement officers have reasonable access to data they are legally authorized to search for and seize;
* Enforcement officers will be permitted to remotely access computer data in certain limited circumstances.

 

How will search and surveillance legislation deal with surveillance powers?

Developments in technology have resulted in specialized surveillance equipment being available to law enforcement agencies to assist the investigation of increasingly complex offending. The government considers that law enforcement agencies should be able to take advantage of these developments if the use of the equipment is properly authorized and regulated. The search and surveillance legislation will contain a regime which will include the following features to deal with the use of surveillance devices by law enforcement agencies:

· Except in some urgent situations (where a surveillance device will be able to be used for up to 72 hours without a warrant) a warrant to use such device will generally be required;

· Warrants will only be able to be issued by a District or High Court Judge;

· Warrants will have a maximum life of 90 days (although further subsequent applications will be possible);

· Warrants will authorise entry into premises and vehicles, if necessary, for the purposes of installing, maintaining or removing the surveillance device, and to use electricity to power the device;

· A warrant will not be necessary in certain circumstances such as where the surveillance activities will occur in public or in public parts of buildings or where they occur by way of unaided visual observation or overhearing of people, things or activities;

· Where surveillance powers are exercised the enforcement officer may be required to report to a Judge who will have powers to deal with material obtained, to report to the Chief Executive of the relevant law enforcement agency, and to require the subject of the surveillance to be notified of the surveillance in certain circumstances.

What is a production order?

A production order will be available to law enforcement officers to assist the investigation of any offence for which a search warrant could be obtained. Production orders will:

* Be issued by an issuing officer in the same manner as search warrants;
* Require the recipient to produce specified information or documents in their control that are evidential material relating to the offence being investigated either on a single occasion or on an on-going basis for a specified period;
* Will be available for a maximum period of 30 days;
* Be subject to the general framework (including procedural protections, immunities and other safeguards) proposed in respect of the application, issue and execution of search warrants.

 

What is an examination power?

An examination power is a power authorizing enforcement officers to require a person to answer questions. Such powers are not generally available to enforcement officers. Cabinet has decided that limited examination powers are required to assist the investigation and prosecution of complex offending, including serious organised crime and serious and complex fraud. There will be a power to examine persons with relevant knowledge obtained in a business context (such as in the course of providing professional services or advice about or in relation to a business structure or enterprise that is the subject of an investigation or any transaction of that structure or enterprise). The exercise of this power will require the prior authorisation of a District or High Court Judge. There will also be a power to examine persons with relevant knowledge obtained outside of the business context. Applications to use this power will need to be approved personally by the Commissioner of Police and Secretary for Justice as well as the use of the power having to be authorised by a District or High Court Judge. Before issuing an examination order the Judge will need to be satisfied, amongst other things, that it is reasonable for a compulsory examination to be conducted. The questions that enforcement officers will be able to ask will be limited to those that are relevant to the investigation of the suspected offending. The privilege against self-incrimination will also be available to any person who is questioned pursuant to an examination order.