Flashcards in Electronic operations Deck (19):
A) Means any electronic, mechanical, electromagnetic, optical, or electro-optical instrument, apparatus, equipment, or other device that is used or is capable of being used to intercept or record a private communication
B) Does not include a hearing aid or similar device used to correct subnormal hearing of the user to no better than normal hearing
A) an interception device
B) a tracking device
C) a visual surveillance device
A) means a device that may be used to help ascertain, by electronic or other means, either:
(i) the location of a thing or a person
(ii) whether a thing has been opened, tampered with, or in some other way dealt with but
Does not include a vehicle or other means of transport such as a boat or helicopter
Visual surveillance device
(a) means any electronic, mechanical, electromagnetic, mechanical, electromagnetic, optical, or electro-optical instrument, apparatus, equipment, or other device that is used or is capable of being used to observe, or to observe and record, a private activity but;
(b) Does not include spectacles, contact lenses, or a similar device used to correct subnormal vision of the user to no better than normal vision
You cannot get a surveillence device warrant unless:
- Offence is 7+ yrs imprisonment
- Certain arms act offence
You need a surveillance device warrant to:
- use of an interception device to intercept a private communication
- use of a tracking device (except package tampering and no trespass)
- observation of private activity in private premises, and recording of
- use of a surveillance that involves trespass to land or goods
- observation of private activity in the curtilage of private premises that exceed 3hrs/24hrs OR 8 hrs in total
You don't need a surveillance device warrant if:
- You are lawfully on premises and only recording what you can observe/hear anyway (without enhancing)
- Recording audio of a voluntary conversation where one of the people has consented
- surveillance under any other enactment
Specific provision relating to drug offences in emergency situations
S48(2)(e) the enforcement officer has reasonable grounds -
(I) to suspect that and offence has been committed, or is being committed, or is about to be committed in relation to a controlled drug specified or described in schedules 1, part 1 of schedule 2 or part 1 of schedule 3 of MODA1975 or to a precursor substance specified or described in part 3 of schedule 4 of that act; and
(ii) to believe that use of the surveillance device would obtain evidential material in relation to the offence
If 48(2)(e) exists, what must you consider?
Whether you would be entitled to make an application for a surveillance warrant
BUT obtaining such a warrant within the time in which it is proposed to undertake the surveillance is impractical in the circumstances
How long can provisions in s48 be used for without a warrant?
Not more than 48 hours
What is private communication?
Means a communication (whether in oral or written form or in the form of a telecommunication or otherwise) made under circumstances that may reasonably be taken to indicate that any party to the communication desires it to be confined to the parties to the communication but
Does not include a communication of that kind occurring in circumstances in which any party to the communication ought reasonably to expect that the communication may be intercepted by some other person without having the express or implied consent of any party to do so
- observing, and any recording of that observation, of people, places, vehicles and things
- ascertaining (tracking) the location of a thing or person, and/or ascertaining whether a thing has been tampered with
- intercepting a private communication through the use of a "surveillance" device
Surveillance that involves unlawful entry onto private land. Legislation restricts the use of a visual surveillance device to obtaining evidential material for serious offences only.
Case law relating to alternate investigative techniques
R v McGinty - the evidence in the present case of continued heroin dealing, in respect of which the orthodox techniques such as searching premises and following vehicles has been tried without success, was sufficient. A judge was not required to refuse a warrant because the police had not exhausted every conceivable alternative technique of investigation
What are the criteria for issuing surveillance device warrants?
S51 - There are reasonable grounds (I) to suspect that an offence has been committed, or is being committed, or will be committed and (ii) to believe that the proposed use of the surveillance device will obtain information that is evidential material in respect of the offence and
(B) the restrictions in s45 do not prevent the issuing of a surveillance device warrant in the circumstances
Which case law relates to protection of CHIS identity?
R v McGinty - disclosure of the identity of alleged informants was not required under the act, and the trial judge was correct in deleting from the application certain parts which would have been likely to lead to the identification of informants. However, the trial judge was entitled to insist on disclosure if he saw fit.
What is an informer?
S64 evidence act 2006
(1) an informer has a privilege in respect of information that would disclose, or is likely to disclose, the informers identity.
(2) a person is an informer for the purpose of this section if the person-
(a) has supplied, gratuitously or for reward, information to an enforcement agency, or to a representative of an enforcement agency, concerning the possible or actual commission of an offence in circumstances in which the person has a reasonable expectation that his or her identity will not be disclosed and
(b) is not called as a witness by the prosecution to give evidence relating to that information
(2) an informer may be a member of the police working undercover
List 4 key activities the telephone investigator should undertake in the first 24 hours of a major operation
- trapping or pre loading phone data
- TSP liaison
- draft a production order application early
- no search warrant required for emergency situations