Question 7 Flashcards
Restrictions on some trespass surveillance and use of interception device
Search and Surveillance Act 2012 Section 45
a) that is punishable by a term of imprisonment of 7 years or more; or
(b) against section 44, 44A, 45, 50, 50A, 50B, 50D, 51, 53A, 54, 54A, or 55 of the Arms Act 1983; or
(c) against section 25, 26, or 70 of the Psychoactive Substances Act 2013.
Activities for which surveillance device warrant required
Search and Surveillance Act 2012 Section 46
(a) use of an interception device to intercept a private communication:
(b) use of a tracking device, except where a tracking device is installed solely for the purpose of ascertaining whether a thing has been opened, tampered with, or in some other way dealt with, and the installation of the device does not involve trespass to land or trespass to goods:
(c) observation of private activity in private premises, and any recording of that observation, by means of a visual surveillance device:
(d) use of a surveillance device that involves trespass to land or trespass to goods:
(e) observation of private activity in the curtilage of private premises, and any recording of that observation, if any part of the observation or recording is by means of a visual surveillance device, and the duration of the observation, for the purposes of a single investigation, or a connected series of investigations, exceeds—
(i) 3 hours in any 24-hour period; or
(ii) 8 hours in total.
Activities that do not require a surveillance device warrant
Search and Surveillance Act 2012 Section 47
(a) the enforcement officer—
(i) being lawfully in private premises; and
(ii) recording what he or she observes or hears there (provided that the enforcement officer records only those matters that he or she could see or hear without the use of a surveillance device):
(b) covert audio recording of a voluntary oral communication between 2 or more persons made with the consent of at least 1 of them:
(d) activities carried out by the enforcement officer’s use of a surveillance device, if that use is authorised under any enactment other than this Act.
Surveillance without warrant in situations of emergency or urgency
Search and Surveillance Act 2012 Section 48
Is permitted only where the offence is:
• punishable by 14 years imprisonment or more
• an Arms Act 1983 offence
• a drug offence - sec 48(2)(e)
• likely to cause injury or serious property loss/damage and surveillance is necessary to prevent offending from being committed or continuing
• presenting risk to life and safety and surveillance is necessary as an emergency response.
Specific provisions relating to drug offences in situations of emergency
Search and Surveillance Act 2012 Section 48(2)(e)
the enforcement officer has reasonable grounds:
(i) to suspect that an offence has been committed, or is being committed, or is about to be committed in relation to a controlled drug specified or described in Schedule 1, Part 1 of Schedule 2, or Part 1 of Schedule 3 of the Misuse of Drugs Act 1975, 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:”
Criteria for issuing surveillance device warrant
Sec 51 Search and Surveillance Act 2012
(a) There are reasonable grounds—
(i) to suspect that an offence has been committed, or is being committed, or will be committed in respect of which this Act or any enactment specified in column 2 of the Schedule authorises the enforcement officer to apply for a warrant to enter premises for the purpose of obtaining evidence about the suspected offence; 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 section 45 do not prevent the issuing of a surveillance device warrant in the circumstances.
Admissibility of evidential material relevant to other offences
Search and Surveillance Act 2012 Section 57
Subsection (2) applies, if in the course of carrying out activities authorised by a surveillance device warrant or while lawfully using a surveillance device in relation to an offence, a person obtains any evidential material in relation to an offence-
(a) that is not the offence in respect of which the warrant was issued or in respect of which the surveillance device was lawfully put into use, as the case requires; but
(b) in respect of which a surveillance device warrant could have been issued or a surveillance device could have been lawfully used.
(2) The evidence material referred to in (1) is not inadmissible in criminal proceedings by reason only that the surveillance device warrant that authorised the activity that obtained the material was issued in respect of a different offence or, as the case requires, that the material was obtained from the use of a surveillance device that was put into use in respect of a different offence.
Reporting requirements
Section 59 of the Search and Surveillance Act 2012 sets out a requirement on the person who carries out the activities authorised by a surveillance device warrant to provide a written report to the issuing Judge, or a Judge of the same Court if that Judge is unable to act, within 1 month after the expiry of the period for which the warrant is in force. The information required to be contained in the report is detailed in section 59(2) of the Search and Surveillance Act 2012.
Surveillance Device
(a) an interception device:
(b) a tracking device:
(c) a visual surveillance device.
Interception Device
(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 (including a telecommunication); but
(b) does not include a hearing aid or similar device used to correct subnormal hearing of the user to no better than normal hearing.
Tracking surveillance device
(a) means a device that may be used to help ascertain, by electronic or other means, either or both of the following:
(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
(b) 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, 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.
private communication
Sec 3 Search and Surveillance Act 2012
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
(b)
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
