Surveillance

Question 1

What is surveillance?

Answer 1

Police surveillance is planned and directed activity, either open or covert, and for the purpose of:

• Observing, and any recording of that observation, of people, vehicles, places and things.
• Ascertaining (tracking) the location of a thing or person, or whether a thing has been interfered or tampered with.
• Intercepting a private communication.

Question 2

What is a surveillance device?

Answer 2

A device which assists and enhances your normal capabilities to carry out the surveillance.

• A visual surveillance device.
• An interception device.
• A tracking device.

Question 3

What is a visual surveillance device?

Answer 3

Visual surveillance device-

(a) means any electronic, mechanical, electromagnetic, optical, or electro-optical instrument, apparatus, equipment, or other device that is used 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.

Question 4

Define interception device.

Answer 4

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; 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.

Question 5

Define a tracking device.

Answer 5

Tracking device:

(a) A device that may be used to help ascertain, by electronic or other means:
(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.

Question 6

Define private premises.

Answer 6

A private dwellinghouse, a marae, and any other premises that are not within the definition of non-private premises.

Question 7

Define non private premises

Answer 7

Premises or part of a premises to which members of the public are frequently permitted to have access to, and includes any part of a hospital, bus/railway station, airport or shop

Note: not all parts of hospitals, bus stations etc are non private premises. Areas that would be considered private are:

Hospital: theatres, consultation rooms.

Railway station: office area, staff meal rooms.

Question 8

Define private activity.

Answer 8

Activity that, in the circumstances, any one or more of the participants in it ought reasonably to expect is observed or recorded by no one except the participants.

‘Ought reasonably to expect’ is an objective test and where private activities occur is of key importance.

Question 9

Define private communication.

Answer 9

• Communication (oral, written, or telecommunication) in circumstances that indicates that any party in the communication desires it to be confined to them; but
• Does not include a communication in circumstances in which any party 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.

Question 10

Define Trespass surveillance (S45)

Answer 10

Surveillance is unlawful if it involves trespass on land or goods.

Except if it is collecting evidential material relating to a serious offence of 7 years imprisonment or more.

Question 11

Define Curtilage.

Answer 11

The land immediately surrounding a house or dwelling, including any closely associated buildings and structures, but excluding any associated open fields beyond.

It defines the boundary within which a home owner can have a reasonable expectation of privacy and where ‘common daily activities’ take place.

Question 12

Surveillance work is inherently risky. How are surveillance risks mitigated?

Answer 12

Risks are identified, assessed and considered in planning before surveillance is executed.

TENR

Threat
Exposure
Necessity
Response

Question 13

S46 - When is a surveillance device warrant required?

Answer 13

• Interception device for private communication
• Tracking device (except a tampering device and where no trespass is required)
• Surveillance requiring trespass
• Observe and record private activity in private premises by visual surveillance device
• Observe and record by visual surveillance device private activity in the cartilage of private property and duration exceeds
  ~ more than 3 hours in 24 hours
  ~ more than 8 hours total

Question 14

Section 47 SASA 2012

Activities not requiring a surveillance device warrant

Answer 14

• Officer lawfully in private premise and recording what they hear and observe (no surveillance device)
• Covert recording of private communication with consent of one party involved in the communication
• Activities carried out by use of Surveillance device is authorised under any enactment
• Recording activity in the curtilage of private property < 3 hours in 24 hours or < 8 hours total

Question 15

Section 48 SASA 2012

Emergency Surveillance Device without warrant

Answer 15

Offences
- 14 years plus AND RGTB EM obtained
- Arms Act to facilitate seizure of arms
- Drug offence AND RGTB EM obtained
- Likely serious injury or damage to property and surveillance to prevent offending
- Risk to life and safety of persons and surveillance required for emergency response

Question 16

Time limit for emergency surveillance without warrant

Answer 16

48 hours

Question 17

What is the definition of goods?

Answer 17

Chattels, vehicles, and other tangible belongings.

Question 18

What does one need to be aware of when considering where private activity may occur?

Answer 18

That private activity may occur in places that do not fit the definition of private premises.

Question 19

What is the offence threshold for an interception device?

Answer 19

The offence must be a ‘serious offence’:

• An offence punishable by 7 years imprisonment or more.
• Identified Arms Act 1983 offences.
• Identified Psychoactive Substances Act 2013 offences.

Question 20

Define interception.

Answer 20

Includes hear, listen to, record, monitor, acquire or receive the communication either:

• when it is taking place; or
• while it is in transit.

Question 21

Define voluntary oral communication.

Answer 21

Communication between one or more persons where at least one party in the communication gives their consent for the communication to be recorded.

(Section 47).

Question 22

What is the threshold for a surveillance device warrant authorising the use of a tracking device?

Answer 22

Any offence punishable by imprisonment.

Question 23

What are the two key ingredients that must exist for any situation to be recognised as one of urgency or emergency

Answer 23

1. ‘Entitled to apply’:

• You would be entitled to apply to make an application for a surveillance device warrant as the situation is one of serious criminal activity.

2. ‘Impractical in the circumstances’:

• You need to use a device urgently as it is not immediately practicable to obtain a surveillance device warrant.

Question 24

Who should approve the use of S48 powers and what are the exceptions?

Answer 24

Approval to use an interception device in an emergency situation should be obtained from a DI unless:

• The immediacy of the situation does not allow for prior planning and approval from a DI in consultation with legal services; and
• The statutory criteria is met; and
• An opportunity to obtain evidential material that would otherwise be lost if not taken at the time.

Question 25

What are the reporting requirements for using S48? (S60)

Answer 25

The enforcement officer must provide notification (report in the S+S system) to a judge within 1 month after the date of the last day of any period of 48 hours or less over which the surveillance device was used.

Question 26

How long can a surveillance device warrant be issued for?

Answer 26

A surveillance device warrant may be issued for a period of no more than 60 days after the date which the warrant is issued, and is in force for that period. There is no warrant renewal procedure under the act. To extend the period of 60 days or the lesser period for which the warrant is valid, a new application for a surveillance device warrant is required.