Covert video surveillance and the (c)overt erosion of the Rule of Law

The government has just announced that, following the Supreme Court’s ruling in the Urewera case that unlawful covert video surveillance is inadmissible in criminal cases (at least in relation to some charges), it intends to pass legislation under urgency to authorise covert video surveillance by the police.

The legislation is slated to authorise future surveillance -- temporarily, until comprehensive legislation addressing this and other search issues is passed next year. But it will also apply retrospectively, making unlawfully obtained evidence already obtained admissible in court, except in the Urewera case itself. In other words, the government is seeking to overturn the effect of the Supreme Court ruling by legislative decree, for both past and future cases.

This move is egregious for many reasons:

- First, retrospective validation of unlawfulness here undermines the Rule of Law. It does not fall within the narrow range of situations where this type of validation is benign. Indeed, it is particularly pernicious because it interferes in the criminal domain, leading to people being convicted in circumstances in which they otherwise wouldn’t be found guilty.

- Secondly, the basis for retrospective validation is feeble. This is not a situation of tweaking the law to reflect Parliament’s original intent or to ensure the law conforms with people’s reasonable understanding of the law. There was no legal basis for covert video surveillance, the Police were aware that covert video surveillance was not legally authorised, but they proceeded anyway. Most of the discussion in the Supreme Court case concerned whether the unlawfully obtained evidence should be admitted regardless, with little or no doubt about the fact that covert video surveillance itself was not authorised. This is not a surprise ruling which has been sprung on an unaware police force.

- Thirdly, claims about the implications about the ruling on other cases are, I think, overstated. While the government claims there may be around 40 current cases which will be prejudiced by the ruling, the Supreme Court’s decision is relatively nuanced and will allow for the admission of the unlawfully obtained evidence in serious cases. Whether unlawfully obtained evidence is excluded turns of a number of factors, which, amongst other things, includes an assessment of the proportionality between the nature and extent of police impropriety and the seriousness of the alleged offences. Indeed, the Supreme Court in the Urewera case ruled that the illegally obtained covert evidence could be admitted in relation to the more serious charges of “participation in an organised criminal group” – just not in relation to the lesser Arms Act charges.

- Finally, the legislation is set to be passed via a bad process – urgency once again. Retrospective legislation affecting fundamental rights and the criminal process is being passed without a public submission process. The public and learned groups should be able to carefully scrutinise and directly challenge the move while it passes through the parliamentary process.

The Urewera case: R v Hamed
Some brief background.

Earlier this month the Supreme Court determined appeals relating to the admissibility of covert video surveillance in the Urewera18 prosecutions (R v Hamed [2011] NZSC 101). Rather dramatically, the Supreme Court ruled that such evidence was inadmissible in relation to 14 of the accused (those facing the less serious Arms Act charges), leading to the charges being withdrawn. However, the evidence was ruled admissible in relation to the four accused facing the more serious charges of “participation in an organised criminal group”. The key evidence in dispute was “film obtained from motion-activated hidden cameras placed by the police over a number of months on the Tuhoe-owned lands in the areas where the [military-style] exercises were expected to be held”.

The Supreme Court decision is rather long, with five separate judgments which agree and disagree on various technical points and the overall evaluative judgement about admissibility. But for present purposes the gist of the decision is clear.

Covert video surveillance was not and is not authorised by legislation. Search warrants obtained by the police under s 198 of the Summary Proceedings Act 1957 only authorised other types of search and seizure, not covert video surveillance. Indeed, although the police alerted the issuing judge to their intention to engage in such video surveillance, they did not seek search warrants for that purpose. The officer in charge of the case gave evidence that at the time they were aware that s 198 did not provide legislative authority to engage in covert video surveillance.

All members of the Supreme Court agreed the covert video surveillance was unlawful and was not authorised by any search warrants. On the latter point, the Supreme Court disagreed with the Court of Appeal (the Court of Appeal had assumed that search warrants couldn’t be obtained for covert video surveillance but took the view that video surveillance was incidental to search warrants obtained for other investigative steps and therefore was lawful). As a consequence the video evidence was obtained unlawfully because it was obtained via trespass without any legal authorisation and also amounted to an unreasonable search and seizure under s 21 of the NZ Bill of Rights Act.

The balance of decision turned on whether the unlawfully obtained evidence ought to be admitted in the criminal cases anyway. Section 30 of the Evidence Act requires judges to engage in a balancing process to decide whether improperly obtained evidence can be admitted:

"(2) The Judge must—
(a) find, on the balance of probabilities, whether or not the evidence was improperly obtained; and
(b) if the Judge finds that the evidence has been improperly obtained, determine whether or not the exclusion of the evidence is proportionate to the impropriety by means of a balancing process that gives appropriate weight to the impropriety but also takes proper account of the need for an effective and credible system of justice.
(3) For the purposes of subsection (2), the court may, among any other matters, have regard to the following:
(a) the importance of any right breached by the impropriety and the seriousness of the intrusion on it:
(b) the nature of the impropriety, in particular, whether it was deliberate, reckless, or done in bad faith:
(c) the nature and quality of the improperly obtained evidence:
(d) the seriousness of the offence with which the defendant is charged:
(e) whether there were any other investigatory techniques not involving any breach of the rights that were known to be available but were not used:
(f) whether there are alternative remedies to exclusion of the evidence which can adequately provide redress to the defendant:
(g) whether the impropriety was necessary to avoid apprehended physical danger to the Police or others:
(h) whether there was any urgency in obtaining the improperly obtained evidence.
(4) The Judge must exclude any improperly obtained evidence if, in accordance with subsection (2), the Judge determines that its exclusion is proportionate to the impropriety."

It’s on this point that the Supreme Court judges differed.

The upshot was that (by a 3-2 majority) most of the covert video surveillance evidence that was unlawfully obtained was ruled inadmissible against those only facing the lesser Arms Act charges. But (by a different 3-2 majority) this evidence was still admissible against those facing the more serious participation in a criminal group charges under the Crimes Act. (Other rulings were made about the admissibility of other video evidence (footage of vehicles travelling down a road and video evidence of the scene filming contemporaneously with physical searches), but that’s not as relevant here.)

Admissibility under s 30 is ultimately a value-laden judgement depending on a number of factors. In this case, the most central factors were as follows.

First, rights to property, privacy and dignity are fundamental values, enshrined in the protection against unreasonable search and seizure in s 21 of the NZ Bill of Rights Act. The unlawful trespass and associated surveillance amounted to a serious breach of these rights. The breaches were numerous (some seven occasions over 10 months).

Secondly, the police impropriety was significant. While the Supreme Court did not rule they acted with bad faith, the majority indicated that the police’s attitude to the unlawfulness of the covert surveillance was at best reckless and perhaps deliberate.

The Chief Justice said (para 73):

“In circumstances where the police officer in charge of the inquiry knew that there was no authority to be obtained for such filmed surveillance, the deliberate unlawfulness of the police conduct in the covert filming, maintained over many entries and over a period of some 10 months, is destructive of an effective and credible system of justice.”

Blanchard J said (para 194):

“But the police understood that the warrants did not authorise the video surveillance and that their conduct in relation to the video surveillance might well be legally questionable. Winkelmann J made a finding that ‘the police continued to use surveillance cameras with the knowledge, at a senior level at least, that they had no lawful authority to do so’. Despite being aware that they lacked statutory authority for the surveillance, they proceeded without taking legal advice, which they had plenty of time to obtain. Having failed to get advice, the police cannot rely on the fact that they were operating in circumstances of legal uncertainty and argue that they should be ‘cut some slack’. Their conduct was reckless in the sense that they took the risk that it might be found to be unlawful.”

Tipping J said (paras 233 and 235):

"I do not consider there is any escape from the view that the police deliberately breached the appellants’ rights. Detective Sergeant Pascoe acknowledged that he knew there was no legislative authority to install surveillance cameras. This, no doubt, is why he did not seek a warrant to do so. The Detective Sergeant did not profess to have authority from any other source. … If the breach was not deliberate it was undoubtedly reckless because, at best, the position in law was decidedly unclear and, in the very difficult and unusual circumstances facing them, the police, extraordinary as it may seem, did not obtain any legal advice. It is difficult to resist the inference that formal legal advice was not sought because the police knew or strongly suspected what the advice would be and that it would make it more difficult for them to proceed as they intended. … In view of the conclusion I have reached, it is not necessary to determine whether this state of affairs amounted to bad faith. It is enough to say that I find it impossible to hold that the police honestly believed that the video surveillance was lawfully undertaken. The various aspects of this feature point powerfully to the exclusion of the improperly obtained evidence.”

(McGrath J was more sympathetic towards the police about the lack of authority, a treated it as a neutral factor; Gault J expressed no view on it.)

Thirdly, there was no other way for the breach of rights to be adequately remedied or for the court to formally hold the police to account for their unlawful behaviour.

Fourthly, the seriousness of the situation and charges ultimately laid, along with the absence of alternative practicable investigatory techniques, supported admission of the unlawful evidence.

Finally, the need to maintain an effective and credible system of justice was added to the mix. This encapsulated both “that offenders be brought to justice” and “impropriety on the part of the police should not readily be condoned by allowing evidence thereby obtained to be admitted as proof of offending” (para 187).

Ultimately, it came down to the sense of proportion between these conflicting factors. Two judges said that evidence should be admitted for all charges (McGrath and Gault JJ). Two judges (Elias CJ and Tipping J) ruled the evidence should not be admitted for any charges. One judge (Blanchard J) ruled the evidence should be admitted for the more serious criminal group charges but not the lesser Arms Act charges. Hence, in the end, the charges being dropped for some charges, but not others.

The important thing, though, is the nuanced approaches from all judges, assessing the proportionality between the serious of police impropriety and the serious of the criminal offending. The judges that differed took slightly different views on the assessment of seriousness and overall balance. It is the basic methodology, particularly the seriousness thresholds, that might have implications beyond this particular case because each case will generally turn on its own circumstances.

The legal position following the Urewera case
Let’s recap now. As a consequence of the Supreme Court ruling, the police do not have any legal power to engage in covert video surveillance – but they knew that anyway. For investigations already undertaken, whether or not unlawfully obtained video evidence can be admitted in court depends on the context. For serious charges, it will probably still be admissible. For less serious charges, it will not be admissible. It might also turn on how significant or insignificant the degree of intrusion was and rogueness of police actions or attitudes.

The urgent (and retrospective) legislative fix
So, this is where the government steps in.

Cabinet has received advice that covert video surveillance – although unlawful – is systemic. The police have deployed this investigative technique widely. There are around 40 cases presently before the courts where such evidence is to be relied on, and another 50 active investigations that might be compromised without being able to engage in covert video surveillance.

Hence, the intention to next week pass legislation under urgency to authorise such surveillance and to retrospectively validate such surveillance already undertaken.

We haven’t yet seen the draft legislation. Nor has the advice been released. But the gist of move is apparent. (See http://www.radionz.co.nz/news/national/85615/govt-to-use-urgency-to-change-law-on-covert-filming)

Now, for present purposes, I don’t quibble with legislative authorisation of covert video surveillance in future investigations (well, I have no view on whether that wise or not – but will assume that it’s wise to fill the gap). My beef is with the retrospective validation of previous unlawful actions and its effect on criminal proceedings.

Retrospective legislation - why its egregious and unnecessary
Retrospective legislation is generally seen to be contrary to the Rule of Law. As the Legislative Advisory Guidelines say (LAC Guidelines):

“The general principle is that statutes and regulations operate prospectively, that is, they do not affect existing situations. This principle is set out in s.7 of the Interpretation Act 1999 which provides that enactments do not have retrospective effect. … The general principle is strongest in the case of criminal liability and this is seen in particular provisions in the criminal law area, namely, s 10A of the Crimes Act 1961 and s 4 of the Criminal Justice Act 1985. Section 26 of the New Zealand Bill of Rights Act 1990 is to similar effect. Section 26 repeats New Zealand's international obligations in this area which are found in Article 15 of the International Covenant on Civil and Political Rights. At common law, there are general presumptions of interpretation which also have the effect of applying the law prospectively. Clear legislation is needed to displace these presumptions.”

As I’ve mentioned in the past, it is not an absolute principle though. Even the LAC Guidelines refer to situations where retrospective legislation is not objectionable:

“However, while the general principle is that legislation is prospective, not all examples of legislation which impacts on existing situations will be unfair (see Burrows, Statute Law in New Zealand, 1999, page 358). Examples of retrospective provisions which are seen as having only a benign effect include those which validate appointments, or provide for backdated salary and benefit payments and new superannuation arrangements. The impact of the legislation on those affected can be assessed by considering a range of factors including the purpose of the legislation and the hardship of the result on those affected. For example, individuals may have a reasonable expectation based on entering into legal obligations, such as contracts, on the basis that the law will have a certain impact.”

The question here is whether it is justified. For a number of reasons, I think resort to retrospective legislation is unnecessary and egregious.

First, retrospective validation here does not fall within the narrow range of situations where this type of validation is benign. Indeed, it is particularly pernicious because it interferes in the criminal domain, leading to people being convicted in circumstances in which they otherwise wouldn’t be found guilty.

Secondly, the basis for retrospective validation is feeble. This is not a situation of tweaking the law to reflect Parliament’s original intent or to ensure the law conforms with people’s reasonable understanding of the law. As we can see from the Supreme Court case, there was no legal basis for covert video surveillance, the Police were aware that covert video surveillance was not legally authorised, but they proceeded anyway.

Further, the lack of any legal foundation for covert video surveillance was addressed by the Law Commission in its comprehensive report on search and seizure powers in 2007 (Law Commission, “Search and Surveillance Powers”, ch 11):

“11.9 Other than the general prohibition on unreasonable search and seizure in section 21 of the Bill of Rights Act, New Zealand statute law has not sought to deal with the field on any comprehensive basis. In particular, there is virtually no statutory regulation of visual or video surveillance or other non-auditory forms of surveillance.”

Most of the detailed discussion focuses on the “non-trespassory surveillance”, that is, video surveillance that does not involve entry onto some other person’s land without their consent. You will recall that all the covert video surveillance in the Urewera case was worse – it took place on private land not visible from any public land, that is, it was trespassory.

But even in relation to non-trespassory surveillance the Law Commission noted the risk of findings of unlawfulness:

"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.”

Indeed, it echoed the Court of Appeal’s recommendation that the matter be addressed by legislation:

"11.41 From cases such as Gardiner it can be inferred that the Court of Appeal is of the view that the whole field of audio and visual surveillance could usefully be the subject of statutory regulation. Gardiner involved visual surveillance, using a long lens video camera positioned in a neighbouring property and trained on a room of the target premises. While the Court of Appeal held that in the particular circumstances of that case the surveillance was not unreasonable for Bill of Rights Act purposes, it nonetheless took the opportunity to state: 'Parliament has not yet chosen to legislate on the subject of video surveillance as it has done for the use of devices enabling interception of private communications: … The situation may be thought to be unsatisfactory for the police as well as the citizen. The police may invest substantial time and resources in such a surveillance operation, unable to obtain authorisation because there is no power for anyone to grant it, but exposed to the risk that afterwards a Judge may hold their actions, in a relatively untested field, to be an unreasonable search.’”

The Search and Surveillance Bill currently before Parliament explicitly addresses this (Search and Surveillance Bill 2009). The Explanatory Note explains:

“The law has also failed to keep pace with technology. Criminals have increasingly been able to use computers and other electronic devices to commit or facilitate illegal activity. The Bill provides for the appropriate legislative powers to enable law enforcement and regulatory agencies to extract electronic information and use surveillance devices in order to investigate and combat criminal activity.”

Part 3 of the Bill proposes an explicit regime authorising “surveillance device warrants”, including covert video surveillance. This issue was also at the forefront of the mind of the Select Committee considering the Bill – the proposed regime was specifically mentioned and varied in its reports issued in August and November 2010.

So, the ruling in the Urewera case is not a surprise ruling which has been sprung on an unaware police force. It’s a lacuna which has been identified previously. And Parliament has been working on fixing any gap over the last two years.

Thirdly, claims about the implications about the ruling on other cases are, I think, overstated. While the government claims there may be around 40 current cases which will be prejudiced by the ruling, the Supreme Court’s decision is relatively nuanced and will allow for the admission of the unlawfully obtained evidence in serious cases.

As explained earlier, whether unlawfully obtained evidence is excluded turns of a number of factors, which, amongst other things, includes an assessment at the proportionality between the nature and extent of police impropriety and the seriousness of the alleged offences.

This contextual approach to admissible means the decision is not the opening of the gates to allow criminals to avoid prosecution. In all likelihood, the unlawfully obtained evidence will still be able to be used against criminals facing serious charges – or the “serious criminal offending” that the Prime Minister is worried about. Proportionality is the key.

Notably, I think, the Supreme Court ruling admitted the unlawful evidence for charges in relation to the offence of participation in an organised criminal group. I suspect this is one of the key charges used against gang drug cartels and the like, where, again I suspect, covert video surveillance is probably deployed . It seems unlikely therefore that the Supreme Court ruling will undermine those types of investigations.

And doubly bad when passed under urgency
Finally, the legislation is set to be passed via a bad process – urgency once again. The objections to this are well-known and have been canvassed here before.

In this case were are talking about retrospective legislation affecting fundamental rights and the criminal process is being passed without a public submission process. The public and learned groups should be able to carefully scrutinise and directly challenge the move while it passes through the parliamentary process.

As a minimum, the government ought to open up the move to a week’s public submission, allowing people like the Legislation Advisory Committee, the NZ Law Society and others who are expert in the area to advise MPs on the necessity or otherwise for retrospective legislation and any other problems that may arise from this rushed move. The sky won’t fall in the meantime; rulings in the other cases are unlikely to be rushed through before legislation is passed. And if a case is made for retrospective legislation, then it will trump anyways.

A footnote - the Rule of Law as a vulnerable constitutional norm
In closing, it is worry how often these Rule of Law issues need to be raised nowadays. And equally worrying is how often they are dismissed by the government and largely ignored by the general populous. Each time I am reminded of the remarks from one of our leading constitutional scholars about the vulnerability of the Rule of Law in New Zealand’s constitutional culture (M Palmer, “New Zealand’s Constitutional Culture” (2007) 22 NZULR 565:

"To the extent that [the rule of law] requires valuing the role and voice of the judiciary compared to elected politicians then ... it is not well entrenched in New Zealand constitutional culture. It is not clear to me that the norm of the rule of law and judicial independence is reinforced by New Zealand constitutional culture. ... There are regular examples of behaviour by governments that could be characterised as breaches of elements of the rule of law. ... While the legal and judicial establishment is a forceful source of support for the constitutional principle of the rule of law, to a realist, its power is ultimately dependent on popular understanding and support. In my view the rule of law, supported by the principle of judicial independence, is and should be a cornerstone of New Zealand’s constitution. In terms of my formulation of the notion, it is a key constitutional instrument by which the coercive powers of the state can be contained. But I sound a word of warning to the legal establishment. I am not confident that New Zealanders currently understand the rule of law or, in a crunch, would necessarily stand by it as a fundamental constitutional norm. ... The rule of law and judicial independence is not reinforced by a New Zealand cultural value. Neither is this surprising given its lack of academic and legal articulation. Without academic and judicial clarification of the meaning and importance of the concept of the rule of law and judicial independence, and some concrete event or debate that generates public appreciation and regard for it, I believe the rule of law is a vulnerable constitutional norm in New Zealand."

We, as a country, should be embarrassed by this.