The pitfalls of rushing it
In early September, the Supreme Court ruled that when the police placed hidden video cameras on private property in 2007 to collect evidence against the Urewera defendants, the police were acting illegally – and thus, the charges against 13 of the 17 Urewera defendants should be scrapped.
However, the Government has chosen to respond to the Supreme Court ruling by seeking to pass fresh legislation that will legalise police use of hidden video surveillance in all cases – now, retrospectively, and in future – except for the Urewera cases.
The new legislation would be a stopgap measure until Parliament next year passes into law the major Search and Surveillance Bill before the House.
This headlong rush to legitimise police actions has raised hackles among some Opposition politicians – Labour has been demanding that any new law should undergo select committee scrutiny, while the Greens oppose it altogether – and legal academics alike.
To Prime Minister John Key, the move was necessary given his estimate of 40 pending cases and 50 ongoing police operations that could possibly be affected by the Supreme Court ruling – such that, Key argued, people who pose ‘‘ a serious risk to the community’’ could walk free.
Key’s claims have proved to be something of an exaggeration. Shorn of their covertly filmed evidence, the police cases could still rely on the traditional, legal ways of gathering evidence in use before the covert technology was invented.
Moreover, even if the Government did nothing at all, the courts would still retain their discretion to weigh whether the ‘‘illegality’’ of the surveillance was sufficiently balanced by the seriousness of the charge and the weight of related evidence.
After all, that is precisely what the Supreme Court did in its Urewera ruling. Some charges were dropped, but the charges against four Urewera defendants have been allowed to stand.
To some critics, the rushed legislation will reward the police for using illegal means to gather evidence.
Arguably, it will also give them virtual open slather to install surveillance technology on private property in future, while removing the courts’ current dis- cretion to weigh whether the wider circumstances did in fact justify the police using covert filming to gather evidence.
Henceforth, even if covert filming is carried out in the context of a warrantless search, the new legislation appears to require the courts to find that the police were acting legally.
To prevent Parliament from handing the police a blank cheque in this fashion, Otago University law professor Andrew Geddis has suggested a compromise – namely, that the Government should import all the safeguards set out in the proposed Search and Surveillance Bill and to use them as the basis for the stopgap legislation as well.
At least those safeguards have already gone through the select committee process, Geddis reasoned, and would go some way to balancing the operational needs of the police against the freedoms set out in the Human Rights Act. It would also leave the courts’ current discretions untouched.
At time of writing, it was unclear whether the ‘‘Geddis solution’’ would be inserted into the measures due to be passed under urgency.
In passing, the episode has raised the issue of whether those who enforce the law should always be required to respect it, and apply it to themselves.