Crime Prevention Unit

Organised Crime

Office of the Minister of Justice
Cabinet Business Committee

LAW COMMISSION REPORT SEARCH AND SURVEILLANCE POWERS

Paper 6: Clarification and codification

Proposal

1. The Law Commission report on Search and Surveillance Powers (NZLC R97) was tabled in Parliament on 7 August 2007. This paper is part of a suite of 8 papers in relation to that report and deals with the clarification and codification of the law relating to applying for and issuing search warrants and exercising search powers. It includes an Appendix containing relevant detailed recommendations from the Commission’s report that have formed the basis for the recommendations (sometimes in modified form) in this paper.

Executive Summary

2. The law in New Zealand governing powers of search and seizure is fragmented, inconsistent and a mix of case law and statutory authority. The Commission recommends that the powers be brought together and consolidated in a single statute. The recommendations made in this paper aim to clarify and consolidate the law relating to applying for and issuing search warrants, executing search powers, post-execution procedures and dealing with privileged and confidential material. A range of other recommendations are made in relation to clarifying and consolidating aspects of the law governing personal and vehicle search powers and procedures.

3. Issues discussed in this paper include reforms to clarify and codify aspects of the law proposed in the following chapters of the Law Commission report:

• Chapter 4, applying for and issuing search warrants;

• Chapter 6, executing search powers;

• Chapter 8, search of the person;

• Chapter 9, vehicle search;

• Chapter 12, privileged and confidential material;

• Chapter 13, post-execution procedures.

Background

4. Search powers and the procedures governing them are scattered throughout the statute book. Many such powers are out of date or inconsistent. The general search warrant power in the Summary Proceedings Act 1957 is 50 years old. Aspects of the present law do not reflect available technology, either in the way that the power is defined or the manner in which the authority may be obtained. Other laws governing the exercise of a search power or the procedures following the exercise of the power are silent on important parts of the process. There are significant advantages in updating, clarifying and consolidating the law in a single piece of legislation. It will make the law more certain, accessible and comprehensible to both the officer exercising the power and the subject of the search.

Applying for and issuing search warrants

5. The Commission makes a series of recommendations to clarify and codify the law governing the application for and issue of search warrants. The law currently provides widely varying provisions in this regard which should be rationalised into a standard framework. Section 198 of the Summary Proceedings Act 1957 and cognate provisions in other legislation currently provide the primary search warrant power for enforcement officers in NZ. The Commission proposed a replacement provision for section 198 to substantially the same effect in relation to the offences and things for which a search warrant may be obtained.

6. Due to the mobility of vehicles, meaning that by the time a warrant is obtained the vehicle will often have moved to an unknown location, the vast majority of vehicle searches will need to be undertaken on a warrantless basis. That said, as with all search powers, departure from the warrant requirement is only justified where there is a compelling need for a search power to be exercised without prior judicial authorisation. Thus the general search warrant power, to be provided by the section 198 Summary Proceedings Act replacement provision, should continue to be available for vehicles (and should authorise entry onto any private place where the vehicle is reasonably believed to be located to conduct the search). The recommendations made below for applying for warrants should therefore apply to vehicles.

Who may apply for a warrant

7. Most legislation, including the Summary Proceedings Act, is silent as to who may apply for a search warrant. Thus generally any person may apply for a search warrant. From time to time, private investigators do so and then ask the police to execute the warrant. The Commission recommended that this power be limited to only members of the police or employees from other Government agencies authorised by the Chief Executive of their agency to make an application. The Commission saw no justification for any departure from this principle, as the person applying for the warrant should be from the agency responsible for executing the warrant. Because of the intrusiveness which occurs when a warrant is executed, the decision to apply for a warrant should be vested only in a public official who is accountable and whose decision is subject to supervisory review. I agree and recommend accordingly.

Manner of application

8. The usual form of warrant application is in writing made on oath, although the Summary Proceedings Act does permit an oral application. While not prohibited, written applications in electronic form are rare. Invariably applications are accompanied or followed by personal appearance before an issuing officer which removes any advantage in making an application electronically.

9. The Commission recommended that:

• The requirement that the applicant for the warrant take the oath or affirmation be removed and replaced with a statement on the application confirming the truth and accuracy of its contents accompanied by a specific offence for making a statement that would amount to perjury if made in judicial proceedings, with the same maximum penalty as the equivalent offence in section 111 of the Crimes Act. The Commission concluded that there was no reason to think that the integrity of the search warrant process would be compromised by so providing;

• Electronic applications including by way of facsimile and e-mail should be permitted from remote locations, as an alternative to phone calls, as they would result in more accurate applications being made;

• Oral applications should also continue to be permitted, to allow warrants to be issued in cases of urgency, and the requirement that the issuing officer records in writing the grounds of the application should be retained;

• The issuing officer receiving the warrant application should be able to dispense with the applicant’s personal appearance if the issuing officer is satisfied that the delay caused by requiring personal appearance would compromise the effectiveness of the search and that the merits of the application can be adequately determined without it;
   Where it is not practicable for the enforcement officer to uplift the original, the issuing officer should be able to transmit a facsimile or other electronic copy of the warrant. If that is not practicable, the issuing officer should read the conditions of the warrant to the enforcement officer who should make a copy. The enforcement officer should be required to endorse the issuing officer’s name on the warrant, making it clear that it is a copy of the original.

10. I agree with these proposals and recommend accordingly.

Section 171 Customs and Excise Act 1996

11. Section 171 of the Customs and Excise Act, authorising an issuing officer to grant a customs officer an emergency warrant (valid for six hours) either orally or in writing, should be repealed. There is no need for a separate customs regime if the above procedures are adopted. Moreover, by virtue of proposals outlined in Paper 4: Warrantless Powers, Customs officers will have enhanced warrantless powers for controlled delivery operations.

Security concerns

12. Ministers have expressed concerns regarding the extent to which applications for the issuing of search warrants are secure and confidential. Currently, search warrants are applied for through a manual process and in writing. Seventy percent of search warrant applications are applied for within court hours. Judicial JPs issue thirty percent of search warrants out of hours. In the current operational environment, any electronic applications that are made as a result of the new legislation will be transmitted by way of a simple ‘email’ with attachments.

13. With the development of the new surveillance device warrant regime and the establishment of the Organised Crime Agency within the police, there will be increased need to ensure that applications are kept confidential and secure.

14. Manual processes can be put in place to cover the legislation. As an interim measure, in respect of sensitive applications (eg serious organised crime or serious and complex fraud) where there is a risk of subject persons learning of the application, operating protocols can be put in place to ensure confidentiality, such as designating the issuing officer to handle the application. Similar protocols can be put in place with respect to emailed applications. However, these processes cannot be made failsafe.

15. The proposals in this suite of papers provide the Ministry of Justice with an opportunity to develop a secure and safe electronic system to manage the provision of all search warrants. An electronic search warrant process could be incorporated into the Ministry of Justice’s case management system. The Ministry of Justice has discussed this proposal with the Police who have indicated their ‘in principle’ support for it, but note that the operational and financial implications would be significant and would need to be scoped in order to develop and implement a fully integrated system. Police have noted that they have a large number of existing IT related projects that they are already progressing.

16. It is proposed that further work be undertaken within the Ministry of Justice and with Police to consider how to best support the legislation as outlined and identify the budget implications of the joint proposal. A report back on progress be provided to the Ministers of Justice and Police by 27 June 2008.

Content of applications

17. Search warrant regimes currently give little guidance on the required content of warrant applications. The Court of Appeal has expressed concern in a number of cases about search warrants having been issued on the basis of applications containing insufficient information. To minimise these problems, I recommend that the information required to be provided in the warrant application should be specified in legislation. (For further detail on the Commission’s proposals as to what that information should be, see recommendation 1 in the Appendix.)

18. In the recent decision R v Williams the Court of Appeal indicated that an informant’s name and address should be included in a warrant application. The Commission’s report concluded that this information did not need to be provided in the application and the Crown Law Office has expressed concerns about any such requirement. It may lead to a reduction in the amount of information being provided to enforcement agencies and presents the risk that an informant’s identity will be inadvertently disclosed to others who access court documents. It is therefore recommended that the proposed legislation explicitly state that an informant’s name and address need not be provided in a search warrant application and that the absence of such information shall not, by reason of that fact alone, render the warrant invalid. However, as the Commission’s report notes, it is important that when information from an informant is relied upon, the application disclose sufficient details to allow the issuing officer to make an assessment of the informant’s credibility and the reliability of the information.

Previous applications

19. The Commission did not recommend that multiple applications should be prohibited. After an application for a search warrant has been declined new facts may come to light or the original grounds may be able to be clarified, thus justifying a further application. However, it recommended that the applicant be required to make reasonable inquiries as to whether any previous application for a search warrant has been made by his or her enforcement agency in the previous three months to search the same place, vehicle, or thing in respect of the same or similar matter and to disclose in the application those details and the results of any such application. This is already a requirement in a number of search warrant regimes, and is a desirable safeguard against abuse of process by enforcement officers. I recommend accordingly.

Retaining applications

20. There is currently no statutory requirement to retain warrant applications and supporting documentation. The Commission recommended that the primary responsibility for retaining papers associated with the issue of search warrants should remain with the relevant enforcement agency. I agree and recommend accordingly. The practice that the original of the application be forwarded and retained by the court registrar in secure custody should be continued and there should be an obligation to retain the application until the completion of any proceedings in respect of which the validity of the warrant may be in issue. Enforcement agencies should be obliged to retain copies of warrant applications and supporting documents:

• until the completion of proceedings where the validity of warrant may be relevant, including the expiry of any appeal period;

• in any other case, until the documents relating to the search are transferred or destroyed in terms of the Public Records Act 2005.

Who may issue a search warrant

21. Most search warrant regimes permit warrants to be issued by any District Court judge, Justice of the Peace (JP), community magistrate or District Court registrar or deputy registrar. Most search warrants are currently issued by registrars and deputy registrars and, to a lesser extent, JPs.

22. In a number of cases where the issue of a search warrant has been challenged, the courts have held the warrant to be invalid because of inadequacies in the application. Whilst the courts have been critical of the quality of the warrant application, they have also emphasised the importance of rigorous oversight by issuing officers.

23. To enhance the quality of oversight by officers issuing search warrants, the Commission recommended that:

• other than judges, only specifically authorised and adequately trained persons, including registrars, deputy registrars, JPs and Community Magistrates, should be able to issue search warrants;

• to ensure that the pool of issuing officers is sufficient to meet demand throughout the country and on a 24-hour-a-day basis, suitably skilled people (such as retired lawyers) who have undergone appropriate training should be able to be appointed as issuing officers;

• other than judges, all appointments as issuing officers should be for a fixed term of not more than 3 years, with renewal possible but dependent on the appointee’s availability, his or her completion of on-going training requirements and proven competence in the issuing of warrants.

24. I endorse those recommendations and believe that they have the potential to significantly improve the quality of warrants issued and thus reduce subsequent legal challenges.

Duration of warrant

25. The Commission recommended that the duration of a search warrant should generally be 14 days from the date of issue (unless the issuing officer specifies a shorter period in the warrant), but could be up to 30 days where the issuing officer is satisfied that special circumstances justify a longer period. I agree.

Multiple executions

26. The Commission also recommended that where the particular case justifies it (such as where it is operationally impracticable for police to maintain a presence at the search scene over a number of days or the evidence may arrive at the search scene on more than one occasion), an issuing officer should be able to authorise a warrant to be executed on more than one occasion. I agree.

Contents of a search warrant

27. The information to be included in a search warrant should be specified in legislation. A search warrant should specify the offence for which it is issued, the place (or thing or vehicle) to be searched and the items to be searched for and state any conditions that its execution is subject to. The level of particularity necessary to allow the owner or occupier to know the parameters of the intended search will depend on the circumstances of the case, but as the Court of Appeal has recently stipulated in R v Williams, the scope and purpose of the search should be set out in reasonable detail. (For further detail as to the contents of a warrant, see the Commission’s proposal in recommendation 2 in the Appendix.)

Defects in application or warrant

28. Technical shortcomings in the application for a search warrant, or the warrant itself, may be saved by section 204 of the Summary Proceedings Act 1957 which provides that no warrant, court order or process shall be held invalid by defect, irregularity, omission, or want of form unless the court is satisfied that there has been a miscarriage of justice. If significant prejudice results from the defect or if the application for the warrant was an abuse of process, the warrant may be rendered a nullity.

29. The Commission recommended clarifying the scope of section 204 by specifying that a search warrant will not be saved by that section if:

• having regard only to the information provided in the warrant application, the threshold justifying the issue of the warrant is not met; or

• the warrant contains a defect, irregularity, omission or want of form that is likely to mislead anyone as to its scope or purpose.

30. I agree with that recommendation and consider that it serves a useful purpose to emphasise to enforcement officers the importance of care and the need for completeness in preparing warrant applications.

Executing search powers

31. The Commission proposed clarifying and codifying the law governing the execution of search powers, so as to provide a consistent framework for the exercise of both warrant and warrantless search powers. The recommendations relating to execution of search powers should apply not only to places but also to vehicle searches with or without warrant, with necessary modification, as required. This will mean, for example, that the requirement to notify an occupier of a search and things seized will apply, with relevant amendment, to drivers or owners of vehicles.

Who may exercise search powers

32. The Commission recommended that search warrants should be directed to and executed by any enforcement officer with the statutory authority to exercise the relevant power. It saw no good reason why some warrantless search powers could only be exercised following authorisation from a senior officer; as urgency is the overriding consideration, requiring prior authorisation will be counter-productive to the objective of the power. It considered that an officer of any level or rank should be entitled to exercise warrantless powers. I agree and recommend accordingly.

Prior announcement

33. The common law recognises the requirement for an enforcement officer to inform an occupier of their presence, identity and purpose before exercising a search power. The Commission recommended that this requirement be included in legislation, but that it could be dispensed with in certain circumstances, such as where it would endanger the safety of any person or could compromise the evidential material sought. (For further detail on the Commission’s proposals, see recommendations 3 to 4 in the Appendix.) I agree and recommend accordingly.

Use of force

34. The Commission recommended that statutory provision be made for the use of force in exercising a search power, to be governed by a single standard of reasonable force. (For further detail on the Commission’s proposals, see recommendation 5 in the Appendix.) I agree and recommend accordingly.

Time of search

35. The Commission recommended that legislation should specify that a search power may be exercised at any time of the day or night that is reasonable subject, in the case of a warrant, to any restriction on the time of execution imposed by the issuing officer. I agree and recommend accordingly.

Assistance

36. An enforcement officer exercising a search power will often require assistance from a person, such as a forensic expert, or will need to use a device, equipment or a dog to assist in the search. The Commission recommended that statutory provision be made for the use of such assistance as is reasonable for exercising a search power. (For further detail on the Commission’s proposals, see recommendations 6 to 8 in the Appendix.) I agree and recommend accordingly.

Power to take photographs

37. The Commission recommended that enforcement officers exercising search powers should be able to take photographs, or make video or sound recordings in the place searched and of things found there, where such photographs or recordings are relevant to the purposes of the search or for verifying that the search power was properly exercised. I agree and recommend accordingly.

Power to make copies of documents

38. The Commission recommended that the power to search and seize should include a power to take a copy of a document or part of any document, including electronically recorded information, that may be lawfully seized. I agree and recommend accordingly.

Removing items for examination

39. Generally, only items that fall within the search power may be seized and removed. However in some cases, due to the amount of material to be searched or the intermingling of relevant and irrelevant material, there may be a need to remove things from the search scene to examine them and determine what may be seized. In some cases such removal may be less disruptive to the occupants than conducting the examination or processing on-site. The law should specifically authorise removal of an item from the search scene to determine if it may be seized pursuant to a search power, where it is not practicable to determine that issue at the scene. (For further detail of the Commission’s proposals, see recommendation 9 in the Appendix.) I recommend accordingly.

Securing a crime or search scene

40. The Commission recommended that when an enforcement officer is lawfully at a place and a search warrant is to be applied for, the officer should be able to establish a crime scene. It recommended that the crime scene should be in force for the lesser period of six hours or until a search warrant is obtained and available at the scene and that the officer should be authorised to give reasonable directions to a person at the crime scene to ensure that evidential material is not destroyed, concealed or impaired. I agree with these proposals which will give the appropriate authority for an officer to preserve evidential material without relying solely on the consent of an occupant prior to a search warrant being obtained.

41. Enforcement officers should also have statutory authority when exercising a search power to give reasonable directions to preserve evidential material and to guard a scene and prevent entry until the search is completed. It should be an offence, punishable by a maximum term of 3 months imprisonment, to fail to comply with any such reasonable direction given by an enforcement officer at a crime scene or search scene.

Detaining people at search scenes

42. A controversial aspect of the Commission’s report is its proposal that any person at a place being searched may be detained for the duration of the search, until the enforcement officer is satisfied that the person is not implicated in the commission of the offence in respect of which the power is being exercised. The proposal is framed in terms similar to that which currently exists under section 168(3)(a) of the Customs and Excise Act 1996, which allows any person in the place being searched pursuant to a search warrant or arriving at that place to be detained “until the officer is satisfied that the person is not connected with the thing referred to in the warrant.”

43. The Commission accepted the force in submissions made by the Police and Customs that the power to detain people at the search scene is often needed. It would be untenable to allow those potentially connected to unlawful items or evidence of offending that is the subject of the search to leave the scene and thus avoid detection and subsequent prosecution, or alert co-offenders so that they can destroy or conceal evidential material, when a short restraint on their liberty would have avoided that.

44. For example, in searching a house where drugs are manufactured or sold, establishing individual suspicion at the outset as to any person’s involvement may be impossible, if it is unclear who is an occupant or a visitor and whether any person has a legitimate reason to be at those premises. However, in other situations the proposed power would also allow innocent members of the public, not in fact implicated in the offence under investigation, to be detained at a place, for the duration of the search.

45. On balance, I agree with the Commission that the public interest justifies a temporary check on individual liberty in these cases. In the overwhelming majority of cases innocent people will quickly satisfy an enforcement officer that they are not involved in the offence under investigation or connected with the thing sought under the power. Such people will then be free to leave. Accordingly, I recommend that where there is a statutory power to search a place or vehicle, it should carry with it the power to detain a person who is at the place or vehicle being searched, or who arrives there while the search is being undertaken, for a reasonable time not exceeding the duration of the search, to enable the officer to determine whether the person is connected with the object of the search. Reasonable force should be permitted to detain a person at a search scene.

46. I recommend that it be an offence punishable by a term of imprisonment not exceeding 3 months for a person to fail or refuse to remain at the search location.

Information provided upon entry and during the search

47. It is fundamental to the exercise of a search power that the person who is subject to its exercise is made aware of the executing officer’s identity and authority for his or her actions. Accordingly, the Commission recommended that upon entry an enforcement officer who is exercising a search power should provide evidence of identity and advise the person who appears to be the occupier of the authority for the search and give that person a copy of any warrant. I agree and recommend accordingly.

Notice of search

48. The Commission recommended that where an occupier is not present at the time of search, a notice of search (including an inventory of things seized) should be left in a prominent position at the time the power is exercised. This notice is not required to be left if a judge has ordered postponement at the time of application for the warrant or if the executing officer intends to apply for postponement within 7 days of the exercise of the search power. For the grounds for postponement from notification, see paragraph 50, below. (For further information, see the Commission’s proposals 12 to 16 in the Appendix.)

Notification of things seized

49. Statute law in NZ is inconsistent and often silent as to the information to be provided when things are seized pursuant to a search power. The Commission recommended that a standard approach should be taken and that the responsible officer should, whenever practicable, provide the occupier with an inventory of items seized and removed as a result of the exercise of the power or a consent search. Where a large number of items are seized, it will be impracticable to give the occupier an inventory at the time items are removed. In that case it is recommended that the inventory should, subject to extension of the period for notification by a judge, be provided as soon as reasonably practicable afterwards, but within seven days of seizure. (For further detail of the Commission’s proposals, see recommendations 10 to 16 in the Appendix.) I agree and recommend accordingly.

Postponement or dispensation of notification

50. The Commission recommended that notification of the search could be postponed for a specified period of up to 12 months where a judge is satisfied that compliance would prejudice on-going or subsequent investigations, or endanger the safety of any person (such as an informant or undercover officer). At the end of that period the relevant agency may make a further application to the judge, who must make a final order declining the application (thus requiring notification) or extending the postponement for until a future date when notification of search must be given or (unless notification must be given in accordance with paragraph 51, below) dispensing with that notification altogether.

51. However, where tangible items are seized pursuant to a search power, notification of the seizure (by way of inventory) must be provided at the end of the period of postponement ordered by the judge. In its report, the Commission considered that the only ground for dispensation of notification of the seizure should be where clones or copies have been seized, but the original documentation or data left with the search subject. However, subsequent to publication of its report, Customs has pointed out that this would require search subjects to be notified that drugs have been seized during a covert drug operation. I therefore recommend that there should never be dispensation from notification of seizure altogether except in two circumstances: first where the only items seized are copies of items or computer clones; and secondly, where the judge is satisfied that the item seized is a prohibited drug, so that no person has legal entitlement to it. (For further detail on the Commission’s proposals, see recommendations 15 and 17 in the Appendix.)

Manner of execution of search of the person

52. The Commission made a series of recommendations with regard to the way in which a search of the person is conducted:

• The use of aids or devices which involve no or minimal contact and which are reasonable should be permitted;

• Unless it is impracticable in the circumstances (for example, where a person is intoxicated, aggressive and resisting the officer), enforcement officers exercising a personal search power (other than a police officer searching a person in police cells pursuant to section 57A of the Police Act) should first identify themselves and advise the person of their authority and the reason for the search;

• Subject to the following bullet point, where items are seized following a search of the person, an inventory of the property taken should be promptly prepared and the person searched given a copy;

• Where property is removed from a person after a search under section 57A of the Police Act the person should be shown the inventory and verify its accuracy (the current administrative practice);

• Strip searches should not be conducted except in accordance with an enforcement agency’s guidelines;

• A power to search a person should expressly include the authority to detain the person to allow the search to be carried out; while that is implicit in all personal search powers, some statutes specify the power, others do not. An express and consistent approach is desirable;

• The detention to conduct the search should last only as long as is necessary for that purpose.

53. I agree with all those proposals and recommend accordingly. I also recommend that any agency whose employees may conduct strip searches should be required to develop guidelines for that purpose.

Right to be taken before reviewing officer before search undertaken

54. There are three statutory provisions that the Commission recommended be repealed, as being inconsistent with the generic framework proposed in their report. Sections 149D and 168 of the Customs & Excise Act 1996 (dealing with search of a person arriving in or leaving NZ suspected to have certain goods on his or her person and search of a person found at or arriving at a place that may be searched) and section 38 of the Financial Transactions Reporting Act 1996 (allowing search of passengers suspected of failing to make or falsely making a cash report at the border) require the police or customs officers to advise persons who are to be searched under those enactments of their right to be taken before a nominated officer, JP or community magistrate before being searched. The Commission saw nothing exceptional in these particular powers that justifies this additional procedural requirement.

55. The Commission noted that the benefits of a review of the basis for the search could be outweighed by the intrusion on individual liberty arising from the extra delay before the search could be undertaken. That is reflected in the fact that seldom have those subject to these searches elected to be taken before a nominated officer, JP or Community Magistrate. I agree with the Commission that the statutory right under sections 149D and 168 of the Customs & Excise Act and section 38 of the Financial Transactions Reporting Act for a person to be taken before a reviewing officer before the search is undertaken should be repealed.

Manner of execution for search of vehicles stopped by non-police enforcement
officers

56. Certain non-police enforcement officers have specific statutory powers to stop vehicles for search. Only minimal requirements are included as to the manner in which the power is to be executed. Certain obligations in section 314B(4) of the Crimes Act are as applicable to other enforcement officers as to police: the requirement for the officer to identify him or herself (including by way of unique identifier, instead of name, as recommended by the Commission); to tell the driver of the authority for the stop; and if not in uniform and if requested, to produce evidence of his or her authority as an enforcement officer. I recommend that those requirements be extended to non-police enforcement officers with the power to stop vehicles. Similarly, the obligations on those stopped to provide their particulars and the offence provisions for failing to stop or to comply with a direction (if the driver knows the direction was given by an enforcement officer) should apply to those stopped by non-police enforcement officers.

57. Customs and the Ministry of Fisheries have drawn attention to the operational difficulties that arise from their inability to use flashing lights on their vehicles to demonstrate their official status when they are stopping other vehicles. The Ministry of Transport will include this issue in its work on proposed amendments to the Land Transport (Road User) Rule 2004, as part of the 2007/2008 Land Transport Rules Programme. Policy issues will be addressed with relevant agencies in March, followed by public consultation towards the middle of 2008. Following consultation, a final draft of the Rule will be forwarded to the Minister for Transport Safety for consideration

Ancillary powers

58. Paper 4: Warrantless Powers in this suite of Cabinet papers deals with warrantless search powers. As a result of the powers proposed in that paper there are a number of secondary or ancillary powers proposed to give full effect to the Commission’s report.

Entry to execute an arrest warrant

59. The Summary Proceedings Act 1957 and the Bail Act 2000 provide powers to enter premises to execute a warrant to arrest a defendant, a witness or a bail absconder. These powers should be retained. The power to enter premises to exercise the power is not specified in the warrant. That authority should be expressly provided in the warrant to inform the occupier of the officer’s authority to enter. I recommend accordingly.

Where a person is in a private place or vehicle that is being searched

60. Under current law it is unclear whether there is a power to search people who are found in places or vehicles that are being searched and, if so, the nature and extent of that power. A specific power should be provided to search a person in such circumstances. The item will often be as likely to be found on someone there as in a drawer or glove box. It would therefore unreasonably hinder legitimate law enforcement to preclude a person found in a place or vehicle being lawfully searched from being searched as an incident of that power.

61. Except in the Misuse of Drugs Act context, the right to search the person found in a private place or vehicle being lawfully searched should not be automatic; the officer should first have reasonable grounds to believe that the item is on the person. I therefore recommend that a police officer conducting a lawful search of a private place or a vehicle should also have the power to search anyone found there, if the officer has reasonable grounds to believe that the material being searched for is on that person. This power should extend to non-police officers who have a power of arrest searching places or vehicles.

62. However, drugs are easily concealed on the person and possession of controlled drugs is generally unlawful. It will seldom be possible for police to establish reasonable grounds to believe that drugs are on any one person, especially in situations where drug dealing or manufacturing is taking place or has recently taken place. It is therefore proposed that section 18(1) and 18(2) of the Misuse of Drugs Act be retained so that there is a power to search persons without a threshold that drugs are on them.

63. Section 342(2)(d) of the Gambling Act 2003 presently gives police officers and gaming inspectors the power to search anyone found on premises that are the subject of a search warrant. Like drugs, the objects of the search under the Gambling Act (such as gambling chips) are small and easily concealable. However, they are not in themselves unlawful and therefore do not justify the same level of intrusion on personal privacy as the search for drugs. I recommend that section 342(2)(d) of the Gambling Act should be amended to require that the person exercising the power must have reasonable grounds to believe the object of the search is on the person before undertaking a personal search pursuant to the warrant power to search the place in which the person has been found.

Search for dangerous items

64. Currently, where a police officer is searching a place or vehicle and has reasonable grounds to suspect that a person in the place or vehicle being searched is in possession of a dangerous item such as a knife or offensive weapon, in circumstances that do not amount to an offence, the officer has no power to search that person.

65. I recommend that when the police and other non-police enforcement officers who have a statutory arrest power, are lawfully searching a place or vehicle, they should also have the power to undertake a protective search of anyone found there, if the officer has reasonable grounds to suspect that person is in possession of a dangerous item that poses a threat to safety, and immediate action is required to address the threat.

66. Unless the possession of the dangerous item constitutes an offence, the item should be returned to the person from whom it was taken once the search has been completed, or when the officer is satisfied that there is no longer any threat to safety.

Where the person or vehicle leaves the search location before search conducted
or completed

67. In any instance where a person or vehicle may lawfully be searched, potential exists for the person or vehicle to flee before the search is completed. In some situations where a police officer has directed the person to remain, the offence of obstructing the officer may have been committed. In cases where a person flees before a direction to remain is given, no offence of obstruction is committed and no basis to arrest or search the person (or vehicle) incidental to arrest exists.

68. For these reasons, the Commission proposed a specific power limited to narrowly circumscribed cases. The Commission rejected a test that imposed temporal or geographical limits on the exercise of the power; that would simply encourage people to evade detection for as long as possible or to flee as far as possible from the search location. Instead, it recommended that in any case where a police officer has formed an intention to search a person in any place or vehicle, and that person leaves the place or vehicle before the search is conducted or completed, the officer should be able to search him or her upon subsequent apprehension and to enter any private property for that purpose if:

• the police officer is freshly pursuing the person from the location of the intended search; and

• the officer believes on reasonable grounds that the person still has the relevant evidential material in his or her physical possession.

69. I agree with that approach and recommend that such power be enacted.

70. In addition the Commission recommended two logical extensions of this power. The first is that the power should apply to vehicles that are removed from the location of the search before it is completed. Second, the power should be extended to non-police enforcement officers who have a power of arrest. I agree and recommend accordingly.

Moving a vehicle to another location to search

71. Sometimes it may be necessary for an enforcement officer to move a vehicle to another place for a detailed forensic examination or for safekeeping. While it is possible that the power to move the vehicle is implicit in the search power itself, I recommend that, to avoid unnecessary legal challenges, a specific statutory power be enacted to allow a vehicle to be moved where it is not practicable to search it where it is stopped or found, or for safekeeping or road safety purposes.

Privileged and confidential material

72. The Commission made a series of recommendations as to the manner in which privileged and confidential material should be protected from disclosure when enforcement powers of search (including production orders) and surveillance are exercised. For further detail on how these proposals will apply to the proposed production order regime, see the Commission’s recommendation 39 in the Appendix.

Legal privilege

73. The most significant privilege in the context of search and surveillance powers is legal professional privilege. The Evidence Act 2006 has codified legal professional privilege as well as privilege for settlement negotiations and mediation in relation to compelled disclosure in court proceedings. However, legal privilege continues to be governed by the common law for pre-trial purposes. To prevent two sets of laws operating in the area of privilege, the Commission proposed that the pre-trial use of material obtained by the exercise of search and surveillance powers should be codified consistently with the codification for evidentiary purposes in the Evidence Act 2006. I agree and recommend accordingly.

74. I recommend that codification of legal privilege for the exercise of search and surveillance powers should make clear that material involving a dishonest purpose or enabling or assisting the commission of an offence is not privileged (For further detail on the Commission’s proposals, see recommendation 18 in the Appendix.)

75. Further, I agree with the Commission recommendation that a search warrant should generally not be issued in respect of any material held by a lawyer known to be privileged. However, if the issuing officer is satisfied that there is a prima facie case that the material was made, received, compiled or prepared for a dishonest purpose, or to enable or aid anyone to commit or plan an offence, a warrant should be able to be issued.

Claiming the privilege

76. Because of the greater prospect of privileged material being found in searches of information held by lawyers, stricter procedures are proposed for searches of confidential client material held by lawyers (whether in their offices or elsewhere) than for other categories of confidential material, discussed below.

77. The Commission recommended that warrant searches of confidential client material held by lawyers should not be executed in the absence of the lawyer or his or her representative. It further recommended that the enforcement agency should provide the lawyer with the opportunity to contact the client to seek instructions as to whether a claim of privilege should be raised before the search commences. Where the lawyer is unable to contact the client, he or she should have authority to make an interim privilege claim until the client’s instructions are obtained. (For further detail on the Commission’s proposals, see recommendations 19 to 20 in the Appendix.) I agree and recommend accordingly.

78. For all searches (with or without warrant) conducted against people other than lawyers or for warrantless searches conducted in relation to material held by lawyers, the Commission recommended that no opportunity to claim the privilege need be given before the search commences. However, if it is an express condition of the search that an opportunity for a claim of privilege be given or an enforcement officer has reasonable grounds to believe that any information may be privileged, relevant material must be secured from further inspection until such opportunity is given. (For further detail, see the Commission’s recommendations 21 to 22 in the Appendix.) I agree with this proposal and recommend accordingly.

Securing the material

79. The Commission recommended that enforcement officers exercising a search power should be able to secure (without inspection) material that may be subject to a claim of privilege, pending the attendance of the search subject, or a privilege claim being made. The requirement for an opportunity for a privilege claim to be made will be determined by the proposals set out in the preceding paragraphs. The lawyer or privilege claimant should be entitled to request copies of or supervised access to secured material (For further detail on the Commission’s proposals, see recommendations 23 to 33 in the Appendix.) I agree and recommend accordingly.

Surveillance

80. The Commission recommended that it should be a mandatory condition in every surveillance device warrant (see Paper 2: Interception and Surveillance) to intercept communications that if the monitoring officer has reasonable grounds to believe that any intercepted communication may be privileged it must be extracted from the information that is accessible to enforcement officers and secured until any potential claim of privilege is resolved (see the Commission’s recommendation 34 in the Appendix). I agree and recommend accordingly.

Religious and medical privileges

81. Section 58 of the Evidence Act 2006 provides an absolute protection for confidential religious communications with a minister of religion. Under section 59 of that Act, absolute protection in criminal proceedings is also available for communications made to a medical practitioner or clinical psychologist by a patient who believes that the communication is necessary to enable the practitioner to treat him or her for drug dependency or any other conditions that manifest themselves in criminal offending. Information obtained by the practitioner as a result of consulting with or examining the person and information consisting of a prescription for treatment is also protected.

82. Given that the scope of the protection in these cases is the same in court proceedings as for legal privilege, the Commission recommended that corresponding protection should exist when search and surveillance powers are exercised. I agree and recommend that the procedures proposed to protect legal privilege be adapted and applied to protect confidential religious or medical or psychological communications, to the extent specified in the Evidence Act 2006. (For further detail of the Commission’s proposals, see recommendations 35 to 36 in the Appendix.)

Confidential journalistic sources

83. Section 68(1) of the Evidence Act 2006 introduces a qualified protection (but not a privilege) for the identity of confidential journalists’ sources. The court may order disclosure of material that would disclose the identity of the source or enable it to be discovered, where that would be in the public interest. Having regard to the qualified nature of the protection, but recognising the presumption against disclosure, the Commission recommended that the same basic framework for dealing with privileged communications should apply to confidential journalists’ sources, provided that the enforcement agency may apply to the court for disclosure on the grounds specified in section 68(2) of the Evidence Act 2006. I agree. (For further detail on the Commission’s proposals, see recommendations 37 to 38 in the Appendix.)

Post execution procedures

84. The Commission made a series of recommendations to clarify and codify the procedures after the exercise of a search power. These include access to items seized and retention, return or disposal of evidential material.

Access to seized items

85. Most search and seizure regimes do not provide for access to seized items by the person from whom the property was taken. The Commission considered it unsatisfactory that this be left solely to be resolved informally by the parties. It recommended that statutory provision be for people with a legitimate interest in the seized item to have reasonable access to it. (For further detail on the Commission’s proposals, see recommendation 40 to 43 in the Appendix.) I agree and recommend accordingly.

Retention, return or disposal of seized material

86. Section 199 of the Summary Proceedings Act 1957 generally governs the disposition of items seized under a search warrant. Where property is found in the possession of someone who is subsequently convicted of an offence, section 404 of the Crimes Act 1961 allows the court to order its return to the person who appears to be entitled to it. Abandoned or found property is dealt with under the Police Act 1958. While the current legislative schemes generally work well in practice, the Commission considered their current vagueness and permissive and discretionary terms provide insufficient guidance to enforcement agencies on their obligations.

Pre- conviction

87. The Commission recommended that statutory provision be made for the retention or return of seized items and that, if no prosecution has been commenced within six months of the seizure of any original item (as distinct from any copy or clone) and its return has been requested, the agency should be required to apply to a judge for authority to retain it. I agree and recommend accordingly.

88. The Commission made a number of other recommendations relating to dealing with seized property prior to conviction to ensure that those with a legitimate interest in the item should be entitled to its return unless it is required for investigative or evidentiary purposes. (For further detail, see the Commissions proposals in recommendations 44 to 51 in the Appendix.) I agree and recommend accordingly.

Post criminal proceedings

89. The Commission recommended that if a seized item that has been produced in evidence is not subject to a forfeiture order, it should generally be returned to the person entitled to possession. However, it recommended that, if there are competing claims to ownership the item, application should be made to the court which may order return or disposal of the item (For further detail of the Commission’s proposals, see recommendation 52 in the Appendix.) I recommend accordingly.

Items that may not be lawfully possessed

90. Property seized pursuant to a search power may include things that it is illegal to possess, either generally or in certain circumstances. This includes controlled drugs, objectionable material, firearms and other weapons. Where conviction results, the relevant legislation makes provision for forfeiture or disposal of the particular item. However, the seizure of such unlawfully possessed items will not always result in prosecution or conviction.

91. The Commission recommended that where an unlawfully possessed item has been seized and there is no legislation governing its disposal, or no court order as to its disposal, an enforcement agency should have authority to destroy it if notice has been given to the person from whom it was seized and that person has not objected to its destruction, or if notice cannot be given, after reasonable enquiries have been made to locate the person entitled to possession. In any case where there is an objection to destruction an application should be made to the court to determine whether the item should be returned or disposed of. (For further detail, see the Commission’s proposals in recommendation 53 in the Appendix.) I agree and recommend accordingly.

92. The one exception to the procedure outlined in the preceding paragraph is in relation to prohibited drugs. In any case where a judge is satisfied of the illegal nature of the drug, no notification need be given before it may be destroyed. Where the agency holding the drugs is not subject to a statutory procedure for disposing of the drugs without prior notification, it will have to apply to the court for an order to destroy without notification. However, no application will be required where an inconsequential amount of drugs (for example a single joint of marijuana) are seized, since it may be disposed of as an item negligible value (see paragraph 93).

Disposal of perishable goods and seized items of negligible value

93. In keeping with specific regimes currently in force, the Commission recommended a general provision authorising the chief executive of an enforcement agency to determine how perishable items or items of negligible value should be disposed of, with an ability to seek directions from the court where it is intended to return the goods but there are competing claims as to ownership. (For further detail, see the Commission’s proposals in recommendation 54 in the Appendix.) I agree and recommend accordingly.

Unclaimed seized items

94. Where an enforcement agency does not wish to retain a seized item, but after reasonable inquiry it is unable to locate the owner or the person from whom the property was seized, there should be provision for disposing of the property. Section 59 of the Police Act 1958 allows unclaimed property in the possession of the police for not less than 3 months to be sold by public auction. The Commission recommended that a similar generic provision should be enacted for all unclaimed property seized pursuant to a search power and that section 59 of the Police Act should be amended to deal with only other unclaimed or lost property. (For further detail, see the Commission’s proposals in recommendation 55 in the Appendix.) I agree and recommend accordingly.

Retention of copies by enforcement agency

95. An enforcement officer will often copy a document or photograph items seized under a search power. The Commission recommended that the enforcement agency should be able to retain such copies or photographs, as an archive of the official record of the investigation, even after an investigation has concluded. (For further detail, see the Commission’s proposals in recommendation 56 in the Appendix.) I agree. There is value in enforcement agencies retaining such material in case they are needed for an appeal, a subsequent official inquiry or an application for the prerogative of mercy where a miscarriage of justice is alleged. The Commission is of the view that the property interests of the owner are protected by the return of the original or other disposition of the item.

Recommendations

I recommend that Cabinet Business Committee:

1. Agree that section 198 of the Summary Proceedings Act 1957 be replaced with a provision in the new legislation to substantially the same effect and that a general suspicion threshold that the specified offence has been, is being, or will be committed be included;

2. Agree that the procedures relating to application for and the execution of search warrants in respect of places apply with the necessary modifications to vehicles;

3. Agree that a warrant to search a vehicle authorise entry onto any private place where the vehicle is reasonably believed to be located to conduct the search;

4. Agree that an application for a search warrant may be made only by a member of the police or an enforcement officer or other employee of a Government agency authorised to make the application;

5. Agree that search warrant applications not be verified by oath or affirmation, but by a short statement confirming the truth and accuracy of their contents;

6. Agree that specific provision be made for a criminal sanction for knowingly making a false application for a search or surveillance warrant, punishable by a maximum penalty of 3 years imprisonment;

7. Agree that a written search warrant application be permitted to be transmitted electronically to the issuing officer;

8. Agree that an issuing officer be able to receive an oral application and dispense with the requirement for a personal appearance, where he or she is satisfied that:

• the delay that would be caused by requiring a personal appearance will compromise the effectiveness of the search;

• the merits of the warrant application can be adequately determined without personal appearance;

9. Agree that where it is not practicable for an enforcement officer to be in possession of the original search warrant at the time of execution, a facsimile or other electronic copy of the warrant transmitted by the issuing officer, or a copy that is made by an enforcement officer at the direction of the issuing officer and endorsed to that effect, may be executed;

10. Agree that section 171 of the Customs and Excise Act 1996 be repealed;

11. Note that the Ministry of Justice, in collaboration with Police, will report back on progress on the development of a secure and safe electronic system to manage the provision of all search warrants, including budget implications of the joint proposal, to the Ministers of Justice and Police by 27 June 2008;

12. Agree that the requirements as to the information to be included in a search warrant application should be specified in legislation;

13. Agree that an applicant be required to disclose in the search warrant application, after having made reasonable inquiries, details of any warrant application made by his or her enforcement agency to search the same place, vehicle or thing in respect of the same or a similar matter made in the previous three months, and the results of any such application;

14. Agree that the agency applying for a search warrant should be required to retain copies of warrant applications and supporting documentation until the completion of relevant proceedings, or otherwise until they are transferred or destroyed in accordance with the Public Records Act;

15. Agree that the agency should forward the original warrant application to the court registrar and the court at which the application is made or forwarded to should retain the original of the application until the completion of relevant proceedings;

16. Agree that only judges and people who are trained and appointed for the purpose be authorised to issue search warrants;

17. Agree that people appointed to consider search warrant applications include authorised justices of the peace, authorised community magistrates, authorised registrars and deputy registrars and other authorised appointees who have the requisite knowledge, skills and experience;

18. Agree that all issuing officers other than judges be appointed for a fixed term of not more than 3 years that may be renewed;

19. Agree that search warrants shall be valid for 14 days from the date of issue (unless the issuing officer specifies a shorter period in the warrant) and if the issuing officer is satisfied that, owing to the special circumstances of the case, a period longer than 14 days is necessary for the execution of the warrant, he or she may issue a warrant that is valid for up to 30 days;

20. Agree that a search warrant shall be executed only once, except where the issuing officer is satisfied that more than one execution is reasonably required for the purposes for which the warrant is being issued, in which case the issuing officer shall specify in the warrant that more than one execution is permitted;

21. Agree that the requirements as to the information to be included in a search warrant should be specified in legislation;

22. Agree that a search warrant be invalid and not capable of being saved by section 204 of the Summary Proceedings Act 1957 if:

• having regard only to the information provided in the warrant application, the threshold for issuing the warrant is not met; or

• the warrant contains a defect, irregularity, omission or want of form that is likely to mislead anyone as to its scope or purpose;

23. Agree that search warrants should be directed to and executed by any enforcement officer with the statutory authority to exercise the relevant power and that an enforcement officer of any rank be able to exercise warrantless search powers;

24. Agree that enforcement officers be required to give prior announcement before entering search locations, unless one of the specified grounds for dispensing with that requirement is met;

25. Agree that the extent to which use of force may be used in the exercise of a search power be governed by the single standard of reasonable force and that legislation specify for what purposes force may be used;

26. Agree that search powers may be exercised at any time of the day or night that is reasonable subject, in the case of a warrant, to any restriction on the time of execution, imposed by the issuing officer;

27. Agree that an enforcement officer may use such assistance, including, but not limited to, human assistants (except in relation to a search of the person), devices, equipment and dogs, as is reasonable for the purpose of exercising a search power;

28. Agree that when exercising a search power, an enforcement officer may take photographs or record images and sounds in the place searched and of any thing found there where such photographs or recordings where there are reasonable grounds to believe that they may be relevant in any proceedings arising from the execution of the power;

29. Agree that an enforcement officer may copy any document, or part of a document, where there are reasonable grounds to believe that it may be seized under the search power;

30. Agree that where it is not reasonably practicable to determine whether an item may be seized pursuant to a search power at the place where the search occurs, an enforcement officer may remove it for the purpose of examination or processing to determine whether it may be seized;

31. Agree that where an enforcement officer is lawfully at a place and a search warrant to search that place is being or is about to be applied for, the officer be authorised to:

• establish a crime scene at the place to be searched for the lesser of a period of six hours or until a search warrant is obtained and is available at the scene;

• give reasonable directions to a person at the crime scene to ensure that evidential material is not destroyed, concealed, or impaired;

32. Agree that if it is necessary to enable a search power to be exercised effectively or to ensure that evidential material is not destroyed, concealed or impaired, an enforcement officer be authorised to:

• give reasonable directions to a person at the place searched;

• guard the scene, or arrange for it to be guarded and prevent persons from entering;

33. Agree that it be an offence, punishable by a maximum penalty of 3 months imprisonment, for anyone to fail to comply with the reasonable directions that an enforcement officer gives to guard the scene or preserve evidential material at a crime or search scene;

34. Agree that an enforcement officer who establishes a crime scene or gives directions while undertaking a search, identify himself or herself to those affected and advise them of the authority for the action taken;

35. Agree that where there is a power to search a place or vehicle, it carry with it the power to detain a person who is at the place or vehicle being searched, or who arrives there while the search is being undertaken, for such period as is reasonable, not exceeding the duration of the search, to enable the officer to determine whether the person is connected with the object of the search;

36. Agree that where a person is detained at the search location it be an offence punishable by a term of imprisonment not exceeding 3 months, for a person to fail or refuse to remain at that place;

37. Agree that an enforcement officer who is exercising a search power be required, upon entry, to provide evidence of his or her identity and advise the person who appears to be the occupier of the authority for the search and give that person a copy of any warrant to be executed;

38. Agree that, subject to specified exceptions, where an occupier is not present at the time of search, a notice of search (including an inventory of things seized) should be left in a prominent place at the search location;

39. Agree that notification of search may be postponed for a period of up to 12 months if a judge is satisfied that compliance would prejudice on-going or subsequent investigations or endanger the safety of any person, with a requirement that at the end of that period the judge make a final order requiring notification, extending postponement or (unless notification of seizure of an item must be given) dispensing with notification;

40. Agree that where tangible items are seized pursuant to a search power, notification of seizure must be provided at the end of period of postponement, except where the only items seized are copies or computer clones or if the judge is satisfied that the item seized is a prohibited drug; in which case notification can be dispensed with entirely;

41. Agree that the use of devices or aids to facilitate a personal search be permitted if their use involves no or minimal contact and is reasonable in the circumstances;

42. Agree that where an enforcement officer is exercising a personal search power, other than a search of a person in custody under section 57A of the Police Act 1958, that officer first identify himself or herself by name or unique identifier and advise the person to be searched of the authority and reason for the search, unless it is impracticable to do so in the circumstances;

43. Agree that where items are seized as a result of the exercise of a search power (and also where the person consents to the search), an inventory of the property taken be promptly prepared and the person searched given a copy, except if the seizure occurs under section 57A of the Police Act 1958;

44. Agree that where property is removed from an arrested person after a search under section 57A of the Police Act 1958, the person searched be shown the inventory and verify its accuracy;

45. Direct those enforcement agencies with a power to search people that guidelines be prepared governing the circumstances (if any) under which a strip search may be conducted by an employee;

46. Agree that any power to search a person expressly include the authority to detain the person to allow the search to be carried out and that the detention should last only as long as is necessary to achieve that purpose;

47. Agree that the right in sections 149D and 168 of the Customs and Excise Act 1996 and section 38 of the Financial Transactions Reporting Act 1996 for a person who is to be searched under those enactments to be taken before a reviewing officer before being searched be repealed;

48. Agree that a non-police enforcement officer have the authority to require persons in a vehicle to supply their particulars and to require the vehicle to remain stopped for as long as reasonably necessary for the exercise of the search power;

49. Agree that where a non-police enforcement officer has a statutory power to stop a vehicle, the officer shall, after the vehicle has stopped:

• identify himself or herself to the driver by name or unique identifier;

• tell the driver the authority for the stop;

• if not in uniform and if requested, produce evidence of his or her authority;

50. Agree that offences similar to those in section 314D of the Crimes Act 1961, but with an appropriate knowledge requirement, be provided for the situation where a non-police enforcement officer stops a vehicle for the purpose of exercising a search power;

51. Invite the Minister for Transport Safety to include the issue of Customs and fishery officers’ use of flashing lights on their vehicles when consulting on proposed amendments to the Land Transport (Road User) Rule 2004, as part of the 2007/2008 Land Transport Rules Programme;

52. Agree that for the purpose of executing a warrant to arrest a person, a police officer retain the authority to enter a place to search for and arrest that person if the officer has reasonable grounds to believe that the person is in the place and that this authority be specified in the warrant itself;

53. Agree that where a police officer, or a non-police enforcement officer with any statutory arrest power, is searching a place or vehicle, they also have the power to search anyone who is found there if the officer:

54. Agree that unless the possession of the dangerous item constitutes an offence, the item be returned to the person from whom it was taken once the search has been completed, or when the officer is satisfied there is no longer any threat to safety;

55. Agree that sections 18(1) and (2) of the Misuse of Drugs Act 1975 be retained and not require a police officer to have a reasonable belief that the person being searched incidental to a search of a place or vehicle is in possession of controlled drugs;
56. Agree that section 342(2)(d) of the Gambling Act 2003 be amended to require that, before searching a person, there be a reasonable belief that the object of the search is on that person;

57. Agree that where a police officer, or a non-police enforcement officer with any statutory arrest power, intends to undertake a lawful search of a person or vehicle, and that person or vehicle leaves before being searched, the officer be able to search the person or vehicle upon subsequent apprehension and to enter any private property for that purpose, provided that:

• the officer is freshly pursuing the person or vehicle from the location of the intended search;

• the officer has reasonable grounds to believe that the relevant evidential material is still on the person or in the vehicle;

58. Agree that where a vehicle is found or stopped by an enforcement officer, the officer have the power to move the vehicle to another place if:

• there is a lawful authority to search the vehicle, but it is impracticable to do so at that place; or

• the officer reasonably believes that the vehicle needs to be moved for safekeeping or road safety purposes;

59. Agree that statutory provision be made to govern the procedures for dealing with privileged and confidential material or communications to ensure that such material or communications discovered by search (including by production order) or surveillance is appropriately protected from disclosure and that codification is consistent with the Evidence Act 2006;

60. Agree that a search warrant should not be approved by an issuing officer for any material held by a lawyer that is known to be privileged, unless the issuing officer is satisfied that a prima facie case exists that the material was made, received, compiled, or prepared for a dishonest purpose or in relation to committing or planning an offence;

61. Agree that statutory provision be made to deal with items seized pursuant to a search power to:

• ensure that people with a legitimate interest have reasonable access to such items;

• ensure that enforcement agencies be entitled to retain any such item that is required for investigative or evidentiary purposes, subject to any court ordering return to the person entitled to possession;

• provide that if no prosecution has been commenced within six months from the date of seizure of any original item it should, upon request, either be returned to the person entitled to possession or the enforcement agency seek a court order for its continued retention;

• provide the ability for a person to apply to the court at any time for return of a seized item and to specify the grounds upon which a court may make such an order;

• provide the court with authority to consider competing claims to seized items;

• provide appropriate mechanisms to dispose of seized items that are unclaimed, perishable, of little intrinsic value or which are unlawful;

• provide that notice need not be given to a person from whom drugs have been seized if a judge is satisfied of their illegal status;

• provide that such drugs may be destroyed if there is no court order or other legislation governing their disposal or that destruction may be carried out in accordance with any other legislation governing disposal of such drugs which applies to the agency that is holding the seized drugs.

Hon Annette King
Minister of Justice

Date signed:

APPENDIX

Relevant Law Commission Report recommendations

Formalities of search warrants

1. A search warrant application should contain such information as is reasonable in the circumstances including:

• the name of the applicant;

• the enactment under which the application is made;

• the description of the purported offence and the relevant enactment;

• the facts relied on to show there are reasonable grounds for believing[1] that the offence has been, is being, or is about to be committed;

• the address or other description of the place, vehicle or thing proposed to be searched;

• the basis for the applicant’s belief that the evidential material is in the place, vehicle or thing;

• a description of the item or items believed to be in the place, vehicle or thing proposed to be searched believed to be evidential material;

• the period for which the warrant is sought;

• if multiple executions are sought, the grounds on which more than one execution is believed to be necessary.

2. A search warrant should contain in reasonable detail:

• the name of the judge or authorised officer issuing the warrant and the date of issue;

• the enactment under which the warrant is issued;

• the relevant offence;

• that any enforcement officer authorised to do so may execute the warrant;

• that the enforcement officer may use such assistance as is reasonable in the circumstances;

• the address or description of the place, vehicle or thing authorised to be searched;

• that the enforcement officer has the power to enter such place, vehicle or thing;

• the description of the item or items that may be searched for and seized;

• that the enforcement officer may use such force as is reasonable to enter and to break open or access any area within the place, vehicle or thing searched, or item or thing found;

• that in the case of a search under the Misuse of Drugs Act 1975, any person found in the place or vehicle may be searched;

• that in the case of any other search, any person found in the place or vehicle may be searched if there are reasonable grounds to believe that the item being searched for is on that person;

• the period within which the warrant must be executed;

• if the warrant may be executed more than once, the number of executions permitted;

• any conditions that the judge or authorised officer considers reasonable to impose with respect to the execution of the warrant.

Conduct of the search

3. Before entering the place to be searched, the enforcement officer should announce to the occupier his or her intention to enter and search the place pursuant to a search power, and identify himself or herself;

4. Compliance with recommendation 3 should not be required, where the officer exercising the search power has reasonable grounds to believe that:

• the place to be searched is unoccupied; or

• compliance would endanger the safety of any person; or

• compliance would prejudice the successful exercise of the search power; or

• compliance would prejudice ongoing or subsequent investigations.

5. Statutory provision should be made to permit force to be used when exercising a search power where it is necessary for the purposes of:

• entering any place authorised to be searched;

• breaking open or accessing any area within the place searched, or any item found in or on the place searched;

• seizing any item.

6. Every person, other than an enforcement officer exercising an independent power of search, called on to assist with the execution of the search should be subject to the responsible officer’s direction or supervision;

7. Except in relation to searching a person, an assistant should have the search powers that an enforcement officer is lawfully entitled to exercise, but an assistant may only exercise those powers under the supervision of the responsible officer;

8. An enforcement officer should be able to use equipment found in the place being searched where there are reasonable grounds for believing that the use of such equipment will provide access to evidential material, or where the use of the equipment is reasonable for the purposes of the search;

9. Items removed for examination [pursuant to recommendation 28 in Cabinet paper 6] should be:

• examined or processed as soon as reasonably practicable;

• returned to the person from whom they were taken once the enforcement officer determines they are not to be seized and retained;

• subject to the provisions as to access applying to seized items that are retained.

Notification of the search

10. Unless recommendations 13 or 14 apply, if anything (including any copy or clone of information) is seized, the enforcement officer should give the occupier (i.e. the person who appears to be the occupier) an inventory of the things removed, unless it is not reasonably practicable to do so. In that case the inventory should be provided as soon as practicable and, unless an extension is approved by a judge, no later than seven days after seizure;

11. The back of the inventory form should provide people from whom items are seized with information about:

• access to and the disposition of seized items;

• their right of access to documentation relating to the application for a search warrant or exercise of a search power that would be discoverable under the Official Information Act 1982 or the Criminal Disclosure Act (when enacted);

• the procedures to be followed where they wish to initiate a claim that privileged or confidential material has been seized.

12. Unless recommendations 13 or 14 apply, when the occupier of the place searched is not present at the time of the search, the responsible officer should leave in a prominent position notice of the search containing details of:

• the date and time of the search;

• the name or unique identifier of the executing officer;

• a copy of the warrant or, in the case of a warrantless search, the authority for the search;

• the inventory of the things removed;

• the contact address to which inquiries should be made.

13. Where an enforcement officer has reason to believe that the person present when a search power is exercised is not the occupier, the officer should leave the notice required as if the occupier were not present and the time of the search. A child under the age of 14 years should not be treated as an occupier for this purpose;

14. Where it is apparent that the inventory should be given to someone other than the occupier of the place searched, the enforcement officer need not notify the occupier, but should make reasonable efforts to identify the owner of the property seized and to provide the inventory to him or her unless recommendation 15 applies;

15. The requirement to provide the notice of search (including the inventory) need not be complied with if an application is made by an enforcement officer either at the time the warrant is applied for or within seven days of the exercise of the search power and a judge postpones the requirement upon being satisfied that there are reasonable grounds for believing that compliance would unduly prejudice ongoing or subsequent investigations, or endanger the safety of any person. Such postponement should be for a specified period of up to 12 months;

16. If at the end of the postponement period the responsible officer believes that providing notice of the search to the occupier would continue to unduly prejudice on-going or subsequent investigations or endanger the safety of any person, the officer should be able to make a further application to the judge. The judge should then make a final order:

• declining the application; or

• if he or she is satisfied that the grounds for the application are made out, either extending the postponement until a future date when notification must then be given or dispensing with notification altogether.

17. Except in relation to copies or clones of information taken or made, where things have been seized, there should be no power to extend a postponement order or to dispense with the giving of the notice of search and inventory of things seized to the occupier.

Privileged and confidential material

18. The legal privileges should not be available for a communication or information if made or received, or compiled or prepared, for a dishonest purpose or to enable anyone to plan what the person claiming the privilege knew, or ought reasonably to have known, to be an offence;

19. The standard form of search warrant should contain a notice on the availability of each legal privilege (lawyer-client privilege, litigation privilege, and privilege for settlement negotiations or mediation) and outline how a privilege claim may be made. For warrantless searches, this note should be included in the inventory provided to the search subject following the exercise of the search power;

20. Where the scope of a search warrant includes confidential client material held by a lawyer:

• the search warrant should not be executed in the absence of the lawyer, or his or her representative. Where the enforcement agency is unable to contact the lawyer or his or her representative or the lawyer fails to attend the search having been asked to do so, the enforcement agency should request the appointment of a Law Society representative to act for the lawyer’s clients in respect of the search;

• the enforcement officer should give the lawyer an opportunity to claim the legal privileges on behalf of any client before the search begins. Where the lawyer is unable to contact the client within a reasonable time period, the lawyer should have the authority to make an interim privilege claim until the client’s instructions are obtained.

21. The legal privileges should be available for searches other than those executed against lawyers under warrant, but the enforcement officer should not have to provide an opportunity to claim privilege, except where he or she has reasonable grounds to believe that any search material may be privileged, or unless that is an express condition of the search. In either such case, the officer should provide an opportunity for the person who may have the benefit of the privilege to claim it;

22. Where the enforcement agency is unable to identify or contact the potential privilege claimant or his or her lawyer within a reasonable timeframe, the agency should be entitled to ask the court to determine the status of the material;

23. An enforcement officer should be authorised to secure any material within the scope of the search power, either on the search premises or by seizing that material, in any circumstances where the privilege procedures delay the search of that material;

24. Where any material within the scope of the search power is intangible, such as computer data, and the privilege procedures delay its search, the enforcement officer should be authorised to secure that material by making forensic copies;

25. The lawyer or potential privilege claimant should be entitled to request copies of or supervised access to any secured material;

26. Material that has been secured should not be searched, unless its status has been determined not to be privileged;

27. A generic requirement that law enforcement searches of confidential client material held by lawyers be independently supervised is not recommended. Independent supervision should be considered on a case-by-case basis and should only be a warrant condition where considered necessary by the issuing officer;

28. A privilege claim should be particularised by the person making the claim, either by identifying the particular material or by providing the enforcement officer with an itemised list of the material that is claimed to be privileged. Where the circumstances preclude adequate particularisation, the claimant may apply to the court for relief or directions;

29. Material claimed to be privileged should not be searched unless that material has been determined not to be privileged. Material claimed to be privileged should be removed from the scope of the search and sealed. The sealed material should be delivered to the court, together with an application for the claim to be determined;

30. Where the enforcement agency considers that the privilege claim is unlikely to have any substantive basis, it should be able to accelerate the process by applying to the court for determination of the privilege claim as soon as is reasonably practicable;

31. Where a search warrant authorises the search of confidential client material held by a lawyer in intangible form (such as computer data), the enforcement agency should provide the lawyer with an opportunity to claim privilege on behalf of any client in any intangible material sought under the search warrant, prior to that material being searched;

32. Subject to any privilege claim in respect of any particular metadata, enforcement agencies should be authorised to search metadata that pertains to privileged material where that metadata falls within the scope of the search power, and to seize or retain such metadata where it constitutes evidential material;

33. The court should have the discretion to give directions that are necessary to limit the use made of privileged material that is obtained as a result of the exercise of an enforcement power;

34. It should be a mandatory condition in every surveillance device warrant to intercept communications that where the monitoring officer has reasonable grounds to believe that any intercepted communication may be privileged, it must be extracted from the information that is accessible to enforcement officers and secured until any potential claim of privilege is resolved;

35. The codified privileges for communications with ministers of religion, medical practitioners, and registered clinical psychologists contained in the Evidence Act 2006 should be available when enforcement powers are exercised;

36. The procedures recommended for protecting legal privilege in recommendations 18 to 26 and 28 to 34 should be adapted to protect religious and medical privilege, including:

• in warrant searches of confidential professional material held by ministers of religion, medical practitioners, or clinical psychologists, by the enforcement officer providing an opportunity for the minister, medical practitioner, or psychologist to claim the relevant privilege on behalf of the entitled person, before the search begins;

• in other searches, by the enforcement officer providing the search subject with an opportunity to claim the relevant privilege where there are reasonable grounds to believe that any search material may be privileged, or where this is an express condition of the warrant.

37. The qualified protection for material identifying confidential journalists’ sources in section 68 of the Evidence Act 2006 should be available when enforcement powers are exercised;

38. Recommendations 19, 21 to 26, 28 to 30 and 33 to 34 should be extended to protect material identifying journalists’ sources, provided that the enforcement agency may apply to the court for disclosure of the information on the grounds specified in section 68(2) of the Evidence Act 2006;

39. The privilege procedures recommended for the exercise of enforcement powers should be adapted for the proposed production order regime, including the following key elements:

• the production order should contain a notice on the availability of each privilege and outline how a privilege claim may be made;

• where the production order includes confidential legal, religious or medical information held by the relevant professional, the enforcement agency should provide the recipient of the notice with a reasonable opportunity to claim privilege in any material to which the production order relates, on behalf of the entitled person;

• a privilege claim should be particularised by the person making the claim, by providing the enforcement agency with an itemised list of the material specified in the production order that is claimed to be privileged;

• where a privilege claim is made, the recipient of the production notice must produce the material claimed to be privileged to the court for purposes of determination of the privilege claim;

• where the enforcement agency considers that the privilege claim is unlikely to have any substantive basis, the enforcement agency should be able to accelerate the process by applying to the court for determination of the privilege claim as soon as reasonably practicable;

• where a privilege claim is upheld by the court, the material determined to be privileged should be returned to the recipient of the production order;

• where a privilege claim is not upheld by the court, the court should order that the material in question be delivered to the enforcement agency.

Post execution procedures

40. The person from whom an item is seized pursuant to a search power, and anyone else claiming to be entitled to it, should be able to apply to the enforcement agency that is holding the item for reasonable access to it at any time before an information has been laid;

41. The enforcement agency should be able to impose conditions on access, or refuse access if it would be likely to prejudice the maintenance of the law;

42. The applicant may apply to the court for an order permitting access where the applicant does not accept the conditions imposed, or where the enforcement agency refuses the request for access;

43. Access to seized items once an information has been laid should be determined under the rules relating to criminal disclosure;

44. An enforcement officer should be able to retain any seized item that is required for investigative or evidentiary purposes unless a court has ordered its delivery to a person entitled to possession;

45. When a copy or photograph of a seized item will suffice for investigative or evidentiary purposes, the enforcement agency may, at its discretion, return the item to the person entitled to possess it;

46. When a seized item is no longer required for investigative or evidentiary purposes, the enforcement agency should return it to whoever appears to be entitled to possession;

47. Clones of computer hard drives, photographs, or video or audio recordings made or held by the enforcement agency should be able to be held by the enforcement agency without the need to apply to the court for an order for their retention;

48. Where an application to retain a seized item is made, and the judge is satisfied that retaining the property is reasonably required for investigative or evidential purposes, the enforcement officer should be authorised to retain it, subject to such conditions as the judicial officer thinks fit;

49. Any person claiming to be entitled to possession to a seized item should be able to apply to the court at any time for an order for its return. The court should make such an order only where it is satisfied that it would be contrary to the interests of justice for the enforcement agency to retain it, having regard to:

• the gravity of the alleged offence;

• any loss or damage to the applicant that is caused or likely to be caused by retaining the item;

• the likely evidential value of the seized item having regard to any other evidence held by the enforcement agency;

• whether the evidential value of the item can be adequately preserved by means other than keeping it.

50. When a seized item is not to be produced in evidence but there are competing claims as to its ownership, or for any other reason an enforcement officer is uncertain as to whom the item should be returned, the enforcement officer should be able to apply to the court for directions;

51. When the court is considering an application for the disposition of a seized item, it should be able to make one of the following orders:

• that the item be destroyed or forfeited (where there is statutory authority to do so);

• that the item be delivered to the person appearing to the court to be entitled to it;

• that the item be treated as unclaimed and disposed of as the court directs.

52. If a seized item produced in evidence is not forfeited, the enforcement officer should return it to the person entitled to its possession, or it should be the subject of an application to the court by either the enforcement officer or a person claiming to be entitled to possession;

53. Where an unlawful item has been seized and there is no legislation governing its disposal, or no court order has been made as to its disposal, an enforcement agency should have the authority to destroy it if notice has been given to the person from whom it was seized and that person has not objected to its destruction or, if notice cannot be given, after reasonable enquiries have been made to locate that person;

54. The disposal of seized items that are either perishable or of little intrinsic value should be vested in the chief executive of the relevant enforcement agency;

55. There should be a procedure available, similar to section 59 of the Police Act 1958, to provide for the disposal of unclaimed seized property. Section 59 of the Police Act 1958 should be specifically confined to lost or unclaimed property;

56. For the avoidance of doubt, statutory provision should be made authorising an enforcement agency to retain a copy or photograph of any seized item for its official records (so that, for example, investigations of applications for the prerogative of mercy can be properly undertaken), even where the original has been returned or disposed of pursuant to a court order.

Footnote

1 This is now recommended to be a reasonable suspicion threshold. See Paper 1, paragraphs 22 to 28.