agree that this could simply be grafted onto the s312 series of sections. Been a while since I have done a s312 challenge- was about 3 years ago, and we lost! I seem to remember there being a sealed warrant that only the prosecution and the judge could read. The defence was basically excluded from the challenge. Not the first time I have seen that, however!

Gault J is indeed very understanding, but I disagree with him. The Police knew the situation, even if it hadn’t been explicitly decided, and carried on anyway. They relied on the Courts to apply an ex post facto justification and they lost. That sort of behaviour from the Police is not acceptable, in my view. As you point out, Parliament should have done something about it a long time ago. More importantly, the Police should have raised this as an issue with Parliament a long time ago. It wouldn’t have taken much for them to make it an issue, but instead they left it.

Section 30 covers any problems the Police currently have. Therefore there is no need for retrospectivity.

And I won’t be making a submission. I have no faith that the National party will actually listen to a submission that disagrees with their point of view. Recent years practice when it comes to justice issues show the reasons for that.

I am not quite as strong on the unforgivability of police action as the 1997 cases simply raised an obiter doubt (I think they related to over the fence surveillance) and the difficulties (noted by the SC) of responding to a very serious issue with existing techniques. As Gault J said, perhaps generously, at para 267 it was “understandable” that in absence of specific legislative authority and in the absence of a specific Judicial decision saying unlawful that the decision was made. I think that is perhaps a bit generous as the writing had been on the wall for 14 years but I blame Parliament for that.

Retrospectivity is wrong and in my view unnecessary. s30 can apply up to this decision and the evidence rise and fall on the respective merits under the balancing test.

My strong preference would be for a warrant based system to be introduced but apparently that is “too hard” in the time available.

FES – I would have thought it could be grafted on to s312 with similar tests – the invasion of privacy is perhaps higher but similar to bugging/intercept devices. Do you know more about the s312 test?

Btw submissions close at midnight.

Can I just say (and GPT may not agree with me on this!) that, notwithstanding Parliament’s unnecessary delay in this area (there is nothing wrong with the concept of video surveillance, so long as it is done legally), it is completely unforgivable for the Police to knowingly continue to use unlawful practices in the hope that the Court will excuse their illegal behaviour.

 That is not just wilful ignorance.  Each occurrance is a flagrant breaking of the law.

 It disturbs me that the National Party considers it acceptable to retrospectively justify knowingly illegal conduct just because some alleged criminals might get off.  And the key word there is might.  There is no guarantee that they will get off, it is simply a possibility.

 Change the law to make video surveillance legal, but don’t try to say it was ok all along when clearly it wasn’t.

And I find it amusing that, even when trying to do something right, the Labour party still screws it up…

Keith Locke (I am embarrassed to say) was dead on in question time when he asked a question to the effect of why is it so urgent to fix now when the police knew they had a problem (at its most generous) when Winkelmann J said the search was unlawful. Fortunately for National Finlayson sounds like he knows a lot more than Locke so the point was lost.

Frankly Parliament has let the police and the public down – they’ve had 14 years since the CA first raised this as an issue and done nothing.

Whilst I like the proposed fix by Geddis it is damn sloppy Labour using the wrong section.

cheers

David Prosser

Not true. Andrew Geddis:

The claim that this decision is something of a bolt from the blue that has radically unsettled established understandings of the law is (with respect) pretty tenuous. No court before the Court of Appeal in Hamed had said that trespassory covert filming is lawful … and the Supreme Court then said this decision was wrong in law. (Hodgkinson expressed some doubt on the matter, but hardly could be said to have resolved it.) The previous Court of Appeal rulings that covert videoing was permissible (Fraser and Gardiner) related to non-trespassory uses – which I do not think are affected very much at all by the Hamed ruling. So if the claim is “we always thought this was legal – until the Supreme Court hit us from left-field”, I just don’t buy it … it smacks of a degree of wishful thinking on the part of the Police and the Government.

Absolutely no argument. Look at what’s conveyed by that scenario and which should be easily and widely understood. To say, state, declare or announce that you support Labour proclaims you to be a completely unthinking, non-discerning, frankly brainless sort of a cretin.

Who, in their right mind would give their vote to a party comprised of such proven inepts and incompetents.

Social media can be useful, but it can be a major distraction. Must get back to work.

I think your giving them too much credit. Woeful does not even come close. Patholigically stupid might.

It’s possible. It’s also possible the Herald is wrong.

Labour’s plan on secret police cameras gets boot – twice

The Labour Party was left red-faced yesterday by proposing a solution that had already been rejected by a parliamentary select committee.

Anything’s possible. But Charles begging won’t make any difference.

Also Finlayson is one of those people who insists he is always right. For instance he is right and the members of the Supreme Court and Justice Winkelmann are all wrong. All of them say that the police were aware that there was a risk in the covert surveillance that was engaged in yet Finalyson is convinced that the Police knew no such thing. Could it be that he is wrong?

[DPF: Well the Court of Appeal had ruled it legal on three occassions]