What kinds of surveillance can the Police use?
Surveillance can include:
- intercepting and/or looking at people's texts, voice mails, and chat room conversations,
- bugging cars and private premises,
- video recordings,
- audio recordings of spoken conversations,
- tracking a person or object to locate them
The Police are allowed to use surveillance and interception devices in certain circumstances (see below).
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What kinds of surveillance can the Police do without a warrant?
The Police don’t need a surveillance warrant if:
- they are lawfully on private premises (i.e. not trespassing) and recording what they hear and observe but without using a surveillance device (e.g. they could write into a notebook).
- they record a conversation where one of the people participating in the conversation has consented to this happening (the Police officer can be the person who gives consent).
- they have authority to carry out surveillance under an interception warrant. This is a warrant issued in relation to national security issues and is authorised by the Minister in charge and the Commissioner of Security Warrants, not by the court.
- they have been authorised to carry out surveillance under a specific piece of legislation.
The Police may also use a surveillance device without a warrant for up to 48 hours in some situations of emergency or urgency. They can only do this if they are entitled to apply for a warrant, but it is not practical for them to get a warrant in time to carry out the surveillance. For example:
- to help them seize illegally held firearms or firearms held by someone with a protection or police order against them
- to prevent or stop an offence from being committed which is likely to cause serious injury to a person or serious damage of loss to property
- where a person’s life or safety is at risk which would require an emergency response (such as an ambulance)
- a serious offence (which has a penalty of 14 years or more in prison) which they have reasonable grounds to suspect is being, has been, or is about to be committed
- an offence against the Arms Act which is punishable by at least two years in prison, which they have reason to suspect, is being, has been or is about to be committed
- an offence relating to the possession, manufacture or trade of illegal drugs which they have reason to suspect, is being, has been or is about to be committed.
In these circumstances, in order to put the surveillance device in place the police can enter a place or vehicle, or break open a vehicle or other thing and they can use reasonable force to do so.
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For what kinds of surveillance do the Police need a warrant?
They need a warrant to use surveillance, interception, and tracking devices to:
- intercept private conversations (including telecommunications such as texts and emails)
- use a tracking device (unless it is only to check whether something has been tampered with and they did not enter private property without permission)
- observe and record private activity happening in private premises
- use a surveillance device where it involves trespass (e.g. entering private premises or opening private property)
- to observe and record private premises for more than three hours in any 24 hour period, or for more than a total of eight hours.
However the Police can only ask for a warrant to use interception devices, or to do surveillance which would involve trespass on private property, if they are gathering evidence relating to:
- an offence which is punishable by a prison sentence of 7 years or more; or
- offences relating to the illegal possession, use , or supply of restricted weapons e.g. explosives, pistols.
This is because intercepting conversations and trespassing on private property are seen as more serious breaches of people’s privacy than just using tracking or surveillance devices without trespassing.
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How long can the Police keep their surveillance data?
This depends on whether or not criminal proceedings (e.g. the offender/s being charged, going to court) have begun, for the offence which the surveillance was related to.
If criminal proceedings have begun, the surveillance data (such as audio and visual recordings) will be kept until the court case has ended, including any appeal or until the period for bringing an appeal has expired.
If criminal proceedings have not begun, then the data can be kept for three years (if the Police investigation is not yet finished), or up to two more years by court order.
In some circumstances the court may (subject to conditions) allow the Police to keep excerpts of the surveillance data for a longer period if it might be needed for future investigation.
The Police can keep any information they develop from analysing the surveillance data (rather than the surveillance data itself) if there are reasonable grounds to suspect that the information may be relevant to an ongoing or future investigation.
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What can I do if I think Police surveillance on me has been done unlawfully?
You can make a complaint to the Independent Police Conduct Authority if you believe that the Police have conducted surveillance of you which was illegal or unreasonable. More about this is on our Police and powers to search page and on our Police and your rights page.