Creating powers of search, surveillance and seizure
This is a single section from Chapter 21. Read the full chapter here.
Should new search powers be granted?
New search powers should be granted only if the policy objective cannot be achieved by other means.
If the information or evidence concerned can be obtained by means other than by granting new search powers (for example, by recourse to the common law, consent, or existing powers), those alternatives should be used. If new search powers are required, the approach that results in the least limitation on privacy rights should be adopted.
Search powers should not be granted for the convenience of the agency or ease of prosecution. Each search power must have a separate justification for why it is necessary. A general justification that search powers are required is not sufficient. The more invasive a particular search power is, the greater the justification required to create it is. Searches of a person’s body are more invasive than searches of a business premises and generally require a greater justification.
In the regulatory context, search powers may have a legitimate monitoring or deterrent effect, but in the law enforcement context it is inappropriate for search powers to be used for coercive or deterrent reasons.
Search powers must be proportionate to their objective. Consequently, search powers connected to lower-level offending give rise to concerns. Advice should be sought from the Ministry of Justice if there is a proposal to provide search powers in respect of lower-level offences. These types of powers require clear justification and careful scoping.
Statutory law enforcement search powers must be triggered by suspicion that a specific matter or class of matters has taken place. Generally-worded law enforcement search powers (which allow “fishing expeditions”) are likely to be interpreted narrowly by the courts, and should not be authorised by legislation.
In some cases, the effective exercise of search powers might necessitate the inclusion of a power to require information to be produced (such as codes to access computers) or questions to be answered. However, these powers are likely to be used in situations where prosecutions are likely to follow, and the privilege at general law (and in the Evidence Act 2006) against self-incrimination should be respected. If grounds exist to override that privilege, then the overriding of the privilege should be explicitly stated. If not, then the privilege should be affirmed.
Search powers should also respect other privileges such as legal professional privilege.