Creating powers of search, surveillance and seizure
This is a single section from Chapter 21. Read the full chapter here.
How should the search powers be framed?
New search powers for law enforcement purposes should be exercisable only if there are “reasonable grounds to suspect” the relevant factual situation has occurred, and “reasonable grounds to believe” that evidence will be found or that a particular thing may be achieved during the course of that search.
In the law enforcement context, legislation should set out the thresholds that must be satisfied before a search power is exercised. The default thresholds below are based on the search powers of the Police in section 6 of the Search and Surveillance Act 2012 and should apply to any new search powers:
- there are “reasonable grounds to suspect” the relevant factual situation has occurred (such as a criminal offence); and
- there are “reasonable grounds to believe” that evidence will be found, or a particular thing might be achieved, during the course of the search (a common example is that evidence relating to a criminal offence may be found).
Compelling reasons must exist for relying on different thresholds in a law enforcement context (such as a suspicion that the person is carrying a dangerous item or may otherwise pose a serious and imminent threat to themselves or other people).
In the regulatory context, suspicion of a breach is not always necessary for search or inspection powers to be exercised. However, the power must still be justified (for example, a search or inspection power is required to monitor compliance with legislation). Even so, those powers must be capable of being exercised only for the purpose of monitoring compliance or detecting breaches of the legislation.