The Scope of the Implied Licence to Enter Land and Its Application to Undercover Police Surveillance

Abstract

This paper discusses whether the scope of the implied licence to enter private property is wide enough to include situations in which police officers enter land pursuant to an implied licence, for the purpose of conducting criminal investigations through undercover video surveillance. If undercover video surveillance falls within the scope of the implied licence, the presence of the police on private property will be lawful. The recent Supreme Court case of Tararo v R seems to suggest that where police officers enter land armed with undercover video cameras in order to investigate suspected criminal offending, the public interest in deterring crime will outweigh the occupier’s property and privacy interests. This paper will examine the inconsistent case law surrounding the scope of the implied licence for private citizens and the police, concluding that it is inappropriate for courts to develop separate standards between private citizens and police officers. If wider powers of warrantless undercover surveillance are to be granted to the police, it should be through clear and distinct legislation, not through stretching a common law justification to the private tort of trespass.