Drug detection dogs and the growth of olfactory surveillance: beyond the rule of law

Since the introduction of the Human Rights Act 1998 in the United Kingdom, a significant expansion in the use of drug detection dogs, the most common tool of olfactory surveillance, has taken place with relatively little debate, without specific legislative authority and in the absence of a code of practice. In contrast, the use of the dogs in New South Wales, Australia and in the United States has been the subject of Supreme Court decisions, and in New South Wales, of parliamentary legislation and an independent review by the New South Wales Ombudsman. This paper will argue that the difficult legal issues raised by olfactory surveillance are similar to those raised by other forms of ‘new surveillance ’ in the criminal justice system and that the failure of the legal system to deal with these issues in the case of olfactory surveillance could amount to a dangerous precedent for the regulation of other surveillance technologies