Entry, search and seizure

Question 1

What PACE code of practice covers this?

Answer 1

Code B

Question 2

What if police are invited onto premises?

Answer 2

They are lawfully there until that invitation is withdrawn
Once the invitation is withdrawn, they will become trespassers unless they have a power to be there and the person may remove them with force
To terminate invitation the person must clearly communicate to the officers - saying fuck off is not enough

Question 3

Relevant protected characteristic

Answer 3

Age
Disability
Gender reassignment
Pregnancy
Maternity
Race, religion or belief
Sexual orientation

Question 4

Do officers have to provide their names when conducting a search?

Answer 4

Yes
Except if it is linked to terrorism or officers reasonably believe recording or disclosing their names might put them in danger - if so use number and station

Question 5

Who should be the officer in charge of the search?

Answer 5

Normally the most senior officer present
Except:
The most senior officer may appoint someone else if they are more conversant with the facts or more appropriate to be in charge
All officers involved in the search are the same rank
The senior officer is assisting in a specialist role

Question 6

s15 PACE

Answer 6

Application for a warrant
Must be made by a police officer or dedicated investigation officer in writing and supported by relevant authority (inspector + usually, superintendent + for terrorism)
Must specify authority it is made under (e.g. s8 PACE), grounds for application and object of search
If more than 1 premises then details of each
Premises occupied or controlled by person specified in warrant
If multiple entries are requested, you must justify why
Must include names of those accompanying executing officer - need names and jobs of police staff and others, don’t have to name police officers

Question 7

s15 - what if application is refused?

Answer 7

No further application can be made unless it is supported by additional grounds

Question 8

Execution of a warrant - s16 PACE

Answer 8

May be executed by any constable
Warrant may authorise persons to accompany any constable
Authorised persons may only exercise those powers in the company and under the supervision of a constable
Entry and search must be within 3 months (1 month for drug ones)

Question 9

Exclusion of evidence

Answer 9

If the provisions are not fully complied with, any entry and search made under the warrant will be unlawful
Failure to follow requirements of ss15-16 may result in the exclusion of any evidence obtained under the warrant
E.g. when officers failed to provide the occupier a copy of the warrant they had to return all the seized property
But very minor departures from the letter of the warrant will not render any search unlawful

Question 10

Search warrants for indictable offences - s8 PACE

Answer 10

From magistrates
Can be issued to a police officer or designated investigation officer
Must be reasonable grounds for believing an indictable offence has been committed and there is material likely to be relevant evidence or likely to be of substantial value - must show evidence seized falls under this description
Can’t generally search for or seize legally privileged material (between lawyer and client) - s10 PACE
Can apply for a specific premises or all premises warrant if necessary to search all premises D occupies or controls but it is not practical to specify all these premises at the time of applying for the warrant.

Question 11

Excluded or special material - s9 PACE

Answer 11

Sets out procedure to gain warrant from judge to access excluded or special material

Question 12

Excluded material - s11 PACE

Answer 12

Personal records - peoples names, addresses, numbers, medical records
Human tissue samples/fluids - e.g. if held by hospital
Journalistic material - material acquired or created for purposes of journalism

Question 13

Special procedure material - s14 PACE

Answer 13

Any other stuff recorded by a journalist that doesn’t fit the above excluded material definition, if journalist has given a promise to a person that they will not divulge the details
Stuff held by a business held by an express or implied undertaking that they hold it in confidence or if they are holding it subject to another piece of legislation
E.g. data from BBC cameras not used in broadcast that is subject to data protection legislation and other broadcasting laws

Question 14

s9 PACE

Answer 14

Have to go to crown court

Question 15

What counts as a premises for entry, search and seizure?

Answer 15

s23 PACE
Very wide definition - any place
Something someone considers a building or structure
Includes a tent, moveable structure, car, boat, hovercraft, house etc.

Question 16

Entry without warrant to make an arrest

Answer 16

s17 PACE
A constable may enter and search any premises for the purpose of:
- Executing warrants
- Arresting a person for an indictable offence
- Arresting a person for a specified offence
- Recapturing someone unlawfully at large (escaped offender or mental health patient) or in hot pursuit i.e. you saw him enter house
- Saving life or limb or preventing serious damage to property (s17(1)(e))
You must believe that the person is in the premises - except saving life and limb
Force may be used to enter

Question 17

Saving life and limb

Answer 17

s17(1)(e)
Don’t have to believe the person is on the premises
Can’t just be a concern for welfare?
Have to think has the concern for welfare reached such a level that you think something serious has happened and you need to enter to save life and limb?

Question 18

Specified offences for s17

Answer 18

s4 Public Order
s4 RTA - unfit through drink or dugs 
Squatting
Using violence to secure entry
Trespassing with a weapon
Failure to stop vehicle when required by constable

Question 19

How to remember s17 powers?

Answer 19

WISPS
Warrant
Indictable offence
Specified offence
Pursuing escapee
Saving life and limb or preventing serious damage to property

Question 20

Power to search person upon arrest

Answer 20

s32 (1) PACE
A constable may search an arrested person (as long as they were arrested somewhere other than a police station) if they have reasonable grounds for believing that the arrested person may present a danger to himself or others.
Also have a common law power to search anyone under arrest (including at police stations).

Question 21

What can you search for under s32?

Answer 21

DIE
Dangerous article
Implement to escape
Evidence relating to an offence

Question 22

Power to search premises upon arrest

Answer 22

s32 (2) PACE
A constable may enter and search any premises upon which a person has been arrested for an indictable offence or where he had been immediately prior to arrest to find evidence relating to THAT offence.
That offence not any offence.
Can only search to the extent that you are looking for the article e.g. wouldn’t look in drawers if searching for a stolen bike

Question 23

Power to seize and retain items found in s32 search

Answer 23

s32 (9) PACE
Power to seize and retain anything found that might
Cause physical injury
Be used to assist escape
Evidence of an offence or obtained in the commission of an offence
Can’t seize and retain items of legal privilege.

Question 24

Power to search premises occupied or controlled by arrested person

Answer 24

s18 PACE
A constable may enter and search any premises occupied or controlled by a person under arrest for an indictable offence if he has reasonable grounds for suspecting that there is evidence on the premises.
Only have to suspect.
Can search for evidence relating to that offence or some other indictable offences which is connected or similar.
Need written authority by an inspector.

Question 25

s18 (5) PACE

Answer 25

Rare
A constable can conduct a search before taking a person to a police station without obtaining authorisation from an inspector but only if the presence of that person is necessary for an effective investigation and the arrested person must be present during the search.
Should inform the inspector as soon as practicable.

Question 26

Search with consent - what if it is a lodging house or similar?

Answer 26

Every effort should be made to get consent from the tenant, lodger or occupier.
Search shouldn’t be made solely on basis of landlord’s consent.

Question 27

Search with consent

Answer 27

Consent must, if practicable, be given in writing on the Notice of Powers and Rights before the search.
Officer must make sure the person is in a position to give consent.
Officer must tell them the extent of search and that they can withdraw consent at any time.

Question 28

Do you need a power or consent to search gardens to see if suspect is hiding?

Answer 28

Not if it’s reasonable to assume innocent occupiers would agree to and expect police to take action

Question 29

Power to seize items

Answer 29

s19 PACE
A constable may seize anything which is on the premises if he has reasonable grounds for believing that it has been obtained in consequence of the commission of an offence or that it is evidence of an offence or any other offence.
Officer must have reasonable grounds to believe it is necessary to seize it to prevent it being concealed, lost, altered, damaged, destroyed.
If premises is a vehicle you can seize the whole vehicle - same with tents, caravans.
May require info stored in any electric form and is accessible from the premises to be produced so it can be taken away in a visible and legible form.

Question 30

Power to retain items

Answer 30

Forensic examination
Evidence at trial
Establish ownership

Question 31

Time of searches

Answer 31

Searches under warrant must be made within 3 months.

Searches must be made at a reasonable hour unless this might frustrate the purpose of the search.

Question 32

Compensation after searching?

Answer 32

Compensation for damage caused when effecting entry is unlikely to be appropriate if the search was lawful and force can be shown to be reasonable, proportionate and necessary to affect entry.
Compensation is likely to be given if the wrong premises are searched by mistake.

Question 33

What if occupier withdraws consent for officers to be there?

Answer 33

If officers are on premises only with consent of the occupier, they become trespassers when that consent is withdrawn.
Once told to leave they are no longer lawfully on the premises.
They must be given a reasonable opportunity to leave.

Question 34

Seize and sift powers

Answer 34

Criminal Justice and Police Act 2001 powers allow police officers to remove materials from the premises being searched where there are practical difficulties of not doing so.
s50 extends PACE powers to allow seizure where it is not reasonably practicable to sort through it at the scene of a search.
s50 allows for seizure of material reasonably believed to be legally privileged where it is not reasonably practicable to separate it.
s51 is the same but where the material is found on a person being lawfully searched.
Once seized the OIC should carry out an initial examination of the items as soon as reasonably practicable and return items that don’t need to be seized.
Any legally privileged material found should be returned as soon as reasonably practicable.

Question 35

Actions after a search

Answer 35

Record of the search should be made.
If warrant was used that should be endorsed and show when it happened, what was seized etc.
Search register maintained in each police station and search record should be made, copied or referred to in the register.