Entry, Search and Seizure Flashcards
Searching Persons
The Criminal Justice Act 1988, s. 139B provides that a constable who has reasonable grounds for suspecting that an offence under the Criminal Justice Act 1988, s. 139A or 139AA has been or is being committed may enter school premises and search the premises and any persons on the premises for any bladed or pointed article or offensive weapon. Persons may be searched under a warrant issued under the Misuse of Drugs Act 1971, s. 23(3) to search premises for drugs or documents only if the warrant specifically authorises the search of persons on the premises. Powers to search premises under certain terrorism provisions also authorise the search of persons on the premises, e.g. under paras 1, 2, 11 and 15 of sch. 5 to the Terrorism Act 2000 and s. 52 of the Anti-terrorism, Crime and Security Act 2001.
Immigration Act 1971
The Immigration Act 1971, part III and sch. 2 gives immigration officers powers to enter and search premises, seize and retain property, with and without a search warrant. These are similar to the powers available to police under search warrants issued by a justice of the peace and without a warrant under ss. 17, 18, 19 and 32 of the 1984 Act except they only apply to specified offences under the Immigration Act 1971 and immigration control powers. For certain types of investigations and enquiries these powers avoid the need for the Immigration Service to rely on police officers becoming directly involved. When exercising these powers, immigration officers are required by the Immigration and Asylum Act 1999, s. 145 to have regard to this Code’s corresponding provisions. When immigration officers are dealing with persons or property at police stations, police officers should give appropriate assistance to help them discharge their specific duties and responsibilities.
Exclusion of Evidence
If the provisions of these sections are not fully complied with, any entry and search made under a warrant will be unlawful. Although the officers executing the warrant may have some protection from personal liability where there has been a defect in the procedure by which the warrant was issued, failure to follow the requirements of ss. 15 and 16 may result in the exclusion of any evidence obtained under the warrant. Therefore, where officers failed to provide the occupier of the searched premises with a copy of the warrant (under s.16(5)(c)), they were obliged to return the property seized during the search (R v Chief Constable of Lancashire, ex parte Parker [1993] QB 577).
If a warrant itself is invalid for some reason, any entry and subsequent seizure made under it are unlawful (R v Central Criminal Court and British Railways Board, ex parte AJD Holdings Ltd [1992] Crim LR 669).
Very minor departures from the letter of the warrant, however, will not render any search unlawful (Attorney-General of Jamaica v Williams [1998] AC 351).
Legally Privileged Material
Material which falls within the definition in s. 10 of the 1984 Act is subject to legal privilege which means that it cannot be searched for or seized.
Items held with the intention of furthering a criminal purpose are not subject to this privilege (s. 10(2)). When making an application for a warrant to search for and seize such material the procedure under sch. 1 should be used. Occasions where this will happen are rare and would include instances where a solicitor’s firm is the subject of a criminal investigation (R v Leeds Crown Court, ex parte Switalski [1991] Crim LR 559). However, it may be possible during a search to ascertain which material is subject to legal privilege and which might be lawfully seized under the warrant being executed. Therefore, although a warrant cannot authorise a search for legally privileged material, the fact that such material is inadvertently seized in the course of a search authorised by a proper warrant does not render the search unlawful (R v HM Customs and Excise, ex parte Popely [2000] Crim LR 388).
Excluded Material
Access to ‘excluded material’ can generally only be gained by applying to a judge for a production order under the procedure set out in s. 9 of, and sch. 1 to, the 1984 Act and PACE Code B. That strict statutory procedure also applies to the application for and execution of warrants by Investigating Officers designated under sch. 4 to the Police Reform Act 2002.
Medical records and dental records would fall into this category, as might records made by priests or religious advisers.
‘Personal records’
defined under s. 12 of the 1984 Act and include records relating to the physical or mental health, counselling or assistance given to an individual who can be identified by those records.
‘Journalistic material’
defined under s. 13 as material acquired or created for the purposes of journalism.
Special Procedure Material
Special procedure material can be gained by applying for a search warrant or a production order under sch. 1 to the 1984 Act.
The person believed to be in possession of the material must have come by it under the circumstances set out at s. 14(2)(a) and must hold it under the undertakings or obligations set out at s. 14(2)(b)
Search Warrants for Indictable Offences—s. 8 PACE
This section provides that a constable can apply for two different types of search warrant: a ‘specific premises warrant’ for the search of one set of premises; and an ‘all premises warrant’ when it is necessary to search all premises occupied or controlled by an individual, but where it is not reasonably practicable to specify all such premises at the time of applying for the warrant. The warrant allows access to all premises occupied or controlled by that person, both those which are specified on the application, and those which are not. Note that s. 8(1C) and (1D) provide that a warrant (either an ‘all premises warrant’ or a ‘specific premises warrant’) may authorise access on more than one occasion, and if multiple entries are authorised these may be unlimited or limited to a maximum.
The officer applying for a warrant under s. 8 must have reasonable grounds for believing that material which is likely to be of substantial value to the investigation of the offence is on the premises specified. Therefore, when executing such a warrant, the officer must be able to show that any material seized thereunder fell within that description (R v Chief Constable of the Warwickshire Constabulary, ex parte Fitzpatrick [1999] 1 WLR 564). Possession of a warrant under s. 8 does not authorise police officers to seize all material found on the relevant premises to be taken away and ‘sifted’ somewhere else (R v Chesterfield Justices, ex parte Bramley [2000] QB 576) (see s. 50 of the Criminal Justice and Police Act 2001 for the power to ‘seize and sift’). This means that material which is solely of value for intelligence purposes may not be seized under a s. 8 warrant.
The power to apply for and execute a warrant under s. 8 and to carry out the actions under s. 8(2) are among those powers that can be conferred on a person designated as an Investigating Officer under sch. 4 to the Police Reform Act 2002.
The conditions set out under s. 8(1)(e) are part of the application process, not part of the general execution process (which is set out at s. 16 above). Therefore the officer swearing out a s. 8 warrant will have to satisfy the court that any of those conditions apply.
Application for Warrant—s. 15 PACE
(1) This section and section 16 below have effect in relation to the issue to constables under any enactment, including an enactment contained in an Act passed after this Act, of warrants to enter and search premises; and an entry on or search of premises under a warrant is unlawful unless it complies with this section and section 16 below.
(2) Where a constable applies for any such warrant, it shall be his duty—
(a) to state—
(i) the ground on which he makes the application;
(ii) the enactment under which the warrant would be issued; and
(iii) if the application is for a warrant authorising entry and search on more than one occasion, the ground on which he applies for such a warrant, and whether he seeks a warrant authorising an unlimited number of entries, or (if not) the maximum number of entries desired;
(b) to specify the matters set out in subsection (2A) below; and
© to identify, so far as is practicable, the articles or persons to be sought.
(2A) The matters which must be specified pursuant to subsection (2)(b) above are—
(a) if the application relates to one or more sets of premises specified in the application each set of premises which it is desired to enter and search; and
(b) if the application relates to any premises occupied or controlled by a person specified in the application—
(i) as many sets of premises which it is desired to enter and search as it is reasonably practicable to specify;
(ii) the person who is in occupation or control of those premises and any others which it is desired to enter and search;
(iii) why it is necessary to search more premises than those specified under sub-paragraph (i); and
(iv) why it is not reasonably practicable to specify all the premises which it is desired to enter and search.
(3) An application for such a warrant shall be made ex parte and supported by information in writing.
(4) The constable shall answer on oath any question that the justice of the peace or judge hearing the application asks him.
(5) A warrant shall authorise an entry on one occasion only unless it specifies that it authorises multiple entries.
(5A) If it specifies that it authorises multiple entries, it must also specify whether the number of entries authorised is unlimited, or limited to a specified maximum.
(6) A warrant—
(a) shall specify—
(i) the name of the person who applies for it;
(ii) the date on which it is issued;
(iii) the enactment under which it is issued;
(iv) each set of premises to be searched, or (in the case of an all premises warrant) the person who is in occupation or control of premises to be searched, together with any premises under his occupation or control which can be specified and which are to be searched; and
(b) shall identify, so far as is practicable, the articles or persons to be sought.
(7) Two copies shall be made of a warrant (see section 8(1A)(a) above) which specifies only one set of premises and does not authorise multiple entries; and as many copies as are reasonably required may be made of any other kind of warrant.
(8) The copies shall be clearly certified as copies.
Execution of a Warrant—s. 16 PACE
(1) A warrant to enter and search premises may be executed by any constable.
(2) Such a warrant may authorise persons to accompany any constable who is executing it.
(2A) A person so authorised has the same powers as the constable whom he accompanies in respect of—
(a) the execution of the warrant, and
(b) the seizure of anything to which the warrant relates.
(2B) But he may exercise those powers only in the company, and under the supervision, of a constable.
(3) Entry and search under a warrant must be within three months from the date of its issue.
(3A) If the warrant is an all premises warrant, no premises which are not specified in it may be entered or searched unless a police officer of at least the rank of inspector has in writing authorised them to be entered.
(3B) No premises may be entered or searched for the second or any subsequent time under a warrant which authorises multiple entries unless a police officer of at least the rank of inspector has in writing authorised that entry to those premises.
(4) Entry and search under a warrant must be at a reasonable hour unless it appears to the constable executing it that the purpose of a search may be frustrated on an entry at a reasonable hour.
(5) Where the occupier of premises which are to be entered and searched is present at the time when a constable seeks to execute a warrant to enter and search them, the constable—
(a) shall identify himself to the occupier and, if not in uniform, shall produce to him documentary evidence that he is a constable;
(b) shall produce the warrant to him; and
© shall supply him with a copy of it.
(6) Where—
(a) the occupier of such premises is not present at the time when a constable seeks to execute such a warrant; but
(b) some other person who appears to the constable to be in charge of the premises is present, Subsection (5) above shall have effect as if any reference to the occupier were a reference to that other person.
(7) If there is no person present who appears to the constable to be in charge of the premises, he shall leave a copy of the warrant in a prominent place on the premises.
(8) A search under a warrant may only be a search to the extent required for the purpose for which the warrant was issued.
(9) A constable executing the warrant shall make an endorsement on it stating—
(a) whether the articles or persons sought were found; and
(b) whether any articles were seized, other than articles which were sought; and
unless the warrant is a warrant specifying one set of premises only, he shall do so separately in respect of each set of premises entered and searched, which he shall in each case state in the endorsement.
(10) A warrant shall be returned to the appropriate person mentioned in subsection (10A) below—
(a) when it has been executed; or
(b) in the case of a specific premises warrant which has not been executed, or an all premises warrant, or any warrant authorising multiple entries, upon the expiry of the period of three months referred to in subsection (3) above or sooner.
(10A) The appropriate person is—
(a) if the warrant was issued by a justice of the peace, the designated officer for the local justice area in which the justice was acting when he issued the warrant;
(b) if it was issued by a judge, the appropriate officer of the court from which he issued it.
(11) A warrant which is returned under subsection (10) above shall be retained for 12 months from its return—
(a) by the designated officer for the local justice area, if it was returned under paragraph (i) of that subsection; and
(b) by the appropriate officer, if it was returned under paragraph (ii).
(12) If during the period for which a warrant is to be retained the occupier of premises to which it relates asks to inspect it, he shall be allowed to do so
Power of Entry—s.17 PACE
Force may be used in exercising the power of entry where it is necessary to do so. Generally, the officer should first attempt to communicate with the occupier of the premises, explaining by what authority and for what purpose entry is to be made, before making a forcible entry. Clearly though, there will be occasions where such communication is impossible, impracticable or unnecessary; in those cases there is no need for the officer to enter into such an explanation (O’Loughlin v Chief Constable of Essex [1998] 1 WLR 374).
In a case where police had been called to an address by an abandoned 999 call, the officers had to move a man away from the front door in order to gain entry under s. 17. It was held that the officers had the power to use reasonable force in order to do so under s. 117 of the Police and Criminal Evidence Act 1984 (Smith (Peter John) v DPP [2001] EWHC Admin 55).
‘Unlawfully at large’ does not have a particular statutory meaning and can apply to someone who is subject to an order under the Mental Health Act 1983 or someone who has escaped from custody. The pursuit of the person who is unlawfully at large must be ‘fresh’, that is, the power will only be available while the officer is actually ‘pursuing’ the person concerned (D’Souza v DPP [1992] 1 WLR 1073).
The power of a constable under s. 17(1)(d) to enter and search premises to recapture a person who is unlawfully at large and whom he/she is pursuing extends to entry to retake a mentally ill patient unlawfully at large provided that such a patient is liable to be retaken and returned to hospital and provided that the pursuit of such a person is almost contemporaneous with the entry to the premises, a term which is somewhat wider than ‘hot pursuit’.
The officer must have reasonable grounds to believe that the person is on the premises in all cases except saving life and limb at s. 17(1)(e).
The power to enter and search any premises in the relevant police area for the purpose of saving life or limb or preventing serious damage to property above is among those that can be conferred on a designated person under sch. 4 to the Police Reform Act 2002.
Power to Search after Arrest—s. 32 PACE
The power to search the arrested person under s. 32(1) is a general one relating to safety.
The House of Lords have confirmed that the police have a common law power to search for and seize property after a lawful arrest (R v Governor of Pentonville Prison, ex parte Osman [1990] 1 WLR 277). This decision was confirmed by the House of Lords in R (On the Application of Rottman) v Commissioner of Police of the Metropolis [2002] UKHL 20.
In Rottman it was held that it was a well-established principle of the common law that an arresting officer had the power to search a room in which a person had been arrested (per Ghani v Jones [1970] 1 QB 693). This extended power is not limited to purely ‘domestic’ offences, but also applies to cases involving extradition offences.
Both ‘reasonable grounds’ and ‘immediately’ are questions of fact for a court to determine. It has been held that the power under s. 32(2)(b) is one for use at the time of arrest and should not be used to return to the relevant premises some time after the arrest in the way that s. 18 of the 1984 Act may be used (R v Badham [1987] Crim LR 202).
Officers exercising their power to enter and search under s. 32 must have a genuine belief that there is evidence on the premises; it is not a licence for a general fishing expedition (R v Beckford [1992] 94 Cr App R 43).
The Divisional Court has refused to allow s. 32 to be used in a situation where the arrested person had not been in the relevant premises (where he did not live) for a period of over two hours preceding his arrest and where there were no reasonable grounds for believing that he presented a danger to himself or others (Hewitson v Chief Constable of Dorset Police [2003] EWHC 3296 (QB)).
Power to Search after Arrest for Indictable Offence—s.18 PACE
The power under s. 18 only applies to premises which are occupied and controlled by a person under arrest for an indictable offence; reasonable suspicion that the person occupies or controls the premises is not sufficient. A short stay may be sufficient to amount to ‘occupation’, but it must be such as to support the belief that it will have caused or contributed to the evidence sought being on the premises (R (AB and CD) v Huddersfield Magistrates’ Court and Chief Constable of West Yorkshire Police [2014] 2 Cr App R 409 (25)).
The search is limited to evidence relating to the indictable offence for which the person has been arrested or another indictable offence which is similar or connected; it does not authorise a general search for anything that might be of use for other purposes (e.g. for intelligence reports). The extent of the search is limited by s. 18(3). If you are looking for a stolen fridge-freezer, you would not be empowered to search through drawers or small cupboards. You would be able to, however, if you were looking for packaging, receipts or other documents relating to the fridge-freezer.
That authority is for a search which is lawful in all other respects, that is, the other conditions imposed by s. 18 must be met. An inspector cannot make an otherwise unlawful entry and search lawful simply by authorising it (Krohn v DPP [1997] COD 345).
Where officers carry out a search under s. 18 they must, so far as is possible in the circumstances, explain to the occupier(s) the reason for it. If officers attempt to carry out an authorised search under s. 18 without attempting to explain to an occupier the reason, it may mean that the officers are not acting in the execution of their duty and their entry may be lawfully resisted (Lineham v DPP [2000] Crim LR 861).
The provision under s. 18(5) relates to cases where the presence of the person is in fact necessary for the effective investigation of the offence. If such a search is made, the searching officer must inform an inspector (or above) as soon as practicable after the search.
If the person is in police detention after the arrest, the facts concerning the search must be recorded in the custody record. Where a person is re-arrested under s. 31 of the 1984 Act for an indictable offence, the powers to search under s. 18 begin again, that is, a new power to search is created in respect of each indictable offence.
General Powers of Seizure—s.19 PACE
For this power to apply, the officers concerned must be on the premises lawfully. If the officers are on the premises only with the consent of the occupier, they become trespassers once that consent has been withdrawn. Once the officers are told to leave, they are no longer ‘lawfully’ on the premises. They must be given a reasonable opportunity to leave and cannot then seize any property that they may find. For this reason, it is far safer to exercise a power where one exists, albeit that the cooperation of the relevant person should be sought.
Where the ‘premises’ searched is a vehicle (s. 23), the vehicle (the ‘premises’) can itself be seized (Cowan v Commissioner of Police for the Metropolis [2000] 1 WLR 254). In Cowan it was held that the power to seize ‘premises’, where it was appropriate and practical to do so, was embodied in both ss. 18 and 19 and also at common law. Therefore, the powers of seizure conferred by ss. 18(2) and 19(3) of the Police and Criminal Evidence Act 1984 extend to the seizure of the whole premises when it is physically possible to seize and retain the premises in their totality and practical considerations make seizure desirable. The police may remove premises such as tents, vehicles or caravans to a police station for the purpose of preserving evidence. However, it does not extend to seizing things that are not on the premises, such as a car parked in a car park adjacent to the premises (Wood v North Avon Magistrates’ Court [2009] EWHC 3614 (Admin)).
Unless the elements above are satisfied, the power under s. 19 will not apply. Therefore, the power does not authorise the seizure of property purely for intelligence purposes.
Section 19(5) expressly preserves any common law power of search and seizure; however, in R (On the Application of Rottman) v Commissioner of Police for the Metropolis [2002] UKHL 20, it was held that s. 19 was confined to ‘domestic’ offences (and did not extend to extradition offences). The same applies to powers under s. 18 of the Police and Criminal Evidence Act 1984.
If the warrant under which entry or seizure was made is invalid, the officers will not be on the premises lawfully.
The power of seizure under s. 19(1), along with the power to require information stored in any electronic form to be made accessible under s. 19(4), are among those that can be conferred on an Investigating Officer designated under sch. 4 to the Police Reform Act 2002. The safeguards provided by s. 19(6) in relation to privileged material also apply to the exercise of these powers by designated Investigating Officers.
