Entry, Search and Seizure Flashcards

Question 1

Q

2 human rights that are compromised when exercising powers of entry, search and seizure

Answer

A

privacy and respect for personal property

Question 2

Q

4 limitations upon compromising human rights when exercising such powers - NB - remember the P.L.A.N. acronym

Answer

A

Officers should have a lawful authority to exercise their powers
Before exercising the power - consider whether the necessary objectives can be met by less intrusive means
Powers should be exercised courteously and with respect for both persons and property
Force should only be used when it is both necessary and proportionate in the circumstances

Question 3

Q

5 key equality principles that must be adhered to when exercising powers of entry, search and seizure

Answer

A

Powers should be used both fairly and responsibly
Powers should be used with respect for persons whose property is searched or seized
Powers should be used without unlawful:
a. Discrimination
b. Harassment
c. Victimisation
Powers should be used to advance equality of opportunity between persons who do and do not share a protected characteristics
Powers should be used to take steps to foster good relations

Question 4

Q

Scope of CODE B

Answer

A

Code B of PACE 1984 regulates police powers to both:

Enter premises
Search premises
Seize and retain property found on premises and persons

Question 5

Q

Purpose of exercising the entry and search powers?

Answer

A

In order to find either:

Property and material relating to a crime
Wanted persons
Children who abscond from local authority accommodation where they have been either remanded or committed to court.

Question 6

Q

When it will be unnecessary to seek consent from the person entitled to grant entry prior to searching - 2 step test

Answer

A

Both:
○ Seeking consent would cause them disproportionate inconvenience
○ The circumstances are such that an innocent occupier would be expected to give their consent

Question 7

Q

The information that must be provided before seeking consent to search from the person entitled to grant entry

Answer

A

True consent
State the purpose and extent of the proposed search
○ Before seeking consent from the person entitled to grant entry to the premises - the officer in charge of the search shall state both
§ The purpose
§ The extent
Also state that:
○ They are not obliged to consent
○ Any consent given can be withdrawn at any time (either before or during the search)
○ Anything seized may be produced in evidence
○ If at the time of requesting consent - the person is not suspect of an offence - they should be informed so

Question 8

Q

Checking that consent is informed

Answer

A

The officer in charge of the search must make necessary enquiries to be satisfied that the person is in position to give their consent

Question 9

Q

Post consent recording obligations
How will consent be given?

Answer

A

○ The consent must if practicable be given in writing on the notice of powers and rights. - prior to the search taking place?

Question 10

Q

The 3 situations when it will not be possible to proceed with a search by consent

Answer

A

Consent is refused
Consent is provided under duress i.e. it is not true consent
Consent is initially given but is later withdrawn before the search is completed

Question 11

Q

Via a warrant issued and executed by constables in accordance with sections 15 and 16 PACE 1984

Answer

A

The legislation that governs applications for and the execution of search warrants - i.e. sections 15 & 16 PACE 1984
- Section 15 - applications for warrants
- Section 16 - execution of warrants
Who can issue a warrant
- Justice of the peace and magistrates
  ○ Warrants to exercise search powers for:
  § Stolen property - section 26 Theft Act 1966
  § Controlled drugs - section 23 Misuse of Drugs Act 1971
  § Evidence for indicatable offences - section 8 PACE 1984
  § Compliance with TPIM (Terrorism Prevention and Investigation Measures)obligations. - schedule 5 TPIM 2011
- Circuit judges
  ○ Warrants to exercise search powers under
  § Schedule 1 PACE 1984
  § Schedule 5 Terrorism Act 2000

Question 12

Q

SOURCES OF ENTRY & SEARCH POWERS - LAWFUL AUTHORITIES

Answer

A

With the occupier’s consent - for the purpose of an investigation into an alleged offence

Via a warrant issued and executed by constables in accordance with sections 15 and 16 PACE 1984

Without warrant via powers conferred by PACE 1984 sections, 17, 18 and 32

Under any other power given to the police to enter premises with or without a warrant for any purpose connected with an alleged or suspected offence

Question 13

Q

THE OBLIGATION TO GATHER & CHECK INFORMATION BEFORE LODGING A WARRANT APPLICATION - SECTION 15 PACE 1984

Answer

A

The nature of the information to be gathered before lodging an application for a warrant
- Check the intelligence
  ○ Before lodging the application - the officer must take reasonable steps to check that the information upon which the application will be based is:
  § Accurate
  § Recent
  § Not provided maliciously or irresponsibly
- Check what is being searched for
  ○ Ascertain as specifically as possible:
  § The nature of the articles sough
  § The location of such articles
  ○ Check the environment to be searched
  § Reasonable enquiries to establish:
  □ If anything is known about:
  ® The likely occupier of the premises
  ® The premises themselves
  □ Any other relevant information
The definition of premises
- Section 23 PACE 1984
- Premises include:
  ○ Place
  ○ Vehicle
  ○ Vessel
  ○ Aircraft
  ○ Hovercraft
  ○ Offshore/renewable energy installation
  ○ Tent /movable structure (not premises for burglary offences)

Question 14

Q

SEEKING AUTHORITY TO LODGE THE WARRANT APPLICATION

Answer

A

The rank of officer from whom, as a general rule, authority should sought prior to lodging a warrant application - i.e. an Inspector or above
- For an application to either: A justice of the peace for a search warrant, a circuit judge for a search warrant or production order under schedule 1 PACE 1984; prior to lodging the warrant application - authority must be sought from either:
  ○ General rule - non-urgent situations
  § Signed written authority of an Inspector or above
  ○ Exception - urgent situations
  § In cases of urgency where no Inspector or above is ‘readily available’ then the next most senior officer on duty may give the written authorisation
Who can instead provide the requisite authority in circumstances of urgency - i.e. the next most senior officer on duty
The rank of officer who shall provide signed written authority to in respect of applications to a Circuit Judge under Schedule 5 of the Terrorism Act 2000 – i.e. a Superintendent or above.
- A production order
- A search warrant
- An order requiring an explanation of material seized or produced under such a warrant or production order
Inspector for Justice of Peace warrants

Question 15

Q

MAKING THE SEARCH WARRANT APPLICATION

Answer

A

The means by which a search warrant application shall be made
- A search warrant application must be supported in writing
The contents of a search warrant application.
- The enactment under which the application is made - act and section
- Whether the warrant is to authorise entry and search of either:
  ○ One set of premises
  ○ If the application is under section 8 PACE 1984 or Schedule 1 Paragraph 12 PACE 1984 - more than one set of premises or all premises occupied or controlled by a specified person - multiple entry and premises
  § And the premises to be searched
- The object of the search
- The grounds for the search
  ○ And if the purpose of the search is to find evidence of an alleged offence - including an indication of how the evidence relates to the investigation
  ○ If the application is under S8 or Schedule 1 for a single warrant to enter and search
  § More than one set of specified premises
  □ The officer must specify each set of premises which it is desired to enter and search
  § All premises occupied or controlled by a specified person
  □ The officer must specify all of the following:
  ® As many set of premises which it is desired to enter and search as it is reasonably practicable to specify
  ® The person who is in occupation and control of those premises and any others which it is desires to search
  ® Why it is necessary to search more premises than those which can be specified
  ® Why it is not reasonably practicable to specify all the premises which it is desired to enter and search
  § Whether an application under section 8 is for a warrant authorising entry and search on more than one occasion
  □ The officer must state:
  ® The grounds
  ® Whether desired number of entries to be authorised is:
  ◊ Unlimited
  ◊ Specified maximum
- That there are no reasonable grounds to believe the material to be sought - when making an application either:
  ○ JP or Circuit Judge
  § Consists of or includes items subject to legal privilege
  ○ JP
  § Consisted of includes either:
  □ Excluded material
  □ Special procedure material
- If applicable - a request for the warrant to authorise a person or person to accompany the officer who executes the warrant e.g. HMRC, legal advisor, trading standards, RSPCA etc.

Question 16

Q

THE CONTENT OF THE WARRANT APPLICATION

Answer

A

How a warrant application shall be made - i.e. ex parte
- An application for a warrant shall be:
  ○ Made ex parte
  ○ Supported by an information in writing
- The constable shall answer on oath any question that the JP or Judge hearing the application asks them
- The details of the extent of the proposed search should be made clear in the application
The 8 facts to be contained in the warrant application - information required:
- The grounds on which they make the application
- The enactment under which the warrant would be issued
- To identify so far as practicable, the
  ○ Articles sought
  ○ Persons sought
- If the application is for a warrant authorising entry and search on more than one occasion
  ○ The ground on which applied for such a warrant
  ○ Whether they seek a warrant authorising
  § An unlimited number of entries
  § If not - the maximum number of entries desired
- If the application related to one or more sets of premises specified in the application - each set of premises which it is desired to enter and search
- If the application related any premises occupied or controlled by a person specified in the application:
  ○ As many sets of premises which it is desired to enter and search as it is reasonable practicable to specify
  ○ The person who is in occupation or control of those premises and any others which it is desired to enter and search
  ○ Why is it necessary to search more premises than those specified
  ○ Why it is not reasonable practicable to specify all the premises which it is desired to enter and search
- There are no reasonable grounds to believe that the material sought consists of or includes either:
  ○ Items subject to legal privilege
  ○ Excludes material
  ○ Special procedure material
- If application - a request for the warrant to authorise persons to accompany the officer who executes the warrant e.g. person with expertise in respect of the items sought (forensics)
The circumstances in which a further warrant application can be made following an initial refusal - i.e. the application must be supported by additional grounds.
- Only if the further warrant is supported by additional grounds (bring more to the table)

Question 17

Q

THE TERMS OF A WARRANT GRANTED BY A COURT

Answer

A

The 6 facts to be included in a warrant issued by a court
- Name of the applicant
- Date of issue
- Enactment i.e. legislation under which is it issued
- Either
  ○ Set of premises to be searched
  ○ For all premises warrants - the person who occupies or controls the premises to be search - along with any such premises that can specified which are to be searched
- Identify as far as practicable:
  ○ Articles sought
  ○ Person sought
- Number of entries sought:
  ○ One entry
  ○ Unless the warrant expressly authorises multiple entries
The further information to be included if the warrant authorises multiple entries
- Specify whether the number of entries authorised is:
  ○ Unlimited
  ○ Limited to a specified maximum

Question 18

Q

THE NUMBER OF COPIES OF THE WARRANT TO BE MADE?

Answer

A

The number of sets of premises authorised
The number of entries authorised.
Only one set of premises and only one single entry authorised = 2 certified copies
Multiple premises or multiple entries authorised = as many certified copies as reasonably required.

Question 19

Q

THE EXECUTION OF WARRANTS - SECTION 16 PACE 1984

Answer

A

Who can execute a warrant - i.e. a constable
- A warrant to both: enter and search premises may be executed by an constable and may authorise persons to accompany any constable who is executing the warrant
The power to authorise persons to accompany the constable
- An accompanying person will have the same powers as the constable to both:
  ○ Execute the warrant and seize anything to which the warrant relates
  ○ PROVIDED the accompanying person is:
  § In the company of a constable
  § Under the supervision of a constable
The scope of the accompanying person’s powers - i.e. same as the constable
When the accompanying person can exercise their powers - i.e. only when in the company of and under the supervision of a constable;
The time limit for conducting the search - i.e. normally 3 months
- Parameters
  ○ Searches under warrant must be conducted within either:
  § 3 calendar months of the date of issue of the warrant - GENERAL RULE
  § The period specified in an enactment under which the warrant was issue - if shorter e.g. drugs and TPIM
The 2 situations in which the authorisation of an Inspector or above must be obtained prior to executing the warrant
- Written authority from an officer of the rank of inspector or above must be obtained prior to executing the warrant in 2 situations
- Situation 1 - all premises warrants
  ○ Where it is proposed to enter and search premises which are not specified in all premises warrants
- Situation 2 - multiple entry warrants
  ○ Where it is proposed to enter and search premises for a second or subsequent time under a multiple entry warrant - written authority from Inspector
The general rule that the search must be conducted at a reasonable hour unless the purpose would be frustrated
The general rule that the officer in charge of the search should be the most senior officer present - and the operation of 3 exceptions
- Exception 1: a supervising officer may appoint an officer of a lower rank if
  ○ The officer is more conversant with the facts
  ○ Is a more appropriate officer to be in charge of the search
- Exception 2: if all officers at the premises search are of the same rank
  ○ The supervising officer, if available, must appoint one officer in charge of the search
  ○ Alternatively the officers themselves must nominate one of their number to act
- Exception 3: if a senior officer is assisting in a specialist role - they need not be in charge of the search e.g. delegate to POLSA officer, drugs officer
The circumstances in which an Inspector or above can make a no uniform direction
- No uniform direction
  ○ An officer of the rank of inspector or above may direct a designate investigating officer not to wear uniform for the purposed of a specific operation
The 3 variants on the appropriate action to be taken with a copy of the warrant depending on who is present at the premises at the time of the search
- Situation 1: occupier is present (Gold Model)
  ○ Identify themselves to the occupier
  ○ If not in uniform - produce documentary evidence e.g. warrant card
  ○ Produce the warrant
  ○ Supply them with a copy of warrant
- Situation 2 - occupier is not present - but the person in charge of the premises is present (Silver Model)
  ○ Identify themselves to the person in charge of the premises
  ○ If not in uniform - produce documentary evidence e.g. warrant card
  ○ Produce the warrant
  ○ Supply them with a copy of warrant
- Situation 3 - Neither the occupier nor the person in charge of the premises is present (Bronze Model)
  ○ Leave a copy of the warrant in a prominent place on the premises
The key trip up concerning the nosy neighbour
- The neighbour is not in charge of the premises and therefore SHOULD NOT be supplied with a copy of the warrant
The fact that the original warrant must never be left at the premises
- The original warrant must be left with the occupier, with the person in charge of the premises or at the premises.
The permitted extent of the search - i.e. only to the extent required for the purpose for which the warrant was issued - only search where there is a likelihood of finding what you are looking for.
- Evidence in relation to the offence e.g. bank account documents.
- Not a fishing expedition.

Question 20

Q

POST SEARCH ENDORSEMENT OBLIGATIONS

Answer

A

Who will endorse the search warrant - i.e. the constable who executed the search warrant
- Having conducted the search the constable who executed the search warrant shall endorse i.e. make a record on the warrant
The nature of the endorsement
- Whether both:
  ○ Any article or persons sought were found
  ○ Any articles were seized (other than ones which were sought)
- Unless the warrant is a single premises warrant - they shall make a separate endorsement for each set of premises entered and searched.
  ○ Every set of premises needs an endorsement

Question 21

Q

THE OBLIGATION TO RETURN THE WARRANT

Answer

A

The 2 situations in which the warrant shall be returned
- Situation 1: after a warrant has been executed
- Situation 2: after either
  ○ A specific premises warrant which has been executed
  ○ All premises warrant or multiple entry warrant
  § Has become void due to expiry of the time limit i.e. 3 months or longer after its date of issue
Who the warrant shall be returned to
- The designated officer for the local justice area in which a JP issued
- The appropriate officer of the court where it was issued by a judge
The duration that a returned warrant shall be retained for - i.e.12 months
- Warrant shall be retained for 12 months from the date of its return
The right of the occupier during the retention period to inspect the warrant
- The occupier of the premises searched will be permitted during the 12 month retention period to inspect the warrant upon request
The consequences of breaching sections 15 and 16 PACE 1984
- Entry and search made under the terms of the warrant will be unlawful
- Evidence may be excluded

Question 22

Q

LAWFUL AUTHORITY TO OBTAIN A WARRANT - SECTION 8 PACE 1984

Answer

A

The grounds to authorise a section 8 warrant for indictable offences
The nature of material that can be seized under a section 8 warrant

Applicants

JP
Power conferred on a person designated as an investigating officer (e.g. police staff) under the Police Reform Act 2022

What forms of search warrants can be applied for?

Type 1: specific premises warrant

Authorises one or more sets of premises to be searched

Type 2: all premises warrants

Authorises the searching of all premises under the occupation or control of a person - where it not practicable to specify all such premises at the time of the application

When will multiple entries be authorised?

A warrant may authorise entry and search of premises on more than one occasion - if the JP is satisfied that multiple entries are necessary - and if so, the number of entries authorised may be either:
- Limited to a maximum
- Unlimited

Question 23

Q

GROUNDS TO AUTHORISE A SECTION 8 WARRANT?

Answer

A

Step 1 - The 4 beliefs that must all be established
1. Indicatable offence committed
2. Material on the premises of substantial value to the investigation
3. Material if relevant evidence i.e. admissible evidence at trial
4. Material is not legally privileged, excluded material or special procedure material
Step 2 - The need to also establish any of 4 further conditions in relation to each set of premises specified in the application
1. Entry will not be granted unless a warrant is produced
2. Purpose of the search may be frustrated or seriously prejudiced unless a constable arriving at the premises can secure immediate access
3. Not possible to communicate with any person entitled to grant access
4. Both that: possible to communicate with a person entitled to grant entry BUT - it is not possible to communicate with any person entitled to grant access to the evidence

Question 24

Q

WHAT MATERIAL CAN BE SEIZED UNDER A SECTION 8 WARRANT?

Answer

A

Nature of material that can and cannot be seized under the terms of a section 8 warrant

* Only material that is substantial value to the investigation of the indictable offence can be seized
* Material that cannot be seized: Material which is solely for intelligence purpose cannot be seized

An evidence gathering tool not an intel gathering tool.

Question 25

Q

SEIZURE RULES IN RELATION TO SPECIFIC CATAGORIES OF MATERIAL

Answer

A

Legally privileged material - 3 categories
1. Communications between either a professional legal advisor and their client and any person representing their client made in connection with giving legal advice to the client
2. Communications between either a professional legal advisor and their client and any person representing their client made in connection with giving legal advice to the client or such advisor or his client or any such representative and any other person made in connection with or in contemplation of legal proceedings and for the purpose of such proceedings
3. Items both enclosed with or referred to in such communication and made either in connection with the giving of legal advice or in contemplation of legal proceeding and for the purpose of such proceedings

Will an item which is held by a legal adviser with the intention of furthering a criminal purpose covered by legal privilege? NO

Can legally privileged material be searched for and seized?

No - if it is in possession of a person who is entitled to possession of such material

Yes - if items are held with the intention of furthering a criminal purpose

Excluded material

3 categories of material held in confidence

Business documents - personal records which a person has acquired or created in the course of any trade, business, profession, occupation or for the purpose of any paid or unpaid office e.g. records made by priests, medical records
Human tissue - or tissue fluid take for the purposed of diagnosis or medical treatment which a person holds in confidence
Journalistic material - holds in confidence and consists of documents or records

Basis of the obligation to hold material in confidence?

Depends on the category of excluded material.

Categories 1 and 2 - by virtue of either an express or implied undertaking and obligation imposed by legislation

Category 1 - both the journalistic material is held subject to such an undertaking or obligation that it be held in confidence; and it has been continuously held by one or more persons subject to such an undertaking or obligation since it was first acquired or created for the purposes of journalism.

Can excluded material be searched for and seized?

YES - but only upon a Production Order being granted by a judge under Schedule 1 PACE 1984

Special procedure material - 2 categories

Journalistic material other than excluded material ]
Material other than items subject to legal privilege or excluded material which is in the possession of a person who: a) acquired or created it in course of any trade, business, profession, occupation for the purposes of any paid or unpaid offence b) holds it subject to either an express or implied undertaking of confidence or legislative restriction

Can special procedure material be searched and seized?

YES - but only upon a Production Order being granted by a judge under Schedule 1 PACE 1984

Journalistic material - S13

Material acquired or created for the purposed of journalism

A personal record - S12

Documentary record or other record concerning individual (whether living or dead) can be identified from them and relating to either:

Physical or mental health.
Spiritual counselling or assistance either given or to be given to them.
Counselling or assistance either given or to be given to them - for the purpose of their person welfare by: voluntary organisation or individual who either by reason of their office or occupation - has responsibilities for their personal welfare or by reason of an order of a court - has responsibilities for their supervision.

Question 26

Q

CONDUCTING POWERS OF ENTRY & SEARCH

Answer

A

The Time Of Day That A Search Shall Be Conducted
- Reasonable hour, unless this might frustrate the purpose of the search.
Communication Prior To Searching
Introductions Prior To Searching When The Premises Are Occupied;
When Force Can Be Used To Carry Out The Search;
The Obligation To Supply The Notice Of Powers And Rights;
To Whom Will The Notice Of Powers And Rights Be Supplied;
The Extent To Which Premises Can Be Searched;
When The Search Must Be Concluded; and
The Need To Be Considerate When Searching.

Question 27

Q

THE TIME OF DAY THAT AN ENTRY & SEARCH SHOULD BE CONDUCTED

Answer

A

The general rule - i.e. that the power should be exercised at a reasonable time of day; and
The exception relating to frustrating the purpose of the search.

Question 28

Q

CONSIDERATIONS RELATING TO THE USE OF SEIZE & SIFT POWERS

Answer

A

Circumstances in which it may be appropriate for the officer in charge of the search to consider using seize and sift powers.

* When either the extent or complexity of a search means that it is likely to take a long time - the officer in charge of the search may consider using the seize and sift powers.

Question 29

Q

OBTAINING WRITTEN AUTHORITY FOR MULTIPLE ENTRY WARRANTS

Answer

A

Rank of officer who must provide their written authority prior to conducting any subsequent entry and search under the terms of a warrant that authorises multiple entries.

Where a s8 PACE 2984 warrant authorises multiple entries on more than one occasion - no premises may be entered or searched on any subsequent occasions - without the prior written authority of an office of the ran of Inspector who is NOT involved in the investigation.

Verbal authority not enough.

Question 30

Q

OBTAINING WRITTEN AUTHORITY FOR ALL PREMISES WARRANTS

Answer

A

Rank of officer who must provide their written authority prior to conducting any entry and search of premises which are not specified in an all-premises warrant.

* A warrant under S8 or Schedule 1 authorises both entry to and search of all premises occupied or controlled by a specific person
* No premises which are not specified in the warrant may be either entered or searched without prior written authority an officer of the rank of Inspector who is not involved in the investigation (independent and not in a position of conflict). 
* New premises that we didn't know about come about.

Question 31

Q

COMMUNICATION PRIOR TO SEARCHING

Answer

A

Who will attempt communication - i.e. the officer in charge of the search
Who they will seek to communicate with - i.e. the occupier or person in charge of the premises
The 2 purposes of the communication - i.e. to explain the basis of the lawful authority and to request entry
- Explain the authority for search e.g. warrant, s32 and ask the occupier to allow entry unless an exception applies.
The operation of the 3 exceptions which will render communication unnecessary.
1. Premises to be searched are unoccupied.
2. Occupier and any other person entitled grant access are absent.
3. There are reasonable grounds for believing that alerting occupier or any other person entitled to grant access would frustrate the object of the search or endanger officers or other persons.

Question 32

Q

INTRODUCTIONS PRIOR TO SEARCHING WHEN PREMISES ARE OCCUPIED

Answer

A

The general obligations that the officer in charge of the search shall adhere to when the premises entered and searched is occupied
- If the premises are occupied - the officer in charge of the search shall carry out 6 obligations

GENERAL RULE

1. Identify themselves
2. Not in uniform - warrant card
3. State the grounds of the search
4. State purpose of the search 
5. Identify and introduce persons accompanying them who should produce ID upon request 
6. Describe the role of the accompanying persons

The operation of 3 exceptions – if any of which are present – will render it unnecessary to adhere to the aforementioned obligations.
1. There are reasonable grounds for believing that alerting occupier or any other person entitled to grant access would either frustrate the object of the search or endanger officers or other persons
2. The offence is terrorism related. If so - they should use their warrant or identification number and the name of their police station.
3. The searching officer reasonably believes that recording or disclosing their names would place them in danger. If so - they should use their warrant or identification number and the name of their police station.

Question 33

Q

THE USE OF FORCE TO ENTER & SEARCH

Answer

A

The fact that force can only be used where necessary to do so - necessary criteria
The fact that any force used must be both reasonable and proportionate in nature
The operation of the 2 step test that shall be used to determine when the use of force is necessary

Step 1: the premises are those either specified in a warrant or relate to a search authority under either s17, 18 or 32 PACE 1984.

Step 2: in relation to the occupier and any other person entitled to grant access either:
- The premises is unoccupied
- They are absent
- It is impossible to communicate with them
- They have refused entry
- There are reasonable grounds for believing that notifying them would either frustrate the object of the search or endanger officers or other persons

Question 34

Q

THE OBLIGATION TO SUPPLY THE NOTICE OF POWERS & RIGHTS

Answer

A

Who supplies a copy of the notice - i.e. the officer conducting the search
When it will be unnecessary to supply the notice - i.e. when it is impracticable to do so
The 5 facts contained within the notice
1. Grounds for the search either by consent, under warrant or under section 17, 18, 32.
2. Extent of the powers of both search and seizure
3. Rights of both the occupier and owner of property seized
4. Both the compensation rights for any damage caused and the address to send a compensation claim to
5. The fact the Code B is available for inspection at a police station

Question 35

Q

APPROPRIATE ACTION TO BE TAKEN WITH COPIES OF THE NOTICE OF POWERS & RIGHTS & ANY WARRANT?

Answer

A

The occupier is present
- General rule: copies of both the notice and the warrant shall if practicable be given to the occupier before the search begins

Exception: unless the officer in charge of the search reasonably believes that this would either frustrate the object of the search or endanger officers or other persons.

The occupier is absent
- Copies of both the notice and the warrant shall be left in a prominent place on the premises or appropriate part of the premises and shall be endorsed with the name of the officer of the search (unless the searching officer reasonably believe that recording or disclosing their name would place them in danger) and the date and time of the search.

Question 36

Q

THE PERMITTED EXTENT OF THE SEARCH?

Answer

A

How the search can only be conducted to the extent that is necessary to achieve the objects of the search

* Necessity criteria
	○ Premises can only be searched to the extent that is necessary to achieve the objects of the search - having regard to both size and nature of whatever is sought

Question 37

Q

WHEN MUST A SEARCH BE CONCLUDED?

Answer

A

When a search conducted under a warrant must be concluded and when a search conducted under other lawful authorities must be concluded
- Search warrants: Once all of the specified in the search warrant have been found
- Searches under any other power (17, 18, 32): once the object of the search has been achieved
- All searches: once the officer in charge of the search is satisfied that the thing sought is not on the premises (person included)

Can a premises that was previously searched revealing nothing be searched again?

Yes - if new information comes to light providing fresh grounds for a warrant or the exercise of other powers.

Question 38

Q

THE NEED TO BE CONSIDERATE WHEN SEARCHING

Answer

A

The need to be considerate when searching
- Obligations: searches must be conducted with both due consideration for property and privacy of the occupier with no more disturbance than is necessary
The need to respect human rights of privacy and property when searching
Extent to which it is permissible to compromise said rights - i.e. only where necessary
The option of utilising seize and sift powers for high volume or complex material
- Seize and sift power can be utilised if the search is likely to take a long time due to either its extent and complexity
The rules governing the right of the occupier to nominate a witness to observe the search being conducted
- Friend, neighbour or other person requested by the occupier must be allowed to witness the search

Exception: unless the officer in charge of the search has reasonable grounds for believing their presence would either seriously hinder the investigation or endanger officers or other persons

Effect of waiting for a nominate person?

The search must not be unreasonably delayed (distance of witness and waiting time)

The obligation to secure premises following the conclusion of a search if force was used to enter
- Before leaving the officer in charge of the search must make sure the premises are secure either by arrange for the occupier or their agent to be present or any other appropriate means.

Question 39

Q

THE CIRCUMSTANCES IN WHICH REASONABLE FORCE CAN BE USED?

Answer

A

The circumstances in which reasonable force can be used
- Necessary, proportionate because of the co-operation of the occupier either cannot be obtained or is insufficient for purpose.
The nature and extent of force that is permissible in such circumstances.

Question 40

Q

WHEN IS IT NECESSARY TO CAUTION PRIOR TO ASKING QUESTIONS WHEN CONDUCTING THE SEARCH?

Answer

A

The circumstances in which it is unnecessary to caution prior to asking questions when conducting a search – i.e. questions that are solely necessary for furthering the proper and effective conduct of a search
That it will be necessary to caution prior to asking any questions that go beyond this purpose.
Unnecessary to caution
○ A person is not required to be cautioned prior to being asked question that solely necessary for furthering the proper and effect conduct of a search
Necessary to caution
○ Questioning goes beyond what is necessary - the exchange is likely to constitute an interview and a caution must be administered prior to posing a question

Question 41

Q

SOURCE 3 - POWERS TO ENTER & SEARCH PREMISES WITHOUT A WARRANT - OVERVIEW

Answer

A

Section 17 PACE 1984
- Enter and search premises to:
  ○ Arrest a person
  ○ Recapture a person unlawfully at large
  ○ Save life and limb
  ○ Protect property
Section 18 PACE 1984
- Enter and search premises after arrest for an indictable offence
Section 32 PACE 1984 (indictable in nature)
- Enter and search premises either:
  ○ Where an arrest took place
  ○ Where the person was immediately before arrest

Question 42

Q

LAWFUL AUTHORITY 1 – POWER OF ENTRY & SEARCH TO MAKE AN ARREST, RECAPTURE, SAVE LIFE & LIMB OR PROTECT PROPERTY - SECTION 17 PACE 1984

Answer

A

Who can exercise the power to enter and search (using force where necessary) - i.e. a constable
The range of purposes (grounds) for exercising the powers
- Arrest Purpose 1: Executing an a warrant of arrest (issued in connection with or arising out of criminal proceedings) or a warrant of commitment (issued under section 76 Magistrates Courts Act 1980
- Arrest Purpose 2:
  ○ Arresting a person for an offence under:
- Arrest Purpose 3: Arresting a person for an indictable offence
- Arrest Purpose 4: Arresting any child or young person who has been remanded or committed to either local authority accommodation or youth detention accommodation.
- Arrest Purpose 5: Arresting a person for an offence to which section 61 Animal Health Act 1981 applies
- Arrest Purpose 6: Arresting a person in breach of bail
- Recapture Purpose 1: recapturing any person who is, or is deemed for any purpose to be unlawfully at large - whilst liable to be detained in either
  ○ Prison
  ○ Remand centre
  ○ Youth offender instituion
  ○ Secure training centre
  ○ In pursuance of section 92 Powers of Criminal Courts (sentencing) Act 2000 ( dealing with children or young person guilt of grave crimes) in any other place
- Recapture Purpose 2: recapturing a person whatever who is unlawfully at large and who they are pursuing n.b. it must be ‘live’ pursuit
- Protection Purpose: saving life and limb or preventing serious damage to property
The mental element of the officer - i.e. belief that the person they seek is on the premises - except for life and limb and property protection grounds
- Reasonable grounds for believing (NB - not suspecting) that the person that they are seeking is on the premises
The limitations when searching premises of multiple occupancy
- When searching premises that consist of 2 or more separate dwellings - the power to enter and search - except for searches conducted for the purposes of both saving life and limb and preventing serious damage to property
- Limited to enter and search
  ○ Any common parts of the premises which the occupiers share and any such dwelling which the constable has reasonable grounds for believing that the person they are seeking is located in.
The permitted extent of the search - i.e. only to the extent that is reasonably required for the purpose for which the power of entry is exercised
How the constable in uniform provisions differ depending on which of the purposes (grounds) is relied upon
- Must be in uniform in relation to entry and search powers exercised for the purpose of either
  ○ Purpose 1: Arrest under s6 to 8 or 10 of the criminal law act 1977
  § Land offences relating to entering or remaining on property
  ○ Purpose 2: Arrest under s76 of the Criminal Justice and Public Order Act 1994
  § Failure to comply with an interim possession order
  ○ Purpose 3: Arrest under s144 Legal Aid, Sentencing & Punishment of Offenders Act 2012
  § Squatting in residential building
- Need not be in uniform in relation to entry and search powers exercised for the other purposes

Question 43

Q

LAWFUL AUTHORITY 1 – POWER OF ENTRY & SEARCH TO MAKE AN ARREST, RECAPTURE, SAVE LIFE & LIMB OR PROTECT PROPERTY - SECTION 17 PACE 1984

Answer

A

Who can exercise the power to enter and search (using force where necessary) - i.e. a constable
The range of purposes (grounds) for exercising the powers
- Arrest Purpose 1: Executing an a warrant of arrest (issued in connection with or arising out of criminal proceedings) or a warrant of commitment (issued under section 76 Magistrates Courts Act 1980
- Arrest Purpose 2:
  ○ Arresting a person for an offence under:
  -S1 Public Order Act 1936 (prohibition of uniforms)
  -S6 to 8 or 10 of the Criminal Law Act 1977 (land offences relating to entering or remaining on property)
  -S4 Public Order Act 1986 (fear or provocation of violence)
  -S4 (unfit to drive) or 163 (failure to stop) RTA 1988
  -S27 of the Transport and Works Act 1992
  -S76 of the Criminal Justice and Public Order Act 1994 (failure to comply with interim possession order)
  -S4-8 Animal Welfare Act 2006 (offences relating to the prevention of harm to animals)
  -S144 legal aid, sentencing & punishment of offenders act 2023 (squatting in a residential building)
- Arrest Purpose 3: Arresting a person for an indictable offence
- Arrest Purpose 4: Arresting any child or young person who has been remanded or committed to either local authority accommodation or youth detention accommodation.
- Arrest Purpose 5: Arresting a person for an offence to which section 61 Animal Health Act 1981 applies
- Arrest Purpose 6: Arresting a person in breach of bail
- Recapture Purpose 1: recapturing any person who is, or is deemed for any purpose to be unlawfully at large - whilst liable to be detained in either
  ○ Prison
  ○ Remand centre
  ○ Youth offender instituion
  ○ Secure training centre
  ○ In pursuance of section 92 Powers of Criminal Courts (sentencing) Act 2000 ( dealing with children or young person guilt of grave crimes) in any other place
- Recapture Purpose 2: recapturing a person whatever who is unlawfully at large and who they are pursuing n.b. it must be ‘live’ pursuit
- Protection Purpose: saving life and limb or preventing serious damage to property
The mental element of the officer - i.e. belief that the person they seek is on the premises - except for life and limb and property protection grounds
- Reasonable grounds for believing (NB - not suspecting) that the person that they are seeking is on the premises
The limitations when searching premises of multiple occupancy
- When searching premises that consist of 2 or more separate dwellings - the power to enter and search - except for searches conducted for the purposes of both saving life and limb and preventing serious damage to property
- Limited to enter and search
  ○ Any common parts of the premises which the occupiers share and any such dwelling which the constable has reasonable grounds for believing that the person they are seeking is located in.
The permitted extent of the search - i.e. only to the extent that is reasonably required for the purpose for which the power of entry is exercised
How the constable in uniform provisions differ depending on which of the purposes (grounds) is relied upon
- Must be in uniform in relation to entry and search powers exercised for the purpose of either
  ○ Purpose 1: Arrest under s6 to 8 or 10 of the criminal law act 1977
  § Land offences relating to entering or remaining on property
  ○ Purpose 2: Arrest under s76 of the Criminal Justice and Public Order Act 1994
  § Failure to comply with an interim possession order
  ○ Purpose 3: Arrest under s144 Legal Aid, Sentencing & Punishment of Offenders Act 2012
  § Squatting in residential building
- Need not be in uniform in relation to entry and search powers exercised for the other purposes

Question 44

Q

LAWFUL AUTHORITY 2 - POWER TO SEARCH A PERSON AWAY FROM A POLICE STATION - SECTION 32 PACE 1984

Answer

A

Who can be searched - i.e. a person arrested
Where they can be searched - i.e. at a place other than a police station
The officer’s mental element - i.e. a belief that any of 3 grounds apply
1. The arrested person may present a danger to themselves or others.
2. The arrested person has concealed on them anything which they might use to assist them to escape from lawful custody.
3. The arrested person has concealed on them anything which might be evidence relating to an offence. N.B. this is wider than merely evidence relating to the offence for which they have been arrested.
The location of the search - i.e. only outside a police station;
The permitted extent of a search
- Only either remove the persons outer clothing, jacket or gloves
- Search the person’s mouth
The power of seizure in respect of items found.
- Seize and retain anything they find which they believe is linked to the ground - other than items subject to legal privilege

Question 45

Q

LAWFUL AUTHORITY 3 - SEARCH OF PREMISES AFTER ARREST FOR AN INDICTABLE OFFENCE

Answer

A

What premises a constable can enter and search, and the relevance of the location where the person is arrested
- Any premises in which the person was in either at the time that they were arrested for an indictable offence or immediately before being arrested for an indictable offence if the constable has reasonable grounds for believing that there is evidence at the premises relating to the offence for which they were arrested
The nature of the offence for which they are arrested - i.e. an indictable offence
The mental element of the searching officer - i.e. belief
- It must be a genuine belief based upon reasonable grounds i.e. speculative searches are not permitted
The nature of their belief - i.e. there is evidence at the premises relating to the offence for which they were arrested
What the belief must be based on - i.e. reasonable grounds
What can be searched for - i.e. only evidence relating to the offence for which they were arrested
The permitted extent of the search - i.e. the extent that is reasonably required to discover evidence relating to the offence for which the person was arrested
The test to determine whether the person was at the premises either at the time of arrest of immediately before their arrest
- Question of act
  ○ 2 hours elapsing between leaving a property and the time of arrest - not ‘immediately before’
  ○ Hewitson vs Chief Constable of Dorset Police (2003)
Where can be searched in premises consisting of 2 or more separate dwellings?
- May only search 2 areas
  ○ Area 1: any dwelling in which either the arrest took place or the person arrested was immediately before their arrest
  ○ Area 2: any part of the premises which the occupier of any such dwelling uses in common with occupiers of any other dwellings comprised in the premises

Question 46

Q

LAWFUL AUTHORITY 4 - POWER TO SEARCH PREMISES AFTER ARREST FOR AN INDICTABLE OFFENCE - SECTION 18 PACE - VIDEO

Answer

A

Scope of the power
○ A constable who has obtained the authorisation of an Inspector or above may enter and search any premises that are either occupied or controlled by a person who is under arrest for an indictable offence.
- Grounds
  ○ The constable has reasonable grounds for suspecting that there is on the premises evidence, (other than items subject to legal privilege) - that relates to either that indictable offence or some other indictable offence which is either connected with that offence or similar to that offence.
- Power of seizure
  ○ Seize and retain any such evidence found
- Mental element in relation to whether there is evidence on the premises
  ○ Suspicion
- Mental element in relation to whether the premises are occupied or controlled by the person arrested for the indictable offence
  ○ Know for a fact
- What extent of search is permitted?
  ○ Extent that it is reasonably required to discover the evidence searched for
- General Rule - Authorisation is required
  ○ Written authority has been provided by an Inspector or above
  ○ If possible - the authorising officer should record the authority on the Notice of Powers & Rights and sign
- Authorisation is not required
  ○ s18 can be conducted both
  § Before the arrested person has been either taken to a police station or released on street bail
  § Without obtaining written authority to proceed with the search from an inspector or above
  □ Provided that the arrested person’s presence at a place (other than a police station) is (in fact) necessary for the effective investigation
- Action to be taken following a search if the exception applies?
  ○ The constable who conducted the search must inform an inspector or above ASAP after the search has been concluded
- Who will carry out the recording obligations?
  ○ Inspector or above who either authorised the search or was informed of the search ASAP after it was conducted without their authority
- Contents of the written record
  ○ Both the grounds of the search and the nature of the evidence that was sought
- Consequences if the person who has been searched under section 18 is re-arrested?
  ○ If a person is re-arrested whilst in custody then the s18 search power is re-created for each indictable offence

Question 47

Q

LAWFUL AUTHORITY 4 - POWER TO SEARCH PREMISES AFTER ARREST FOR AN INDICTABLE OFFENCE - SECTION 18 PACE 1984

Answer

A

The nature of the premises searched - i.e. any premises that are either occupied or controlled by a person who is under arrest
The constable’s awareness that the premises is occupied or controlled by the arrested person - i.e. knowledge for a fact
The category of the offence for which they have been arrested - i.e. an indictable offence
Who can search the premises - i.e. a constable
The rank of officer from whom authorisation shall as a general rule be sought prior to searching - i.e. an Inspector or above
The operation of the caveat whereby an Inspector’s authority need not be obtained prior to searching
The mental element of the searching officer - i.e. the constable has the requisite suspicion
The nature of the constable’s suspicion - that they will find evidence on the premises
The offence that the evidence can relate to - i.e. the indictable offence for which they have been arrested for or a similar or connected indictable offence
The permitted extent of the search
The power of seizure
The post search recording obligations

Question 48

Q

SECTION 18 PACE 1984 ENTRY & SEARCH POWER - FURTHER GUIDANCE

Answer

A

THE OBLIGATION TO EXPLAIN TO THE OCCUPIER THE REASON FOR THE SEARCH

The officers conducting the section 18 search must, so far as is possible in the surrounding circumstances – explain the reason for the search to the occupier.

A failure to do so will enable the entry to be lawfully resisted – Lineham v DPP [2000] Crim LR 861.

FURTHER GUIDANCE ON RECORDING THE GROUNDS FOR THE SEARCH & THE NATURE OF THE EVIDENCE SOUGHT – CODE B PARAGRAPH 4.3

The written record of both:

The grounds of the search; and
The nature of the evidence that was sought

…should be made in the custody record if there is one - otherwise in the officer’s pocket book or the search record.

Question 49

Q

SEIZURE & RETENTION OF PROPERTY

Answer

A

What can be seized?
- An officer who is searching any person or premises either under any statutory power or with the consent of the occupier may seize anything
The grounds for seizing items following the search of a person or premises
- Covered by a warrant
- Officer has reasonable grounds for believing is either evidence of an offence or has been obtained in consequence of the commission of an offence
  ○ But only if seizure is necessary to prevent the items being either
  § Concealed
  § Lost
  § Altered
  § Disposed of
  § Damaged
  § Destroyed
  § Tampered with
- Powers in Part 2 Criminal Justice & Power Act 2001 - allowing an officer to seize property from either persons or premises and retain it for either sifting or examination elsewhere i.e. seize and sift powers
The rules governing the seizure of legally privileged material.
- General rule: no item may be seized which an officer has reasonable grounds for believing to be subject to legal privilege
- Exception: other than Part 2 Criminal Justice & Police Act 2001 - seize and sift powers

Question 50

Q

THE POWER TO COPY ETC ANY ITEM THAT THERE IS THE POWER TO SEIZE

Answer

A

Power to copy etc any item that there is the power to seize.

If an officer considers that information stored in any electronic form and accessible from the premises could be used in evidence they may require the information to be produced in a form either:

- Which can be taken away and in which it is visible and legible or 
- from which can be readily produced in a visible and legible form

Question 51

Q

SEIZURE OF ELECTRONIC INFORMATION

Answer

A

Officer may arrange to photograph, image or copy any document or other article that they have the power to seize and must have regard to the statutory obligation to retain an original:
○ Document or other article only when a photograph or copy is not sufficient

Question 52

Q

POWER 1 - GENERAL POWER OF SEIZURE - SECTION 19 PACE 1984

Answer

A

The need for an officer to be lawfully on premises before they can exercise seizure powers
- Who can exercise the power of seizure?
  ○ The power of seizure is only exercisable by a constable who is lawfully on premises
Lawfulness and searches exercised with consent
- An officer is conducting a search by consent - and does not have in place either
  ○ A search warrant
  ○ A statutory power to search
  § If during the course of the search both
  □ The consent is withdrawn and they are told to leave then there are 3 consequences
1. They are no longer lawfully on the premises
2. They must leave within a reasonable period
3. They cannot seize any items that they find
The effect of withdrawals of consent (for consent based searches) upon the lawfulness of the search
The lawfulness of searches conducted under an invalid warrant
- Unlawful
When can the seizure power be exercised?
- A constable who is lawfully on premises may seize anything which is on premises (except for legally privileged material) - if they have reasonable grounds for holding both of 2 beliefs
The 2 beliefs that must be established before the general power of seizure can be exercised - i.e.. evidence and necessity

Belief 1

* It is evidence in relation to either 
	○ An offence which they are investigating or any other offence
* It has been obtained in consequence of the commission of an offence

Belief 2

* Necessary to seize it in order to prevent it being either concealed, lost altered, damaged and destroyed.

The memory aid of C.L.A.D.D. - relating to the consequences that seizure seeks to prevent
- Concealed
- Lost
- Altered
- Damaged
- Destroyed
Can the whole premises be searched? Yes
Can legally privileged material be seized? No
The excluded category of material that cannot be seized - i.e. legally privileged material
The 3 actions that shall be taken in relation to innocently acquired evidence of an offence committed by some other person
- 2 beliefs
  ○ When an officer believes both that it is not appropriate to seize property because of an explanation from the person holding it (i.e. they have innocently come by the property lawfully) and the item was obtained in consequence of an offence by some other person
- 3 actions in response
1. Identify the property to the holder
2. Inform the holder of their belief
3. Explain that the holder may be liable to civil or criminal proceedings if they dispose of, alter or destroy the property

Question 53

Q

POWER 2 - POWER TO SEIZE INFORMATION HELD IN AN ELECTRONIC FORM - SECTION 19 PACE 1984

Answer

A

The need for an officer to be lawfully on premises before they can exercise the request power
What information the request can relate to - i.e. information which is stored in any electronic form and is accessible from the premises
The nature of the requirement - i.e. to produce the information in a form in which it can be taken away in a visible and legible form
The nature of the 2 beliefs in relation to the electronic material - i.e. that it is evidence and it is necessary to seize
The reason why it is necessary to seize - i.e. to prevent it being concealed, lost or destroyed

ADDITIONAL LEARNING POINT - CAN LEGALLY PRIVILEGED MATERIAL BE SEIZED? - SECTION 19(6) PACE 1984

No – a constable has no power to seize an item which they have reasonable grounds for believing to be subject to legal privilege.

ADDITIONAL LEARNING POINT - CAN THE SECTION 19 SEIZURE POWER BE CONFERRED UPON A DESIGNATED INVESTIGATION OFFICER?

Yes.

A constable lawfully on premises may require any information which is stored in any electronic form and is accessible from the premises to be produced in a form in which both
- It can be taken away
- Is either visible and legible or in a form which it can readily be produced in a visible and legible form
Belief?
- If they have reasonable grounds for believing either:
  ○ That it is evidence in relation to:
  § An offence which they are investigating or any other offence
  ○ It has been obtained in consequence of the commission of an offence
Necessity?
- It is necessary to do so in order to prevent it being concealed, lost or destroyed.

Question 54

Q

POWER 3 - EXTENSION OF POWERS OF SEIZURE TO ELECTRONIC INFORMATION - SECTION 20 PACE 1984

Answer

A

Every power of seizure conferred by enactment such as s8 warrant, s18 pace, schedule 1, section 19, on a constable who has entered premises - in the exercise of a power conferred by such enactment …

… shall be construed to also include a power to require any information stored in an electronic form and accessible from the premises

… to be produced in a form either

- In which it can be taken away and in which it is visible and legible or form which it can be readily produced in a visible and legible form

Question 55

Q

How to deal with requests to supply a record of any items seized

Answer

A

A constable who seizes anything in exercise of a
power conferred by an enactment — shall, if requested,
by either:
* The occupier of premises on which it was seized; or
* The person who had custody or control of it before it
was seized
provide that person with a record of what they
seized — within a reasonable time of the making of the
request.

Question 56

Q

How to deal with requests to access seized items

Answer

A

If a request for permission is made to the
officer in charge of the investigation — by
either:
*A person who had custody or control of
the thing immediately before it was
seized;
*Someone acting on behalf of such a
person…
…to grant access to anything which both:
*Has been seized by a constable; and
*Is retained by the police for the purpose of
investigating an offence.

General Rule
…then the officer
shall allow the person
who made the request
to access it
- under the supervision
of a constable…

Exception
…unless
the exception under
section 21(8) PACE 1984
applies.

Question 57

Q

How to deal with requests for a photograph or copy of any seized items.

Answer

A

If a request for either:
*A photograph; or
* A copy
.of an item seized - is made to the officer
in charge of the investigation.
…by either:
*A person who had custody or control of
the thing immediately before it was
seized;
*Someone acting on behalf of such a
person…

General Rule — Option 1
…then the officer
shall allow the person who made the request
to access it
— under the supervision of a constable
for the purpose of
photographing or copying it..
within a reasonable time
of the making of the request.

General Rule — Option 2
…or shall photograph or copy it,
or cause it to be
photographed or copied
and
supply it to the person who made the request…
within a reasonable time
of the making of the request.

Exception
…unless
the exception under
section 21(8) PACE 1984
applies.

Question 58

Q

Can A Constable
Photograph Or Copy Or
Have Photographed Or
Copied Anything That
They Have The Power
To Seized Without A
Request Having Been
Made?

Question 59

Q

The Operation Of The
Exception Where There
Is No Duty To Comply
With A Request Made?

Section 21 (8) PACE 1984

Answer

A

There is no duty to either:
*To grant access to; or
*Supply a photograph or copy of
…any seized item.

…if the officer in charge
of the investigation
— for the purposes of which it was seized,
has reasonable grounds
for believing

…that to do so would prejudice either:
* That investigation,
* The investigation of an offence other than the offence
for the purposes of investigating WfiiTthe thing was
seized; or
* Any criminal proceedings which may be brought as a
result of either:
>The investigation of which they are in charge; or
>Such other investigations.

Question 60

Q

The duration that property seized can be retained

Answer

A

Anything seized by a constable under either:
* Section 19 PACE 1984 - General power of
seizure; or
* Section 20 PACE 1984 - Power of seizure of
electronic information
may be retained for as long as is necessary in
all the circumstances.

Question 61

Q

The power to retain seized items in order to establish its lawful owner

Answer

A

Anything seized
may be retained
in order to establish its lawful owner —
where there are
reasonable grounds
for believing
it has been obtained in consequence
of the commission of an offence.

Question 62

Q

How long may anything seized for the purposes of a criminal investigation be retained?

Answer

A

General Rule
Anything seized for the purposes of a criminal
investigation may be retained either:
* For use as evidence at trial for an offence; or
* For forensic examination or for investigation in
connection with an offence..

…unless either:
*A photograph, or
. A copy
..of the seized item would be sufficient for that
purpose.

Question 63

Q

The obligation to return harm items seized following arrest upon release

Answer

A

Items seized on the grounds that it may be used
by an arrested person either:
*To cause physical injury to any person;
*To damage property;
*To interfere with evidence; or
*To assist in escape from police detention or
lawful custody
cannot be retained for those purposes - once
the person has been released.

Question 64

Q

Can seized material be retained purely for intelligence purposes?

Answer 63

A

Officers are provided with limited powers to seize property from
either:
* Premises; or
* Persons
..so that they can.
* Sift; or
* Examine it
…elsewhere because it is not reasonably practicable to sift
through it at the scene.

Answer 64

A

The grounds to utilise seize and sift powers
can be found in:

Section 50 Criminal
Justice & Police
Act 2001

Seize and sift of
property seized during a
premises search

Section 51 Criminal
Justice & Police
Act 2001

Seize and sift of
property seized during a
search of a person.

Answer 65

A

Step 1
Where a person
who is lawfully on premises
— finds anything on those premises
that they have reasonable grounds for believing
may be or may contain
something which they are
authorised to search on those premises…

step 2
Either:
*A power of seizure applies; or
*The power conferred by subsection 2, would
entitle them, if they found it, to seize whatever it is
they have grounds for believing that thing to be or
contain.

Step 3
In all the circumstances it is not reasonably
practicable — for it to be determined, on those
premises:
* Whether what they have found something that they
are entitled to seize; or
* The extent to which what they have found contains
something that they are entitled to seize…

…they may seize
so much of what they have found
as it is necessary to remove
from the premises
to enable that to be determined.

Answer 66

A

Step 1
Where a person
who is lawfully on premises
— finds anything on those premises
(“the seizable property”)
that they would be entitled to seize
— but for it being comprised in something else
that they have no power to seize
(e.g. legally privileged material). ..

Step 2
A power of seizure
applies
to the seizable property…

Step 3
In all the circumstances
it is not reasonably practicable
— for the seizable property
to be separated,
on those premises,
from that in which it is comprised
— (i.e. the thing that they have no power to seize
- e.g. legally privileged material)…

…they may seize the unseparated material —
both:
Element I - the seizable property
Element 2 - that from which it is not reasonably
practicable to separate it.

Answer 67

A

Yes
Section 19(6) PACE 1984
— does not apply
to the seize and sift separation power
under section 50(2)
Criminal Justice & Police Act 2001.

Answer 68

A

Factors that influence whether or not, it will be
reasonably practicable to, on the particular
premises - either:
* Determine whether they have found something that
they are entitled to seize
* For something to be separated from something
else
..include..

Factor 1
How long it would take
to carry out the
determination or separation
on the premises.

Factor 2
The number of persons
that would be required
to carry out the
determination or separation
on the premises
within a reasonable period.

Factor 3
Whether the
determination or separation
would involve
damage to property.

Factor 4
The apparatus or equipment
that it would be
necessary or appropriate to use
to carry out
the determination or separation.

Factor 5
Whether any
separation at the premises
would be likely to
prejudice the use
of some or all of the
separated seizable property.

Answer 69

A

There are very similar grounds to exercise
seize and sift powers in respect of material
found on persons who have been lawfully
searched:
*Ground 1 - Determination ground; and
*Ground 2 - Separation ground

as well as very similar factors
that influence whether or not
it is reasonably practicable
to sift through the material
to conduct the determination or separation
at the time and place
of the search.

Answer 70

A

Factors that influence whether it will not be practicable include:
* The length of time and personnel required to sift,
* Whether damage would be caused to the premises if the sift was conducted at the premises.,
* Whether specialist apparatus or equipment would be
required to conduct the sift; and
* Whether separation at the premises would prejudice the use of seizable property.

Answer 71

A

Limit 1
Officers:
* Must only exercise the power when it is
essential; and
* Must not remove any more material than is
necessary.

Limit 2
Officers must also consider whether
removing copies or images
of relevant material or data
would be a
satisfactory alternative
to removing originals.

Limit 3
When originals are taken
officers must be prepared to facilitate
the provision of replacement copies or images
for the owner
when it is reasonably practicable.

Answer 72

A

When an officer exercises a power of seizure - the
officer shall supply either:
* The occupier of the premises; or
* The person from whom property was seized
with a written notice.

Answer 73

A

Fact 1
What
has been seized.

Fact 2
The
grounds
for seizure.

Fact 3
Both:
* The grounds for a person with a relevant interest in
the seized property to apply for judicial authority for
its return; and
* The duty of officers to secure property in certain
circumstances when an application is made.

Fact 4
The name and address of the person to whom:
* Notice of an application to a judicial authority
for the return of seized property must be given;
or
*An application may be made to allow
attendance at the initial examination of the
property.

Answer 74

A

First Alternative
..but there is
someone in charge
of the premises
present
— the notice shall be given to them..

Second Alternative
but - if no suitable person is available —
the notice should either:
*Be left in a prominent place on the
premises; or
*Attached to the exterior of the premises.

Answer 75

A

Property seized (under the seize and sift power)
must be kept both:
* Securely; and
* Separately
…from material seized under separate powers

Answer 76

A

Duties Of The Person In
Possession Of The
Material Seized Under
The Seize & Sift
Powers?
Section 53 (1)-(2) Criminal Justice & Police Act 2001

After anything has been seized via the powers
conferred by either:
Section 50 Criminal
Justice & Police
Act 2001
Seize and sift of
property seized during a
premises search
Section 51 Criminal
Justice & Police
Act 2001
Seize and sift of
property seized during a
search of a person…

…it shall be the duty of the
person
for the time being
in possession of the seized property
— to secure that there are arrangements in force
(subject to section 61)
to ensure that the following duties
are adhered to.

Duty 1
That the
initial examination
of property
is carried out
as soon as reasonably practicable
after seizure.

Duty 2
That the examination
is confined
to whatever is necessary
for determining
how much of the property
may be retained
(as per the list of property
that can be retained in subsection 3).

Duty 3
That anything that cannot be retained - because it does
not fall within the list in subsection 3 — is both:
* Separated from the rest of the seized property that
can be retained; and
* Is returned as soon as reasonably practicable after
the examination of all seized property has been
completed.

Duty 4
That until both:
* The initial examination of all property has been
completed; and
* Anything that cannot be retained (because does not
fall within the list in subsection 3) — has been
returned
.the seized property is kept separate from anything
seized under any other power.

Answer 77

A

The property
that can be retained
following seizure
and subsequent sifting
falls into 3 categories…

Category 1
Property
the retention of which
is authorised
by section 56.

Category 2
Property for which the
person seizing it
had the power to search
when they made the seizure..
,.but is not property
the return of which is required
by section 54
(i.e. items subject to legal privilege).

Category 3
Something which,
in all the circumstances
— it will not be reasonably practicable,
following the examination,
to separate from property
falling under categories 1 and 2
(that can be retained).

Answer 78

A

Property seized
can be retained
following the sift process
- provided..

Answer 79

A

Property seized
can be retained
following the sift process
- provided..

For Premises Searches
It was seized on premises by either:
*A constable; or
*A person authorised by statute who was
accompanied by a constable.
who was lawfully on the premises

For Person Searches
It was seized
by a constable
carrying out a lawful search
of any person.

and there are reasonable grounds for
believing that either:
*It is property obtained in consequence of
the commission of an offence;
*It is evidence in relation to any offence..

.and it is necessary for it to be retained - in
order to prevent it being either:
* Concealed;
* Lost;
*Altered; or
* Destroyed

Answer 80

A

If at any time after
a seizure of anything,
it appears to a person
for the time being
having possession
of the seized property
— that the property both.

Step 1
Either:
*Is an item subject to legal privilege; or
*It has an item subject to legal privilege
comprised in it

step 2
In the case where an item
is comprised in something else
which has been lawfully seized
— it is not comprised
in property
falling into subsection 2…

…it shall be the duty
of that person
to secure that
the item is returned
as soon as practicable
after the seizure.

Answer 81

A

Legally privileged property
that is combined
with other property
can be retained
if…

Step 1
The whole or part of the rest of the property is either:
* Property the retention of which is authorised under
section 56; or
* Property for which the person seizing it had a power
to search when they made the seizure — but it is not
property that they are required to return under this
section or section 55 (excluded material and special
procedure material)

step 2
In all the circumstances,
it is not reasonably practicable
for that item
to be separated from
the rest of the property or part of it
without prejudicing the use of
the rest of the property or part of it
for the purpose for which
its retention would be lawful.

Answer 82

A

If at any time after
a seizure of anything,
it appears to a person
for the time being
having possession
of the seized property
— that the property both…

Step 1
Either:
*Is excluded material or special procedure
material; or
*It has any excluded material or special
procedure material comprised in it.

step 2
Its retention
is not authorised
by
section 56.

Step 3
In the case where an item
is comprised in something else
which has been lawfully seized
— it is not comprised in
property falling into
subsections 2 or 3…

…it shall be the duty
of that person
to secure that
the item is returned
as soon as practicable
after the seizure.

Answer 83

A

Either:
*Excluded material; or
*Special procedure material
.that is combined with other property -
can be retained if..

Step 1
The whole or part of the rest of the property is either:
* Property the retention of which is authorised under
section 56; or
* Property for which the person seizing it had a power
to search when they made the seizure — but it is not
property that they are required to return under this
section or section 54 (legally privileged material).

step 2
In all the circumstances,
it is not reasonably practicable
for that item
to be separated from
the rest of the property or part of it
without prejudicing the use of
the rest of the property or part of it
for the purpose for which
its retention would be lawful.

Answer 84

A

An examination
(of the seized property)
to determine
which elements may be retained
— must be carried out
at the earliest practicable time…

..taking into account the desirability of allowing:
* The person from whom the property was seized, or
* The person with an interest in the property
..the opportunity to be either:
* Present; or
* Represented
at the examination.

Answer 85

A

All reasonable steps
should be taken
to accommodate
an interested person’s
request to be present..

Limitation 1
Provided the
request
is reasonable.

Limitation 2
.and subject to the need to prevent either:
* Harm to;
* Interference with; or
* Unreasonable delay
.to the investigatory process.

Answer 86

A

If the examination
proceeds in their absence
following their request to attend
— they must be given a written notice
explaining why
the process was conducted
in their absence.

Answer 87

A

Grounds To Retain Sifted
Property?
Property seized can be retained
following the sift process
provided
3 steps are all satisfied.

Step 1 - Premises Searches
It was seized on premises by either:
* A constable; or
* A person authorised by statute who was
accompanied by a constable.
.who was lawfully on the premises

Step 1 - Person Searches
It was seized
by a constable
carrying out a lawful search
of any person

step 2
There are reasonable grounds for believing that
either:
* It is property obtained in consequence of the
commission of an offence; or
* It is evidence in relation to any offence.

Step 3
It is necessary for it to be retained in order to
prevent it being either:
* Concealed;
* Lost;
*Altered; or
* Destroyed.

Answer 88

A

Material that there is no power to retain - must be both:
* Separated from the rest of the seized property; and
* Returned ASAP following examination of all seized
property
and delay is only permitted if there is a very clear and
compelling reason — e.g. unavailability of the person to
whom the items must be returned etc.

Answer 89

A

Either:
* Legally privileged material;
* Excluded material; or
* Special procedure material — which cannot be
retained…

must be returned both:
*As soon as reasonably practicable (ASAP);
and
*Without waiting for the whole examination.

Answer 90

A

The material must be returned to.
…the person from whom it was seized…
.except where it is clear
that some other person
has a better right to it.

Answer 91

A

Who Can Apply?
* Any person with a relevant interest in seized property
will be permitted to lodge an application to the
appropriate judicial authority for the return of all or part
of the seized property.
* Following the application - the property must be secured
(not tampered with or examined) pending the decision of
the judge

Answer 92

A

Any person with a relevant interest in the seized property
may apply to the appropriate judicial authority — on either:
* One; or
* More than one
.0f four grounds in subsection 3 — for the return of either:
* The whole; or
* Part of
. the seized property.

Answer 93

A

Ground 1
There was no power
to make
the seizure.

Ground 2
That the seized property either:
*Is; or
*Contains…

.an item subject to legal privilege
— that is not comprised
in property falling within section 54(2)
— i.e. it is not combined material
where separation is not reasonably practicable.

Ground 3
That the seized property either:
*Is; or
*Contains…

.any:
* Excluded material; or
* Special procedure material
which:

Step 1
Has been seized
under a power
to which
section 55 applies.

step 2
Is not
comprised in property
falling within section 55(2)-(3)
— i.e. it is not
combined material
where separation
is not reasonably practicable.

Step 3
Is not
property
the retention of which
is authorised by section 56.

Ground 4
That the seized property either:
*Is; or
*Contains…

..something seized under either:
* Section 50 Criminal Justice & Police Act 2001
- seize and sift of property seized during a
premises search; or
* Section 51 Criminal Justice & Police Act 2001
- seize and sift of property seized during a search
of a person.

.which does not
fall within section 53(3)
— i.e. does not fall within the
list of property that can be retained
following seizure
under the seize and sift powers.

Answer 94

A

The person
for the time being
having possession
of the seized property
— must ensure that the seized property
(without being returned)
— is not at any time
after the giving of the notice
of the application… — either.

Prohibited Action 1
Examined
or
copied

Prohibited Action 2
Put to any use
to which its seizure would
(apart from this subsection)
allow it to be put.

Exceptions
…except either:
*With the consent of the applicant; or
*In accordance with the directions of the
appropriate authority.

Answer 95

A

When an officer involved in an investigation has
reasonable grounds to believe a person with a
relevant interest in property seized intends to make
an application for the return of any:
* Legally privileged material;
* Excluded material; or
* Special procedure material — which cannot be
retained…

.then both.
*The officer in charge of the investigation
should be informed as soon as practicable;
and
*The material seized should be kept secure.

Answer 96

A

The
officer in charge
of the investigation.

Answer 97

A

Securing involves making sure that that property is
not either:
* Examined;
* Copied;
* Imaged; or
* Put to any other use…

.except either:
*At the request, or with the consent, of the
applicant; or
* In accordance with the directions of the
appropriate judicial authority..

and any request, consent or directions
be both:
* Recorded in writing; and
* Signed by both:
*The initiator; and
— must
*The officer in charge of the investigation.

Answer 98

A

The appropriate judicial
authority may give such
directions it thinks fit for
either:
* Examination;
* Retention;
* Separation; or
* Return.
.of either:
* The whole; or
* Any part of
.the seized property (or
any copies etc. made)

Answer 99

A

Contempt
of
court.

Answer 100

A

How Long Can Seized Property
Be Retained?
Seized property can be
retained for as long as is necessary
for any of 4 purposes…

Answer 101

A

Purpose 1
Use as evidence at trial.

Purpose 2
Use in any
investigation or proceedings
to which it is linked

Purpose 3
Forensic
examination or investigation
in connection with an offence

Purpose 4
To establish lawful ownership
- if there are reasonable grounds to believe
- it has been
stolen or obtained via an offence

Answer 102

A

Caveat - Alternatives
unless the purpose can be achieved instead by
creating either:
. A copy; or
* An image.

Answer 103

A

Any material seized which is either:
* Not necessary to retain;
* Legal privileged material;
* Excluded material; or
* Special procedure material
must be returned to either:
* The person from whom it was seized;
* Any other person whom the investigating officer considers has
a better claim

Answer 104

A

Who Has Rights?
Where property is retained the person who had either:
* Custody; or
* Control
Of the property immediately before seizure…

Answer 105

A

Nature Of Right 1?
.must on request be provided With either:
* A list; or
* A description
of the property within a reasonable period of time…

Nature Of Right 2
.and either:
* They; or
* Their representative
must be allowed supervised access - within a reasonable
period of time…

to at their own expense either:
* Examine;
* Photograph; or
. Copy
.their property…

Caveat?
unless the officer in charge of the investigation has
reasonable grounds to believe that this would either:
* Prejudice the investigation of any offence; or
* Lead to the commission of an offence by providing access to
unlawful material such as pornography

Answer 106

A

Action If Access Is Refused?
The reasons
must be recorded.

Answer 107

A

Who Shall Make A Record Of The
Search? — Code B Paragraph 8.1
The officer in charge of the search
on arrival
at the police station.

Answer 108

A

Content 1
The address
of the premises searched.

Content 2
The date, time and duration
of the search.

Content 3
The authority for the search
— this will depend on the source of the search authority

Content 4 — General Rule
The names of:
* The officer(s) in charge of the search
* All other officers and authorised persons present…

Content 4 — Exception
unless either:
* The offence is terrorism related; or
* The searching officer reasonably believes that
recording or disclosing their names would place
them in danger.

Content 5
The names
of any persons
on the premises
— if known.

Content 6
Any grounds for refusing
the occupier’s request
to have a person present
— if applicable.

Content 7
Either:
* A list of articles seized; or
* The location of such a list
.and the grounds for seizure - (if not covered by a
warrant).

Content 8
Whether force was used
and if so
— the reasons for using force.

Content 9
Details of any
damage caused
— and if so the circumstances.

Content 10
Any reason
why it was not practicable
to give the occupier
a copy of the Notice of Powers and Rights
— if applicable.

Content 11
If the occupier was not present — the place where both:
* The Notice of Powers and Rights; and
* Any search warrant (if applicable)
were left on the premises.

Answer 109

A

Either:
* A copy of the written consent shall be appended to
the record; or
* Record the location of a copy of the written consent.

Answer 110

A

Either:
* A copy of the warrant shall be appended to the
record; or
* Record the location of a copy of the warrant.

Answer 111

A

Record which
power
was relied upon.

Answer 112

A

When Will The Warrant Be
Endorsed?
On each occasion
when premises are searched
— the warrant
authorising the search on that occasion
shall be endorsed.

Answer 113

A

Content 1
State both:
* If any articles specified in the warrant were found;
and
* The address where they were found.

Content 2
State if
any other articles
were seized.

Content 3
Both:
* The date. and
. The time
.the warrant was executed — and either:
* The name Of the occupier — if present: or
* The name of the person in charge of the premises — if the
occupier was not present.

Content 4 — General Rule
The names of:
* The officer(s) who executed the warrant; and
* Any authorised persons present (who accompanied
them). ..

Content 4 — Exception
unless either:
* The offence is terrorism related; or
* The searching officer reasonably believes that
recording or disclosing their names would place
them in danger.

Content 5
State if a copy of both:
* The Notice of Powers and Rights; and
* The search warrant
was either:
* Handed to the occupier — if present; or
* If the occupier was not present - endorsed by the officer in
charge of the search and left at the premises — specifying the
location.

Answer 114

A

Warrants Issued By A Justice
Any warrant
shall be returned
to the designated officer
for the local justice area.

Warrants Issued By A Judge
Any warrant
shall be returned
to the appropriate officer
of the court.

Answer 115

A

Time Limit?
Within either:
* 3 calendar months of the issue of the warrant; or
* Sooner on completion of the search(es) authorised
by the warrant.

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