Entry, Search and Seizure: PACE Code B Flashcards
There are a number of powers that allow officers to search without a warrant. Covered in this section are:
Section 8 PACE – Search Warrants for Indictable Offences
Section 15 PACE – Application for Warrant
Section 16 PACE – Execution of a Warrant
Section 17 PACE – enter and search for people (either to arrest, recapture or save)
Section 18 PACE (1 and 5)– enter and search for evidence after arrest (occupied or controlled)
Section 19 PACE – power to seize items from premises
Section 22 PACE – power to retain items seized
*Section 32 PACE – enter and search for evidence upon arrest (place of arrest)
UK Borders Act 2007 – power to seize and retain ID documents
Proceeds of Crime Act 2002 – Power to seize and retain cash or other proceeds of crime
Proceeds of Crimes Act 2002
Powers
Identifying cash or anything else that could be the proceeds of crime.
Section 289 says that if officers are lawfully engaged in searching premises and there are grounds for suspecting there is cash on the premises which has been obtained through unlawful conduct or intended by any person to be used in unlawful conduct, then the officers may search for that cash.
Section 294 gives officers the power to seize this cash so long as it is not less than the minimum amount stipulated by the Secretary of State. This amount is currently £1,000.
PACE Code of Practice (Code B)
This Code of Practice deals with police powers to:
- searching premises
* seizing and retaining property found on premises and persons
PACE Code of Practice (Code B)
1.1A These powers may be used to find:
- property and material relating to a crime
- wanted persons
- children who abscond from local authority accommodation where they have been remanded or committed by a court
PACE Code of Practice (Code B)
- 3 This Code applies to searches of premises:
(a) by police for the purposes of an investigation into an alleged offence, with the occupier’s consent, other than:
(a) by police for the purposes of an investigation into an alleged offence, with the occupier’s consent, other than:
• routine scene of crime searches;
• calls to a fire or burglary made by or on behalf of an occupier or searches following the activation of fire or burglar alarms or discovery of insecure premises;
• searches when paragraph 5.4 applies;
• bomb threat calls
(b) under powers conferred on police officers by PACE, sections 17, 18 and 32;
(c) undertaken in pursuance of search warrants issued to and executed by constables in accordance with PACE, sections 15 and 16;
(d) subject to paragraph 2.6, under any other power given to police to enter premises with or without a search warrant for any purpose connected with the investigation into an alleged or suspected offence.
PACE Code of Practice (Code B)
2.4 A person who has not been arrested but is searched during a search of premises should be searched in accordance with…?
Code A
Powers must be used fairly, responsibly and with respect for the occupants.
There is a duty to have regard to elimination discriminatory behaviour and to advance equality between these people with protected characteristics (age, disability, gender reassignment, pregnancy/ maternity, race, religion, belief, sex and sexual orientation and those without.
PACE Code of Practice (Code B)
2.9 Nothing in this Code requires the identity of officers, or anyone accompanying them during a search of premises, to be recorded or disclosed in what circumstances?
(a) in the case of enquiries linked to the investigation of terrorism; or
(b) if officers reasonably believe recording or disclosing their names might put them in danger.
In these cases police officers should use their police service number and the name of their police station.
Who may direct a designated investigating officer not to wear a uniform for the purposes of a specific operation?
Inspector or above
PACE Code of Practice (Code B)
2.12 Power conferred on a designated person (named in the warrant):
(a) allows reasonable force to be used when exercised by a police officer, a designated person exercising that power has the same entitlement to use force;
(b) includes the power to use force to enter any premises; that power is not exercisable by that designated person except:
(i) in the company and under the supervision of a police officer; or
(ii) for the purpose of:
• saving life or limb; or
• preventing serious damage to property.
PACE Code of Practice (Code B)
What is a ‘designated person’?
‘designated person’ means a person other than a police officer, designated under the Police (Northern Ireland) Act 2003, Part 2, who has specified powers and duties of police officers conferred or imposed on them.
PACE Code of Practice (Code B)
For the purposes of para. 2.10, the officer in charge of the search should normally be the most senior officer present. Some exceptions are:
(a) a supervising officer who attends or assists at the scene of a premises search may appoint an officer of lower rank as officer in charge of the search if that officer is:
- more conversant with the facts;
- a more appropriate officer to be in charge of the search;
(b) when all officers in a premises search are the same rank. The supervising officer if available must make sure one of them is appointed officer in charge of the search, otherwise the officers themselves must nominate one of their number as the officer in charge;
(c) a senior officer assisting in a specialist role. This officer need not be regarded as having a general supervisory role over the conduct of the search or be appointed or expected to act as the officer in charge of the search.
Application for Warrant—s. 15 PACE
Before the Application…
- The police officer must have checked the information he is going to present is both accurate and recent.
- Applications cannot be made solely on the information where the source is unknown (e.g Crime-stoppers).
- The officer does not need to disclose the source or identity of where the information has come from but be prepared for questions from the magistrate.
- The police are expected to make reasonable enquiries to establish the identity of the occupiers.
Application for Warrant—s. 15 PACE
The procedural action of obtaining the warrant. The following must be adhered to:
.
.
If the application is refused?
- Must be ex parte (occupier of premises must not be in court during application).
- Supported by information in writing (Inspector)
- The authority which the warrant would be issued (e.g s8 PACE/ s23(3) Misuse of Drugs Act).
- Outline grounds for the application (including number of entries).
- Object of the search and details of premises.
- That there are ‘reasonable ground to believe’ that the material they are searching for does not consist of ‘legal privilege’ etc.
.
.
If refused you can only return and try again upon further intelligence.
- If the occupier is present at the time the premises are entered and searched, what must happen?
- If no one is present?
- The constable must identify themselves, if not in uniform by producing documentary evidence, must produce the warrant and supply the occupier with a copy.
- If no-one is present, then a copy of the warrant must be left in a prominent place on the premises.
What happens when the search warrant is executed or expired (whichever is sooner)?
The warrant must be suitably endorsed and returned to the issuing court. The court will keep the warrant for 12 months.
If during that 12 months period the occupier of the premises to which the warrant relates asks to inspect the warrant, he/she shall be allowed to do so.
What warrants allow for applications to search ‘all premises’ occupied or controlled by an individual?
Section 8 PACE
Warrants allows for applications to search ‘all premises’ occupied or controlled by an individual, and / or for multiple entries into the same premises.
In these instances, the information and the warrant need to state the name of the person in occupation or control of the premises, together with as much information as possible to identify the premises.
Time frame of search warrant
The search warrant must be executed (carried out) within the time frame stated on the warrant and, in any case, within 3 months of the date of its issue at court.
Execution of a Warrant—s. 16 PACE
The Police and Criminal Evidence Act 1984, s. 16 states:
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 (e.g skilled officers)
(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.
An all premises warrant…
A multiple entry warrant
Rules..
No premises not specified on warrant may be entered /searched without written authority of inspector or above
No premises may be entered/searched for a second/subsequent time unless at least inspector has given written authority.
General rules for executing warrant
Must be done at a reasonable hour unless it appears that may frustrate the purpose of the search
Where the occupier is present, a constable shall identify themselves to the occupier (if not in uniform present ID), present the warrant and supply them with a copy of it. If not there leave a copy in a prominent place.
A warrant only allows search to extent required for the purpose it was issued
Officer will endorse the warrant stating what articles were found.
Once executed a warrant shall be returned to the justice of peace/ officer of the court where it was issued and retained for 12 months from its return.
Inspector can authorise a designated officer to wear non-uniform.
Search Warrants for Indictable Offences— s.8 PACE
The Police and Criminal Evidence Act 1984, s. 8 states:
(1) If on an application made by a constable a justice of the peace is satisfied that there are reasonable grounds for believing—
(a) that an indictable offence has been committed; and
(b) material on premises likely to be of substantial value (whether by itself or together with other material) to the investigation of the offence; and
(c) that the material is likely to be relevant evidence; and
(d) that it does not consist of or include items subject to legal privilege, excluded material or special procedure material; and
(e) that any of the conditions specified in subsection (3) below applies in relation to each set of premises specified in the application
…he may issue a warrant authorising a constable to enter and search the premises.
(2) A constable may seize and retain anything for which a search has been authorised under subsection (1) above.
S8 PACE- search warrants for indictable offences
What are the two types of warrant available?
- Specific premises warrant (for the search of one set of premises)
- All premises warrant (where necessary to search all premises occupied/controlled by an individual but not practicable to specify all such premises at the time of applying for the warrant.
You can request up to three entries over the three-month life span and an Inspector must endorse the further entries.
S8 PACE- search warrants for indictable offences
(1B) If the application is for an all premises warrant, the justice of the peace must also be satisfied—
a) There are reasonable grounds for believing that it is necessary to search premises occupied or controlled by the person in question which are not specified in the application in order to find the material referred to in paragraph (b) of that subsection; and
(b) that it is not reasonably practicable to specify in the application all the premises which he occupies or controls and which might need to be searched.
S8 PACE- search warrants for indictable offences
(3) The conditions mentioned in subsection (1)(e) above are—
(a) that it is not practicable to communicate with any person entitled to grant entry to the premises;
(b) that it is practicable to communicate with a person entitled to grant entry to the premises but it is not practicable to communicate with any person entitled to grant access to the evidence;
(c) that entry to the premises will not be granted unless a warrant is produced;
(d) that the purpose of a search may be frustrated or seriously prejudiced unless a constable arriving at the premises can secure immediate entry to them.
Material which falls within the definition in s. 10 of the 1984 Act is subject to legal privilege.
What does this mean?
Means that it cannot be searched for or seized. So any communications between professional legal advisors, their representatives and their clients are therefore off limits.
Items held with the intention of furthering criminal endeavours, however, are fair game.
If during a search legally privileged material is inadvertently seized it does not render the search unlawful.
What is ‘excluded material’ and how can it be gained?
Material that can generally only be gained by applying to judge for production order.
E.g
(a) personal records held through the course of a business held in confidence.
(b) human tissue or tissue fluid which has been taken for the purposes of diagnosis or medical treatment and which a person holds in confidence;
(c) journalistic material which a person holds in confidence and which consists—
(i) of documents; or
(ii) of records other than documents.
When providing information to justify warrant, the officer must take reasonable steps to check the information is…
Accurate, Recent and not provided maliciously or irresponsibly
An application may not be made on the basis of anonymous information if corroboration has not been sought
Pre application the officer must make reasonable enquiries to establish if…
- Anything is known about the likely occupier of the premises
- The nature of the premises themselves
- If the premises have been searched previously and how recently
- Any other relevant information
An application to a justice of the peace for a search warrant or to a Circuit judge for a search warrant or production order under PACE, Schedule 1 must be supported by whom?
A signed written authority from an officer of inspector rank or above.
Note: If the case is an urgent application to a justice of the peace and an inspector or above is not readily available, the next most senior officer on duty can give the written authority.
If application under PACE s8 then more than one set of premises can be specified to be searched.
Where this is the case, the officer must specify:
- as many sets of premises which it is desired to enter and search as it is reasonably practicable to specify;
- the person who is in occupation or control of those premises and any others which it is desired 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;
Does the identity of an informant need to be disclosed when making an application?
No, but the officer should be prepared to answer any questions the magistrate or judge may have about:
- the accuracy of previous information from that source
- any other related matters.
Section 17 PACE Searches
A constable may enter and search any premises for the purpose of:
- Executing an arrest or committal warrant.
- Arresting for an indictable offence.
- Arresting for offences under; Prohibitions of uniform, Entering and Remaining on Property, Sec 4 POA, Failing to comply with an interim order.
- To recapture someone unlawfully at large with whom the officer is in hot pursuit.
- Saving life and limb (not a concern for welfare)
- Preventing serious damage
- Failing to stop for a constable in uniform
- Arrest a child who has remanded into the care of a local authority
Section 17 PACE Searches
This power gives officers the authority to enter any premises in order to either arrest people for certain offences, recapture people in certain circumstances, save life and limb, or to protect property from serious damage.
In order to exercise this power of entry under any of the above circumstances, you must have…
Reasonable grounds to believe that the person whom you will arrest or recapture are on the premises that you want to enter (Sec 17.2).
However, when entering to save life or prevent serious damage to property you actually only need reasonable grounds to suspect that the someone is on the premises or that property will be damaged.
Section 17 PACE Searches
Extent of search
When using this power, you may only enter and search to the extent that it is necessary to find the person to be arrested or recaptured.
In addition, if the building has separate dwellings, e.g. a block of flats or a house which has private rented rooms, you may only enter the flat or room where you believe the person you are seeking may be, and any communal parts.
Power of Entry—s.17 PACE
(1) Subject to the following provisions of this section, and without prejudice to any other enactment, a constable may enter and search any premises for the purpose…
What are the specific offences?
(i) section 1 (prohibition of uniforms in connection with political objectives) of the Public Order Act 1936;
(ii) any enactment contained in sections 6 to 8 or 10 of the Criminal Law Act 1977 (offences relating to entering and remaining on property);
(iii) section 4 of the Public Order Act 1986 (fear or provocation of violence);
(iiia) section 4 (driving etc. when under influence of drink or drugs) or 163 (failure to stop when required to do so by constable in uniform) of the Road Traffic Act 1988;
(iiib) section 27 of the Transport and Works Act 1992 (which relates to offences involving drink or drugs);
(iv) section 76 of the Criminal Justice and Public Order Act 1994 (failure to comply with interim possession order);
(v) any of sections 4, 5, 6(1) and (2), 7 and 8(1) and (2) of the Animal Welfare Act 2006 (offences relating to the prevention of harm to animals);
(vi) section 144 of the Legal Aid, Sentencing and Punishment of Offenders Act 2012 (squatting in a residential building);
Section 18 PACE Search
Section 18 PACE covers occasions when:
A person is under arrest for an INDICTABLE or EITHER WAY offence.
There are grounds to suspect that there is EVIDENCE relevant to the offence they have been arrested for, or evidence of a similar or connected indictable offence(s).
This evidence is inside premises OCCUPIED or CONTROLLED by that person.
Section 18 PACE Search
Points to note:
Mere suspicion or belief of occupancy or control is not sufficient. Before powers under Section 18 are used officers must be sure that the premises are occupied or controlled by the person under arrest (Code B).
There are summary, either-way, and indictable only offences. When you see the term ‘indictable offence’ being used, this is used to mean ‘either-way’ offences and/or ‘indictable only’ offences. Therefore, it does not include summary offences.
