Martin Partington: Spotlight on the Justice System

As a keen follower of the work of the Law Commission (I was once a Commissioner), I confess I had not spotted the fact that the Commission was undertaking work relating to the law on search warrants. It did not get a mention in either its 12th or 13th programmes.

The reason for this is that in December 2016, they were give a specific commission by the Home Office to undertake work in this area. The first fruits of this project have now been published in the form of  a Consultation Paper setting out the Commission’s initial ideas as to how the law might be reformed.

A search warrant is a written authorisation that allows an investigator to enter premises to search for material or individuals. Search warrants are usually issued by a court following an application by a police officer or other investigator. Most search warrants authorise the investigator to seize and retain relevant material found during the search.

Surprisingly, perhaps, detailed analysis of the law reveals that there over 175 different powers to issue search warrants. Some, like the general power under section 8 of the Police and Criminal Evidence Act 1984, are used to look for evidence of a criminal offence.  More specific powers allow the searcher to remove stolen goods, drugs, firearms or other dangerous materials or to rescue people or animals in danger or distress. Other powers relate to complex financial or other types of specialised investigation.

The Commission identified a number of problems with the current law:

• the sheer number of provisions, coupled with their complexity, leads to a confusing legislative landscape;
• there is inconsistency across search warrant provisions and in the procedure for obtaining a search warrant. Importantly, there is inconsistency in the applicability of statutory safeguards and the protection afforded to particular categories of material;
• a large proportion of the legislation, in particular the Police and Criminal Evidence Act 1984, predates the advent of electronic material and risks failing to deal with emerging digital technology and the forms in which criminal activity now takes place; and
• the number of appeals generated by search warrants legislation, and the legal fees incurred, creates excessive cost for all parties.

In the light of their analysis, the Commission has made proposals to:

• simplify the law and procedure governing search warrants by rendering it more rational and accessible at all stages of the search warrant process;
• make the law fairer by extending protections, improving judicial scrutiny and making the law more transparent;
• modernise the law to ensure that it reflects the changing nature of investigations and is equipped to deal with current technology; and
• make the law more cost-effective by introducing a streamlined way to obtain a search warrant and a new procedure to challenge and correct procedural deficiencies.

The consultation runs until 5 September 2018.

For further details and links to the consultation go to https://www.lawcom.gov.uk/project/search-warrants/