Martin Partington: Spotlight on the Justice System

Keeping the English Legal System under review

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Search warrants: proposals from the Law Commission

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One of the important powers the police have when they are investigating crime is the power to search premises and if necessary seize property that might be evidence to be used in a subsequent prosecution. A search warrant is an authorisation by a magistrate giving the police (or other investigtors) to make a search.

Around 40,000 search warrants are issued in England and Wales every year. There are over 175 different powers to issue search warrants. Some, like the general power under section 8 of the Police and Criminal Evidence Act 1984 (“PACE”), are used to look for evidence of a criminal offence. Some 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 specialised investigations.

However, as the Law Commission notes, there are problems with the current system. These include:

  • Error: A 2016 review by the National Crime Agency found that 79% of investigations had defective warrants (of which 8% had significant deficiencies).
  • Inefficiency: Sometimes it can take three weeks to obtain a search warrant, during which time evidence might have been lost and further crimes committed.
  • Insufficient powers: Law enforcement agencies do not have effective powers to obtain electronic evidence, which might be stored on remote servers in an unknown jurisdiction. Such material can be vital for the successful prosecution of serious criminal offences.
  • Inadequate safeguards: There is currently not enough protection for individuals whose electronic devices are seized. Safeguards also vary depending on the type of warrant issued, so some individuals have fewer statutory protections than others.

To meet these shortcomings, the Law Commission has made a number of recommendations:

  • Strengthened law enforcement powers: These include:
    • Updating law enforcement powers so that they more clearly apply to electronic devices and data and allow digital evidence to be seized and copied.
    • The expansion of “multiple entry warrants” which would allow for a property to be searched on multiple occasions and “all premises warrants” which would allow all premises occupied or controlled by a specified person to be searched.
    • Permitting a police constable to search a person found on premises under the authority of a search warrant issued under PACE.
    • Giving the Insolvency Service and NHS Counter Fraud Authorities in England and Wales the ability to apply for and execute search warrants.
  • Improved process: The Law Commission makes recommendations to improve procedural efficiency, reduce the scope for serious errors and ensure that the issuing authority, a magistrate or judge, is presented with an accurate and complete picture of the investigation. These include: ensuring that the duty of an applicant to provide full and frank disclosure to the court is properly adhered to; introducing standardised entry warrant application forms and a template for entry warrants; considering the possibility of creating an online search warrants application portal; improving procedures for hearing search warrant applications to ensure that there is adequate judicial oversight.
  • Electronic evidence and materials: Amending the legal framework that currently governs the search and seizure of electronic material to facilitate the collection and examination of electronic material in a way which does not inhibit criminal investigations or impose unreasonable demands on law enforcement agencies. This could allow for electronic devices to be searched and data to be copied while on the premises. (The Government should consider whether this should include data stored remotely (even if in another jurisdiction).) The Commission also recommends measures to ensure transparency and accountability and limit the interference with property and privacy rights. Unneeded data should be swiftly deleted, and devices returned as soon as is practical.
  • Safeguards: These should be reformed to ensure that non-police investigators, such as members of the Serious Fraud Office, are subject to similar safeguards as the police. The Commission also recommends that an occupier should have a right to ask for a legal representative to be present to observe the execution of a warrant.
  • Personal records and journalistic material: In relation to personal records and confidential journalistic material, we conclude that they should remain obtainable under PACE in very limited circumstances. We recommend that the Government considers whether the law governing access to these categories of material under PACE strikes the right balance between the competing interests at play, and whether the law ought to be reformed.

As this project was undertaken at the request of the Home Office, there is reasonable likelihood that firm policy proposals will emerge in due course.

Source: adapted from https://www.lawcom.gov.uk/project/search-warrants/

Written by lwtmp

October 8, 2020 at 12:10 pm