Sunday, 10 June 2018

Search me

When we give the police the power to search premises in pursuit of criminal investigations, the law has to strike a balance between the powers of the state and the rights of individuals.
On such an important issue, you might think that the law would be simple and clear, easily understood by judges, the police and the public.
So, let’s start with a quick quiz:
  • How many statutory powers are there to issue a search warrant?
  1. Between 1 and 50
  2. Between 51 and 100
  3. Between 101 and 150
  4. Between 151 and 200
  • Since 2010, how many judicial reviews have there been in England relating to the issue of a search warrant or conduct of the search?
  1. Between 1 and 15
  2. Between 16 and 30
  3. Between 31 and 45
  4. Between 46 and 60
  • Which kinds of materials may not be searched for under section 8 of PACE or most other powers?
  1. materials subject to legal privilege; for example, communications between a lawyer and a client
  2. medical and counselling records and confidential journalistic material
  3. confidential business records and non-confidential journalistic material
  4. all of these – a), b) and c)
Well done if you got all of them right…without cheating!
The answers are
  • (4)1
  • (4)2
  • (4)3
The answers tell us that the law is far from clear and simple. It also isn’t understood by many of those who have to issue a warrant, or undertake searches, or be the occupier when the police (or others) come knocking.
That’s why, with all party support, the Home Office asked the Law Commission4 in December 2016 to identify and address problems with the law governing search warrants and to produce reforms which will clarify and rationalise the law.
Since then, the Commission has undertaken wide consultations on all the issues surrounding search warrants. It concluded that:
  • the current system for granting warrants is too complicated
  • there is a risk applications are not prepared properly or given sufficient scrutiny.
  • investigations may be significantly hindered as search warrants do not reflect the modern world in which the internet and digital sources have a significant role
  • the law around search warrants should be modernised with more protections put in place to protect individuals’ rights
As a result, the Commission proposed modernising the powers available to authorities under search warrants and bringing in extra protections for the public. In particular, the Commission proposed more protections should be put in place to protect individuals’ rights so that people know that a search under a warrant is limited to what is necessary and proportionate.5
Their proposals include:
  • exempting confidential journalistic material and medical records from searches under warrant
  • bringing in procedural safeguards and requiring judicial authorisation for late night or early morning searches
  • introducing a requirement to record and publish statistics to monitor the use of search warrants
  • introducing safeguards whenever electronic devices are seized under a search warrant so that devices are examined and returned swiftly
  • a new procedure to challenge defective search warrants which would avoid the cost and delay of judicial review
  • clarifying forms and amending guidance to make clear what duties investigators must follow when applying for search warrants
  • making search warrant powers more consistent so investigators know what powers they have and when they can use them
  • a new mechanism in large-scale investigations to require assistance with the identification and segregation of privileged material to prevent the law being used as a delaying tactic
  • allowing more agencies with enforcement powers to apply for a search warrant, rather than going through the police as a third party
An area of particular concern is the lack of clarity surrounding how the law treats electronic information. Problems arise because of:
  • the enormous volumes of electronic information that can now be stored on devices, and
  • the location of the material, which may be stored remotely abroad albeit accessible from the premises
Consultation on the Commission’s proposals will now run until 5 September 2018.
What is worrying is that the government is already indicating that time will not be found in the parliamentary diary to take forward the legislative changes that would be necessary to implement the proposals.
Why? Brexit, of course.
Meanwhile, we will leave everyone in a state of confusion and continue to waste millions of pounds.
It’s just another of those Brexit costs that you weren’t told about.
1 The Law Commission identified 176 search warrant provisions, which are listed in Appendix 1 of its consultation paper. This list does not include warrants to enter premises (“entry warrants”) and warrants to enter and inspect premises (“inspection warrants”).
2 There have been more than 50, with millions spent by public bodies in damages and legal fees.
3 Law Commission Search Warrants Summary Para 120
4 The Law Commission is the statutory independent body created by the Law Commissions Act 1965 to keep the law of England and Wales under review and to recommend reform where it is needed. The aim of the Commission is to ensure that the law is fair, modern, simple and cost effective. Since then, more than two-thirds of all reports have been accepted or implemented in whole or in part.