A search warrant application before the magistrates’ court can take a matter of minutes; the search itself a matter of hours. But when a claim is brought against the police for the way in which a warrant was obtained or executed, the consequence can be long, drawn out and costly litigation. Police forces risk paying out compensation for trespass to property, breach of Article 8 and malicious procurement of a search warrant.
In a number of cases, the courts have given important guidance on how search warrant applications should be made and how warrants should be executed. Regrettably, all too often this guidance is overlooked. This article explores some of the common pitfalls associated with search warrants and offers practical suggestions on how to avoid them.
(1) Appreciate the significance of search warrants
At every stage – from preparing for, to applying for, to executing a search warrant – it must be remembered that search warrants are a serious interference with the rights of the subject. The right to private life is enshrined in Article 8 of the European Convention on Human Rights (ECHR). Even before the Human Rights Act 1998 came into force, Lord Widgery CJ said: “Generations of justices have… been brought up to recognise that the issue of a search warrant is a very serious interference with the liberty of the subject, and a step which would only be taken after the most mature careful consideration of all the facts of the case.” (Williams v Summerfield [1972] 1 QB 512).
(2) PACE matters
The Police and Criminal Evidence Act (PACE) 1984 sets out clear rules covering how a search warrant application should be made in the magistrate’s court. A breach of those rules – however trivial it might seem – will result in the search warrant being void ab initio, ie, from the outset. All action taken pursuant to the warrant will be unlawful, even if the officers executing it had nothing to do with the application, and acted entirely in good faith.
In R (Faisaltex) v Chief Constable of Lancashire Constabulary [2008] EWHC 2832 (Admin) the court stated that “[t]he requirements which have to be met for the issue of a search warrant, whether under [s]8 of PACE or under Schedule 1 thereof may seem numerous and onerous. But… that is only to be expected when a police officer is seeking authority to enter a person’s home… without that person’s consent and to search for and seize items present there. It has rightly been described as a draconian power”.
(3) The Information must contain the entire basis for the application
Section 15(3) of PACE 1984 requires a search warrant application to be supported by an Information in writing. In Austen v Chief Constable of Wiltshire [2011] EWHC 3385 (Admin) the Court said that “[t]he necessary foundation for the issue of the warrants should be on the face of the information unless there are good reasons for not including it there. Police practice to the contrary should be changed forthwith”.
Search warrant applications are made ex parte and the Information (which is disclosable after the warrant is executed) is the subject’s only way of knowing the basis for the warrant.
Officers may be reluctant to record the basis of the application in full because it is based on sensitive intelligence which they do not wish the subject to know. Nevertheless, the courts have repeatedly emphasised that the Information must contain the entire basis of the application. If the application is based on intelligence, sufficient detail must be provided to allow the magistrate to test its credibility. Options for protecting sensitive intelligence and its sources include: (i) not to rely on the sensitive intelligence (there may be sufficient other material to succeed in the application); (ii) to sanitise the intelligence; and (iii) to record the sensitive intelligence in a confidential Schedule to the Information, over which the chief constable can claim public interest immunity (PII) if disclosure is sought.
Since disclosure of the Information can be sought from the magistrates’ court as well as from the chief constable, it is important that local procedures are put in place to ensure the magistrates’ court: (i) stores confidential schedules securely; and (ii) does not disclose them until the chief constable has had the opportunity to assert PII.
(4) The applicant officer and the magistrate must keep a record of proceedings
There are two circumstances in which information additional to that in the written Information might be given orally to the magistrate/district judge. First, if new information arises after the Information is produced. Second, in response to one of the magistrate’s questions, which the applicant officer must answer (see s15(4) of PACE). The courts have made it abundantly clear that any additional information must be recorded by the magistrate and by the applicant officer.
In Austen, the court said that: “This point has been made too often for its repetition here to be other than a matter of urgent concern for the police and magistracy”. The note should include details of: (i) what the magistrate was shown; (ii) what further information was given orally; (iii) what questions the magistrate asked; (iv) what answers the applicant officer gave; and (v) the reasons the magistrate gave for granting/refusing the application.
As a matter of practicality, it might be easier for two officers to attend the hearing, with the second officer tasked to keep a full note of what is said. The applicant officer should remind the magistrate of his/her responsibility to keep a note at the beginning of the application (by specific reference to Austen) and perhaps ask the magistrate or the justices’ clerk to counter-sign the officer’s note of the proceedings. If sensitive intelligence is revealed orally then this should also be recorded in a note, but the note should be subject to the safeguards described above.
(5) The applicant officer must provide all the relevant information, including that which undermines the application
Search warrant applications are made ex parte. The subject of the warrant is not there to defend himself. The applicant officer is under a very heavy to duty to ensure that the magistrate has the fullest possible information and must be absolutely frank with the court. Barristers are under the same obligation when they make ex parte applications, eg, PII.
In R (Energy Financing Team) v Bow Street Magistrates’ Court [2006] 1 WLR 1317, the court made it clear in a Practice Note that “it is the duty of the applicant to give full assistance to the [court] and that includes drawing to his or her attention anything that militates against the issue of a warrant”. Non-disclosure in bad faith will automatically invalidate the warrant. Non-disclosure in good faith may invalidate the warrant, but only if the information that was not brought to the magistrate’s attention would have made a difference to the outcome.
(6) Give a full brief prior to executing the warrant
An officer may seize anything covered by a warrant (unless subject to legal privilege) and a search may only be a search to the extent required for the purpose for which the warrant was issued (PACE Code B paragraph 7.1 and PACE s16(8)). For those reasons (and more), it is imperative that every member of the search team: (i) has been assigned, and is fully aware of, their role; (ii) is informed of the reason for the issue of the warrant; and (iii) knows what items are ‘covered by’ the warrant.
The key is to plan the briefing; to give background to the search and to ensure that all the officers are as fully informed as is practicable. At the risk of stating the obvious, search teams should know the key items they are searching for and the intended search locations to be focused on. Search teams should exercise caution when seizing something not specified in the search warrant.
The decision to seize or not to seize a particular item requires that a quick judgment will have to be made in the circumstances in which the officer finds him/herself and on the basis of what is (or should have been) known at the time the warrant is executed. This requirement often causes practical problems when seizing large quantities of paperwork and/or digital storage. The officers conducting the search must not be indiscriminate in what they seize: a bona fide effort must be made at the scene to rule out categories of documents that are clearly irrelevant. Provided this is done, the courts may be sympathetic where circumstances have required that decisions be made at speed, without time for reflection, or where the opportunity to assess the significance of the material only arises after the conclusion of the search (Fitzpatrick v Chief Constable of Warwickshire Police [1999] WLR 564).
Seized property must be assessed promptly for relevance, and must be returned as soon as is practicable after it has been identified as irrelevant.
(7) Evidence checklist compliance
PACE s16(5) should be kept in mind at the start and end of every search: it is simple, straight-forward and easy to comply with. But it is also easy to fall into error. Where the occupier is present, the constable must: (i) identify himself to the occupier and, if not in uniform, produce documentary evidence that he is a constable; (ii) produce the warrant to the occupier; and (iii) supply the occupier with a copy of the warrant. The warrant is ‘produced’ within the meaning of s.16(5)(b) only when the occupier is given a chance of inspecting it (R v Longman [1988] 1 WLR 619).
A full, accurate and timed entry in one or more of the officers’ pocket notebook is useful in evidencing compliance.
(8) Always supply a ‘copy’ of the warrant
‘Supply’ almost certainly requires the occupier to be given their own ‘copy’ of the warrant. Section 15(6) prescribes what ‘the copy’ should contain. If the ‘premises to be searched’ or the ‘articles or persons sought’ feature in separate schedules (as they often do) they must both – warrant plus schedule – be provided in full. Taken separately, neither document is sufficient (ex parte Parker [1993] 2 All ER 56).
The address of the premises must be identified in the warrant or the schedule. If the police intend to keep information about the search of other premises from the occupier, they should obtain separate warrants for those premises, or redact the addresses of those premises. Accordingly, it is prudent to produce at least two certified copies: one for police records and one for service on the occupier; “a copy whose authenticity does not depend on the word of the police” (per Bhatti v Commissioner of Police of the Metropolis [2010] EWHC 522 (Admin)).
If a copy of the warrant is left without the schedule, ‘a copy’ has not been left for the purposes of PACE. A salutary lesson should be taken from Bhatti. The warrant complied with s15(6) save for s15(6)(a)(iv) because ‘the relevant premises’ had been stated on a separate page (‘the schedule’) and a copy warrant was left with the occupier without the schedule. Instead of the schedule, at the bottom of the warrant it was written “to be completed by the officer in charge of the search if the premises entered are not specified above. For the information of the occupier, the premises entered on this occasion are:…”. The specific address was then completed in handwriting when the copy warrant was handed to the occupier. The copy warrant did not replicate the original warrant exactly; it contained additional information added and the schedule was not attached. The court found that this was a breach of s16(5)(c). A schedule must be treated as a crucial and integral part of the warrant.
(9) Do not forget PACE s16(9)
Section 16(9) provides that a constable executing a warrant shall make an endorsement on it stating whether the articles or persons sought were seized and whether any articles were seized, other than those sought.
Whether or not the occupier is present, paragraph 8.2 of Code B should be complied with, and the following should be endorsed on the warrant at the end of the search: (i) articles found and where; (ii) other articles seized; (iii) date and time of execution and persons present; and (iv) names of officers that executed the warrant. In the heat of the moment, with the difficult part over (the physical aspect of entry, search and seizure), this last, administrative, stage of the process can be overlooked.
(10) Exercise caution when using templates
The courts have become increasingly strict in their scrutiny of warrants and require meticulous compliance with s15 and s16 PACE. This has encouraged a number of Forces to produce ‘templates’ for officers making search warrant applications.
Templates should always be used with caution. Following them to the letter does not mean that the search warrant will be immune from challenge.
In R v Lewes Crown Court ex parte Hill (1991) 93 Cr.App.R, the court said that officers
“…should not regard themselves as inhibited or restricted by any limits apparently to be inferred from the framework of the rather bald terms of any pro-forma documentation supplied to them”. The same can be said of the Home Office’s template. In Bhatti, the court stated: “I stress that the officers in this case cannot be criticised for acting in accordance with the [Home Office] guidance, but in my judgment the guidance is wrong.”
Conclusion
There has been an increase in the number of legal challenges to search warrants over recent years. The result of these challenges is inevitably disruption to the investigation and costly litigation.
Search warrants are a complex area, rich with avenues for legal challenge. It is essential to follow the rules in PACE 1984 s15 and s16, the guidance in PACE Code B and the case law; to ensure there is adequate training for officers applying for warrants; and to seek legal advice when in any doubt. Challenges to search warrants will not go away, but following the simple steps set out above will avoid some of the more common pitfalls.
This article was published in Police Professional on 11 December 2012 and is reproduced here with kind permission of the editors.