Co-authored by Alex Davidson at 2 Bedford Row

In June 2018 the Law Commission published its consultation paper on search warrants. Following an analysis of consultation responses, the final report was published on 7 October 2020. The report made 64 recommendations to government with particular focus on issues relating to access to electronically stored data. The recent prosecutions relating to the hacking of the Encrochat server, and the even more recent takedown of Sky ECC has once again highlighted the complicated issues involved in the state’s acquisition of electronic data. The government’s interim response to the report is now imminent. Adoption of the Law Commission’s recommendations relating to the search for electronic material would lead to a dramatic overhaul of the law in this area. Rupert Bowers QC and Alex Davidson examine the Law Commission’s recommendations and their implications.

Background to the law

Around 40,000 search warrants are issued in England and Wales every year, most of which are to search premises for evidence of a criminal offence. There are approximately 176 different search warrant provisions across 138 different pieces of legislation. Each warrant provision has a different purpose, with differing criteria for issue. Despite being one of the most crucial and intrusive tools in the state’s armoury, there are serious problems with the current law and procedure.

Following comments made by senior members of the judiciary expressing dissatisfaction with the current state of the law in this area the Law Commission commenced work in 2017 on identifying areas for reform. The comments made by the senior judiciary also followed a series of high-profile cases in which search warrants were declared unlawful. There has, after all, been a significant increase in challenges to search warrants in the last 10 or so years as those affected by them become more aware of their ability to do so.

At present a challenge to the lawfulness of a search warrant may only be brought in the High Court by way of judicial review, though there is a more limited ability to regulate the way a seizing authority may retain or examine seized material via an application to the Crown Court under section 59 of the Criminal Justice and Police Act 2001. Often, if a judicial review is successful, a second round of litigation under section 59 ensues as the errant seizing authority seeks to regularise its otherwise unlawful possession of the material. A challenge to a search warrant, particularly if a claimant obtains interim injunctive relief, necessarily interferes with the course of a criminal investigation. This may well be to the advantage of the suspect and to the detriment of the investigating authority.

The Law Commission report in overview

The Law Commission’s original terms of reference were wide, encompassing rationalisation and streamlining of the current law, as well as identifying and addressing pressing problems. Early in the review’s lifespan, it became clear that search warrants which reached to electronic material were riven with significant difficulties in practice. The project’s timeline and terms of reference were extended accordingly to grapple with these issues. The end result is a 587-page report which makes 64 recommendations, a significant proportion of which concern electronic material.

The report begins by categorising the problems identified with the current law and practice under four headings, all of which are present in the search and seizure of electronic material:

  • Complexity – the complexity of the provisions relating to search warrants leads to a confusing legislative landscape. Search warrant legislation has been described as an “unfortunate jumble of legislative provisions” (Gittins v Central Criminal Court [2011] Lloyd’s Rep FC 219 at paragraph 42(1)), with a former Lord Chief Justice also commenting that associated legislation “could have been more felicitously drafted” (R (Panesar) v Central Criminal Court [2015] 1 WLR 2577 at paragraph 44).
  • Inconsistency – as more search warrant provisions were enacted inconsistencies emerged. For example, some agencies can enter the same premises on multiple occasions and search persons therein, yet others cannot. Some provisions make explicit reference to electronic material, whilst others do not. There is also considerable overlap across the 176 or so search warrant provisions, with powers under esoteric acts effectively subsumed by section 8 of PACE. A concomitant problem is that across these provisions the threshold for issuing a warrant is not uniform. A warrant obtained under the Misuse of Drugs Act 1971, for example, requires only reasonable grounds to suspect the statutory criteria are satisfied whereas if the warrant was sought under PACE the Court would need to be satisfied to the higher standard of belief.
  • Outdated – we live in an age where terabytes of material can be stored electronically, in some cases on remote servers in an unknowable jurisdiction. A large proportion of the provisions governing search warrants, in particular those contained in PACE, predate the advent of electronic material and modern computing methods. This means that the current law fails to appreciate the unique features of electronic material and digital investigations. As a consequence, search warrant legislation is failing to deal with emerging digital technology. Dramatic technological change has also created legal uncertainty in respect of search warrant regimes. As a result, the current law both inhibits criminal investigations and has significant implications for the privacy of those whose electronic devices are searched and seized.
  • Costly –The failure of the current law to keep pace with modern computing methods and the digital landscape also causes unnecessary expense as law enforcement agencies must examine electronic devices within a legal framework that is not fit for purpose.

The Commission then explains the three principal ways in which the above problems manifest themselves. First, errors are often made, rendering warrants, and seizures made under them, susceptible to challenge. Operation Midland is a high-profile case in point, in which six search warrants were obtained following false allegations made relating to historic child sexual abuse. A report by Sir Richard Henriques into Operation Midland found serious errors in the search warrant applications. Secondly, procedural inefficiency and unfairness flow from the current state of the law. To take but one example, the significant backlog of seized electronic devices awaiting examination – in some cases up to a year – means that individuals may be left without material that is integral to their social lives, academic studies or the running of their business. Thirdly, law enforcement agencies lack the powers to investigate, detect, prevent and prosecute crime effectively subject to proper safeguards. Nowhere is this issue said to be more acute than in respect of electronic material.

Examining the problems posed by electronic material in greater detail

The Law Commission report concludes that it is in this area that reform of the law is most required. The gravamen is that the legal framework governing the search and seizure of electronic material was neither designed nor has evolved with the modern features of electronic material in mind.

Search warrants now almost ubiquitously seek access to smart phones, computers and other electronic media devices. These devices contain a welter of private, confidential and often sensitive material which often in the large part will have no bearing on the matter under investigation. Target data also increasingly sits behind encryption and two-factor authentication. In addition, electronic data accessible from a device may be stored outside the jurisdiction in a known, unknown or unknowable location, raising issues in respect of international law.

The law has struggled to keep pace with these features and strike the appropriate balance between the competing public interests of the investigation of serious crime and the protection of the individual’s right to privacy and confidentiality. The resultant practice is an inconsistent approach by law enforcement agencies to the search for and seizure of electronic material; legal uncertainty has led to conflicting views as to what is permissible under the current law. A febrile area of litigation is thus created, particularly around how warrants ought to be drafted and when an investigator should resort to the additional powers of seizure under the Criminal Justice and Police Act 2001 which entail a statutory sifting procedure not present in PACE.

Further complexity arises given the number of overlapping legal regimes that may apply when electronic material is searched for and seized. The search for electronic data stored locally on devices overlaps in many instances with the interception of stored communications under the provisions of the Investigatory Powers Act 2016. These provisions are currently causing immense difficulty in the criminal courts as the raft of Encrochat prosecutions take their course.

The recommendations relating to electronic material

The Law Commission distils the issues posed by electronic material into a single question: what ought to be the law and procedure when the state seeks to obtain electronic data stored on, or accessible from, a device on premises under the authority of a search warrant? The policy lodestar is to ensure that the current legal framework governing search warrants operates effectively in the modern digital world so that evidence of criminality can be secured whilst at the same time affording robust privacy protections. Four groups of recommendations are produced.

The first group of recommendations propose amending the wording of search warrant provisions to clarify how they apply to electronic material stored on devices, including that target data itself satisfies the statutory conditions, thereby excluding irrelevant material from the ambit of the search of the device. The report recommends that these changes be complimented by amendments to the pro-forma application forms under the Criminal Procedure Rules to require detail of any electronic data sought which is held on devices. Further, a search warrant should specify not only the devices sought as is the current state of the law, but also the material to be sought on those devices, an argument for which the courts have studiously resisted to date in challenges brought to this end.

The next group of recommendations concern the search for and seizure of remotely stored data. The recommendations are provisional in nature for two principal reasons. First, the circumstances in which the search for, seizure and production of overseas data is permissible under international law, outside of MLA and bilateral treaties, is unclear. Secondly, to reach a definitive conclusion on the appropriate model to be adopted is said to require further technical and cross-sectional input. Instead, the firm conclusion is reached that law enforcement agencies should have express powers to enter premises, search for and copy remotely stored data when executing a search warrant, however, only where there is an appropriate link between the data and premises to be searched. A buffet of models is presented which may establish this sufficient link.

The third group of recommendations focus on the treatment of electronic material once it is in the possession of a law enforcement agency. The overarching recommendation is a new statutory regime to govern the treatment of electronic material seized or copied pursuant to a search warrant, supplemented by a new Code of Practice which would regulate the acquisition and treatment of electronic material in search warrant cases. The statutory regime would therefore prescribe the result to be achieved by setting out overarching and enduring duties, with the Code of Practice detailing the method.

The fourth and final recommendation is a wider review of the law governing the acquisition and treatment of electronic material in criminal investigations. It is pointed out that the problems relating to electronic material transcend search warrants. Given the interconnectivity of investigative powers, reform is required to other regimes to ensure that the law operates effectively across the board.

The implications of the Law Commission’s recommendations

The problems posed by electronic material are being legislatively targeted. The obtaining of data from overseas is addressed in part by the Crime (Overseas Production Orders) Act 2019. Once the UK-US Electronic Data Agreement is brought into force, law enforcement agencies will be able to apply for an order requiring companies operating or based in the US to produce data which they possess or control, even if it is outside the UK. As for the extraction of data from devices, Chapter 3 of the Police, Crime, Sentencing and Courts Bill would introduce a specific legal basis for the extraction of data from devices, which comes in the wake of an ICO report recommending clarification of  the lawful basis for data extraction to ensure compliance with data protection legislation. These developments, however, do not address the core concerns raised by the Law Commission’s report.

There are a number of reasons why the Law Commission’s recommendations would be timely. As touched on, the Encrochat litigation has highlighted the potential issues that arise where data is stored overseas and heavily encrypted. The recent Supreme Court case of KBR v SFO [2021] UKSC 2 has also drawn into sharp focus the jurisdictional limits of the courts’ interpretation of legislation in line with perceived public policy aims. It is for the government, and then Parliament, to address these issues. The problems posed by electronic material are difficult ones, but the nettle must be grasped.

Rupert Bowers QC of Doughty Street Chambers frequently appears in cases challenging search and seizure and is instructed for the defence in the lead Encrochat prosecution. Alex Davidson of 2 Bedford Row was the lead lawyer on the Law Commission’s search warrants project. Together they are currently writing a textbook on the law of search and seizure for Oxford University Press.