The Law Commission recently announced a consultation into the law and practice governing search warrants with a deadline for responses of 5 September 2018. This is second in a series of blogs which explore the current system and the proposals for reform. Where this blog considers the issue of costs, the introductory blog considers the key problems with the current law as identified by the Commission and sets out our thoughts and experience in respect of these: complexity, inconsistency and its outdated nature.

The Commission highlights that the number of appeals generated by the current system causes both sides to incur excessive costs. In our experience, the position is slightly more nuanced. We see that a large percentage of dubiously granted search warrants are not challenged for a number of reasons, however, the mechanism for challenging search warrants by way of Judicial Review disproportionately favours well-resourced individuals. Consequently, matters which are challenged are likely to incur huge costs for both sides. This also means the issues being ventilated in these challenges are likely to be narrow and skewed in favour of those affecting the execution of warrants against corporates rather than individuals.

For example, officers executing a search warrant at corporate premises are likely to find that lawyers for the corporate will immediately be instructed to obtain the information underlying the warrant and to advise on the legality of the search, regardless of the role of the corporate in the investigation. If there is any ground for challenge, it will be identified and action taken if not immediately, then almost certainly well within the three month limit for Judicial Review, if agreement regarding the items seized cannot be reached. This is likely to take place regardless of the stage the substantive criminal proceedings have reached and irrespective of whether the corporate is a suspect in those proceedings or not – for a Judicial Review it is enough that the corporate has an interest in the material.

Compare, however, an individual whose family home has been searched and items seized. The individual may have been arrested at the time of the search and interviewed under caution. Even if represented in an interview, the scope of criminal legal aid for the police interview does not extend to the review of the legality of the search warrant. It is quite possible that an individual may be represented by one solicitor for the police interview, and will not engage with that solicitor, or with any solicitor, again unless or until he or she is charged with an offence. In the case of investigations involving the review of electronic devices, it is not unusual for an individual to be released under investigation for a year or more whilst forensic analysis of the devices takes place. If a charge is authorised and a solicitor is instructed in relation to the criminal proceedings which ensue, any scrutiny of the search warrant will not be covered by the legal aid certificate granted for defending the proceedings, but under another certificate which must be applied for separately. In any event, should a dispute arise over the material seized or the manner in which the warrant was executed which cannot be resolved by agreement, an individual will be well beyond the three month time limit for Judicial Review, and even if this can be explained, the costs implications will deter the vast majority of individuals from seeking to challenge the grant of the warrant.

So, whilst the Commission identifies the costs of frequent challenge of search warrants as a one of the problems to be remedied by reform, it may be that the solution is to find a mechanism to allow more frequent and timely challenges which are not weighted in favour of use by the most well-resourced defendants. The execution of a search warrant is an example of one of the most coercive powers the police have and it is only right that individual homes are protected as well as, if not better than, corporate premises.

In conclusion, it is clear to us and other legal practitioners that there are serious problems with the current system and the Commission correctly identifies the need for reform.