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 the first in a series of blogs which explore the current system and the proposals for reform. In this series, we consider the key problems with the current law as identified by the Commission and share our thoughts and experience in respect of these: complexity, inconsistency, its outdated nature and the costs incurred. We review the issue of costs in part two.
There are numerous pieces of legislation which authorise the police and various other prosecuting bodies to apply for a warrant to search premises. Although section 8 of the Police and Criminal Evidence Act 1984 (PACE) is the most well-known, the Commission have identified 176 different provisions under which a search warrant can be granted. Some legislation deals with entering premises to search for specific items, such as section 23 of the Misuse of Drugs Act 1971 which allows officers to enter and search for controlled drugs, whilst others authorise entry for the purposes of furthering particular types of investigation, for example section 352 of the Proceeds of Crime Act 2002 (POCA) allows officers to enter premises for the purposes of conducting investigations relating to money laundering or confiscation proceedings.
A rubber stamping exercise?
The complexity of the legislative picture is a serious problem when you take into account that the majority of search warrants are issued by lay magistrates, often sitting alone, and frequently out of hours – which means they are asked to grant warrants whilst at home with no legal adviser present. In these circumstances, the likelihood of the magistrate granting the warrant being aware of, let alone familiar with, the precise mechanisms allowing the grant of the warrant and the safeguards that are built in to the procedure to prevent the seizure of exempt material, is highly unlikely. The Commission correctly identifies this as a real risk that the warrant granting procedure is no more than a “rubber stamping exercise”.
The combination of the complex legislative landscape, the issuing of warrants by lay magistrates and the fact that the majority of warrants are applied for by an officer of the rank of constable, mean that there can be a wide variation both in the quality of the applications made, and the scrutiny that is applied. We have seen that weak and/or dubious applications for search warrants are frequently made, sometimes by inexperienced officers, and are generally granted without scrutiny by magistrates who are under pressure from an overburdened court system and who are unduly trusting of the officers making the applications. This allows both poor and deserving applications to succeed in the same manner.
The vast majority of the legislation relating to search warrants was drafted before the advent of electronic data. The terms and procedures are therefore based on the premise that, as far as documentary evidence is concerned, this will be paper based. This causes real difficulty in the case of electronic devices containing both material liable to be seized lawfully under the terms of a properly granted warrant, and material exempt from seizure, such as material subject to legal professional privilege. Section 50 of the Criminal Justice and Police Act 2001 gives seizing officers the power to ‘seize and sift’ – that is to seize items which are mixed with or inextricably linked to items for which there is no power of seizure and then sift and return material which is exempted from seizure. In the case of electronic material this provision is now the default, but the mechanisms for sifting material vary widely depending on the views and practices of the investigating bodies. In our experience, the procedure is often subject to undue delay and duplication as officers are insufficiently experienced in managing and expediting a review of mixed material across a variety of electronic and cloud based platforms. As this is an area in which we have expertise and a particular interest, we intend to look in more detail at the proposals for the review of privileged material which are contained in the report in a further blog to follow shortly.
Serious problems call for reform
In conclusion, it is clear to practitioners that there are serious problems with the current system and the Commission correctly identifies the need for reform.