Efficiency and modernisation at heart of proposed reforms to search warrant processes

Out-Law News | 13 Oct 2020 | 12:08 pm | 3 min. read

Proposals to modernise and streamline the laws governing the way search warrants are obtained and handled in England and Wales have been published in an extensive report released by the Law Commission.

In a report laid before Parliament last week, the commission made 64 recommendations to strengthen law enforcement powers, improve the search warrant process, clarify the rules around electronic material, and strengthen safeguards for those being investigated.

The report is the culmination of nearly four years’ work by the Law Commission aimed at reducing errors and inefficiency in the search warrant process. The aim of the project was to produce proposals that would clarify and rationalise the law.

The commission’s recommendations include updating law enforcement powers so that they more clearly apply to electronic devices and data and allow digital evidence to be seized and copied effectively.

It recommended that warrants allow for electronic devices to be searched and data to be copied while on the premises, adding that the government should consider whether this should include data stored remotely.

Portrait of Andrew Sackey

Andrew Sackey

Partner

The law on search warrants is widely felt to be unnecessarily complex, dispersed, and not always entirely consistent. This extensive report seeks to better ensure uniformity and compliance across the 40,000 or so warrants which are executed each year.

The recommendations include safeguards to ensure transparency and accountability and limit interference with property and privacy rights when it comes to electronic materials, which would ensure that unneeded data is swiftly deleted, and devices returned as soon as is practical.

However, the Law Commission said there should also be a wider review of the law governing the acquisition and treatment of electronic material in criminal investigations, as problems in this area “transcend search warrants”.

White collar crime expert Andrew Sackey of Pinsent Masons, the law firm behind Out-Law, said if implemented the report’s recommendations would make a significant difference to the way search warrants were obtained and executed.

“The law on search warrants is widely felt to be unnecessarily complex, dispersed, and not always entirely consistent; studies show that warrants frequently contain errors that impact the lawfulness of their execution and potentially therefore the admissibility of the material seized,” Sackey said.

“This extensive report, and its 64 recommendations, seeks to improve safeguards, simplify and consolidate the application and execution processes across an increased range of agencies whilst mandating additional training to better ensure uniformity and compliance across the 40,000 or so warrants which are executed each year,” Sackey said.

Sackey said the considerations around electronic material were particularly important.

“In large fraud investigations, the seizure of digital material and the consequent sifting out of items subject to legal professional privilege are frequently areas of contention between the parties. The report recommends that either the person with an interest in the electronic material or the Crown should now be able to apply to the court for a judge to decide how such electronic material should be sifted and treated – which will bring considerable cost and time savings to a hugely protracted part of the pre-trial process,” Sackey said.

“In a highly significant move, the report recommends that the government considers the desirability of amending the law to expressly permit law enforcement agencies to obtain authorisation to search for and copy remotely stored data when executing a search warrant, an unsettled area of law and practice that continues to cause a great deal of uncertainty in law enforcement circles.”

The recommendations also include the expansion of “multiple entry warrants” which would allow for a property to be searched on multiple occasions; and “all premises warrants” which allow all premises occupied or controlled by a specified person to be searched.

The Law Commission proposed that the Insolvency Service and NHS counter fraud authorities in England and Wales should be given the ability to apply for and execute search warrants in a bid to tackle billions of pounds worth of potential fraud each year.

In recommendations designed to improve the search warrant process, the commission suggested introducing standardised entry warrant application forms and a template for entry warrants. It said this would reduce the risk of errors creeping in when agencies modified forms and templates.

The commission recommended the introduction of an online search warrants application portal to be designed and implemented by the Courts and Tribunals Service.

The Law Commission said the government should ensure that non-police investigators, such as members of the Serious Fraud Office, are subject to similar formalities and safeguards as the police when applying for and executing search warrants. It recommended changes to the law that would clarify when and in what form a search warrant must be provided to an occupier, and state that an occupier has a right to ask for a legal representative to be present to observe the execution of a warrant.

It also recommended the introduction of a statutory requirement for law enforcement agencies executing search warrants to provide an occupier with a notice of powers and their rights.

The government must now review the Law Commission’s recommendations ahead of any changes to the law being made.