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Proposals to modernise search warrants in England published

Out-Law News | 07 Jun 2018 | 3:43 pm | 3 min. read

More investigatory bodies could be given the right to apply for a search warrant independently of the police under plans to modernise the regime published by the Law Commission.

The law reform body for England and Wales has proposed to update the law to make the procedure for obtaining a search warrant, and the powers available under that warrant, more consistent. It is also proposing more consistent safeguards, and to reflect better the increasing importance of electronic and digital evidence.

A search warrant is a written authorisation, issued by a judge, which allows an investigator to enter premises to search and seize material of a kind specified in the warrant. The general power to issue a search warrant is set out in section 8 of the 1984 Police and Criminal Evidence Act (PACE). However, there are another 175 different statutory powers under which different investigatory bodies may issue a search warrant, each of which has different conditions governing its use and different powers attached.

The Law Commission said that the complexity in the current law risked drafting errors and legal challenges. There have been over 50 reported judicial reviews relating to the issue of a search warrant or the conduct of the search since 2010, with "millions" spent by public bodies in damages and legal fees, it said.

It is therefore proposing a streamlined, modernised way through which investigators may obtain a search warrant, backed by improved judicial scrutiny and statutory safeguards. It has also proposed a new procedure to challenge and correct procedural deficiencies. The Law Commission has also proposed restricting the use of early morning and late night searches to cases where the investigators can provide a "clear evidential basis" of the need for the search to take place at that time, and requiring prior judicial authorisation before an out of hours search can take place.

Safeguards set out in sections 15 and 16 of PACE are no longer appropriate, as they apply only to warrants issued to "constables", according to the Law Commission. These safeguards specify certain information that must be contained in a search warrant in order for it to be valid. The Law Commission has proposed extending these safeguards to cover all search warrants relating to a criminal investigation. It is also proposing that agencies which have a duty to investigate offences, but which cannot currently apply for a search warrant, be given the power to do so.

"This would allow the Serious Fraud Office (SFO), for example, which currently has to seek the assistance of the police, to apply for a search warrant of its own volition," said corporate crime expert Olga Tocewicz of Pinsent Masons, the law firm behind Out-Law.com. "Judicial oversight will of course still be required; however, it does bolster the investigative toolbox available to the SFO, adding to its already significant compulsory powers under section 2 of the 1987 Criminal Justice Act."

The consultation also proposes changes to the law governing the way in which legally privileged material is treated when a search warrant is executed. In particular, it proposes extending the 'protected categories' of material to include journalistic material and medical records; placing the use of independent lawyers to review any claim of privilege on a statutory footing; and introducing a new mechanism to prevent claims of privilege being used as a delaying tactic, particularly during large-scale investigations.

These proposals would be welcomed by those claiming privilege, as they would allow for "a structured and transparent approach to dealing with such issues", said Olga Tocewicz.

"The standard practice is to instruct independent lawyers to review any claim for privilege made by the subject of an investigation in relation to material seized during the execution of a search warrant," she said. "This material receives protected status and cannot be relied upon or indeed read by investigators under the doctrine of legal privilege. The consultation considers whether this practice should be embodied in statute or rules of court and whether the Crown Court should have the power to order a person, or organisation, making a claim for legal privilege to provide search terms or other indications for identifying the material likely to be privileged."

"The consultation also considers whether those making misleading claims for legal privilege should be sanctioned by way of costs, including the costs of the sift. If accepted, this could have a significant impact on the approach taken by those making such a claim," she said.

The consultation contains a detailed chapter setting out the current law on the seizure of electronic material, the existing safeguards, and the deficiencies in the existing regime. The Law Commission has not made any substantive proposals for reform in this area, but rather is inviting views on the form which reform ought to take.

"Our overarching principle is that any statutory framework must, reflecting the reality and complexities of the digital age, facilitate the investigation of crime and safeguard the important public interest in protecting individual rights," it said.

The consultation closes on 5 September 2018.