The law on the powers of entry, search and seizure, developed through both common law and statute are primarily found under sections 8-23 of the Police and Criminal Evidence Act 1984

Following Bramley ss. 50- 66 Criminal Justice & Police Act 2001 enables the police to seize material and sift through it elsewhere rather than at the premises where it may not be ‘reasonably practical’ to do so demonstrating that the sanctity of a person’s home has developed through statute where it is not considered as important as it may have previously been when investigating a crime.

Under common law; where a police officer has reasonable grounds to believe a breach of peace is likely to occur, he may exercise his common law power to enter premises without a warrant as demonstrated in the journal ‘Police Power of Entry into Private Premises’ by Sally Ramage. This concept is also shown in the case of Lamb v DPP and further, McConnell v Chief Constable of Greater Manchester Police provides an entry may take place where the breach of peace affects only the persons inside the premises and not the members of the public outside the premises.

There has been some controversy with regard to issuing warrants, Clark D described  in Bevan and Lidstone’s, The Investigation of Crime that 99% of warrants were granted without any difficulty demonstrating that police are normally given the benefit of doubt. However, the case of R v Guildhall Magistrates’ Court, ex parte Primlaks Holdings Co.  runs contrary to this where it was said that the issuing of warrants was not a ‘rubber stamp’ procedure. As the procedure under s.8 is ex parte, the warrant is created without giving the other party any notice or opportunity to oppose which may infringe the other party’s rights under Article 6 of ECHR,  the right to a fair trial. An Englishman’s home may be deemed his castle however, the principle is overridden by the need to establish the facts and truth during an investigation which gives rise to the issue of a warrant ex parte in order to avoid any risk of evidence being tampered with, destroyed or displaced. Therefore, investigating bodies must have the power to secure access to premises that are under suspicion in order to conduct their investigation without any hindrance. However, the power of entry, search and seizure may cultivate concerns with regard to controlling crime and intruding the privacy of an individual. S.1.3 of Code B provides that an entry, search and seizure should be accounted for prior to the action as it may affect the occupier’s right to privacy under Article 8 of the European Convention of Human Rights as demonstrated in Khan v Commissioner for the Metropolis. Further, the authority must take caution and care not to abuse this right and not to invade one’s privacy without evidence or intelligence where a warrant is called for as demonstrated in Keegan v Chief Constable of Merseyside Police.

In accordance with paragraph 3.6, ss.15-16 act as safeguards for obtaining search warrants where the application must specify the grounds for the search, the object item(s) of the search, the details of the search and the premises to be searched. The Serious Organised Crime and Police Act 2005 has amended s.8(1A) and s.8(1B), (previously s.8(1)(b)) for the purpose that warrants can either be for ‘specific premises’ or for ‘all premises,’ a warrant may cover both (1A) and 1(B) however this must be specified as demonstrated in Redknapp This entry-search was described as an ‘outrageous abuse of power by the police’ by Redknapp’s solicitor as the nature of the search had not been justified, the warrant did not specify the address and further, was not shown to the claimants as the police did not wish for them to know the other premises were being. The search infringed their rights under Art 8 of ECHR. The magistrate who issues the warrant will be held accountable if he/she does not provide significant consideration to the purpose of delivering the warrant whereby it may be unlawful as in Redknapp. 

Further, a warrant must specify the exact area of the premises the search will cover as demonstrated in R v South Western Magistrates’ Court, Ex p. Cofie. S.16 of PACE and paragraph 1.4 of Code B necessitate that a search is completed in a proper and reasonable manner with respect for the person’s property in accordance with the Human Rights Act 1998. In the case of Hepburn v Chief Constable of Thames Valley police also searched the occupants; damages were sought as the warrant covered the premises and not the occupier. However, where the warrant may cover the premises and the occupant as in DPP v Meaden, under s.2.4 Code B a person who has not been arrested but has been searched should be searched in accordance with Code A.

The acting police must ensure that they understand the terms of the warrant as demonstrated in R v Central Criminal Court, Ex p. AJD Holdings for the purpose that they do not oversee its limits (Fitzpatrick). S.16(5) provides that failure to produce a copy of the warrant to the occupant would make it invalid. However, in R v Longman the police officers wished to carry out a search under s.23 of the Misuse of Drugs Act 1971 where they had difficulty gaining entry to the premises and so did not identify themselves or show the owner of the premises the search warrant. The search was deemed lawful in this event, contrary to this, in the case of Linehan v DPP, as the object of the search had not been sufficiently explained it was deemed unlawful. This shows that whether the search is deemed lawful rests on the facts of each case. Police powers have extended through the Serious Organised Crime and Protection Act 2005, whereby a warrant may now cover any premises occupied by the person, there is now discretion over the duration of the search and other principles found under the 2005 Act.

S.17 of PACE  allows a constable to enter property without a warrant to effect an arrest as demonstrated in Chief Constable of Essex.Under s.17(1) a constable may enter premises to execute a warrant of arrest, arrest for any offence under the Public Order Act 1936 or the Criminal Act 1977 further, he may enter to recapture a person or for the purpose of avoiding a breach of peace as demonstrated in the case of Venoroso where the entry was deemed unlawful as there was the lack of a life threatening situation.

S.18 of PACE provides that where a constable has ‘reasonable grounds’ he may enter the premises of an arrested person with the permission of a senior police officer without a warrant. However, in McLorie v Oxford the police could not enter the premises of a person who had been previously arrested for attempted murder. Paragraph 4.2 of Code B  and s.32 of PACE both provide that the constable may search the premises where the arrested person was, however, this must take place immediately after the arrest as demonstrated in Badham. S.5.1 Code B provides that consent should always be sought before an entry, however, in Ghani v Jones, there was no consent or warrant but common law rules permitted the search as it was linked with the offence.

Pre-PACE where the police were carrying out a lawful search, if they came across material which portrayed that the arrested person was associated in another crime, they had the power to seize those items per Lord Denning in Ghani v Jones. S.6.9 Code B now provides that the search should be carried out only to achieve the object(s) subject to the warrant First Protocol ECHR provides that a person is entitled to enjoy his possessions ‘peacefully.’ However, there is still some argument of whether the police still seize irrelevant material as demonstrated in the journal, ‘Search warrant: s.8 and 9, Sch 1 – whether search warrants validly granted’ S.19(2) provides that any material found on the premises may be seized, ‘premises’ includes motor vehicles per Cowan.

To retain the material seized, the constable must under s.7.1(b) of Code B have ‘reasonable grounds’ to believe that he has acquired evidence and it is the responsibility of the person in charge under s.7.9 to return the material to the owner of the premises. Under s.1.5 Code B if the provisions of PACE are not followed, the search may be unlawful, and where the search is unlawful with regard to retention, the material must be returned as in R v Chief Constable of Lancashire

There are a wide range of powers concerning entry, search and seizure which have developed through common law, statute and reviewed through journals. Although there are intrusive elements involved, it seems where the correct procedures are undertaken the search will be in proportion to the offence. An Englishman’s home being his castle may have previously had more importance, however the sanctity of a person’s home is still respected as is shown through safeguards in statute as well as common law.

Word Count: 2,200

---

Bibliography

Books

Richard Stone, ’The Law of Entry, Search and Seizure’ Fourth Edition, Oxford University Press 2005 

Andrew Sanders, Richard Young, Mandy Burton, ‘Criminal Justice’ Fourth Edition, Oxford University Press 2010

Paul Ozin, Heather Norton, Perry Spivey, ‘A Practical Guide to the Police and Evidence Act 1984’ Second Edition, Oxford University Press 2010

Journals

Sally Ramage, ‘Police Power of Entry into Private Premises’, Crim. Law, 2007, 177, 9-11

Andrew J Roberts, ‘Search warrant: Police & Criminal Evidence Act 1984 s.8 and 9, Sch 1 – whether search warrants validly granted’ Crim.L.R 2009,5,358-363

Sally Ramage, ‘The Revised police PACE Codes of Practice: “An Englishman’s home was his castle”?”, Crim Law 2006, 159, 6-8

Websites

http://www.lawgazette.co.uk/news/criminal-law-police-powers-entry-r-v-longman

LexisLibrary

Westlaw

Articles

BBC News, ‘Redknapp police raid was unlawful’ 23 May 2008 http://news.bbc.co.uk/1/hi/england/hampshire/7416117.stm accessed 30 Dec 2011

---