Search of premises under a Magistrate's warrant

Magistrates have the power to issue search warrants under many Acts of Parliament — for example, to search for stolen goods under the Theft Act 1968, Misuse of Drugs Act 1971 and for racially inflammatory material under the Public Order Act 1986. More importantly, they have a power under PACE to issue a warrant authorising the police to enter and search premises for evidence of a serious arrestable offence. Magistrates should only issue warrants under this section if there are reasonable grounds for believing that the police will not be able to obtain access to the evidence without a warrant, for example, if consent will not be forthcoming. In addition, magistrates should be satisfied that there are reasonable grounds for believing:

  • The material is likely to be of substantial value - whether by itself or together with other material - to the investigation of the offence.
  • That it is likely to be ‘relevant evidence’, that is, anything that would be admissible as evidence at a trial.
  • That it does not consist of or include items subject to legal privilege, ‘excluded material’ or ‘special procedure material’.
This power clearly applies to premises owned or occupied by someone who is not implicated in the alleged offence.

The Police Act 1997 gives statutory authority for police ‘bugging’ and allows the police, with the prior authority of a Commissioner - a serving or retired High Court Judge - to go on to private property to plant surveillance devices and also to search and seize evidence. In order to use such powers the police will have to be satisfied that the action is necessary because it is likely to be of substantial value in the prevention or detection of serious crime, and that what the action seeks to achieve cannot reasonably be achieved by other means. The prior authority of a Commissioner is not required where the authorising officer believes the search is urgent. This belief does not need to be on reasonable grounds. These powers are extremely invasive of privacy and the police action will be assessed very carefully against the right to privacy in Article 8 of the Convention. The protections afforded by the Police Act itself may be inadequate under Article 8 of the Convention, as the authorisation is only from a Commissioner.

Material which has Special Safeguards

PACE gives special protection from search - but not necessarily from seizure - to some types of material felt to be sensitive. These categories are ‘excluded material’, ‘special procedure material’ and ‘legally privileged material’.

Excluded Material

There are three kinds of excluded material:

  • Personal records - examples of material that should normally be excluded are medical and psychiatric records, records kept by priests, the Samaritans, possibly school and college records, records of advice given by law centres and Citizens' Advice Bureaux.
  • Human tissue or tissue fluid.
  • Journalistic material - that is, material acquired or created for the purposes of journalism. There is no need for the holder of such material to be a professional journalist.
In order to qualify as excluded material the items must have been held in confidence. This is a concept that can be legally complex.

The police cannot easily obtain a warrant to search for this material. They must follow a set procedure, which will normally involve a hearing before a judge who decides, amongst other things, whether it would be appropriate to allow the police access to the material. Only the person in possession of the material, who will not necessarily be the suspect, and the police have a right to make representations at the hearing. If the judge decides to permit access, however, the suspect may make representations at that stage. If the judge considers it appropriate, he or she will make an order compelling production of the material to the police.

If the person in possession fails to produce the material, he or she may be in contempt of court and the judge may issue a warrant to the police to search his or her premises.
In some circumstances, if the police can convince the judge that the situation is urgent, they may be able to obtain a warrant from the judge without the party in possession of the material knowing.

Special Procedure Material

There are two categories of special procedure material:

  • Material which is not excluded material but is held in confidence by certain persons.
  • Journalistic material that is not excluded material, either because it is not held in confidence or does not consist of documents.
E xamples of special procedure material are company accounts or stock records held on behalf of a client by a bank, solicitor or accountant. The procedure enabling the police to obtain this material is broadly the same as for excluded material. The police have additional powers to apply for the production of this material where it is considered to be evidence of a ‘serious arrestable offence’. The judge will have to decide, among other things, whether it would be in the public interest to allow the police access to the material. For instance, if the police were to make an application for newspaper photographs, the judge may need to consider the rights of the press to freedom of expression under Article 10 of the Convention. The material must also be of ‘substantial value’ to the investigation, and not merely be of benefit or useful.

Legally Privileged Material

The definition of items subject to legal privilege is crucial, since these items are exempt from most powers of search and should not be seized. There are three categories of legally privileged material:

  • Communications to do with giving legal advice.
  • Communications to do with legal proceedings.
  • Items connected with either of the above communications.
In each category the definition hinges on the term ‘professional legal adviser’, which clearly includes barristers, solicitors and solicitors' clerks. There is no requirement that the adviser should work for a firm of solicitors and, therefore, the adviser may come from a law or advice centre. Although the advice of an unqualified person will not be privileged unless acting as an agent for a solicitor or barrister, it will in most cases be excluded material.

Items held with the intention of furthering a criminal purpose are not legally privileged. However, a letter from a solicitor advising a client of potential criminal liability if a particular course of conduct were pursued would be privileged.
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