A changing landscape in search and seizure

December 10, 2018

This article first appeared in the Young Fraud Lawyers Association winter newsletter.

By Rupert Bowers QC

In June 2018 the Law Commission published its Consultation Paper on Search Warrants. The proposals recommend root and branch change to the existing legal landscape. The consultation period has now closed. This article examines the most important proposals.

There has been a significant increase in challenges to search warrants in the last 10 or so years as those affected by them become more aware of their ability to do so. At present a challenge to the lawfulness of a search warrant may only be brought in the High Court by way of judicial review, though there is a more limited ability to regulate the way a seizing authority may retain or examine seized material through s. 59 of the Criminal Justice and Police Act 2001 by making an application under that section in the Crown Court. Often, if a judicial review is successful, a second round of litigation under s. 59 ensues as the errant seizing authority seeks to regularise its otherwise unlawful possession of the material.

A challenge to a search warrant, particularly if a claimant obtains interim injunctive relief, necessarily interferes with the course of a criminal investigation.  This may well be to the advantage of the suspect and to the detriment of the investigating authority.  The Commission identified a number of problems with the current law which in no small part has led to mistakes being made by applicant investigators, and Courts issuing warrants, which make search warrants, and the seizures made under them, susceptible to challenge.

The Commission managed to identify 176 different provisions which enable a Court to issue a search warrant.  Many of these, though still used, such as those under the Theft Act 1968 permitting a search for stolen goods, or under the Misuse of Drugs Act 1971 for drugs and documents, are subsumed within the most usually used provision of s. 8 of PACE.  In turn, there are warrants that permit entry only, such as under the Consumer Rights Act 2015, so that statutory powers to seize certain items may be exercised.  A concomitant problem is that across these provisions, the threshold for issuing a warrant is not uniform.  So, a warrant obtained under the Misuse of Drugs Act 1971 to search for heroin requires only reasonable grounds to suspect the criteria are satisfied whereas if the warrant was sought under PACE the Court would need to be satisfied to the higher standard of belief.  This makes little sense given, as said, the broader power in PACE subsumes the 1971 Act power.

Most, if not all, of the powers have been unable to keep pace with the fact that relevant evidence will now most often be held electronically, on computers and smart phones.  This has been a febrile area of litigation in which the power to seize an item such as a computer has become blurred with the desire to obtain only a small category of documents contained upon it, and the confusion as to whether a warrant can or should authorise such a seizure, rather than resorting to the additional powers of seizure under the Criminal Justice and Police Act 2001 which entail a statutory sifting procedure not present in PACE.

The proposals made are pragmatic and sensible.  The Commission identifies four main areas of reform:

• simplify the law and procedure governing search warrants by rendering it more rational and accessible at all stages of the search warrant process;
• make the law fairer by extending protections, improving judicial scrutiny and making the law more transparent;
• modernise the law to ensure that it reflects the changing nature of investigations and is equipped to deal with current technology; and
• make the law more cost-effective by introducing a streamlined way to obtain a search warrant and a new procedure to challenge and correct procedural deficiencies.

In particular the Commission proposes that search warrant legislation be rationalised with the repeal of unnecessary and otiose provisions in tandem with standardising the access criteria. This will make it far less likely that applicants will address the wrong threshold test, or fail to address some criteria at all.

In terms of any challenge, the Commission recommends that the jurisdiction of the High Court be limited by introducing a broader alternative remedy by amending s. 59 of the 2001 Act.  This new power would enable the Crown Court to set aside a warrant, resulting in the return of the material to its owner, or an order for the return of material without setting the warrant aside.  In addition, the Commission proposes that an inter partes costs jurisdiction be introduced, currently something sorely missing from the s. 59 regime.

The proposed grounds for having a warrant set aside in the Crown Court are those most often advanced in judicial review proceedings, namely that that the applicant failed to provide sufficient information to the Court issuing the warrant so that it cannot have been satisfied of the statutory criteria, or the provisions of s. 15 of PACE (the statutory safeguards applicable to all warrants) were not satisfied.  If this new jurisdiction is created in the Crown Court, it will no longer exist upon judicial review given there is an alternative procedure for challenge.

However, judicial review will still exist for a challenge to the statutory criteria being found to be met and there is an obvious and significant overlap between this ground of challenge, and a failure on the part of the applicant to provide sufficient information at first instance.  This aspect may require further scrutiny.

Broadly, the proposals should be welcomed.  It is unlikely that litigation in this area will decrease, indeed with the new procedure in the Crown Court and the existence of a costs jurisdiction it may even increase, but it will certainly shift away from the High Court into the Crown Court.  How the Crown Court will cope with this further burden in terms of listing will be another matter.

Rupert Bowers QC is a door tenant at Exchange Chambers.