Law and Rights
It is very long established law that Police Officers require lawful authority to enter the property of the individual - Semayne's Case (1604) 5 Co Rep 91; Entick v Carrington [1765] EWHC KB J98. Entry is often made lawful because the Police act under a warrant issued by a Magistrate - whether District Judge (Magistrates' Courts) or a Justice of the Peace - or, in some circumstances, by a circuit judge. A key statute dealing with search warrants is the Police and Criminal Evidence Act 1984 Part II - sections 8-16.
The High Court has been assiduous in ensuring that, if the validity of a search warrant is challenged, all statutory formalities have been complied with. Formalities may relate to the actual issuing of the warrant or to its subsequent execution. This is well illustrated by the case of Redknapp v City of London Police and City of London Magistrates Court [2008] EWHC 1177 (Admin) where a warrant, issued by a JP, was held to be unlawful for non-compliance with the Police and Criminal Evidence Act 1984 s8(3). It is also clear from this judgment [para 13] that adequate notes should be kept by the court as to the material put forward by the Police in support of their application for a warrant. The warrant issued to search Mr Redknapp's home was executed and the press were present. Although the High Court did not find that the press had been "tipped off" such an inference does not seem unreasonable. The Redknapp case is discussed at some length by Neil Parpworth in Criminal Law and Justice Weekly - 13th December 2008.
The Berkshire home of Sir Cliff Richard
has been recently searched by the Police acting under a warrant issued by the Magistrates court. The search took place when Sir Cliff was absent abroad and it took place in a blaze of publicity. Geoffrey Robertson QC is highly critical of this - see his article published by The Independent on 16th August 2014. Robertson sees the way in which Sir Cliff Richard has been treated as completely unacceptable. Whether it was actually unlawful may yet be tested before the High Court.
A major concern is the attendant extensive publicity and South Yorkshire Police have admitted working with the media before searching the property. As Robertson notes -
The involvement of the media in this way may yet raise important issues relating to due process and fair trial (Article 6 of the European Convention on Human Rights).
Without knowing the full circumstances surrounding the issuing of the warrant, I hesitate to agree with Robertson that all search warrants should be issued by judges though, in fairness, the idea will not be without attraction to some. In daily practice, "lay justices" - properly advised as to the relevant law - deal, in most cases, with these applications. However, out of court hours, it is not unknown for the police to visit the home of a lay justice to ask for a warrant. Perhaps, at the very least, a legally qualified legal adviser ought to be always present. Magistrates' Courts have procedures in place for handling these applications. In 2013, the Justices Clerks Society issued guidance - (HERE). The Magistrates' Blog has the following posts on search warrants
Search warrants (1) ........ Search warrants (2) ......... Search warrants (3)
and also see UK Police Law Blog
Other material:
PACE Code B -
Justices Clerks Society - Search warrants
- Using Pace 1984 To Obtain Disclosure Of Journalistic Material
NOTE: It has been announced that the Met. Police has decided, for the time being, NOT to seek The Guardian's sources of information. See the Met. Police News Release. This decision was taken after consultation with the CPS and other...
- Detained Persons: Blanket Refusal To Bail: Possible Legal Challenge
Burning bus at Tottenham During the recent extensive public disorder, many arrests were made. Naturally, this made it difficult for Custody Officers at some Police Stations to process detainees as quickly as normal. However, did this...
- An Englishman's Home Is His Castle But ..... Protection Of Freedoms Bill No. 3
The tide keeps 'em out !In Semayne?s case (1604) 5 Co Rep at 91b ? it was stated that ?The house of everyone is to him as his castle and fortress.? In 1767, William Pitt stated that - ?The poorest man may in his cottage bid defiance to all the forces...
- Detention Without Charge
Within England and Wales, the detention for questioning by the Police of arrested suspects is subject to certain time limits and these are set out in the Police and Criminal Evidence Act 1984 - PACE. The powers of "Police Constables" to arrest without...
- The European Arrest Warrant - An Arrested Development.
Enjoy your holiday or business trip but be careful what you do when abroad in other EU countries. Step out of line and you could find a European Arrest Warrant following you back home and whisking you off for a stay in a not so nice foreign prison and...
Law and Rights
Search Warrants
The High Court has been assiduous in ensuring that, if the validity of a search warrant is challenged, all statutory formalities have been complied with. Formalities may relate to the actual issuing of the warrant or to its subsequent execution. This is well illustrated by the case of Redknapp v City of London Police and City of London Magistrates Court [2008] EWHC 1177 (Admin) where a warrant, issued by a JP, was held to be unlawful for non-compliance with the Police and Criminal Evidence Act 1984 s8(3). It is also clear from this judgment [para 13] that adequate notes should be kept by the court as to the material put forward by the Police in support of their application for a warrant. The warrant issued to search Mr Redknapp's home was executed and the press were present. Although the High Court did not find that the press had been "tipped off" such an inference does not seem unreasonable. The Redknapp case is discussed at some length by Neil Parpworth in Criminal Law and Justice Weekly - 13th December 2008.
The Berkshire home of Sir Cliff Richard
has been recently searched by the Police acting under a warrant issued by the Magistrates court. The search took place when Sir Cliff was absent abroad and it took place in a blaze of publicity. Geoffrey Robertson QC is highly critical of this - see his article published by The Independent on 16th August 2014. Robertson sees the way in which Sir Cliff Richard has been treated as completely unacceptable. Whether it was actually unlawful may yet be tested before the High Court.
A major concern is the attendant extensive publicity and South Yorkshire Police have admitted working with the media before searching the property. As Robertson notes -
The involvement of the media in this way may yet raise important issues relating to due process and fair trial (Article 6 of the European Convention on Human Rights).
Without knowing the full circumstances surrounding the issuing of the warrant, I hesitate to agree with Robertson that all search warrants should be issued by judges though, in fairness, the idea will not be without attraction to some. In daily practice, "lay justices" - properly advised as to the relevant law - deal, in most cases, with these applications. However, out of court hours, it is not unknown for the police to visit the home of a lay justice to ask for a warrant. Perhaps, at the very least, a legally qualified legal adviser ought to be always present. Magistrates' Courts have procedures in place for handling these applications. In 2013, the Justices Clerks Society issued guidance - (HERE). The Magistrates' Blog has the following posts on search warrants
Search warrants (1) ........ Search warrants (2) ......... Search warrants (3)
and also see UK Police Law Blog
Other material:
PACE Code B -
Justices Clerks Society - Search warrants
- Using Pace 1984 To Obtain Disclosure Of Journalistic Material
NOTE: It has been announced that the Met. Police has decided, for the time being, NOT to seek The Guardian's sources of information. See the Met. Police News Release. This decision was taken after consultation with the CPS and other...
- Detained Persons: Blanket Refusal To Bail: Possible Legal Challenge
Burning bus at Tottenham During the recent extensive public disorder, many arrests were made. Naturally, this made it difficult for Custody Officers at some Police Stations to process detainees as quickly as normal. However, did this...
- An Englishman's Home Is His Castle But ..... Protection Of Freedoms Bill No. 3
The tide keeps 'em out !In Semayne?s case (1604) 5 Co Rep at 91b ? it was stated that ?The house of everyone is to him as his castle and fortress.? In 1767, William Pitt stated that - ?The poorest man may in his cottage bid defiance to all the forces...
- Detention Without Charge
Within England and Wales, the detention for questioning by the Police of arrested suspects is subject to certain time limits and these are set out in the Police and Criminal Evidence Act 1984 - PACE. The powers of "Police Constables" to arrest without...
- The European Arrest Warrant - An Arrested Development.
Enjoy your holiday or business trip but be careful what you do when abroad in other EU countries. Step out of line and you could find a European Arrest Warrant following you back home and whisking you off for a stay in a not so nice foreign prison and...