Search warrants; reform to prevent unlawful searches
The Law Commission has recommended reforms that it says will reduce the number of unlawful search warrants being issued, and to assist in the collection of evidence and investigation of crime.
Currently, a police officer or other investigator applies to a magistrate or a judge for a search warrant. If granted, a warrant grants legal authority to enter premises and search for specified material.
The Law Commission says that the laws governing search warrants are unnecessarily complicated, inconsistent, outdated and inefficient.
What recommendations are being made?
- Strengthening powers; extending the availability of warrants that allow multiple entries to a property, and allowing all properties controlled by an individual to be searched. A police constable will be permitted to search a person found on the premises under the search warrant. The NHS Counter Fraud Authorities will also be given the ability to apply for search warrants.
- Improving procedure; the aim is to reduce the number of mistakes and unlawful warrants. There would be a standard entry warrant application form and a template for entry warrants. There is also a recommendation for an online search warrants application portal.
- Electronic evidence; ensuring officers can access electronic evidence and copy required data whilst on site, possibly to include data stored remotely. Safeguards should be included to ensure that any unneeded date is quickly deleted, and devices returned as soon as is practical.
- Improving safeguards; for example, those being investigated would be given a notice of their powers and rights whilst their property is searched. Non-police investigators would be subject to similar safeguards as the police. There would be clarification of when, and in what form, a search warrant should be given to an occupier, who should also be informed they have the right to ask a legal representative to observe the execution of the warrant.
Errors
Around 40,000 search warrants are issued every year. In 2016 review by the National Crime Agency found that 78.73% of investigations had defective warrants. Of that number, 8.2% had significant deficiencies.
Journalistic material
The Society of Editors has criticised the recommendation that the government review rules on search warrants for obtaining journalistic material.
Although the Law Commission concluded that confidential journalistic material should only be obtained in very limited circumstances, it added that the government should consider whether the law struck the right balance between the competing interests at play and whether the law ought to be reformed.
The Police and Criminal Evidence Act 1984 provides special protection for journalistic material, and the Society of Editors argues that the law around police seizure of journalistic material needs strengthening rather than watering down. This is argued on the basis that journalists need to have confidence that their material remains protected so that they can guarantee source protection in fulfilling a public interest role.
How can we help?
If a search warrant is unlawfully executed, it does not automatically mean that any evidence obtained cannot be used. We can advise you as to the options and make the necessary applications to the court on your behalf.
If you need specialist advice in relation to any criminal investigation or prosecution, from the initial investigation through to court proceedings, please get in touch. Call John Howey on 020 7388 1658 or email jhowey@jfhlaw.co.uk. Let us help.
[Image credit: “Day 255 – West Midlands Police – Searching using torch (Part of an officers Personal Protective Equipment Kit.” by West Midlands Police is licensed under CC BY-SA 2.0] Read More
Police Roll Out Portable Identity Checking
The government this week announced that West Yorkshire Police has signed up to a new identity checking service, allowing fingerprints to be taken via an App.
The new service, already being used in a select number of force areas, with a further 20 going live before the end of this year, will remove the need for suspects to be taken to a police station to check their identity.
It is anticipated that this will reap benefits for frontline officers and suspects alike, freeing up police to continue with other duties and reducing needless detentions.
Police leaders have commented:
“Early examples of the new system in action include a firearms unit, who detained a driver after a short pursuit and were able to identify him as a disqualified driver, despite him giving false details. He was issued with a summons for three offences and his vehicle seized. The armed response unit returned to patrol within ten minutes, and without the mobile fingerprint scanner this could have resulted in the unit being out of action for four hours taking the individual to a custody suite.”
The new service works by connecting a small fingerprint scanner to a mobile phone App. Within seconds of taking a print the suspect’s identity can be checked across the two main police databases, allowing police to then deal with the suspect in the appropriate way.
While this technology has been available for a few years, reduced pricing has now made it affordable enough for a national rollout. Scanners that previously cost around £3,000 can now be purchased for under £300.
Liberty, the leading human rights organisation has been less enthusiastic, commenting that:
“This scheme is part of a pattern of the police using radical privacy-invading technology without proper public consultation or meaningful parliamentary oversight. Much like the facial recognition technology that is increasingly being deployed by police forces, it is being presented to us after the event and with little fanfare and is being made available to more and more officers across the country. In this case, we learned about it via a sneaky gov.uk post early on a Saturday morning.”
Although there are clearly benefits to everyone involved, there remain concerns. Little is known about what will happen to the data after it has been checked; for example, if you are not already on either data base but are stopped and checked, what happens to your data? Will the technology only be used when there is doubt about a person’s identity or will it be used indiscriminately? As with any system there remains the potential for human error, not least when data is being added to the databases.
There are important protections for suspects that are to be found in the Police and Criminal Evidence Act 1984. However, ensuring that these protections are adhered to can be difficult in away from the police station. If you have any concerns about the use of these powers, please contact us to discuss further. Where fingerprint identification is being used evidentially by the prosecution, we always take particular care to ensure that the law has been complied with.
How We Can Help
If you are someone facing criminal proceedings, contact us as soon as possible; jhowey@jfhlaw.co.uk or 020 7388 1658. Our solicitors are well versed in this aspect of the law and will ensure your best defence.
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