In their recent report into the search warrant regime the Law Commission note that 40,000 search warrants are issued in England and Wales every year, with approximately 176 different search warrant provisions across 138 different pieces of legislation. It is therefore no wonder the current clunky regime has a high potential for error, often leading to civil claims.
Without a doubt, search warrants are an important tool for the police when investigating the most serious crimes such as murder, rape, drugs offences and terrorism. On the other hand, they allow a great intrusion into a suspect's privacy. It is hoped that if the regime can be updated and reorganised, it will make a positive impact on the fight against crime, at the same time as protecting and balancing the rights of individuals.
What is wrong with the current search warrant regime?
Reform of the law in this area was initiated following 'Operation Midland', in which six search warrants were obtained following false allegations made relating to historic child sexual abuse.
An IOPC investigation found no evidence that police officers had deliberately misled the court when obtaining the warrants, but gaps were identified in processes and systems.
Errors of this kind have implications for innocent people whose homes and properties are searched, especially when they are public figures and the police action attracts press coverage. They also have the potential to lead to claims for compensation, costing the police significant sums in damages and costs, not to mention the damage caused to a force's reputation.
The Law Commission's report dated 7 October 2020 has identified a number of issues with the current regime including: the high volume of errors being made on search warrant applications (an apparent 79% of investigations having defective warrants), the time it takes to obtain a search warrant, insufficient powers to obtain electronic evidence and lack of protection for individuals whose electronic data is seized.
The Law Commission's report indicates that in order to modernize and improve the regime, the scope must be widened and delays must be reduced. They have made 64 recommendations to Parliament. These aim to "make the law simpler, fairer, more modern and efficient and to strike a balance between effectively investigating crime whilst strengthening safeguards for those being investigated".
The main recommendations likely to impact police forces are:
- A template document to be created for the application for a search warrant, and further guidance provided to reduce errors;
- A search warrant application Portal to be created by the courts to reduce delays;
- Amend Code B of PACE to further detail the duty of candour and require an officer with sufficient knowledge of the case to draft the application for a search warrant;
- Magistrates who issue search warrants should have specific training;
- Provision for 'multiple-entry warrants' and 'all premises warrants' covering any premises occupied or controlled by a named person;
- Provision for constables to search persons found on the premises in certain circumstances;
- Complete reform of the procedure for search and seizure of electronic material and remotely stored data, including safeguarding provisions to protect the subject of the warrant. Investigators would need to provide detailed information about the specific electronic data required and give reasons.
Investigators around the country will be cheering with delight at the news that this outdated regime is being modernised. We can only hope that between lockdown restrictions and Brexit the Government finds time to consider the recommendations in the near future.
In the meantime, police forces would be best advised to ensure that officers receive regular training to enhance their understanding of search powers under warrants, the disclosure duties when applying for a warrant, how to complete the warrant itself and powers of seizure pursuant to a warrant.Author: Emma Gallimore.