Public should be given more search warrant protections – Law Commission

The laws around search warrants should be modernised with more protections put in place to protect individuals’ rights, say the Law Commission.

A search warrant is a written authorisation, issued by a judge, which allows an investigator to enter premises to search and seize material.

But the Commission says that the current system for granting warrants is too complicated and that there is a risk applications are not prepared properly or given sufficient scrutiny.

Not only that, investigations may be significantly hindered as search warrants do not reflect the modern world in which the internet and digital sources have a significant role.

As a result, the independent legal experts have published proposals to modernise the powers available to authorities under search warrants and bring in extra protections for the public.

Law Commissioner Professor David Ormerod QC said:

“Search warrants serve an important purpose and are vital to successful criminal investigations. But the law has to strike a balance between the powers of the state and the rights of individuals.

“Our proposals would simplify the law and modernise the powers needed by law enforcement to investigate serious crime.

“But, crucially, alongside that, they would extend protections so that people know that a search under a warrant is limited to what is necessary and proportionate.”

New search laws warranted

There are over 175 different statutory powers to issue a search warrant. There are differences in who may apply for and execute a search warrant, under what conditions, and what powers they bring.

This complexity means:

• For investigators – it can be difficult to know what search warrant to apply for and drafting errors may occur, meaning the warrant itself and any search could be unlawful.
• For judges and magistrates – issuing a search warrant can be perceived as being an administrative task which may become little more than a rubber-stamping exercise to get out of the way before the ‘real’ judging work of the day begins.
• For occupiers – it is often difficult to understand the extent of the state’s power, what rights they have to be informed of the process and how to challenge the search warrant.

This complexity leads to frequent errors and the risk of challenges. Since 2010, there have been over 50 reported judicial reviews relating to the issue of a search warrant or conduct of the search, with millions spent by public bodies in damages and legal fees.

As a result, in a consultation published today, the Law Commission is proposing to simplify the law, bring in extra protections for the public and modernise the powers needed by law enforcement to investigate serious crime.

Proposals include:

• exempting confidential journalistic material and medical records from searches under warrant
• bringing in procedural safeguards and requiring judicial authorisation for late night or early morning searches
• introducing a requirement to record and publish statistics to monitor the use of search warrants
• introducing safeguards whenever electronic devices are seized under a search warrant so that devices are examined and returned swiftly
• a new procedure to challenge defective search warrants which would avoid the cost and delay of judicial review
• clarifying forms and amending guidance to make clear what duties investigators must follow when applying for search warrants
• making search warrant powers more consistent so investigators know what powers they have and when they can use them
• a new mechanism in large-scale investigations to require assistance with the identification and segregation of privileged material to prevent the law being used as a delaying tactic
• allowing more agencies with enforcement powers to apply for a search warrant, rather than going through the police as a third party

An area of particular concern is the lack of clarity surrounding how the law treats electronic information. Problems arise due to both:

• the enormous volumes of electronic information that can now be stored on devices
• the location of the material, which may be stored remotely abroad albeit accessible from the premises

The Law Commission has examined the present state of the law and asks a series of questions to assess whether law enforcement agencies have the necessary powers to search for and seize electronic evidence. The Commission‘s objective is to ensure a statutory framework, reflecting the reality and complexities of the digital age, that both facilitates the investigation of cybercrime and safeguards individual privacy rights.

The consultation will run until 5 September 2018.

Commenting on the review, the Director General of the National Crime Agency, Lynne Owens CBE QPM said:

“Entry, search and seizure by law enforcement bodies is an important issue for public confidence and legitimacy, the need to balance coercive powers and the rights of the individual. This becomes ever more complex as electronic evidence becomes a staple of almost every investigation.

“I welcome this review as there can be no doubt that the current legislative landscape can, at times, create confusion and inconsistency in approaches. I believe both law enforcement and the public will benefit from the light this report is shining on this important field of law.”

Solicitor Millie Graham Wood, from the human rights charity Privacy International, said:

“The Law Commission consultation, and specifically its proposals in relation to police powers to search or copy data from smartphones and computers, are timely in light of Privacy International’s recent report entitled ‘Digital Stop and search: how the UK police can secretly download everything from your mobile phone’.”

Further information

The Home Office asked the Law Commission in December 2016 to identify and address problems with the law governing search warrants and to produce reforms which will clarify and rationalise the law.

The main search warrant power is provided by section 8 of the Police and Criminal Evidence Act 1984 (“PACE”). Under this provision, a justice of the peace may issue a search warrant on the information of a constable if satisfied that there are reasonable grounds for believing that:

1. an indictable offence has been committed;
2. there are materials on the premises which are likely to be of substantial value to the investigation of the offence and likely to be relevant evidence; and
3. one of a number of conditions is satisfied, showing that it would not be practicable to gain entry to the premises or access to the materials without a search warrant.

Other search warrant powers have broadly similar conditions of issue.

The project only concerns the search of premises under a search warrant. The project is not reviewing wider police powers, including powers of stop and search.

The consultation can be found at https://lawcom.gov.uk/project/search-warrants/ at 00:01, Tuesday 5 June 2018. The consultation will close on 5 September 2018.

The Law Commission is a non-political independent body, set up by Parliament in 1965 to keep all the law of England and Wales under review, and to recommend reform where it is needed. Since then more than two-thirds of all reports have been accepted or implemented in whole or in part.