Thursday 12 October 2006

We began with a recap on police powers of stop and search. Before undertaking the search the constable must tell the suspect of his name and station and the object and grounds of the proposed search – s2(3), and if out of uniform he must produce his warrant card – s2(2).

The search can take place anywhere to which the public or any section thereof has access, so it is normally in a street. If the suspect is in the garden or yard of a dwelling or other land so occupied, and the officer has reasonable grounds to believe:

• that he does not reside in the dwelling; and


• that he is not where he is with the express or implied permission of a person who resides in the dwelling;

     
then the officer may stop and search – s1(4). This is intended for the apprehension of burglars or people who trespass on another’s property in order to thwart the officer.

Section 4 PACE permits a Superintendent to give written authority for the conduct of a ROAD CHECK of all or any classes of vehicle in a particular locality continuously or at given times during a renewable seven-day period. A constable in uniform may use his powers to require a motor vehicle to stop and then, using his powers set out in s4 PACE, to ascertain whether the vehicle is carrying;

• a person who has committed an indictable offence; or


• a person who is a witness to such an offence; or


• a person intending to commit such an offence; or


• a person who is unlawfully at large.

These are wide powers, which in effect permit the police to cause a road block for the purposes permitted in s4.

In cases of urgency an officer below the rank of Superintendent may authorise a road check but this must be reported in writing to an officer who is not below the rank of Superintendent as soon as is practicable. The officer to whom the written report is submitted may then authorise the road check’s continuance or discontinue it.

We then turned to SEARCH WARRANTS. Section 8 PACE does not affect any of the pre-existing statutory powers to issue search warrants, e.g. s23(3) MISUSE OF DRUGS ACT 1971 However s8 PACE entitles a police officer to make an application to a justice of the peace for a warrant authorising the officer to enter and search premises. The officer must satisfy the justice that there are reasonable grounds for believing:

• that a serious arrestable offence has been committed; and


• that there is material on the premises which is likely to be of substantial value to the investigation of the offence; and


• that the material is likely to be relevant evidence; and


• that it does not consist of or include items subject to legal privilege, excluded material, or special procedure material and that any of the conditions specified below applies.

The officer’s application is in writing and must further satisfy the magistrate:

• that it is not practicable to communicate with any person entitled to grant entry to the premises;


• that it is practicable to communicate with the person entitled to grant entry to the premises but it is not practicable to communicate with any person entitled to grant access to the evidence;


• entry to the premises will not be granted unless a warrant is produced;


• that the purpose of a search may be frustrated or seriously prejudiced unless the officer arriving at the premises can secure immediate entry to them.

It is the officer’s duty to:

• specify the premises which it is desired to enter and search; and


• to identify, as far as is practicable, the articles or persons to be sought; and


• to state the ground on which he makes the application and the enactment under which the warrant would be issued.

On making the application the police officer, if required by the justice of the peace or judge, shall answer questions on oath relating to the application.

Sections 15 and 16 PACE provide further safeguards:

• a warrant can authorise entry on one occasion only;


• a warrant may be executed by any police officer and may authorise other persons to accompany him;


• a warrant can be executed only within one month of its issue;


• a warrant can be executed only at a reasonable hour unless the purpose of the search would otherwise be frustrated;


• the search authorised by the warrant must be limited to the purpose for which the warrant was issued.

SOCPA 2005 amends s8 and covers:

• All premises owned/occupied by person named in warrant may be searched, whether named on warrant or not


• Multiple visits are permitted, although on second and subsequent visits the authority of an Inspector is needed.

Section 15(7) requires two copies to be made of the warrant. The purpose of this is that if at the premises the occupier is present the police officer must identify himself and supply a copy of the search warrant to the occupier. If the officer is not in uniform, often the case in drug squad raids, he must identify himself by producing his warrant card. If the premises are found to be unoccupied, a copy of the warrant must be left in a prominent position on the premises. If the occupier is not present but another person is and appears to be in charge of the premises then exactly the same rules apply.

An executed warrant must be endorsed with information about whether the articles or persons sought were found and whether any articles were seized by the police.     

After execution, or after a period of one month, the warrant must be returned to the clerk to the justices of the peace for the petty sessional division or to the appropriate Crown Court if granted by a circuit judge. Warrants which are returned to the Crown Court or to the Magistrates’ Court are retained for a year and any occupier affected by the police search has the right to inspect them.

There are three classes of material that a magistrate cannot grant access to:

(1) Items subject to legal privilege
(2) Excluded material
(3) Special procedure material

LEGAL PRIVILEGE is defined by s10(1)(a) PACE as:

• Communications between a professional legal adviser and his client or any person representing his client made in connection with the giving of legal advice to the client;


• Communications between a professional legal adviser and his client or any person representing his client or between such an adviser or his client or any such representative and any other person made in connection with or in contemplation of legal proceedings and for the purposes of such proceedings; and


• Items enclosed with or referring to such communications and made in connection with giving legal advice or in connection with or in contemplation of legal proceedings and/or the purposes of such proceedings”.

R v Inner London Crown Court, ex parte Baines and Baines [1988] –records relating to the conveyancing of property were not privileged because they were not connected to the solicitor actually giving advice. However, all correspondence between the solicitor and the client was privileged.

EXCLUDED MATERIAL is defined by s11 PACE:

• Personal records which a person has acquired or created in the course of any trade, business, profession or other occupation or for the purposes of any paid or unpaid office in which he holds material in confidence.


• Journalistic material which a person holds in confidence and which consists of documents or records other than documents.


• Human tissue or tissue fluid which has been taken for the purposes of diagnosis or medical treatment and which a person holds in confidence.

SPECIAL PROCEDURE MATERIAL is defined by s14 PACE:

• includes “journalistic material” not falling within the definition contained in s11.


• If material comes into the possession of a person who acquires it in the course of his trade, business or profession or other occupation or office and who holds it subject to an express or implied undertaking to keep it confidential, then s8 will apply.


• S1 PACE therefore extends protection to journalistic material not held in confidence and the client records of professional people who do not enjoy legal privilege are therefore covered.

Whilst no court can grant access to items subject to legal privilege, a Circuit Judge may grant access to excluded and special procedure material.

Section 19 PACE allows a police officer who is lawfully on premises may seize anything on the premises if he has reasonable grounds for believing:

• that it has been obtained in consequence of the commission of an offence and that it is necessary to seize it in order to prevent it from being concealed, lost, damaged, altered or destroyed, or


• that it is evidence in relation to an offence whether under investigation or not and that it is necessary to seize it in order to prevent it from being concealed, lost, damaged, altered or destroyed.

In reality the material is always going to be seized.

Section 50 Criminal Justice & Police Act 2001 allows for the seizure of material and removal from the premises of any item if it is believed it may contain something the defendant is not entitled to possess, e.g. child pornography on a computer.

Finally, although the warrant is addressed to all the constables of the police force concerned, s16(2) PACE permits them to be accompanied by non-police officers, who will posses the same powers as the officer, e.g. computer experts.