Interest in effective policing and the individual’s right to privacy and

security. There the police did not comply with B: 5.4, which requires

communication with the occupier and an explanation of the authority

under which the police seek entry. Mrs O’Loughlin had barricaded

herself into her house and after stating that they wished to speak with

her the police broke the door down. The use of force was held to be

unlawful. It would also, of course, violate Art. 8 of the ECHR.

Where arrest occurs outside the police station, a constable (but not

a citizen) may also search the arrested person or premises on the

satisfaction of certain conditions (s. 32). A personal search is lawful if

the officer has reasonable grounds for believing that the detainee may

present a danger to himself or others, or that the person has concealed

anything which might be used to assist escape or is evidence. Any

relevant item found may be seized and retained (unless it is subject to

legal privilege). The powers of the police to seize and retain evidence

have been considerably widened by the Criminal Justice and Police

Act 2001 (see below). In addition, the constable is allowed to enter and

to search any premises (whether or not occupied or controlled by the

arrested person) in which the arrest was made or in which the person

had been immediately before the arrest (s. 32 (2)). This search may,

however, only be for evidence relating to the offence with which the

arrest was concerned and must be based upon reasonable grounds for

believing that such evidence is on the premises (R. v. Beckford (1991)).

PACE does not, therefore, empower the police to search the premises

of a suspect who is caught red-handed. Section 32 invests an immedi-

ate power and does not allow the police to return later in order to carry

out the search (R. v. Badham (1987)). Items relating to any offence

(even though it may not have founded the basis for the search) which

are found may be seized under s. 32, or the general power of seizure

contained in s. 19, provided that they are reasonably believed to be

evidence and that seizure is necessary to prevent their concealment, loss

or destruction. Under the Criminal Justice and Police Act 2001 items

can also be seized when it is not reasonably practicable to determine

whether it is evidence which is entitled to be taken away. Whether it is

534 General Principles of Constitutional and Administrative Law

’reasonably practicable’ depends upon the time and manpower it will

involve to decide whether it is a seizable item.

A complementary power to enter and search is contained in s. 18.

This permits a constable to search any premises ‘occupied or con-

trolled’ by a person arrested, whether in or out of the station, for an

arrestable offence. The search can occur at any time subsequent to the

arrest, provided that the police have reasonable grounds for suspecting

that there is on the premises non-legally privileged evidence concerning

that offence or similar or connected arrestable offence. Normally the

authorisation of an officer not below the rank of inspector is required

before the search can be carried out. This gives way when the arrest is

outside the station and the search is ‘necessary’ for the effective investi-

gation of the offence (s. 18 (5)). Searches without prior authorisation

must be later notified to an officer of at least the rank of inspector and,

in all cases, a separate record of the search must be made.

21.7 Police Searches during the Investigation of Crime

In the course of investigation the police may seek to conduct searches

for evidence of the crime or the proceeds of crime, such as stolen

property. This often arises before the police feel able to make an arrest.

The police are not, however, allowed to go on fishing expeditions for

evidence and, if they do so, evidence found is likely to be excluded

at trial. PACE has significantly extended police powers to enter prem-

ises by giving a general power to search for evidence and to obtain

warrants to authorise that type of search. This is backed up by a general

power to seize items, in order to prevent their loss, damage or conceal-

ment, that are discovered and which are reasonably believed to be

criminally obtained or evidence of any offence (s. 19). Inherent in the

exercise of such powers, however, is the danger that the police may

exceed their office and, thereby, forcibly enter premises without warn-

ing and without the occupier (who need not necessarily be connected

with, or suspected of, a criminal offence) having the ability to oppose

the action. Accordingly, the right of the police to search is closely

monitored and, when it is exercised, Code B lays down a number of

guidelines as to how the search should proceed.

Clearly, if what is to be searched is a public place where anyone may

lawfully look around, or if the occupier of private premises consents to

a search, then few legal problems arise. Nonetheless, Code B does set

out certain proprieties which need to be observed in the making of

voluntary searches. Unless the police have a search warrant or any

535

Police Powers of Arrest and Search in the Investigation of Crime

other power of entry, the general rule is that the consent must be given

in writing (on the notice of powers and rights which must be provided

to the occupier: see below) before the search, and the officer must

make enquiries as to whether that person was entitled to allow the

entry to the premises (B: 4.1). In addition, certain preliminary informa-

tion must be given to the consenting party concerning the purpose of

the search, the absence of a duty to consent, the liability to have items

seized and used in evidence, and, if appropriate, that the person is not a

suspect (B: 4.2). Consent can be withdrawn at any time and is vitiated

by duress (B: 4.3). If the occupier does not consent (or it is withdrawn),

the police need to rely on their statutory rights to obtain a warrant or

to enter without one. Consent is not required, however, in circum-

stances where seeking it would cause ‘disproportionate inconvenience’

to that party (B: 4.4). The Notes for Guidance provide the example

where the police have arrested someone at night after a pursuit and it

is necessary to make a brief check of gardens along the route of the

pursuit (B: 4C).

21.7.1 Production orders

An alternative to a search warrant exists whereby the police can gain

access to confidential material (see below) and this is through the

mechanism of a production order. This order is governed by schedule

1 and may be granted by a circuit judge, but not a magistrate. The

order requires the person in charge of material within a specified time

(the minimum is seven days) either to produce the material for removal

by a constable or to allow the constable access to it. The holder must

be served with notice of the proceedings and given details of the

documents, etc. sought. Once notice is served, the holder must not

conceal, destroy, alter or dispose of the material in question. The order

can be made only if certain ‘access conditions’ are satisfied, and these

are discussed below in the context of the grounds for a search warrant

granted by a circuit judge. A failure to comply with a production order

is a contempt of court and a search warrant will then be sought.

21.7.2 Search warrants

The aim of PACE is to clarify the law and offer the police a general

power for the grant of search warrants relating to serious offences, while

preserving the property rights and privacy of the individual. Existing

and piecemeal powers are preserved, but general rules are established

536 General Principles of Constitutional and Administrative Law

which cover all search warrants and regulate the circumstances under

which they may be granted and the type of material which may, or

may not, be the object of the search. As mentioned earlier, Art. 8 of the

ECHR protects rights of privacy, but this protection gives way on the

public interest grounds specified therein. Accordingly, and provided

that the police act within national law, searches and seizure will not be

in breach of Convention rights.

A warrant is a document issued by a person with authority which

legitimises the doing of an act (e.g. entry and search) which would

otherwise be a trespass. Once issued, the search warrant authorises

only one entry and must be executed within one month of its grant

(ss. 15 (5), 16 (3)). If the premises comprise more than one dwelling the

warrant must specify which part of the building it covers, otherwise

the search is unlawful (R. v. South West Magistrates Court (1997)).

PACE prescribes the machinery by which a search warrant for evi-

dence (not persons) can be obtained from a magistrate (s. 8) or a circuit

judge (s. 9; schedule 1).

This procedure is amplified within Code B. Two issues of impor-

tance emerge: first, whether the correct procedures have been followed;

and secondly, whether the grant should be made on the merits of

the case. The aim is to ensure that the police should not seek, and the

magistrates and judges should not grant, search warrants unless there

are good grounds for doing so. In practice, however, the procedure

is routine and refusals rare, although most seizures take place follow-

ing an arrest and/or a lawful entry to the premises.

The application

Before an application is made, several steps must be taken. The police

must make a reasonable check that the information upon which the

justification for the warrant is based is accurate, recent and has not

been provided maliciously or irresponsibly (B: 2.1). The Code also

states that if the information is supplied by someone unknown to the

police, they must seek (but not necessarily obtain) corroborative evi-

dence. The police must, moreover, ascertain as specifically as possible

the nature of the articles sought and their believed location; and details

should be obtained about the likely occupier, the nature of the premises

and any previous searches (B: 2.2, 2.3; see R. v. Central Criminal Court

ex parte AJD Holdings (1992)). In relation to a magistrates’ warrant,

and unless it is an urgent case whereby the senior officer on duty may

give authority, the application must be authorised by an officer not

below the rank of inspector (B: 2.4). No application to a circuit judge

may be made without the authority of an officer of at least the rank of

537

Police Powers of Arrest and Search in the Investigation of Crime

superintendent (ibid.). Finally, where the proposed search ‘might’ have

an adverse effect on community relations, the local police community

liaison officer, except if it is an urgent search, must be consulted before

the search takes place (B: 2.5).

The application may be made by any officer (armed with the

necessary authority) and the proceedings are conventionally ex parte.

The officer should be prepared to answer questions under oath and

the application must be accompanied by an information in writing.

Both the application and accompanying information must specify the

ground upon which the application is based (see below), the statute

under which the application is made (e.g. PACE, Knives Act 1997,

Misuse of Drugs Act 1971, Firearms Act 1968), the items (or, where

appropriate, people) sought, and the premises to be entered (s. 15 (2)).

Grounds for magistrates’ warrant

A magistrate, whether in private or in open court, may issue a warrant

under PACE s. 8 if satisfied that there are reasonable grounds for

believing all of the following: that a serious arrestable offence has been

committed by someone; there is material on the premises which is

likely to be of substantial value to the investigation of this offence; this

material is likely to comprise admissible evidence at a subsequent trial;

the material does not prima facie include items subject to legal privil-

ege, excluded material or special procedure material (see below); and

one of the conditions listed in s. 8 (3) applies. These conditions are

either that it is impracticable to communicate with any person able to

grant entry to the premises or access to the evidence; that entry will not

be granted unless a warrant is produced; or that the purpose of the

search may be frustrated or seriously prejudiced unless immediate

entry can be secured. If s. 8 is satisfied the warrant can also be issued in

relation to an overseas investigation (Criminal Justice (International

Co-operation) Act 1990).

Although there is no general rule that other means of obtain-