540 General Principles of Constitutional and Administrative Law

The first set, which deals with applications made under PACE, harks

back to the criteria employed in s. 8 which govern the magistrates’

ability to issue a warrant. This set requires that there are reasonable

grounds for believing that a serious arrestable offence has been com-

mitted and that special procedure material exists which is likely to be

both of substantial value to the investigation and material evidence. In

addition, unless they appeared bound to fail, other methods to obtain

the material must have been attempted and, moreover, the seriousness

of the investigation requires that it is in the public interest that the

police have access to the material. The police are, moreover, under

an obligation to be open-handed in their application and set out all

the information in their possession (R. v. Acton Crown Court ex parte

Layton (1993)). It appears that where the material is evidence of a

serious arrestable offence the court will readily grant the order (see

R. v. Crown Court at Bristol ex parte Bristol Press (1986)).

The second, and least popular, set of access conditions applies where

the confidential material is sought under legislative provisions other

than PACE (e.g. the Drug Trafficking Act 1986 or the Forgery Act

1913). The conditions here are that there exist reasonable grounds for

believing that there is excluded or special material on the premises and

that, under the previous law, a search warrant could have been granted

by a magistrate and would have been appropriate in the circumstances.

There is no further guidance to be found within schedule 1, and the

police do not have to show either that the offence is of a serious

arrestable nature, that they have tried other means of gaining access, or

that the evidence is material to the investigation. Appropriateness is the

governing principle and, accordingly, a search warrant may be appro-

priate when a production order has previously been made under

this second set of access conditions and has not been complied with.

As mentioned earlier, the primary effect of schedule 1 is to transfer the

authority to issue a warrant from the magistrate to the judge.

If it is a search warrant (and not a production order) which is

sought, the police must establish certain additional criteria listed

within schedule 1. Regardless of which set of access conditions is ful-

filled, to gain a warrant the police must show that it is not practicable to

communicate with the occupier of the premises and the person entitled

to grant access to the material; or that the disclosure of the material will

be in breach of statute (this would cover, for example, a proposed

breach of the Official Secrets Act by a journalist); or that proceedings

for a production order may seriously prejudice the investigation. If the

case for a warrant is not made out, no further application will be

entertained unless supported by additional grounds (B: 2.8).

541

Police Powers of Arrest and Search in the Investigation of Crime

21.7.3 Execution of the warrant

The warrant may be executed by any officer named on it or any other

constable (s. 16 (6)). As regards a warrant for confidential material,

Code B requires that an officer not below the rank of inspector be in

charge of the search (B: 5.13). The officer in charge is responsible for

ensuring that the search is carried out so as to cause the least possible

disruption to any business or activity carried out on the premises.

There is, however, no guidance as to the number of officers to be

involved in the search, and this remains a matter of operational policy.

The entry and search must take place within one calendar month

from the date the warrant is issued and at a reasonable hour unless this

would frustrate the purpose of the search (s. 16 (3), (4)). In the deter-

mination of what is reasonable, the officer in charge should take on

board such factors as the times that the premises are likely to be

occupied and when the residents are likely to be asleep (B: Notes for

Guidance 5A). When the premises are occupied at the time of the

search, certain formalities must be adhered to. The constable must

identify himself, make the original warrant available for inspection and

furnish the occupier with a certified copy (s. 16 (5)). If these require-

ments are not satisfied the search is unlawful and any items seized

cannot be retained (R. v. Chief Constable of Lancashire ex parte Parker

and McGrath (1993)). If the occupier is absent, but the officer sees

someone who is in charge of the premises, this information and docu-

mentation must be supplied to that person (s. 16 (6)).

It is required also that a notice identifying the powers of the police

and the rights of the individual be given to the occupier (B: 5.7). The

timing of when these actions should occur was considered in R. v.

Longman (1988) where it was decided that the necessary preliminaries

may take place after the entry of occupied premises, but must be under-

taken before the search. The copy of the warrant must be provided

at the first reasonable opportunity. The occupier can, however, be

deprived of these safeguards by his own actions (as in Longman where

the occupier rushed at the police with a knife). In the situation where

no one is either in occupation or in charge when the warrant is

executed, a copy of the warrant and notice must be left in a prominent

place on the premises (s. 16 (7); B: 5.7).

A number of general considerations are prescribed in Code B and

these apply to all searches authorised under statute or warrant and

most voluntary searches. The premises may only be searched to the

extent necessary to achieve the object for which the warrant was

granted (B: 5.9; i.e. this is dependent upon the size and nature of the

542 General Principles of Constitutional and Administrative Law

items sought). Once the subject-matter of the warrant has been located,

or it is concluded that the items are not on the premises, the search may

not continue except in so far as it is permitted under any other statutory

provision (e.g. ss. 17, 18, 32 of PACE). Any search must be carried out

with no more disturbance than is necessary and with due consideration

for the property and privacy of the occupier (B: 5.10). If the occupier

wishes to ask a third party to witness the search, this must be permitted

unless the officer in charge has reasonable grounds for believing that it

would ‘seriously hinder’ the investigation (B: 5.11). Nevertheless, the

police have no legal authority (short of arrest) to prevent an invitee

from attending. If the request is acceded to, the police are obliged to

wait a reasonable time for the third party to be present (B: 5.11).

Reasonable force can be used if necessary where the occupier fails

to co-operate or that co-operation is insufficient. The Code makes