POLICE POWERS OF SEARCH AND SEIZURE
"Errors, like straws, upon the surface
flow;
He who would search for pearls must dive below."
John Dryden
1 Introduction
1.1 General
This article deals with the rules governing the powers of the police to search individuals and premises and to seize material found in the course of such searches. The topic naturally divides into three sections, namely police powers to stop and search an individual or his vehicle, their powers of entry, search and seizure in relation to persons suspected of, or arrested for, crime and their powers which are exercisable by virtue of a court order.
Criminal investigations must, sometimes, be conducted on the basis that unless immediate access is gained to the material steps will be taken to dispose of it. The courts must balance the strong public interest in effective policing with protecting the liberty and property rights of the individual, and a large number of the authorities deal with the constitutional difficulties involved in this balancing exercise.
1.2 The relevant statutory provisions
There are a large number of statutory provisions which confer on the police, and a variety of other government agencies, powers of search and seizure. It is not intended to provide a comprehensive review of those powers. A full list of stop and search powers is set out in Annex A of Code A of the P.A.C.E. Codes of Practice, and by paragraph 1.3 of the Code all statutory powers of stop and search are made subject to the provisions of the Code. A full list of statutory powers of search appears in Appendix 5 of the Royal Commission on Criminal Procedure, Cmnd 8092-1.
In practice the overwhelming majority of cases will concern the police’s powers contained in Parts I and II of P.A.C.E. or s. 23 of the Misuse of Drugs Act 1971 and for most practical purposes consideration can be limited to those powers.
2 Powers To Stop And Search Individuals And Vehicles
2.1 General
Section 1 of P.A.C.E. confers on police constables a wide power to stop and search any person or vehicle in any place (except a dwelling) where the public have ready access at the time the search is to be carried out, provided that various criteria are met.
The most important hurdle the police must overcome is that the power can only be exercised where the constable has reasonable grounds for suspecting that he will find stolen property or prohibited articles (items for use in burglary, theft, taking vehicles without their owners consent or obtaining property by deception) or offensive weapons including items, the carrying of which constitutes an offence under s. 139 of the Criminal Justice Act 1988. See sub-sections (3), (7), (8) and (8A).
There are restrictions placed on the police powers where the person or vehicle is in the garden or yard of a dwelling, see sub-section (4) and (5).
By s. 2, prior to the search, the constable must inform the person of the following facts and matters :-
(a) the constable’s name and the name of the police station to which he is attached;
(b) the object of the proposed search;
(c) the constable’s grounds for proposing to make it;
(d) [the person’s right to a copy of the record of search within 12 months of the search taking place].
Further guidance is given to the police in the way they exercise their powers of stop and search in Code A of the Codes of Practice, the principal provisions of which may be summarised as follows:-
"1.6 Whether reasonable grounds for suspicion exist will depend on all the circumstances in each case, but there must be some objective basis for it...the decision to stop and search must be based on all the facts which bear on the likelihood that an article of a certain kind will be found.
1.7 Reasonable suspicion can never be supported on the basis of personal factors alone. For example, a person’s colour, age, hairstyle or manner of dress, or the fact that he is known to have a previous conviction for possession of an unlawful article, cannot be used alone or in combination with each other as the basis on which to search that person. Nor may reasonable suspicion be founded on the basis of stereotyped images of certain persons or groups of persons as more likely to be committing offences.
Articles reasonably believed to be stolen or prohibited property found by the police may be seized by them and used in evidence, see sub-section 6. However, as detailed above, at common law, once the police have an item in their possession, they may retain it and use it in evidence against anyone provided the production of the item is permissible in the trial of that person.
2.2 Stop and search: Summary and points of practice
When considering the lawfulness of a police search of a person or vehicle under s. 1 of P.A.C.E. ask :
*Did the police officer have reasonable grounds to suspect he would find stolen goods, prohibited items or offensive weapons and were those grounds based on matters permitted by the codes of practice?
*Was the person or vehicle searched in a dwelling or private garden?
*Did the police officer inform the person searched of his name and station, the object of and grounds for the search and his right to a copy of the record of search?
If the answer to any of these questions is no then the search was or may have been unlawful.
To investigate the answer to the above questions :
Police officers should, when making their pocket book entries relating to any search carried out, set out in detail their grounds for the search and all relevant matters. They should bear in mind that they or their chief constable may be sued in an action for trespass to the person a number of years after what at the time was a routine search, and if this occurs they will be required to justify the search. There is anecdotal evidence to suggest that certain types of criminals, in particular drug traffickers, are bringing such actions to deter the police from conducting searches of individuals.
3 search and seizure from suspects and persons under arrest
3.1 General
The police have additional powers to those discussed in the preceding section where they reasonably suspect persons to be guilty of having committed a crime. Those powers are exercisable by the police officer concerned in the execution of his duty without recourse to the courts and are in addition to those which must be authorised by order of the court, typically by the issue of a warrant, which are dealt with later in this chapter. They are contained in various sections of P.A.C.E. and are for the main part self-explanatory requiring little comment.
It should be remembered that the police are not entitled to search a person, even a suspect unless the preconditions set out in s. 1 of P.A.C.E. (ibid) apply. However once an individual has been arrested wide powers are granted by the provisions set out in this section. (For the powers of the police to arrest persons see ss. 24 and 25 of P.A.C.E.).
There are very few reported cases on these provisions largely because, as detailed above, the mere fact that a search or seizure effected by a police officer was not in accordance with them and was therefore unlawful, would not of itself be grounds for excluding the evidence thereby obtained, see Jeffrey v Black and R v Sang ibid.
3.2 Search of an arrested person at the police station
Once at a police station an arrested person may be searched. Indeed s. 54 of P.A.C.E. places a positive duty on the custody officer to ascertain and record everything which the arrested person has on him when he is brought to the station or when he is arrested at the station. Sub-sections 3 and 4 enable the custody officer to seize and retain any items including clothes in specified circumstances including, inter alia, where such items may be evidence relating to an offence.
Intimate searches of the arrested person in certain circumstances are permitted by s. 55 of the Act. The powers in relation to the taking of intimate and non-intimate samples are contained in ss. 62 and 63 respectively. In each case the authorisation of an officer of at least the rank of superintendent is required. An intimate search is defined as "the physical examination of a person’s body orifices": see s. 118 (1). Forcing an arrested person to spit something out of his mouth is not an intimate search, nor is merely visually examining the orifice: see R v Hughes, 99 Cr App R 160. In any event s. 65 of the Criminal Justice and Public Order Act 1994 redefines an "intimate search" so as to exclude the person’s mouth from the definition.
3.3 Search of an arrested person other than at a police station under s. 32
The power of the police to search an arrested person other than at a police station is contained in s. 32. The relevant parts of the section are as follows :-
(1) A constable may search an arrested person, in any case where the person to be searched has been arrested at a place other than a police station, if the constable has reasonable grounds for believing that the arrested person may present a danger to himself or others.
(2) Subject to subsections (3) and (5) below, a constable shall also have power in any such case -
(a) to search the person for anything -
(i) which he might use to assist him to escape from lawful custody; or
(ii) which might be evidence relating to an offence;
(3) The power to search conferred by subsection (2) above is only a power to search to the extent that it is reasonably required for the purpose of discovering any such thing or any such evidence.
(4) The powers conferred by this section to search a person are not to be construed as authorising a constable to require a person to remove any of his clothing in public other than an outer coat, jacket or gloves.
. . . . .
(8) A constable searching a person in the exercise of the power conferred by subsection (1) above may retain anything he finds , if he has reasonable grounds for believing that the person searched might use it to cause physical injury to himself or to any other person;
(9) A constable searching a person in the exercise of the power conferred by subsection 2(a) above may seize and retain anything he finds, other than an item subject to legal privilege (see supra), if he has reasonable grounds for believing :-
(a) that he might use it to assist him to escape from lawful custody: or
(b) that it is evidence of an offence or has been obtained in consequence of the commission of an offence.
3.4 Search of premises where person was at the time of, or immediately before, his arrest under s. 32
Section 32 also gives the police some limited powers to search premises. The relevant parts of the section are :
(2) Subject to subsections (3) and (5) below [see ante], a constable shall also have power in any case -
(b) to enter and search any premises in which he was when arrested or immediately before he was arrested for evidence relating to an offence for which he has been arrested.
(6) A constable may not search premises in the exercise of the power conferred by subsection 2 (b) above unless he has reasonable grounds for believing that there is evidence for which a search is permitted under that paragraph.
(7) In so far as the power of search conferred by subsection 2 (b) above relates to premises consisting of two or more separate dwellings, it is limited to a power to search
(a)any dwelling in which the arrest took place or in which the person arrested was immediately before his arrest; and
(b)any parts of the premises which the occupier of any such dwelling uses in common with the occupiers of any other dwellings comprised in the premises.
It is to be noted that the power to search premises by virtue of subsection 2 (b) must only be for evidence relating to the offence for which the suspect has been arrested.
3.5 Search of premises controlled by a person under arrest
Section 18 gives the police power, on the written authorisation of an officer of at least the rank of inspector, to enter and search premises occupied or controlled by a person who is under arrest for an arrestable offence where they have reasonable grounds to suspect that there is evidence on the premises, other than items subject to legal privilege (see supra) that relate to that offence or to some other connected or similar arrestable offence. Any such material found may be seized. The power of search is limited to the extent that it is reasonably required for the purposes of finding such evidence.
The power may be exercised without the authorisation referred to before the person arrested is taken to the police station if the presence of that person at a place other than the police station is necessary for the effective investigation of the offence, in other words where there is a real danger that if the search is delayed the evidence may be destroyed or removed.
3.6 Other powers of search by virtue of s. 17
Section 17 gives the police the power to enter premises and search them to :-
(a) execute a warrant of arrest;
(b) arrest a person for an arrestable offence (and certain other specified offenses, of which the most likely to arise in practice is s. 4 of the Public Order Act 1986);
(c) recapture a person unlawfully at large; or
(d) save life or limb or prevent serious damage to property.
Except in the case of (d) the constable must have reasonable grounds for believing the suspect is on the premises and the power is limited in extent as in the case of s. 32 by virtue of subsection 7 thereof. The power of search is limited to that reasonably required for the purpose for which the power of entry is exercised. Thus if the police enter premises to search for a suspect they cannot search for evidence such as stolen goods.
3.7 Seizure of items by police lawfully on premises
Section 19 gives a police constable lawfully on any premises power to seize anything that he has reasonable grounds for believing :-
(a) has been obtained in consequence of the commission of an offence;
(b) is evidence in relation to any offence;
and that in either case it is necessary to seize the item to prevent it from being concealed, lost, altered or destroyed. He may not however seize items which he has reasonable grounds for believing are subject to legal professional privilege, as to which see later in this chapter.
By subsection 4 the constable may require any information which is contained in a computer and is accessible from the premises to be produced in a form in which it can be taken away and in which it is visible and legible if he has reasonable grounds for believing it is evidence in relation to any offence or has been obtained in consequence of the commission of an offence and that in either case it is necessary to do so in order to prevent the evidence being concealed, lost, tampered with or destroyed.
3.8 Inter-relationship of s. 19 with other police powers
It will readily be appreciated that limits on police powers of search and seizure by virtue of s. 18 (the power to search and seize is limited to evidence relating to the offence which the suspect has been arrested for or a connected offence) are, on the face of it, removed by s. 19, which grants a wide power of seizure where the police officer is on the premises lawfully.
Since the power to seize material conferred by s. 19 is dependant on the officer’s presence being lawful and that section does not itself empower the police to search difficult questions of fact are likely to arise. For example whether, and if so at what point, in the course of a search, that search ceased to be within the scope permitted by s. 17 and therefore became unlawful or whether, and if so at what point, did an occupier of premises being searched tell the officer that he no longer consented to his presence at the premises thereby terminating his implied licence to remain.
3.9 Police powers of search and seizure in relation to persons suspected or under arrest: Summary and points of practice
The effect of ss. 32, 17, 18 and 19 taken together is that the police may search an arrested person and the premises where he was either arrested or was immediately before his arrest, and with the written authorisation of an inspector, may search premises occupied or controlled by that person. They may seize anything found in the course of such a search that is believed to have been obtained in consequence of the commission of an offence or is evidence in relation to any offence. However they may not seize any items reasonably believed to be subject to legal privilege.
In relation to the search of individuals lawfully under arrest ask:
(i) a danger to himself or others: or
(a) had concealed items which might enable him to escape;
(b) might be in possession of evidence relating to an offence?
If the answer to either question is yes then the search was lawful.
In relation to the search of premises ask:
(i) did the police officer have reasonable grounds to believe there was evidence relating to an offence for which he had been arrested; and
(ii) was the search limited to that purpose?
or
(i) the execution of a warrant of arrest;
(ii) the arrest of a person for an arrestable offence;
(iii) the recapture of a person unlawfully at large; or (iv) saving life or limb or preventing serious damage to property? or
If the answer to any such question is yes then the search was lawful.
In relation to the police power to seize property found on premises ask:
*Were the police lawfully on the premises and did they have reasonable grounds for believing the item to be seized :
(a) had been obtained in consequence of any offence; or
(b) was evidence in relation to any offence?
If the answer to the question is yes the police were entitled to seize the item.
To help to answer the questions set out above :
4 Police Powers Exercisable By Virtue Of Court Order
4.1 General
The previous parts of this chapter have been concerned with police powers exercisable in relation to persons either suspected of, or under arrest for, a criminal offence or property controlled by such persons. This section deals with police powers of search in relation to the world at large including but not exclusively such persons. These are powers which can only be exercised by virtue of a valid court order.
Again consideration will be limited to the powers contained in P.A.C.E., although a number of other statutory powers remain in force, a full list of which are set out in Appendix 5 of the Royal Commission on Criminal Procedure, Cmnd. 8092-1. The provision most likely to be encountered in practice other those contained in P.A.C.E. is s. 27 of the Drug Trafficking Act 1986 as to which see para 26-164 of Archbold.
4.2 Search warrants issued by the Magistrates Court
Section 8 of P.A.C.E. empowers the Magistrates Court to issue warrants which entitle the police to enter and search premises. It provides :-
(1) If, on an application made by a constable, a justice of the peace is satisfied that there are reasonable grounds for believing -
(a) that a serious arrestable offence has been committed; and
(b) that there is material on the premises specified in the application which is likely to be of substantial value (whether by itself or together with other material) to the investigation of the offence; and
(c) that the material is likely to be relevant evidence; and
(d) that it does not consist of or include items subject to legal privilege, excluded material or special procedure material; and
(e) that any of the conditions specified in subsection (3) below applies,
he may issue a warrant authorising a constable to enter and search the premises.
(2) A constable may seize and retain anything for which a search has been authorised under subsection (1) above.
(3) The conditions mentioned in subsection (1) (e) above are -
(a) that it is not practicable to communicate with any person entitled to grant entry to the premises;
produced;
(b) that it is practicable to communicate with a 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;
© that entry to the premises will not be granted unless a warrant is produced;
(d) that the purpose of a search may be frustrated or seriously prejudiced unless a constable arriving at the premises can secure immediate entry to them.
(4) In this Act "relevant evidence", in relation to an offence, means anything that would be admissible in evidence at a trial for the offence.
(5) The power to issue a warrant conferred by this section is in addition to any such power otherwise conferred.
The material exempted by subsection 1 (d), namely items subject to legal privilege, excluded material or special procedure material and the procedures for obtaining the same are dealt with hereafter in the section entitled "safeguards relating to the nature of the material sought"
A "serious arrestable offence" is defined by s. 116 and Schedule 5 to the Act and the reader is referred to the same for a comprehensive definition. It includes treason, murder, manslaughter, rape, kidnapping, certain specified sexual and drug trafficking offenses, as well as offences in relation to causing explosions likely to endanger life or property, or in relation to firearms. Also included are offences which have led or are likely to lead to :
(a) serious harm to the security of the State or to public order;
(b) serious interference with the administration of justice or with the investigation of offences or of a particular offence;
(c) the death of any person;
(d) serious injury to any person;
(e) substantial financial gain to any person; or
(f) serious financial loss to any person.
4.3 The procedure for obtaining a warrant in the Magistrates Court
Section 15 sets out the procedure for such an application and the contents of the warrant. It must be made in writing and must set out various matters including the ground on which the application is made and it must specify the premises which are to be entered and searched and so far as practicable the articles or person to be sought. The constable shall answer on oath questions put to him by the justice of the peace or judge hearing the application.
A number of cases have emphasised the principle that, in considering whether or not to grant an application for a warrant, the court has to balance the public interest in ensuring that police investigations into serious arrestable offences are not thwarted by their inability to collect evidence, with the need to protect the rights of the individual in relation to their property, whether real or personal. In particular a court must satisfy itself that the grounds for issuing the warrant are established and in particular that there are reasonable grounds for believing that the matters set out in subsection (1) are present. It must not merely accept the officer’s assertion that those grounds exist. After all an Englishman’s home is his castle.
In R. v Guildhall Magistrates’ Court, Ex Parte Primlaks Holding Co. (Panama) Inc. [1990} 1 Q.B. 261 Parker LJ at p 272 H stated :-
"Before concluding this judgment I find it necessary to make certain observations with regard to applications under s. 8 of the Act. It confers a draconian power and it is of vital importance that it should be clearly understood by all concerned that it is for the justice to satisfy himself that there are reasonable grounds for believing the various matters set out. The fact that a police officer, who has been investigating the matter, states in the information that he considers that there are reasonable grounds is not enough."
The warrant shall authorise an entry on one occasion only, and shall name the applicant, the date of issue, the enactment under which it was issued and the premises to be searched. It should identify so far as is practicable the articles or person to be sought.
4.4 Execution of the warrant
Section 16 sets out the procedure for the execution of warrants. It may be executed by any constable, that is the applicant need not be present. The warrant may authorise persons to accompany any constable who executes it. It must be executed within one month of its date of issue. Where the occupier or other person in charge of the premises is present he must be shown the warrant and be supplied with a copy, and if no such person is present a copy of the warrant must be left in a prominent place at the premises.
The search is limited to the extent required for the purpose for which the warrant was issued. Section 19 ibid, which gives the police wide powers of seizure where they are lawfully on the premises, might be thought to undermine that safeguard, but once they start to search beyond the scope of the warrant the police may be acting unlawfully and therefore the section would not apply.
A constable who has executed a warrant is required to endorse on it whether any articles or persons sought were found and what other articles were seized: see s. 16 (9).
4.5 Police powers pursuant to search warrants issued by the Magistrates Court: Summary
In relation to search warrants issued by Magistrates under s. 8 ask :
(i) a serious arrestable offence had been committed;
(ii) there was on the premises material (not subject to legal privilege and not excluded or special procedure material, as to which see supra) likely to be of substantial value to the investigation; and
(iii) it was not practical to communicate with the person who could grant access to the premise or material, or entry would not be granted unless a warrant was produced, or the purpose of the search may be frustrated or severely prejudiced unless immediate access could be obtained on arrival.
Unless the answer to questions (i), (ii) and one of the alternatives in (iii) is yes the warrant should not have been issued and application may be made to set it aside or to quash it.
To investigate the answers to the above questions:
*Consider preparing a chronology to demonstrate the time police came into possession of material such as that on which they based their belief that a serious arrestable offence had been committed. Amongst other things this may reveal that the police had sources of information other than those disclosed.
5 Specific Safeguards Which Relate To The Nature Of The Material Sought
5.1 General
The power to search pursuant to a warrant issued under s. 8 is subject to important safeguards and restrictions arising out of the nature of the material sought. Sub-section 1 (d) excludes items subject to legal privilege, excluded material and special procedure material. Each of these shall be considered in turn.
5.2 Items subject to legal privilege: General
The police cannot obtain access to items which are subject to legal professional privilege, whether or not they are acting pursuant to a court order.
Police powers of seizure under ss. 18 and 19 (see above), as well as the power to search for and seize material by virtue of a warrant, do not extend to items which are subject to legal privilege. For a more detailed analysis of the principles relating to legal professional privilege see chapter 4.
5.3 The definition of "items subject to legal privilege"
For these purposes we are concerned principally with the definition contained in s. 10 of P.A.C.E.. That section provides :-
"(1) Subject to subsection (2) below, in this Act "items subject to legal privilege" means:-
(a) 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;
(b) 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
(c) items enclosed with or referred to in such communications and made :-
(i) in connection with the giving of legal advice; or
(ii) in connection with or in contemplation of legal proceedings and for the purpose of such proceedings,
when they are in the possession of a person who is entitled to possession of them.
(2) Items held with the intention of furthering a criminal purpose are not subject to legal privilege.
Three categories of material capable of being subject to legal privilege are therefore defined. First, direct communications between lawyer and client or a person representing the client for the purpose of giving legal advice are included. It is to be emphasised that not all communications are within the scope of the privilege. In R v Inner London Crown Court, Ex Parte Baines & Baines (A Firm) and Another [1988] 1 Q.B. 579, for instance, Watkins LJ held that records of a conveyancing transaction, such as the conveyance itself, as opposed to legal advice given in relation to such a transaction were not privileged. Thus a letter from a client containing a banker’s order with instructions to apply the same towards the purchase of the property in question would not be privileged, nor would the solicitor’s records recording such payment, whereas the solicitor’s letter in reply indicating that before completing such a transaction further inquiries ought to be made would be privileged.
The second category is communications between lawyer, client, client’s representative and any third party (such as an expert) made in connection with or in contemplation of legal proceedings. As seen in chapter 4 what is important is the dominant purpose for which the document was created. For example if you go to an expert engineer for a report on the mechanical state of your car because you wish to repair it, the report will not be privileged, whereas if the main reason was to enable you to decide whether you might have an action for breach of contract against the seller it will be. Where DNA tests were carried out on a blood sample by an expert on the instructions of the defence, that blood sample was held to be subject to legal privilege and ought not to have been produced by the expert when subpoenaed as a witness for the prosecution without the consent of the defence, see R v R, the Times February 2nd, 1994.
The third category is items enclosed with or referred to the communications covered in the first two categories and made in connection with the giving of legal advice or in connection with or contemplation of and for the purposes of legal proceedings, when they are in the possession of a person entitled to be in possession of them.
In this context perhaps the most likely category of material likely to arise is the first. Usually police will be concerned with efforts by criminals to dispose of the proceeds of crime using unsuspecting solicitors and other financial advisers to facilitate this process. It is important to bear in mind however that items in the hands of legal advisers not within the scope of legal privilege as defined in s. 10 (1), such as a conveyance, will nevertheless almost certainly be "special procedure material", so that as we shall see the application for the warrant must be made to a circuit judge, as to which see supra.
5.4 Items held with the intention of furthering a criminal purpose
As indicated above, by virtue of s. 10 (2) such items are not subject to legal privilege. The first and most difficult issue to resolve is whose intention is relevant, since the section itself is ambiguous. Clearly it will be very rare indeed for the legal adviser to hold the item with the intention of furthering a crime. If the client has such an intention that is sufficient to defeat the privilege.
Thus if a drug trafficker seeks the advice of a solicitor in relation to financial transactions intended to dispose of the proceeds of crime such communications, whether or not held by the solicitor, are not privileged, notwithstanding the fact that the solicitor was entirely ignorant of his client’s wrongdoing.
However what if the drug trafficker provides a third party with the proceeds of crime and that third party, ignorant of the illegal source of those funds, communicates with a solicitor in order to seek advice in relation to their disposal - are such communications privileged?
The leading case is R. v Central Criminal Court (Respondent), Ex parte Francis & Francis (Appellants) (1989) 88 Cr.App.R. 213. That case concerned precisely such a situation. An order made pursuant to s. 27 of the Drug Trafficking Offenses Act 1986 against a firm of solicitors requiring them to produce within 7 days all files in their possession relating to one of their client’s dealings with a particular property. That provision is subject to the same exemption as s. 8 of P.A.C.E. relating to items which are subject to legal privilege. The police believed the client had been provided with funds to purchase the property by a drug dealer. The case was decided on the basis that the client was innocent of complicity in the criminal purpose of the drug dealer and that the solicitors had acted throughout with complete propriety.
The House of Lords (Lord Bridge and Lord Oliver dissenting) held that a purposive, rather than literal, construction was to be placed on s. 10 (2) and that, in the light of the purpose of Part II of P.A.C.E., namely to give the police powers to search for and seize evidence of serious criminal conduct, the privilege did not apply if the item was held with the intention of either the holder or any other person furthering a criminal purpose, whether the purpose be that of the client, the solicitor or any other person. As Lord Bridge pointed out this decision opens a very wide door in favour of criminal investigation at the expense of legal privilege.
Indeed where the police can satisfy the other requirements of s. 8, they may well be able to defeat the claim to legal privilege on this basis, although it must be borne in mind that the burden of proof is on the police and the circuit judge would only make the order for disclosure if satisfied that there are reasonable grounds for believing that documents were in fact brought into existence for the purpose of furthering a criminal purpose, and therefore not subject to legal privilege.
As already indicated a further safeguard arises from the fact that where the items which are held by a legal adviser are not privileged, either because they do not come within the definition set out in s. 10 (1) or because they are excluded by s. 10 (2) they will nevertheless almost certainly be "special procedure material", see R. v Guildhall Magistrates’ Court, Ex parte Primlaks Holdings Co (Panama) Inc [1990] 1 Q.B. 261 and supra. Therefore the application will be heard by a circuit judge, not a magistrate, and as we shall see the Act provides that the order shall take effect at some future date, usually seven days, thus in most cases giving the legal adviser the opportunity to seek his client’s instructions, and to consider his own position.
5.5 Other matters affecting the privilege
Other matters can cause a document which would be prima facie subject to legal privilege to lose that status. For example the privilege can be waived by the client. Can such matters remove the privilege for these purposes?
The majority decision in ex parte Francis & Francis, ibid, held that the s. 10 definition of legal privilege was in effect the same as at common law. Lord Griffiths at p 231 stated :
"I am convinced that Parliament was not seeking to enact a special code of legal privilege of different import to the common law position. I believe the draftsman was seeking to spell out the common law position for the benefit of those unacquainted with it and that s. 10 (2) must be construed with this in mind."
Lord Goff at p 238 stated :
"...and since in my opinion subsection (1) is intended to reflect the common law position, it would be most surprising if subsection (2) was not likewise intended so to do."
If it is the case that legal privilege as defined by s. 10 and the position at common law are the same then, as seen in chapter 4, circumstances other than illegality of purpose can defeat the claim, and a legal adviser will have to ask himself whether any of these are present before asserting the privilege
5.6 Asserting the privilege
If the decision is made to seek to assert the privilege, application should be made on notice to the circuit judge who made the order seeking its variation or discharge under rule 25 (B) of the Crown Court (Amendment) Rules 1986 (S.I. 1986 No. 2151), see Lord Griffiths at p 231 of Ex Parte Francis & Francis. There will almost invariably be the opportunity to raise the matter with the judge since applications by the police for immediate access to the material, for example under s. 28 of the Drug Trafficking Act 1986, will in practice be confined to cases where the solicitor is suspected of complicity in the crime, per Lord Griffiths.
Legal privilege (see chapter 4) belongs to the client, not the legal adviser. It follows that whatever the views of the legal adviser, if the privilege attaches to the item he must assert the privilege, unless the client waives the privilege.
Another matter which arises in relation to warrants served on legal advisers is that s. 31 of the Drug Trafficking Act 1986 makes it a criminal offence, carrying up to five years imprisonment, where there is an order under s. 27 or 28 in existence , to make any disclosure which is likely to prejudice the investigation. Is it therefore legal for a solicitor, against whom an order for disclosure under s. 27 has been made, to seek his clients instructions in relation to the order? By virtue of subsection (2) it is a defence to show lawful authority or reasonable excuse for making the disclosure and Lord Griffiths in Ex parte Francis & Francis, albeit obiter, at p 232, stated he had no doubt that the solicitor - client relationship provides a reasonable excuse for taking his client’s instructions. One would hope that would be sufficient authority to deter a prosecution in such circumstances.
5.7 Excluded material
The second category of material outside the scope of s. 8 by virtue of subsection (1) (d) is excluded material. Section 11 of P.A.C.E. defines excluded material as :-
(a) 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 which he holds in confidence;
(b) human tissue or fluid which has been taken for the purposes of diagnosis or medical treatment and which a person holds in confidence;
(c) journalistic material which a person holds in confidence and which consists-
(i) of documents; or
(ii) of records other than documents.
The circumstances in which a person holds material, other than journalistic material, in confidence are defined as where the material is held subject to either an express or implied undertaking to hold it in confidence or to a restriction on disclosure or an obligation of secrecy contained in any enactment.
A person holds journalistic material in confidence if he holds it subject to an undertaking, restriction or undertaking and it has been so held continuously (by one or more persons) since it was first created for the purposes of journalism.
"Personal records" are defined by s. 12 as documentary and other records concerning an individual (whether living or dead) who can be identified from them relating to :-
(a) his physical or mental health;
(b) to spiritual counselling or assistance given or to be given to him; or
(c) to counselling or assistance given or to be given to him, for the purposes of his personal welfare, by any voluntary organisation or by any individual who-
(i) by reason of his office or occupation has responsibilities for his personal welfare; or
(ii) by reason of an order of a court has responsibilities for his supervision.
"Journalistic material" is defined by s. 13 as material in the possession of a person who either acquired or created it for the purposes of journalism or acquired it from a person who intended the recipient to use it for the purposes of journalism.
Unless the police can satisfy the magistrate that there are reasonable grounds for believing that the material is not excluded material as defined above they must apply under the special procedure set out in Schedule 1 of the Act: see s. 9. This procedure is the only permissible way of obtaining such material. The procedure is considered after the section on "special procedure material".
5.8 Special procedure material
The third category of material outside the scope of s. 8 by virtue of subsection (1) (d) is special procedure material. Section 14 of P.A.C.E. defines this as :
(a) material to which subsection (2) applies; and
(b) journalistic material, other than excluded material.
Material to which subsection (2) applies is material, other than items subject to legal privilege and excluded material, in the possession of a person who -
(a) acquired or created it in the course of any trade, business, profession or other occupation or for the purpose of any paid or unpaid office; and
(b) holds it subject -
(i) to an express or implied undertaking to hold it in confidence; or
(ii) to a restriction [on disclosure] or obligation [of secrecy contained in any enactment].
By subsection (3) where the material is acquired by an employee from his employer, of by a company from an associated company, it will only be special procedure material if immediately before the said acquisition it was special procedure material.
By subsections (4) and (5) where material is created by an employee or a company it will only be special procedure material if, had the employer or associated company respectively created it, it would have been special procedure material.
The definition of "associated company" is that contained in s. 416 of the Income and Corporation Taxes Act 1988.
As indicated earlier items in the hands of a solicitor which, but for the provisions of s. 10 (2), the illegal purpose exception ibid, would be subject to legal privilege will almost certainly still be special procedure material, see R. v Guildhall Magistrates’ Court Ex Parte Primlaks Holdings Co. (Panama) Inc [1990] 1 Q.B. 261, at p 271 E. Simply because items are not subject to legal privilege because they are held with the intention of furthering a criminal purpose (as defined in Ex parte Francis & Francis) does not mean that no express or implied undertaking to hold the item in confidence can exist. Equally documents which are in the solicitor’s possession, such as a conveyance, which are not within the scope of s. 10 (1) will still be special procedure material.
5.9 Provisions as to access to excluded and special procedure material
Section 9 provides that a constable may obtain access to excluded and special procedure material in accordance with the procedure set out in schedule 1 of the Act. All existing Acts enabling warrants authorising searches by constables cease to have effect in relation to items subject to legal privilege, excluded and special procedure material.
Unlike items subject to legal privilege, where the lawyer must uphold the privilege unless the client waives it, excluded material and special procedure material may be provided to the police voluntarily by the holder, see for example R. v Singleton, The Times June 22nd 1994. Section 9 protects the confidence of the maker or holder of the record, not that of the suspected person.
The procedure under schedule 1 provides for determination by a circuit judge. A recorder has no jurisdiction in this procedure, see Ex parte Francis & Francis, ibid. The application can either be for an order for production of material or access to it (paragraph 4), or for a warrant (paragraph 12 et seq)
5.10 Orders for production under paragraph 4
The police must satisfy the judge that one other of two access conditions are fulfilled.
Access condition one : is that there are reasonable grounds for believing :
(i) that a serious arrestable offence has been committed;
(ii) that there is material which consists of special procedure material or includes special procedure and does not also include excluded material on premises specified in the application;
(iii) that the material is likely to be of substantial value (whether by itself or together with other material) to the investigation in connection with which the application is made; and
(iv) the material is likely to be relevant evidence;
(b) (i) other methods of obtaining the material-
(i) have been tried without success; or
(ii) have not been tried because it appeared they were bound to fail; and
(c) it is in the public interest, having regard-
(i) to the benefit likely to accrue to the investigation if the material is obtained; and
(ii) to the circumstances under which the person in possession of the material holds it,
that the material be produced or that access to it should be given.
Access condition two is that :
(a) there are reasonable grounds for believing that there is material which consists of or includes excluded material or special procedure material on premises specified in the application;
(b) but for s. 9 (2) above a search of the premises for the material could have been authorised by the issue of a warrant to a constable under an enactment other than this Schedule; and
(c) the issue of such a warrant would have been appropriate.
If the judge is so satisfied he may make an order under paragraph 4 that the person who appears to be in possession of the material shall produce it to a constable for him to take it away, or give him access to it, not later than the end of a seven day period from the date of the order or such longer period as the order may specify.
Provision is made for access to information contained in a computer, see paragraph 5.
The application is to be made inter parties, that is between the police and the party in possession of the material not the subject of the investigation, see R v Crown Court at Leicester, Ex parte Director of Public Prosecutions [1978] 3 All ER 654. However in R. v Crown Court at Lewes, Ex parte Hill (1991) Cr. App. R. 60 Bingham LJ, at p 67, indicated that the judge had a discretion to decide, in an appropriate case, that it would be helpful to hear what the accused might have to say about the making of the order.
Provisions as to service of the notice of application are contained in paragraphs 8 - 10 inclusive.
Once a person has been served with a notice of application he may not conceal, destroy, alter or dispose of the material to which the application relates except with the leave of the judge or the written permission of a constable until the application is dismissed or abandoned or he has complied with the order, see paragraph 11.
Failure to comply with an order under paragraph 4 is a contempt of court, see paragraph 15.
5.11 Warrants issued by a circuit judge
By paragraph 12 a judge may issue a warrant authorising a constable to enter and search premises if he is satisfied that-
(a) either of the access conditions (ibid) are fulfilled and any of the following four further conditions are fulfilled-
(i) that it is not practicable to communicate with any person entitled to grant entry to the premises to which the application relates;
(ii) that it is practicable to communicate with a person entitled to grant entry to the premises but it is not practicable to communicate with any person entitled to grant access to the material;
(iii) that the material contains information which-
(1) is subject to a restriction or obligation such as is mentioned in s. 11 (2) (b) above; and
(2) is likely to be disclosed in breach of it if a warrant is not issued;
(iv) that service of an application for an order under paragraph 4 above may seriously prejudice the investigation; or
(b) that the second set of access conditions is fulfilled and that an order made under paragraph 4 has not been complied with.
5.12 The approach of the circuit judge to Schedule 1 applications
The courts have emphasised on a number of occasions that circuit judges are to take the utmost care in deciding whether to grant these applications. They must be scrupulous in ensuring that all the requirements are satisfied before performing the balancing process necessary in determining the application. The special procedure provisions represent a serious inroad into the liberty of the subject. This is particularly so in ex parte applications, see for example : R v Maidstone Crown Court, ex parte Waitt [1988] Crim L.R. 384, and R v Southampton Crown Court, ex parte J and P [1993] Crim. L.R. 962.
Two cases which deal with the court’s approach where conflicting interests arise are worth considering. In R. v Bristol Crown Court, Ex parte Bristol Press and Picture Agency Limited (1987) 85 Cr. App. R. 190 Glidewell LJ upheld a circuit judge’s order under paragraph 4 requiring a newspaper to disclose to the police photographs taken by journalists of persons engaged in the 1986 Bristol riots. At p 195 he stated :
"...the balancing exercise which must has to be carried out is between the public interest in the investigation and prevention of crime and the public interest in the press being free to report and to photograph as much as they can of what is going on in our great cities..."
The case illustrates that the particular interests which fall to be considered will vary enormously from case to case and the judge will have to use a degree of imagination and foresight to ensure that he carefully places into the scales all matters which bear on the issues.
In R. v Crown Court at Lewes, Ex parte Hill (1991) 93 Cr. App. R. 60 which concerned a paragraph 4 order in relation to material held by various banks Bingham LJ stated, at p.65 :
"The Police and Criminal Evidence Act governs a field in which there are two very obvious public interests. There is, first of all, a public interest in the effective investigation and prosecution of crime. Secondly, there is a public interest in protecting the personal property rights of citizens against infringements and invasion. There is an obvious tension between these two public interests...
The 1984 Act seeks to effect a carefully judged balance between these interests and that is why it is a detailed and complex Act. If the scheme intended by Parliament is to be implemented, it is important that the provisions laid down in the Act should be fully and fairly enforced. It would be quite wrong to approach the Act with any preconception as to how these provisions should be operated save in so far as such preconception is derived from the legislation itself."
The case emphasises that no presumption in favour of the applicant arises from the fact that Parliament has created the procedures by which access to the material can be granted.
5.13 The information to be submitted by the police in support of an application
To enable the judge properly to perform the balancing process required, and to enable the respondent to decide what course to take in relation to the application, it is vital that the police information, on which the application is based, is as precise and complete as possible. A number of cases have emphasised this and courts have quashed orders where incomplete disclosure by the police has been made.
One of the first of such cases was R. v Central Criminal Court, Ex parte Adegbesan and Others (1987) Cr. App. R. 219 in which it was held that the police must specify the material sought with as much precision as possible, and that failure to do so went to the heart of the application.
In Ex parte Baines & Baines ibid, it was held that where the police provide the court with written information on which they rely in support of their application it is wrong for the other party, in an inter parties application, not to be provided with a copy of the same.
In Ex parte Hill,ibid, Bingham LJ stated, at p 69 :
"The judge should be shown such material as is necessary to enable him to be satisfied of the matters of which he is required to be satisfied before making the order, and the judge should be told of anything to the knowledge of the party applying which might weigh against making an order."
If the circuit judge makes the order it is essential that he sets out the reasons for making the order clearly, particularly where the order is made on an Ex parte application, see R v Maidstone Crown Court, Ex parte Waitt [1988] Crim L.R. 384.
5.14 Police powers pursuant to orders of a circuit judge and points: Summary and points of practice
The provisions set out in this section which deal with the definitions of "items subject to legal professional privilege", "excluded material" and "special procedure material" and those which establish the access conditions to the same are detailed and in some cases complex and therefore even a summary of the main points to consider would be verbose and of little practical help and so only a summary of whether access to the material should be granted is provided.
To determine whether the material should be produced or access to premises granted to facilitate a search ask:
*Is the item subject to legal privilege?
If yes, unless the client consents, the police have no power to obtain it so either-
(i) make an application to the judge to vary the order for production or cancel the warrant; or
if the warrant has already been executed
(ii) apply to the judge for an order that the material be returned; or
(iii) apply to the divisional court for certiorari of the judge’s decision to grant the order or warrant and mandamus requiring the police to return the material.
If yes ask:
(i) Were one of the two access conditions satisfied?
If no then oppose the application and if it is granted apply to the divisional court for an order of certiorari.
6 What if the police have exceeded their powers?
6.1 To what extent can one resist the unlawful acts of officers of the law?
Unless the police are acting lawfully there is no obligation upon members of the public to permit them access to their property and in theory they may resist their efforts to search for evidence, and to seize the same with as much force as is reasonable in the circumstances. Some doubt as to the extent to which force may be used in these circumstances arises from the judgment of Lord du Parcq in Christie v Leachinsky [1947] 573 where at 599 he stated :
"The law does not encourage the subject to resist the authority of one whom he knows to be an officer of the law. In Mackalley’s case 9 Co. Rep. 65, where it was the serjeant-at-mace who made the arrest, it was said that if the party knows the person arresting him to be an officer he must not offer resistance, "and if he has not a lawful warrant he shall have his action of false imprisonment."
On the other hand in the case of Rex v Curvan (1826) 1 Mood. 132, also cited by Lord du Parcq, a man’s use of a knife to resist an unlawful arrest was held not to be unlawful.
It is submitted, notwithstanding the quoted passage, that the principle that provided you do no more than use reasonable force you are entitled to defend your property, whether real or personal, applies even where the person seeking to interfere with that property is an officer of the law.
In practice the prudent course will be to seek relief in the courts, for example, by way of a mandatory injunction requiring the return of the items, or by way of judicial review for an order of certiorari quashing a search warrant: see R. v Guildhall Magistrates’ Court , Ex parte Primlaks Holdings Co. (Panama) Inc [1990] 1 Q.B. 261.
6.2 Use of unlawfully obtained material in a subsequent trial: Common law
In Britain there is no doctrine analogous to the "fruits of the poisoned tree" which applies, for example, in the United States of America. So that if material is obtained by improper means, such as in the course of an illegal search, it will still be admissible at common law, see Jeffrey v Black [1978] 1 Q.B. 490.
The leading case is R. v Sang [1980] A.C. 402. in which Lord Diplock stated at 437 D :-
"(1) A trial judge in a criminal trial always has a discretion to refuse to admit evidence if in his opinion its prejudicial effect outweighs its probative value. (2) Save with regard to admissions and confessions and generally to evidence obtained from the accused after the commission of the offence, he has no discretion to refuse to admit relevant evidence on the grounds that it was obtained by improper means. The court is not concerned with how it was obtained...."
Thus, for example, if the police, without good reason, stop and search an individual, and recover a quantity of illegal drugs on him the drugs will, prima facie, be admissible against that individual. It is not part of the court’s function to exclude evidence in order to discipline police officers or to seek to influence the way they carry out their inquiries.
6.3 Use of unlawfully obtained material in a subsequent trial: s. 78 of P.A.C.E.
It is submitted that to exclude the evidence under s. 78 of P.A.C.E., on the grounds that to admit the evidence "would have such an adverse effect on the fairness of the proceedings that the court ought not to admit it", it is necessary to show some additional prejudice to the defendant, over and above the illegality or some impact on the reliability of the evidence.
Some recent cases illustrate the court’s approach. In R v Khan [1994] 3 WLR 899 tape recordings were obtained with equipment installed as a result of a trespass and damage to property. The evidence recorded was relevant and so the tapes were admitted. In R v Stewart [1995] Crim L.R. 500 entry was gained to premises and a device for tampering with an electric meter was found installed in the property. The court of appeal held there was no need to determine whether the entry was legal - the evidence recovered was there for all to see and effectively spoke for itself. No judge exercising his discretion would have excluded the evidence. See also - R v Wright [1994] Crim L.R., (S18 search not authorised by inspector - evidence admitted).
In R v Cooke [1995] Crim L.R. 497 a sample of the defendant’s hair taken by the police and subsequently used for DNA testing may have been obtained illegally and in bad faith, however the Court of Appeal ruled, in effect, that whilst the discretion to exclude evidence under s. 78 of P.A.C.E. was wider than Sang, where the breach of the codes or illegality did not effect the accuracy or strength of the evidence obtained it should not be excluded.
On the other hand there is R v Nathaniel, the Times, April 3rd 1995, a decision of the Lord Chief Justice, where the use of DNA samples wrongly retained by the police in breach of statutory duty was held to have had an adverse effect on the fairness of the trial and the conviction was quashed.
It does not seem possible to reconcile these last two cases and it is submitted that further guidance is required from the House of Lords as to the extent to which evidence, the strength or reliability of which does not depend upon the circumstances by which it was obtained, should be excluded under the judge’s discretion where it was obtained illegally or in breach of the codes of practice.
In R v Fennelley [1989] Crim LR 142 the trial judge upheld a submission based on s. 78 where drugs were recovered after an illegal search. In that case the illegality arose due to the failure by the police to tell the accused of the reasons for his arrest, the grounds for the search or the object of the search. That failure was held to have given rise to the risk that the accused was deprived of the opportunity to give an explanation for his possession of two small packets of heroin later found in his underpants. Had such an explanation been forthcoming he might have been charged with simple possession, rather than the more serious charge of possession with intent to supply, with which the trial judge was concerned.
Whether or not Fennelley would be followed by other courts it illustrates the point that it is important, if possible, for the accused to be able to point to some prejudice or unfairness arising out of the illegal search over and above the fact that incriminating material has been found on him. For example a vulnerable and weak individual, subjected to an arbitrary, aggressive and humiliating search, during which an item of stolen property is recovered, might seek to argue that the nature of his treatment at the hands of the arresting officers so undermined his faith in the fairness of the police investigating him that he subsequently refused to answer any questions aimed at eliciting from him his explanation for his possession of the item.
In the absence of such additional prejudice it is submitted that the evidence obtained in consequence of an illegal search will be admissible.
7(*) Obtaining material pursuant to the Proceeds of Crime Act 1995 and the Drug Trafficking Act 1994
The Proceeds of Crime Act 1995 amends the court’s powers to make confiscation orders pursuant to section 71 et seq of the Criminal Justice Act 1988. Whilst the provisions are modelled on the Drug Trafficking Offences Act 1994 and are intended to enable enforcement authorities to gain access to confidential banking and other material likely to be of use in financial investigations, the 1995 is potentially of far greater significance since it is not limited in its ambit to drug trafficking offences. A detailed and comprehensive narrative on these far from straightforward pieces of legislation would require a textbook in itself and in any event would be premature since much awaits judicial guidance. For these purposes it is proposed to set out those provisions of the 1995 Act which enable the police (and customs officers) to gain access to material and to provide some limited guidance as to their meaning.
Section 11 inserts a new section 93H into the 1988 Act and provides :
(1) A constable may, for the purposes of an investigation into whether any person has benefited from any criminal conduct or into the extent or whereabouts of the proceeds of any criminal conduct, apply to a Circuit judge for an order under subsection (2) below in relation to particular material or material of a particular description.
(2) If, on such an application, the judge is satisfied that the conditions in subsection (4) are fulfilled, he may make an order that the person who appears to him to be in possession of the material to which the application relates shall -
(a) produce it to a constable for him to take it away, or
(b) give a constable access to it,
within such period as the order may specify. [The period is to 7 days unless it appears to the judge that some other period ought to be specified -ss(3)].
(4) The conditions referred to in subsection (2) above are -
(a) that there are reasonable grounds for suspecting that a specified person has benefited from any criminal conduct;
(b) that there are reasonable grounds for suspecting that the material to which the application relates-
(i) is likely to be of substantial value (whether by itself or together with other material) to the investigation for the purposes of which the application is made; and
(ii) does not consist of or include items subject to legal privilege or excluded material [both terms defined as per P.A.C.E supra];
and
(c) that there are reasonable grounds for believing that it is in the public interest, having regard-
(i) to the benefit likely to accrue to the investigation if the material is obtained, and
(ii) to the circumstances under which the person in possession of the material holds it,
that the material should be produced or that access to it should be given.
(5) [gives the Judge power to order a person to grant a constable access to premises to obtain access to the material]
(6) [provides that such applications may be made ex parte in chambers, but gives no guidance as to when this would be appropriate].
(7) [provides for the making of Crown Court Rules governing procedure]
(8) An order of a Circuit judge under this section shall have effect as if it were an order of the Crown Court.
(9) [provides for the obtaining of information contained in a computer]
(10) An order under sub-section (2) above-
(a) shall not confer any right to production of, or access to, items subject to legal privilege or excluded material;
(b) shall have effect notwithstanding any obligation as to secrecy or other restriction upon the disclosure of information imposed by statute or otherwise; and
(c) may be made in relation to material in the possession of an authorised government department [meaning one authorised for the purposes of the Crown Proceedings Act 1947 as to which see The County Court Practice, Crown Proceedings].
The application must therefore specify the material sought or at least give a description of its type. In considering such an application the Judge will have to make something of the order of six separate subjective judgments by virtue of sub-section (4) and it is unlikely therefore that the outcome of such applications will be readily predictable.
On the face of it the investigative powers are indeed considerable, including a power to obtain access to information in the possession of inter alia The Commissioners of Customs and Excise and Inland Revenue, the Department of Health and Social Security, the Home Office and a large number of other Government Departments. However it is hard to understand the logic of a regime which affords greater powers to investigate the financial affairs of criminals after they have committed the crime to the police to those with which they are entrusted to investigate and presumably thereby prevent crime before they are committed.
Section 12 of the 1995 Act (which corresponds to Section 56 of the Drug Trafficking Act 1994), gives the Circuit judge the power to grant search warrants in effect to facilitate the obtaining of the material sought pursuant Section 11 and very similar requirements are imposed as those which apply to the issuing of search warrants pursuant to P.A.C.E., supra.