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215
For a decision by the SIAC cancelling the Home Secretary™s certi¬cate under s. 21 of ACSA,
which was upheld by the Court of Appeal, see M v. Secretary of State for the Home Department
[2004] EWCA Civ 324, [2004] 2 All ER 863.
216
˜Jail within jail to hold terrorist suspects™, The Times, 7 March 2003.
217
R. Ford and D. McGrory, ˜15 foreign suspects held without trial in top-security jail™, The
Times, 17 January 2003.
218
A v. Secretary of State for the Home Department [2004] UKHL 56, [2005] 2 AC 68, [2005] 2
WLR 87.
219
A few months later, the terrorist threat from UK nationals was made manifest in the London
bombings of 7 July 2005.
215 Stop, arrest and detention


(a) has reasonable grounds for suspecting that the individual is or has been
involved in terrorism-related activity; and
(b) considers that it is necessary, for purposes connected with protecting
members of the public from a risk of terrorism, to make a control order
imposing obligations on that individual™ (s. 2(1)).
There are two kinds of control orders “ ˜derogating™ and ˜non-derogating™. To
date all the control orders made under the Act have been non-derogating.
A non-derogating order is one the provisions of which are compatible with
the Convention. It can be made by the Secretary of State but only if he has
applied to the High Court and received permission to make such an order. In
an emergency situation the Home Secretary can issue a provisional control
order but it must be reviewed by a court within seven days. The court can refuse
permission only if it ¬nds that it was ˜obviously ¬‚awed™ (s. 3(2)). If it gives per-
mission, it must give directions for a hearing as soon as practicable, at which
point the individual concerned has the right to try to persuade the court that
the control order or any of its provisions are ˜obviously ¬‚awed™.
A derogating order is one the provisions of which are incompatible with
Article 5 of the European Convention on Human Rights (the right to liberty)
and can only be made if there has been a derogation to the ECHR approved by
both Houses of Parliament. A derogating order is made by the High Court on
an application by the Home Secretary. The test for the court is the same as that
for the Home Secretary (above), except that it must also be satis¬ed that the risk
of terrorism in question arises out of or is associated with the public emergency
which resulted in the derogation (s. 4(7)).
Derogating control orders are limited to six months™ duration; non-
derogating control orders are limited to twelve months™ duration. Both can be
renewed subject to a right of appeal.
Breach of any condition without a reasonable excuse is a criminal o¬ence
punishable on indictment by imprisonment of up to ¬ve years or an unlimited
¬ne.
Control orders are extremely far-reaching. They can impose controls on pos-
session of speci¬ed articles or substances, on use of speci¬ed services or facili-
ties, on carrying on of speci¬ed activities, on work or business, on association
or communication with others, on place of residence and the persons to whom
access is given to the place of residence and on movement. It can require the
individual to agree that speci¬ed persons can have access to his place of resi-
dence and can search it and take away anything found there for testing. He can
be required to agree to electronic tagging and to report to speci¬ed persons at
speci¬ed times and places. He may even be required ˜to comply with a demand
made in the speci¬ed manner to provide information to a speci¬ed person in
accordance with the demand™ (s.1(4)).
Lord Carlile of Berriew, the independent reviewer, in his ¬rst report on the new
Act in February 2006, said the restrictions generally imposed included an eighteen-
hour curfew, limitation of visitors and meetings to persons approved by the Home
216 Pre-trial criminal proceedings


O¬ce, no cellular communications or internet and a restriction on travel. (˜They
fall not very far short of house arrest™ (para. 43).)220 Between the coming into force
of the legislation in March 2005 and the end of that year, eighteen control orders
were made. Having looked at all the material the Home Secretary had available to
him, Lord Carlile said: ˜I would have reached the same decision as the Secretary of
State in each case in which a control order was made™ (para. 38).
On 14 February 2006 the Parliamentary Joint Human Rights Committee
published a highly critical, 101-page report on control orders in the context of
the Government™s decision to lay before Parliament a draft order authorising the
extension of the control order regime for another year.221 It expressed concern
that the non-derogating control orders that had been made were so restrictive
of liberty as to amount to a deprivation of liberty contrary to Article 5(1) of the
ECHR. It concluded that they also infringed Article 6(1) rights to a fair trial and
the equality of arms, the right of access to a court to contest the lawfulness of
their detention in Article 5(4), the right to examine witnesses in Article 6(3) and
the most basic principles of a fair hearing and due process long recognised as
fundamental by English law.
On 12 April 2006, in the ¬rst legal challenge to the new control order
system, Sullivan J held that the procedure for legal challenge against the
making of a non-derogating control order was incompatible with the right to
a fair hearing guaranteed by Article 6(1) of the ECHR.222 On 1 August 2006,
this ruling was overturned by the Court of Appeal composed of the Lord Chief
Justice, the Master of the Rolls and the President of the Queen™s Bench
Division.223
On 28 June 2006, Sullivan J quashed control orders imposing an eighteen-
hour curfew on six persons on the ground that they deprived them of their
liberty in breach of Article 5(1) of the Convention on the ground that they were
equivalent to house arrest.224 On 1 August 2006, the same Court of Appeal dis-
missed the Home Secretary™s appeal.225 The Home Secretary said he would seek


220
An example of a control order was given in Lord Carlile™s ¬rst report at Annex 2 “
www.security.homeo¬ce.gov.uk.
221
Joint Human Rights Committee, Counter-Terrorism Policy and Human Rights: Draft
Prevention of Terrorism Act 2005 (Continuance in Force of Sections 1“9) Order 2006, 12th
Report of Session 2005“6, HL 122, HC 915. The Government™s response was published in the
form of a letter to the Committee from the Home Secretary which the Committee published
as Appendix 1 to its report Counter-Terrorism Policy and Human Rights: Prosecution and Pre-
Charge Detention, 24th Report of Session 2005“6, 24 July 2006, HL 240, HC 1576.
222
National press, 13 April 2006.
223
Secretary of State for the Home Department v. MB [2006] EWCA 1140.
224
[2006] EWHC 1623 Admin; national press, 29 June 2006.They were each required to remain
in their one-bedroom ¬‚ats except for six hours per day (10am to 4pm). During those six
hours their freedom of movement was restricted to speci¬ed urban areas. Visitors had to be
approved by the Home O¬ce. They were not permitted to meet anyone by pre-arrangement
who had not had Home O¬ce clearance.
225
Secretary of State for the Home Department v. JJ [2006] EWCA 1141; national press, 2 August
2006.
217 Establishing the suspect™s identity


leave to appeal to the House of Lords. At the time of writing the outcome was
not known.226
Coincidentally, also on 1 August 2006, the Joint Human Rights Committee
made further proposals on dealing with terrorism cases including:227
• Suspects should be charged with criminal o¬ences and prosecuted.
• Introducing the system of special advocates into criminal trials would be
incompatible with Articles 5(4) and 6(1) of the ECHR.228
• There was nothing in the continental investigative approach that should be
grafted onto our system.
• The ban on the use of intercept evidence in court should be removed.229
• There was scope for more proactive case management of terrorism trials
without judges becoming either investigators or prosecutors.
• PACE, Code C should be amended to permit post-charge questioning of sus-
pects and adverse inferences to be drawn from refusal to answer questions.
• There should be an enforceable right to compensation for those held in pre-
charge detention who were not charged.
• It should not be necessary to extend the maximum period of pre-charge
detention in terrorism cases beyond twenty-eight days.


5. Establishing the suspect™s identity
The police have a variety of methods to assist them to establish the identity of,
or to track down, suspects.


Fingerprints
Fingerprints may be taken from a person without consent in the following cir-
cumstances:
• From someone detained at a police station after being arrested for a record-
able o¬ence (PACE, 61(3)).

226
For discussion and comment on the two decisions see L. Dubinsky, 156 New Law Journal, 1
September 2006, pp. 1320“1.
227
Counter-Terrorism Policy and Human Rights: Prosecution and Pre-Charge Detention, 24th
Report of Session 2005“6, 1 August 2006, HL 240, HC 1576. The Committee did not deal with
control orders as they were then the subject of pending judicial proceedings.
228
The system for special advocates in terrorism cases was described as ˜critically ¬‚awed™ by the
Constitutional A¬airs Committee in The Operation of the Special Immigration Appeals
Tribunal and the use of Special Advocates, 7th Report of Session 2004“5, HC 323, April 2005.
The Committee highlighted the fact that once the special advocate had seen the classi¬ed
material he could not communicate with the appellant and his legal advisers as to whether the
charges or the evidence could be challenged.
229
This is equally supported, inter alia, by the Attorney General, Lord Goldsmith, the Director of
Public Prosecutions, Ken Macdonald, the Association of Chief Police O¬cers and Liberty “ see
The Guardian, 21 and 22 September 2006. For a review of the competing arguments and issues
see G. Langdon-Down, ˜Court in the Act™, Law Society™s Gazette, 12 October 2006, pp. 19“20.
218 Pre-trial criminal proceedings


• From someone detained at a police station who has been charged with a
recordable o¬ence (s. 61(4)).
• From someone who answers to bail at a court or police station where there is
doubt as to his identity (s. 61(4)).
• From someone convicted, cautioned, warned or reprimanded for a record-
able o¬ence (s. 61(6)) “ the person can be required to attend a police station
for the purpose (s. 27).
• From someone outside a police station who is reasonably suspected of com-
mitting or having committed an o¬ence and the identity of the person is not
known (s. 61(6A) and (6B).230
See Code D, section 4.


Footwear impressions
The Serious Organised Crime and Police Act 2005 (SOCPA), s. 118 inserted a
new s. 61A into PACE to give the police the power to take footwear impressions
without consent from a person detained at a police station who has been
arrested for, or charged with, a recordable o¬ence. Footwear impressions are
recovered from around 20“30 per cent of crime scenes.


Photographs
At common law it was unclear whether the taking of photographs of suspects
without consent was lawful. The Philips Royal Commission recommended
that photographing should be on the same basis as ¬ngerprinting. Originally
there was nothing in PACE on the subject though there were some provisions
in Code D on Identi¬cation. The ¬rst statutory provisions were in the Anti-
Terrorism, Crime and Security Act 2001 which inserted a new s. 64A into
PACE authorising photographing of detainees. SOCPA, s. 116 extended this
power to photographs taken elsewhere than at a police station providing
the person has been arrested or has been made subject to a requirement to
wait with a civilian community service o¬cer or has been issued with a ¬xed
penalty notice.

Footnote 229 (cont.)
However, Sir Swinton Thomas, the Interception of Communications Commissioner,
opposes the move. Interviewed on Radio 4™s File on 4 programme on 21 November 2006, Sir
Swinton said that MI5, MI6 and GCHQ had carried out extensive trials to check if intercept
material would be valuable in prosecutions. ˜Those inquiries have shown very clearly that the
number of cases where intercept material would make a substantial di¬erence are very few
indeed or possibly even non-existent.™ In his view changing the law would harm law
enforcement and the security services. (˜I deeply believe that if there is a change in the law,
huge advantages which the security services and law enforcement agencies have at present
would be lost.™)
230
Inserted by SOCPA, s. 117(2). The Explanatory Notes to the Bill stated that approximately 60
per cent of disquali¬ed drivers provide false identities when stopped by the police.
219 Getting the evidence


Photographs and images of suspects detained at police stations can be
retained provided they are only used or disclosed for purposes related to the
prevention or detection of crime (s. 64A). Where the photographs or images
were taken elsewhere than at a police station they must be destroyed once they
have been used unless the person is charged or he gives informed consent to
them being kept (PACE, Code D, para. 3.31).
It has been held that where the police make reasonable use of photographs
for the purpose of the prevention or detection of crime they have a public inter-
est defence to an action brought against them by the person whose photograph
has been circulated.231 This would cover the distribution to the media of pho-
tographs of suspects wanted by the police.


6. Getting the evidence

Identification evidence
The traditional method of holding an identi¬cation parade at which the witness
is asked to try to identify the culprit in a line-up is no longer the preferred
option. (Code D has detailed rules for the carrying out of identi¬cation proce-
dures. In the 2006 revision of the Codes of Practice, Code D runs to no fewer
than ¬fty-four pages.232)
Video identi¬cation (Code D, Annex A) The police can show a witness a video
¬lm made after the o¬ence including the suspect and at least eight other people
who so far as possible resemble him, if possible, ¬lmed in the same position.233
This is now the preferred option as being quicker, cheaper and better than ID
parades.
Identi¬cation parade (Code D, Annex B) Formerly, Code D required that an
identi¬cation parade had to be held if the suspect asked for one. Since the 2003
revision, Code D (para. 3.12) says that whenever a suspect disputes being the
person the witness claims to have seen, an identi¬cation procedure (not as
before, ˜identi¬cation parade™) shall be held unless it is not practicable or it
would serve no useful purpose. The suspect ˜shall initially be o¬ered a video
identi¬cation™ unless it is not practicable or an ID parade is both practicable and
more suitable or group identi¬cation applies.
Group identi¬cation (Code D, Annex C) A group identi¬cation is where the
witness sees the suspect in an informal group of people, usually in the police
station. It can take place either with the suspect™s consent or, if he has refused to
co-operate with other methods, covertly.

231
Hellewell v. Chief Constable of Derbyshire [1995] 1 WLR 804.
232
For a detailed overview see M. Zander, The Police and Criminal Evidence Act 1984 (5th edn,
Sweet and Maxwell, 2005) pp. 317“33.
233
The suspect is photographed. The photograph is then transferred into the computer system
which holds a vast digital database. The suspect and his legal advisers are shown a range of pho-
tos similar to the suspect and are asked to agree on eight or nine to be used in the video ¬lm.
220 Pre-trial criminal proceedings


Confrontation (Code D, Annex D) The witness sees just the suspect either
directly or behind a one-way mirror. Only used if it is not possible to use one of
the other methods.


Search after an arrest
Searching the arrested person
Pre-PACE the common law position was by no means fully supportive of the
police wish to search arrested persons. In Lindley v. Rutter234 the Divisional
Court held that the police had not been justi¬ed in forcibly removing a female
suspect™s bra. The o¬cers had been acting in accordance with their chief
o¬cer™s standing order as to searching of prisoners but the court said the order
could not be justi¬ed since it was not adapted to the circumstances of particu-
lar cases. In Eet235 the court held that o¬cers had not been entitled to use force
to search a driver suspected of having stolen a car to establish his identity. In
Brazil v. Chief Constable of Surrey236 the court held that the police were not
acting in the execution of their duty when they searched a female suspect
without informing her of the reason for the search. In King237 it was held that
where police are searching premises under a search warrant, they are not per-
mitted to search persons there unless the warrant speci¬cally so states.

Searching premises after an arrest
It was for a long time common police practice after arresting someone to go to
his home and to search there. The Royal Commission on the Police in 1929 said
it was unlawful and should either be permitted by statute or stopped, but no
statute was passed to deal with the matter and the practice continued.
In 1982, in McLorie v. Oxford238 the Divisional Court took a very restrictive
view of police powers to search premises after an arrest. The police went to M™s
home looking for a car which they thought had been used by M™s brother in an
attempt to murder someone. The brother was arrested later that evening at the
house where he lived with his father and brother. Subsequently the police saw
the car in the backyard of the house and asked M™s father for permission to
remove it for forensic examination. After the father refused to give permission,
the police returned in strength and removed the car forcibly. M, who had
resisted the seizure, was charged with, and convicted of, assaulting the police.
Quashing the conviction, the Divisional Court held that the police had not been
acting lawfully. They would have been entitled to follow a motorist onto his own
property in ˜hot pursuit™ and that would have entitled them to remove the car
for forensic examination, but this was not a case of hot pursuit:
Such is the importance attached by the common law to the relative inviolability
of a dwelling house that we cannot believe that there is a common law right

234 235 236
[1981] QB 128. [1983] Crim LR 806. [1983] 3 All ER 537.
237 238
[1969] 1 AC 304, PC. [1982] QB 1290.
221 Getting the evidence


without warrant to enter one either in order to search for instruments of crime,
even of serious crime, or in order to seize such an instrument which is known
to be there. Certainly if there were, we would expect it to be re¬‚ected in the
books and it is not.

The Philips Royal Commission on search of the person after arrest and of
premises
The Philips Royal Commission thought that the police should not routinely
make full searches of all suspects and that the question of how far a search
should go should be considered by the station o¬cer. A super¬cial search
should always be permissible. Strip searches, on the other hand, should be rare.
If they required a search of intimate parts of the body they should be permitted
only in grave o¬ences and only on the authority of a senior o¬cer and should
always be conducted by a doctor.
Search of the arrested person™s premises and vehicle should be allowed
subject to safeguards. The chief safeguard should be that there must be reason-
able suspicion that evidence material to the o¬ence may be found on those
premises. Search of any other premises should have to require a warrant. The
reasons for any search should be recorded by the station o¬cer before the search
in order to minimise the risk of ˜¬shing expeditions™ (para. 3.121). Evidence of
other o¬ences found in the course of such a search should be admissible if a
warrant could have been obtained to look for it, even though no such warrant
had been obtained. Searches should be conducted in a manner appropriate to
what was being searched for (para. 3.122).

PACE
PACE broadly enacted these recommendations. Section 18 empowered a con-
stable to enter premises occupied or controlled by a person arrested for
an arrestable o¬ence to search for evidence relating to that or connected o¬ences.
As noted above, ˜arrestable o¬ences™ was changed by the Serious Organised Crime
and Police Act 2005 (SOCPA) to ˜indictable o¬ences™.239 He must have reasonable
grounds for believing that there is evidence on the premises that relates to the
o¬ence in question or to some o¬ence ˜which is connected with or similar to that
o¬ence™ (s. 18(1)). Authorisation must normally be given in advance by an o¬cer
who is at least an inspector.240 The o¬cer who authorises such a search in advance
(or approves one after the event) must make a written record of the grounds for
the search and of the nature of the evidence sought.
PACE, s. 32 authorises search of an arrested person and of any premises
(including a vehicle) he was in when arrested or immediately before being
arrested. Again, SOCPA has added the requirement that the o¬ence for which
he was arrested was indictable.241 The section cannot be used to justify a search


239 240
SOCPA, Sch. 7, para. 43(3). Badham [1987] Crim LR 202.
241
SOCPA, Sch. 7, para. 43(6).
222 Pre-trial criminal proceedings


several hours after the arrest.242 A search under s. 32 can be for anything that
can be used to assist an escape or for evidence relating to any o¬ence (s. 32(2)).
PACE, s. 19 authorises an o¬cer who is lawfully searching any premises
(whether after an arrest or not) to seize any article (other than one covered by
legal professional privilege) if he reasonably believes that it is evidence relating
to the o¬ence which he is investigating ˜or any other o¬ence™ and that ˜it is nec-
essary to seize it in order to prevent its being concealed, lost, damaged, altered
or destroyed™.

Intimate searches, x-rays and ultrasound scans
Section 55 of PACE permits a search of bodily ori¬ces (called an ˜intimate
search™). An intimate search can only be for a weapon or other article that might
be used to cause injury or for Class ˜A™ drugs (i.e. not for ˜evidence™) and it has
to be conducted by a doctor or nurse or, in the case of a weapons search only, a
police o¬cer of the same sex provided that an inspector243 or above reasonably
considers that it is not practicable for the search to be conducted by a doctor. In
practice virtually all such searches are carried out by doctors.
The Drugs Act 2005, s. 3 added a requirement that a drugs o¬ence intimate
search requires written consent. Adverse inferences can be drawn at trial from
a refusal of consent.
The Drugs Act 2005, s. 5 inserted a new s. 55A into PACE to permit x-rays or
ultrasound scans to be conducted if an inspector has reasonable grounds for
believing that a suspect in police detention may have swallowed a Class A drug
of which he was in possession with intent to supply. Again, this requires written
consent and again, refusal of consent can be the subject of adverse inferences at
trial.
A full record has to be kept of such searches “ and now also of x-rays and
ultrasound scans. Intimate searches are very rare. In David Brown™s 1989 Home
O¬ce study such searches were found in only seven cases of 5,519 (0.1 per
cent).244 The Home O¬ce annual statistics show that the number of such
searches annually ranges from a few dozen to a couple of hundred or so.245 (In
the four years to 2004“5 the number of such searches was 102, 172, eighty-one
and ninety-three.) Each year the overwhelming majority are for Class A drugs.
(In 2004“5, 87 per cent of all intimate searches were for Class A drugs.) Usually
the search produces no evidence. (In 2004“5 that was so again in 87 per cent of
cases.246)
The Joint Parliamentary Committee on Human Rights has suggested
that intimate searches under PACE may contravene Article 3 of the European
Convention on Human Rights which prohibits ˜inhuman or degrading

242
Badham n. 240 above. See also Churchill [1989] Crim LR 226.
243
Changed from superintendent by the Criminal Justice and Police Act 2001, s. 79.
244
Note 202, p. 211 above.
245
Arrests for Noti¬able O¬ences and the Operation of Certain Police Powers under PACE.
246
Table PG.
223 Getting the evidence


treatment™.247 Article 3 is absolute and permits no justi¬cation. The
Government told the Committee that it did not agree that the rules contravened
the Convention.
For provisions designed to ensure that intimate searches are only undertaken
in exceptional circumstances see Code C, Annex A.

Intimate and non-intimate samples
PACE also made provision for the taking of bodily samples from the suspect as
part of the process of criminal investigation. With the development of DNA
analysis this power has assumed major importance.248
The Act distinguishes between two kinds of sample “ ˜intimate™ samples
(s. 62) and ˜non-intimate™ samples (s. 63). The main practical di¬erence is that
intimate samples, other than urine, may only be taken with the suspect™s written
consent, and only by a doctor. Provided an inspector™s authority is given, non-
intimate samples may be taken, without consent and by a police o¬cer.
Intimate samples are de¬ned as samples of blood, semen, other tissue ¬‚uid,
urine, pubic hair or a swab taken from a body ori¬ce. Originally, intimate
samples could only be taken if the investigation concerned a serious arrestable
o¬ence but the CJPOA 1994 provided that it need only be a recordable o¬ence
which means an o¬ence carrying a penalty of imprisonment. It requires the
consent of an inspector249 and the written consent of the suspect.
Non-intimate samples are de¬ned (s. 65) as a sample of hair, other than pubic
hair, a sample taken from a nail or under a nail, a swab taken from any part of
the body including the mouth, other than a body ori¬ce, saliva and a footprint
or similar impression of part of a body. A non-intimate sample can be taken
without the written consent of the person concerned if an o¬cer of the rank of
inspector250 or above has authorised compulsory taking of the sample.

247
First Report, Criminal Justice and Police Bill, Session 2000“1, HL Paper 69 (2001, HL) para.
75. The Committee™s reports are available on www.parliament.uk/parliamentary_committees/
joint_committee_on_rights.cfm.
248
It seems that some DNA evidence is usually left at the crime scene. Home O¬ce research in
three police force areas (the Metropolitan Police area, Northumbria and South West Wales)
showed that across the three forces more than 85 per cent of cases produced DNA evidence at
the crime scene and that, of those, more than two-¬fths (42 per cent) matched someone
already on the database. The database can even be used to identify suspects who are not on
the database by reason of their familial genetic traits.
With 3.6 million pro¬les the database is the largest in the world. In addition to its use in
current cases, it is used increasingly to re-investigate old unsolved serious crimes. In July 2005
the Home O¬ce™s Police Standards Unit launched a study of unsolved rapes from 1994“9. By
late 2006 the unit had examined nearly 9,000 such cases and selected 1,369 cases for further
investigation. 28 per cent of the re-analysed cases resulted in a suspect being identi¬ed (Police
Review, 10 November 2006, pp. 19“21 “ www.policereview.com).
249
The requirement that it be a superintendent was altered by the Criminal Justice and Police Act
2001, s. 80(1) despite concerns expressed by the Parliamentary Joint Committee on Human
Rights, First Report, Session 2000“1, HL, Paper 69 (2001), HC 427, para. 81.
250
The requirement that it be a superintendent was altered by the Criminal Justice and Police Act
2001, s. 80(1).
224 Pre-trial criminal proceedings


Section 63 permitted the taking of a non-intimate sample without consent in
three situations: (1) following charge for a recordable o¬ence; (2) where the
person is in police detention (or is being held in custody by the police on the
authority of a court) on the authority of an inspector which can only be given
if he reasonably believes that the sample will tend to con¬rm or disprove his
involvement in the o¬ence and (3) following conviction for a recordable
o¬ence.
The Criminal Justice Act 2003, s. 10 extended the power to take a non-
intimate sample without consent to anyone who has merely been arrested for a
recordable o¬ence regardless of whether it might con¬rm his involvement in
the o¬ence. This is mainly to help build up the national DNA database.
A further recent development is the taking of non-intimate samples for drug
testing. This began in 2001 under new ss. 63B and 63C, PACE.251 It arises if a
person has been charged with any on a list of ˜trigger o¬ences™ or if drug misuse
is reasonably suspected. It permits the taking of a urine sample or a saliva swab.
The Drugs Act 2005 extended these provisions. In the case of adults they now
apply where a person has only been arrested. For those between fourteen and
eighteen they must have been charged. If, as a result of drug testing the presence
of a Class A drug is found, the detainee can be required to attend ¬rst, an initial
assessment by a suitably quali¬ed person to assess whether he would bene¬t for
treatment and thereafter, a further assessment to draw up a care plan. (Section
17 of Code C “ seven pages long “ deals with drug testing.)

When samples can be retained
The police place great value on the DNA database which is the largest in the
world and already holds some three million entries. The person from whom a
sample, ¬ngerprints or footwear impression is taken must be informed that it
can be made the subject of a search (called ˜a speculative search™) against other
records with a view to see whether he is wanted in connection with other
o¬ences.
However, can the sample be retained on the database if the person from
whom it was taken is acquitted? Originally, PACE, s. 64 required samples and
¬ngerprints taken from a suspect to be destroyed if the person from whom they
were taken was acquitted, but after two decisions applying this rule provoked
public uproar,252 legislation was passed to change the rule253 and the amending
provision was made retrospective. This has already proved to be of great value
in terms of tracking down o¬enders.254(A challenge to the amending legislation
251
Inserted into PACE by the Criminal Justice and Court Services Act 2000, s. 57.
252
Both decisions were given by the same court on the same day. One was a murder case, the
other a rape case. The rape case went to the House of Lords. Re A-G™s Reference (No 3 of 1999)
253
[2000] 4 All ER 360. Criminal Justice and Police Act 2001, s. 82.
254
It was reported in January 2006 that retention of samples that previously would have had to
be destroyed had led to some 7,500 matches with crime scenes involving 10,700 o¬ences,
including eighty-eight murders and 116 rapes. (G. Langdon-Down, ˜Coded Warning™, Law
Society™s Gazette, 26 January 2006, p. 21.)
225 Getting the evidence


brought under the Human Rights Act failed.255) Footwear impressions equally
can be retained.
Sometimes the police test numbers of persons (sometimes very large numbers)
in the hope of discovering a match for a DNA print or other evidence left at the
scene of the crime. Ahead of being tested no one is a suspect. In that case ¬nger-
prints, footwear impressions and samples must be destroyed ˜as soon as they have
ful¬lled the purpose for which they were taken™ (Code D, Annex F, para.1).


Powers to enter premises other than after an arrest
At common law
There is no general common law power to enter private premises in order to
investigate criminal acts. In Davis v. Lisle 256 a police o¬cer, believing that D™s
employees had created an obstruction in the highway with a lorry, followed D
to his garage. The o¬cer neither had permission to be on the private property
nor a warrant. He was ¬rst asked and then told to leave, but did not do so. D
then struck the o¬cer. He was convicted of assaulting a police o¬cer in the exe-
cution of his duty. On appeal the Divisional Court held that the o¬cer was not
acting in the execution of his employment. In remaining, despite having been
asked to leave, he was a trespasser. See, to like e¬ect, Lambert v. Roberts,257 in
which the Divisional Court held that a police o¬cer was not entitled to admin-
ister a breathalyser test on a motorist he had followed home when the motorist
asked him to leave. But in Snook v. Mannion,258 on virtually identical facts, the
decision went the other way. The o¬cers followed the motorist home after
observing his erratic driving. They asked him to take a breathalyser test, which
he refused, and he told them to ˜fuck o¬™. The magistrates held that this was
mere abuse, not a revocation of their implied licence to be on his drive. He was
therefore convicted of driving with an excess of alcohol in his blood and the
Divisional Court upheld the decision.259
The problem in relation to motoring law was altered by the provisions of the
Transport Act 1981. (TA 1981, s. 25 stated: ˜for the purposes of arresting a
person under the power conferred by s. 5 [driving or being in charge of a car
while un¬t] a constable may enter (if need be by force) any place where that
person is or where the constable, with reasonable cause, suspects him to be™.)
This power may not, however, cover the situation where the o¬cer wishes to
administer a breathalyser test. TA 1981 also gave the police a power of entry
where an accident has taken place: see Sch. 8, but these statutory provisions
con¬rm that at common law there is no such power.

255
R (S) v. Chief Constable of South Yorkshire and R (Marper) v. Same [2004] UKHL 39, [2004] 4
All ER 193. For critical comment see S. Forster, ˜Retention of DNA/Fingerprint Samples: A
Justi¬ed and Lawful Policy™, 168 Justice of the Peace, 14 August 2004, pp. 628“32.
256 257 258
[1936] 2 KB 434. [1981] 2 All ER 15. [1982] RTR 321.
259
See also Morris v. Beardmore [1981] AC 446, HL; Clowser v. Chaplin, Finnigan v. Sandiford
[1981] Crim LR 643, HL; Hart v. Chief Constable of Kent [1983] Crim LR 117.
226 Pre-trial criminal proceedings


On the force that can be used by the police in e¬ecting entry, see Swales v.
Cox.260

Lawful entry
A police o¬cer who enters premises without lawful excuse commits a trespass.
Prior to PACE, there were three forms of lawful excuse:
• Under the authority of a search warrant There are many statutory provisions
that permit the police to ask magistrates for a search warrant. The search
warrant must specify the correct premises. If it says Flat 45, the police cannot
lawfully search Flat 30 even though that was what they actually intended when
they asked for a search of Flat 45.261
• To execute an arrest without warrant This power, which formerly arose under
the Criminal Law Act 1967, s. 2(6), now arises under PACE, s. 17(1). The
power applies to e¬ect an arrest for an indictable o¬ence and for various
summary o¬ences including the o¬ences of driving under the in¬‚uence of
drink or drugs and failing to stop contrary to ss. 4 and 163 of the Road Tra¬c
Act 1988.
• To deal with emergency situations There was a common law power to enter
premises to deal with, or prevent, a breach of the peace: see Thomas v.
Sawkins.262 The power also extended to saving life or limb. It is sometimes
used by the police to deal with matrimonial or domestic disputes.263 The
power was preserved by PACE, s. 17(5) and (6), but care has to be exercised
in its use. As Lord Justice Purchas said in one case: ˜clearly a purely domestic
dispute will rarely amount to a breach of the peace, but in exceptional
circumstances it might do so™.264
It was held by the Divisional Court in 1985 that once the police were on
premises lawfully for one purpose, they were there lawfully for any purpose.
They could therefore search persons for drugs (which was their real object in
being there) even though they had not got a warrant under the Misuse of
Drugs Act because they were lawfully on the premises to check out the
premises under the Greater London Council (General Powers) Act 1968:
Foster v. Attard.265
According to survey evidence given by the police to the Philips Royal
Commission, most searches of premises were under warrant. The survey

260 261 262
[1981] 1 All ER 1115. Atkinson [1976] Crim LR 307. [1935] 2 KB 249.
263
In McLeod v. Metropolitan Police Commissioner [1994] 4 All ER 553 the Court of Appeal held
that on the facts the police believed that there was a real and imminent risk of a breach of the
peace su¬cient to justify an entry while items were removed from the house by the divorced
husband in the absence of the wife. (The European Court of Human Rights subsequently took
a di¬erent view: [1999] Crim LR 155.)
264
McConnell v. Chief Constable of Greater Manchester Police [1990] 1 WLR 364 at 372. For
discussion of the cases see N. Parpworth, ˜The Lawfulness of a Police O¬cer™s Entry under
s. 17(1)(3) of PACE™, 169 Justice of the Peace, 2 July 2005, pp. 508“11.
265
[1986] Crim LR 627.
227 Getting the evidence


showed that 61 per cent of such searches in London (compared with only 24 per
cent in the provinces) were backed by a warrant.266
By far the fullest study of the operation of the search warrant power pre-
PACE was published in August 1984.267 The survey showed that search warrants
for stolen or prohibited goods represented a mere 8 per cent of all the search
warrants issued in that period. (As many as 86 per cent were issued to the Gas
and Electricity Boards.)
The researchers observed thirty-two warrant applications. They were not
impressed by the way these proceedings were conducted. The magistrate asked
questions of the police o¬cer in only four cases “ and in only two were the ques-
tions directed to the grounds for the application. (Surprisingly, full-time stipen-
diary magistrates were no more likely to ask questions than part-time lay
magistrates.) The information supplied to magistrates was usually minimal “
limited to the name of the police o¬cer, the name of the occupier, the address
and the nature of the case. The grounds for the application were rarely stated.
(Usually it was variations on ˜as a result of information received, there is reason
to believe . . .™) Only occasionally was there any indication that the police had
veri¬ed the information or had supporting evidence. (The o¬cial guidance to
magistrates is that police o¬cers should not be required to identify an infor-
mant but that it is legitimate to ask whether he is known to the o¬cer and
whether it has been possible to make other inquiries.)
The comment from the author was that:
The reality is then that the judicial hurdle of the warrant application is no more
than a stepping stone. Magistrates see the ˜information from a reliable source™
formula as an impenetrable barrier beyond which they cannot or will not go.
This, together with an almost unquestioning trust in the police, the clerk, or
both, allied to a lack of knowledge of how the police actually operate and an
over-glamourised view of specialist squads, combine to impair the proper exer-
cise of the independent judicial function.268
There is no later study from which one could tell whether things have changed
since 1984.

The Philips Royal Commission
The Royal Commission on Criminal Procedure recommended that existing
powers to get a search warrant to look for prohibited goods such as stolen goods,
drugs, ¬rearms, explosives, etc. should be con¬rmed (para. 3.39). In addition,
however, it recommended that there should be a new power to search for evi-
dence whether from guilty persons or from persons totally unconnected with
the o¬ence. This power, it thought, should be used very sparingly and subject

266
The Investigation and Prosecution of Criminal O¬ences in England and Wales: The Law and
Procedure, Cmnd. 8092“1, 1981, pp. 126“9.
267
K.W. Lidstone, ˜Magistrates, Police and Search Warrants™, Criminal Law Review, 1984, p. 449.
268
Ibid, pp. 452“3.
228 Pre-trial criminal proceedings


to strict controls. It should be granted only in exceptional circumstances and in
respect only of grave o¬ences. The seriousness of the intrusion could also be
marked by making the issuing authority a Circuit judge. There would be two
stages. The court would ¬rst order the person holding the material to make it
available to the applicant. Non-compliance could result in a search warrant
being issued. If there was a danger that the evidence could disappear, the court
would issue a search warrant at the ¬rst stage.

PACE
When the Police and Criminal Evidence Bill was ¬rst published it provided for
two di¬erent procedures. The normal method for getting permission to search
for evidence on private premises was to be by getting a search warrant from
the magistrates to look for evidence of a serious arrestable o¬ence. The
Government said that the magistrates already granted search warrants in so
many di¬erent situations that there was normally no need to require a judge™s
permission. But where the material sought was held in con¬dence an order
from a Circuit judge would be required and would normally be made ex parte,
i.e. in the absence of the other side.
These proposals provoked an outcry “ notably from doctors, priests, jour-
nalists and Citizens™ Advice Bureaux “ claiming that the police would be given
the right to search through con¬dential ¬les and records. As a result, the
Government made a number of major changes. First, it was provided that any
hearing before a judge (a ˜special procedure™ application) would be inter partes
so that the person from whom the material was sought would be entitled to
be present unless the police had reason to suspect that he was implicated in
the crimes in question. Secondly, various categories of ˜excluded material™
were de¬ned which would be exempt from any kind of search by the police.
(Though if the material could pre-PACE have been the subject of a search
warrant it could be made the subject of a special procedure application269
(see below).)

Excluded material
• Personal records held in con¬dence and acquired in the course of any ˜trade,
business, profession or other occupation™. ˜Personal records™ for this purpose
means documents or records concerning individuals relating to their physi-
cal or mental health, spiritual counselling, social work or similar work involv-
ing counselling or assistance and other activities relating to a client™s personal
welfare or counselling and assistance given by voluntary organisations (ss. 11
and 12). Thus the ¬les and records of doctors, priests, social workers and
Citizens™ Advice Bureaux are normally exempt from any kind of police search

269
Under the terrorism legislation even excluded material can be the subject of an access order by
a court. Only material covered by legal professional privilege is protected from such an order.
See now the Terrorism Act 2000, s. 37 and Sch. 5, para. 6.
229 Getting the evidence


under PACE. Excluded material also covers human tissue or tissue ¬‚uid taken
for the purpose of treatment or diagnosis, but if a doctor has the gun used in
the crime or the patient™s bloodstained clothing, the police would be able to
ask a judge for an order requiring it to be produced. They would not be
excluded material because they are not ˜records™ (s. 12).
• Journalistic material in the form of documents or records held in con¬dence.
˜Journalistic material™ for this purpose means material acquired or created
for the purposes of journalism. It is not required that the material be for
publication in a national newspaper or that the person holding it be a
member of one of the journalists™ unions. The material is only ˜journalistic
material™, however, if it is held in con¬dence and is in the possession of
someone who acquired or created it for the purposes of journalism (ss. 11
and 13).270
PACE also provided that items held subject to legal professional privilege
cannot not be made the subject of a search warrant application to magistrates
(s. 8(1)(d)). Nor can such material be made the subject of a special procedure
application or even seizure under s. 19 if actually found during a lawful
search.
• Items covered by legal professional privilege consist of material exchanged
between the client and his lawyer or anyone else acting for the client regard-
ing legal advice, material exchanged between the client and the lawyer or
anyone else acting for the client or between the client and such other person
in connection with legal proceedings and items enclosed with or referred to
in such communications.
However, items held with the intention of furthering a criminal purpose are not
subject to legal privilege (s. 10). On this issue see the House of Lords decision
in R v. Central Criminal Court, ex p Francis & Francis271 which established that
the criminal intent need not be that of the client or the solicitor. It can be that
of a third party. In R v. Crown Court at Inner London Sessions, ex p Baines &
Baines272 in which it was held that material consisting simply of records of the
¬nancing and purchase of a house was not covered by privilege because it was
not concerned with the giving of legal advice.273 See also R v. Customs and Excise
Commissioners, ex p Popely274 where it was held that a search warrant cannot
authorise seizure of items covered by legal professional privilege but if in the
course of a lawful search of a solicitors™ o¬ce, especially if the solicitor is himself
suspected of involvement, the o¬cer inadvertently seizes material which
includes items subject to legal privilege, the execution of the warrant is not
thereby rendered unlawful.

270
For criticism of the way the courts deal with the seizure of journalistic material see
R. Costigan, ˜Fleet Street Blues: Police Seizure of Journalists™ Material™, Criminal Law Review,
271 272
1996, pp. 231“9. [1989] AC 346. [1987] 3 All ER 1025.
273
See L. Alt, ˜Raids: Against the Law™, Solicitors™ Journal, 15 November 1991, p. 1248.
274
[1999] STC 1016 ,Div Ct.
230 Pre-trial criminal proceedings


Special procedure material
If the police seek evidence that is held in con¬dence but which is not excluded
material, they must go to a Circuit judge for permission to seek ˜special proce-
dure material™. The procedure is set out in Sch. 1 of PACE. This requires that the
judge be satis¬ed: (1) that there are reasonable grounds for thinking that an
indictable o¬ence (formerly a serious arrestable o¬ence)275 has been commit-
ted; (2) that there is ˜special procedure material™ on premises speci¬ed in the
police application; (3) that it is likely to be of substantial value to the investiga-
tion and that it is likely to be relevant evidence; (4) that other methods of
obtaining the material either have been tried or have not been tried because they
would be bound to fail and (5) that it is in the public interest that the material
should be produced having regard, on the one hand, to the bene¬t likely to
accrue to the investigation and, on the other, to the circumstances in which it is
held. Those are called ˜the ¬rst set of access conditions™. Alternatively, the appli-
cation can sometimes be made under the ˜second set of access conditions™.
These apply where pre-PACE the police had a statutory power to get a search
warrant to search for the material in question. The applicant must then merely
satisfy the court that the issue of a search warrant would have been appropri-
ate. Most applications are made under the ¬rst set of access conditions.
If satis¬ed, the judge orders the person who appears to be in possession of the
material to produce it to the police or to give them access to it within seven days
from the date of the order. The person against whom the order is sought must
normally be given due notice of the application so that he can appear to contest
the application. Once a person is served with an order to produce the material,
he must not conceal or destroy it. If he disobeys the order he can be dealt with
by proceedings for contempt but not normally by the issue of a search warrant.
Special procedure applications are frequently made, especially against banks
and other ¬nancial institutions.276 Usually they are uncontested.
In certain circumstances the police can ask the judge for a search warrant
instead of an order to produce and in that case the hearing is ex parte not inter
partes. One is where service of notice of the proceedings would seriously prej-
udice the investigation.
Terrorism cases The terrorism legislation (now the Terrorism Act 2000, Sch.
5, paras. 4“17) gives the police far wider powers to acquire protected informa-
tion. The judge must be satis¬ed that a terrorist investigation is underway, that
the material would be of substantial value to the investigation and that disclo-
sure would be in the public interest. The person thought to be in possession of
the material can be required to state where to the best of his knowledge and
belief it is. A production order under the legislation takes e¬ect notwithstand-
ing any restriction on disclosure or obligation of secrecy “ an obvious threat to

275
Changed by SOCPA, Sch. 7, para. 43(13).
276
K. Lidstone reported over 2,000 such applications in the three years between 1986 and 1989:
˜Entry, Search and Seizure™, 40 Northern Ireland Legal Quarterly, 1989, p. 333 at 342.
231 Getting the evidence


journalists who might have to disclose material and thereby endanger an infor-
mant, but material covered by legal professional privilege is protected.


Search warrants
PACE adopted recommendations made by the Philips Royal Commission on
Criminal Procedure regarding the procedure for getting a search warrant
(paras. 3.46“7). Section 15 provides that an application for a warrant must state
the grounds for making the application, the statutory authority covering the
claim and, in as much detail as possible,277 the object of the warrant and the
premises concerned. The Serious Organised Crime and Police Act 2005
(SOCPA) introduced a new concept of an ˜all premises warrant™ “ whereby the
warrant can be issued in respect of ˜any premises occupied or controlled by a
person speci¬ed in the application™.278 The application must be supported by
information in writing.279 The constable must answer any questions put by the
justice of the peace on oath. Hitherto each warrant could authorise only one
entry but under SOCPA the warrant can now authorise an unlimited number
of entries.280 The warrant must specify the name of the person applying for it,
the date of issue, the statutory power under which it is issued and, so far as pos-
sible, the articles sought and when the search is to take place. The Act also
requires a report to be made by the police to the issuing judicial authority
(s. 16(9)). If it is executed, it must be endorsed with a statement showing
whether the articles speci¬ed or any other articles were seized.
This must be made forthwith after the search. If the warrant is not executed
within three months (formerly one month)281 it must be returned at that point
(s. 16(10)).
The rules relating to the issue of search warrants must be seen in light of the
study by Ken Lidstone (p. 227 above) showing, at least in that study, the lax way
magistrates seem to exercise this power. Lidstone also argued that the police
were more likely to use their powers under PACE, ss. 32 (search after an arrest)
or 19 (general power of seizure of evidence found incidental to a lawful search)
than the power to get a search warrant. Since the police could normally get
access to and the right to search premises without having to get a search
warrant, they would presumably prefer that.
277
In IRC v. Rossminster Ltd [1980] 1 All ER 80 the Inland Revenue obtained a search warrant to
look for evidence of suspected tax fraud from the homes of two directors of Rossminster Ltd
and its o¬ces. Piles of documents were taken away for inspection. The House of Lords,
reversing the Court of Appeal, held that the warrant was su¬ciently detailed since it stated
that the search was for evidence of tax fraud. It was not necessary, and might be impossible, to
be more speci¬c before the documents had been examined. See also Reynolds v. Metropolitan
Police Commissioner [1984] 3 All ER 649.
278
SOCPA, s. 113(4) inserting new PACE, s. 8(1A) and s. 113(7) inserting new PACE, s. 15(2A).
279
This will continue under the new proceedure introduced by the Criminal Justice Act 2003,
s. 29 for issuing a requisition as recommended by Lord Justice Auld “ see p. 206 above.
280
SOCPA, s. 114(2) inserting new PACE, s. 8(1C) and (1D).
281
Changed by SOCPA, s. 114(8)(a).
232 Pre-trial criminal proceedings


Until 2006, it was English law that mere incompetence or negligence in apply-
ing for a search warrant did not give grounds for an action for damages.282
Improper motive was necessary.283 But in Keegan v. UK284 the European Court
of Human Rights held that it was a breach of Article 13 of the ECHR for courts
to require proof of malice in such cases. The police obtained a search warrant
in connection with armed robberies. The suspect had lived at that address pre-
viously but the existing tenants were completely unconnected and when they
moved in the premises had been unoccupied for over six months. In the Court
of Appeal, Lord Justice Kennedy said that if proper inquires had been made
there could have been no probable cause to link the suspected robber with the
premises. The Court of Appeal rejected the claim because there was no proof of
malice. The Strasbourg Court said that Article 8 was geared to ˜protecting
against abuse of power, however motivated or caused™. Where basic steps to
verify the factual basis of the warrant were not carried out, the resulting search
could not be proportionate.285
See also S. Sharpe, ˜Search Warrants: Due Process Protection or Process
Validation?™, 3 International Journal of Evidence and Proof, 1999, pp. 101“34. See
generally R. Stone, Entry, Search and Seizure (4th edn, Oxford, 2005).


Search by consent and executing a search warrant
The search of premises is regulated by Code B (22 pages).

Search by consent Traditionally the police often somehow managed to get the
owner of the place to be searched to consent to a search “ though the reality of
the consent must frequently have been questionable. This is now much more
di¬cult since Code B requires that, where it is proposed to search by consent
without a warrant or arrest, the police must, if it is practicable, get the occu-
pier™s consent in writing before the search (para. 5.1) and they must tell him that
he is not obliged to give such consent (para. 5.2).
Unless it is impracticable to do so, the police must also give the occupier a
Notice of Powers and Rights stating whether the search is under warrant or with
consent, explaining the rights of the occupier and the powers of the police (para.
6.7). If the person is not suspected of an o¬ence he should be told so (para. 5.2).

Search under warrant Where the occupier of the premises to be searched is pre-
sent, PACE requires that the constable identi¬es himself, produces a copy of the
warrant and gives him a copy (s. 16(5)). If he is not in uniform, the o¬cer must

282
Keegan v. Chief Constable of Merseyside Police [2003] EWCA Civ 936.
283 284
Gibbs v. Rea [1998] AC 786. Application No 28867/03 [2006] All ER (D) 235.
285
For commentary see P. Ferguson QC, ˜Malicious Intent™, 156 New Law Journal, 29 September
2006, p. 1464 and S. Simblet, Legal Action, December 2006, pp. 28“30.
286
Chief Constable of Thames Valley Police v. Hepburn [2002] EWCA Civ 1841, (2002) 147 Sol Jo
LB 59. The Court of Appeal increased damages of £600 awarded to H to £4,000 for arrest and
233 Getting the evidence


produce documentary evidence that he is a constable (s. 16(5)(a)). A warrant for
the search of premises does not legitimise a search of persons on the premises.286
An o¬cer executing a warrant may use such force as is reasonable but no more
than the minimum degree of force is to be used (Code B, para. 6.6). Searches must
be conducted ˜with due consideration for the property and privacy of the occu-
pier and with no more disturbance than necessary™ (para. 6.10). To have the media
in attendance during the execution of a search warrant, even if they do not enter
the premises, could be a breach of this provision. In R v. Marylebone Magistrates™
Court, ex p Amdrell Ltd, trading as ˜Get Stu¬ed™, and Robert and Pauline Sclare287 the
applicants sought judicial review of the magistrates™ decision to issue search war-
rants, inter alia, on the ground that the police had invited unauthorised persons,
namely the press, to attend. The application failed but Lord Justice Rose for the
Divisional Court said that save in exceptional circumstances ˜it does not seem to
me to be in the public interest that legitimate investigative procedures by the
police, such as the execution of search warrants, or, for that matter, the interview-
ing of suspects, which may involve the innocent and may not lead to prosecution
and trial should be accompanied by representatives of the media encouraged
immediately to publish what they have seen™. Such publication might lead to new
witnesses coming forward but it was far more likely ˜to impede proper investiga-
tion and cause unjusti¬able distress or harassment to those being investigated™.
The occupier must be allowed to have a friend, neighbour or other person to
witness the search unless the o¬cer reasonably believes that the presence of the
person asked for would seriously hinder the investigation or endanger o¬cers
or others (para. 6.11).
If the search is for special procedure material under Sch. 1 of the Act or the
Terrorism Act 2000, Sch. 5, the o¬cer should ask the occupier to produce the
material. He may also ask to see any index to ¬les and to inspect ¬les which
according to the index appear to contain any of the material sought, but a more
extensive search of the premises can only be made if access to the material is
refused, or it appears that the index is inaccurate or incomplete, or if ˜for any other
reason the o¬cer in charge of the search has reasonable grounds for believing that
such a search is necessary in order to ¬nd the material sought™ (para. 6.15).

Conduct of searches
It has been a fundamental rule for centuries that the police may not ransack a
person™s home looking generally for evidence against him. The common law
rule against ˜general warrants™ was laid down in 1765 in the great case of Entick
v. Carrington.288
Any lawful entry upon premises for the purposes of a search must always be
for a speci¬ed reason and the search must be consistent with that reason.

detention in a drugs bust of a pub. Drugs were found in the room in which he was held but
there had been no reasonable grounds to suspect him at the time of his arrest. He had not
been charged with any o¬ence arising from the event.
287 288
(1998)162 JP 719, [1998] NLJR 1230. (1765) 2 Wils 275.
234 Pre-trial criminal proceedings


PACE provides that ˜a search under warrant may only be a search to the
extent required for the purpose for which the warrant was issued™ (s. 16(8)).
This would obviously make unlawful a search under the ¬‚oor boards for stolen
refrigerators, but if the search was for drugs, such a search would presumably
be permitted. The same section also states that entry and search must be at a
reasonable time of day ˜unless it appears to the constable executing it that there
are grounds for suspecting that the purpose of a search may be frustrated on
an entry at a reasonable hour™ (s. 16(4)). Code B adds that a search under
warrant may not continue once the things speci¬ed in the warrant have been
found or the o¬cer in charge is satis¬ed that they are not there (paras. 6.9A
and 6.9B).


Telephone tapping, ˜bug and burgle™ and other surveillance by the
security agencies and police
Covert surveillance by the security service and the police is not new, but in
recent years it has come more to public attention as a result of two quite
di¬erent developments. One is the growth of technical means available for sur-
veillance. The other is the pressure to regularise such activities in light of the
privacy provisions of the European Convention on Human Rights. The tradi-
tional ways of handling the problem “ informal systems, unpublished non-
statutory guidelines and o¬cial nods and winks condoning plain illegality289 “
no longer pass muster. Nowadays, such activities have to be ˜in accordance with
the law™ if they are not to run foul of Article 8 of the ECHR which guarantees
everyone the right to respect for ˜his private life and family life, his home and
correspondence™. The UK™s record before the European Court of Human Rights
on this issue has not been a happy one.290
There have been ¬ve major recent pieces of legislation in this area: the
Interception of Communications Act 1985, the Security Service Act 1989 as
amended by a second Act of the same name passed in 1996, the Police Act 1997
and the Regulation of Investigatory Powers Act 2000.
The Interception of Communications Act 1985 This Act was passed to regu-
larise the position after the Strasbourg Court held the UK to be in breach of the
Convention because the tapping of Mr Malone™s telephone had no statutory
basis and was therefore not in ˜accordance with the law™ as required by Article
8. The Act made it an o¬ence to intercept a communication in the course of its
transmission by post or by means of a public telecommunication system unless
the Secretary of State had authorised such interception. Detailed provisions
were made to govern the issue, form, contents, duration and e¬ect of warrants
and to provide for access to a tribunal in case of complaints.

289
As described for instance in Spycatcher (1987), the celebrated international bestseller by
former MI5 o¬cer Peter Wright.
290
See Malone v. UK (1985) 7 EHRR14; Halford v. UK (1997) 24 EHRR 523.
235 Getting the evidence


The Security Service Acts 1989 and 1996291 MI5™s traditional role as de¬ned in
the Security Service Act 1989 (SSA) was to protect national security, especially
against threats from espionage, terrorism and sabotage from the activities of
agents of foreign powers ˜and from actions intended to overthrow or undermine
parliamentary democracy™ (s. 1(2)) and also ˜to safeguard the economic well-
being of the United Kingdom against threats posed by the actions or intentions
of persons outside the British Islands™ (s. 1(3)).
The SSA 1989 gave the Home Secretary the power to issue warrants for ˜the
taking of such action as is speci¬ed in the warrant in respect of any property so
speci¬ed™ “ namely entry of premises for the purpose of bugging.
As a result of the end of the Cold War, MI5 was looking for a new role “ and
employment for its sta¬ of about 2,000. In 1996, to this end, the Government
introduced a new Security Service Bill to amend the Security Service Act 1989
by extending MI5™s functions to ˜act in support of the prevention and detection
of serious crime™. In response to fears expressed by civil libertarians that this
would give MI5 a roving brief to act on its own, the Government amended the
Bill by clarifying that such actions could not be free-standing but had to be ˜in
support of the activities of police forces and other law enforcement agencies™.
The SSA 1996 also de¬ned the o¬ences in relation to which the Home
Secretary could issue such warrants. The de¬nition was broad “ conduct that
˜involves the use of violence, results in substantial ¬nancial gain or is conduct
by a large number of persons in pursuit of a common purpose™ or alternatively,
the o¬ence is one for which someone over twenty-one with no previous con-
victions could expect to get a term of three or more years™ imprisonment.292 The
minister assured the House of Commons that the SSA would only be used
against what the ordinary citizen would understand to be organised and serious
crime.293
The minister also stated that the Government intended to introduce legisla-
tion to regulate the position regarding police surveillance and bugging opera-
tions. He acknowledged that it was not satisfactory that the Security Service
should be subject to the requirement of getting a warrant for a bugging opera-
tion from the Home Secretary while the police could authorise it themselves.294
The Police Act 1997 (PA 1997) The Act provides that ˜no entry on or interfer-
ence with property or with wireless telegraphy shall be unlawful if it is autho-
rised by an authorisation™ under the Act (s. 92). Authorisation can only be given
if the authorising o¬cer believes that ˜it is likely to be of substantial value in the
prevention or detection of serious crime™ and that the objective cannot reason-
ably be achieved by other means (s. 93(2)). The de¬nition of serious crime is
the same as that quoted above from the SSA.


291
See on the Act P. Du¬y and M. Hunt, ˜Goodbye Entick v. Carrington: The Security Service Act
1996™, 2 European Human Rights Law Review, 1997, p. 11.
292
This de¬nition was taken from the Interception of Communications Act 1985.
293 294
House of Commons, Standing Committee A, 1 February 1996, col. 44. Ibid, col. 78.
236 Pre-trial criminal proceedings


Until the PA 1997, entry on premises by the ordinary police for the purpose
of bugging had been governed by unpublished guidelines issued by the Home
Secretary in 1984. Under the guidelines a chief constable or assistant chief con-
stable could authorise ˜encroachment on privacy™ through the use of surveil-
lance devices. Though not formally published, the guidelines were extensively
quoted by the Lord Chief Justice, Lord Taylor, giving the judgment of the Court
of Appeal in R v. Khan,295 a case that arose from the placing of a bug on the exte-
rior wall of a house which enabled the police to tape record a conversation
inside the house about drug smuggling.296
In the debates on the Bill a great deal of attention was focused on the ques-
tion of who would be entitled to authorise a bugging operation by the police
and in particular, whether and, if so, when the police would have to get approval
from someone external to the police service. The Act provides that authorisa-
tion must normally be obtained from the chief constable or, in an urgent case,
where this is not reasonably practicable, from an o¬cer of assistant chief con-
stable rank (ss. 93 and 94). It must be in writing, though in a case of urgency it
can be given orally but it lapses after seventy-two hours unless renewed in
writing (s. 95). Any authorisation must be noti¬ed as soon as practicable to the
Chief Commissioner appointed under the Act (s. 96). The authorisation
requires renewal after three months.
In certain circumstances the chief constable™s authorisation does not take
e¬ect until it also has the written approval of one of the Commissioners
appointed under the Act (s. 97(1)). The circumstances are where the property to
be bugged is used wholly or mainly as a private dwelling or as a bedroom in a
hotel or consists of o¬ce premises or the bugging is likely to involve (1) matters
subject to legal professional privilege297 (i.e. bugging of lawyers™ o¬ces); or (2)
con¬dential personal information;298 or (3) con¬dential journalistic material299
(s. 97(2)), but this requirement of prior approval from a Commissioner does not
apply when the chief constable believes the case is one of urgency. The
Commissioner must then be noti¬ed with reasons for the urgency as soon as
practicable and has the power to quash or cancel it (ss. 97(3) and 103(2)).
Commissioners under the Act must be persons who hold or have held high
judicial o¬ce (s. 91(2)).
The Act is accompanied by a Code of Practice on Intrusive Surveillance
setting out the detailed procedures to be followed. The Code requires the autho-
rising o¬cer to ˜satisfy him/herself that the degree of intrusion into the privacy
of those a¬ected by the surveillance is commensurate with the seriousness of the
o¬ence™ (para. 2.3). It says that this is ˜the case where the subjects of the sur-
veillance might reasonably assume a high degree of privacy, for instance in their
homes, or where there are special sensitivities, such as where the intrusion
might a¬ect communications between a minister of any religion or faith and an

295 296
[1994] 4 All ER 426 at 430“1. See also R v. Chalkley [1998] 2 All ER 155 at 161.
297 298 299
See s. 98. See s. 99. See s. 100.
237 Getting the evidence


individual relating to that individual™s spiritual welfare or where medical or
journalistic con¬dentiality or legal privilege could be a¬ected™ or where con¬-
dential social security records are involved.
The Home O¬ce press release issued when the Code of Practice was
laid before Parliament stated that it was estimated that in 1996 there were
some 2,550 chief o¬cer authorisations by the police and customs throughout
the United Kingdom. The majority related to the use of tracking devices on
vehicles.
Part III of the Act only covers equipment whose placement may cause an act
of trespass, criminal damage or interference with wireless telegraphy “ for
example, bugging devices in a home, a covert video camera in a hotel room and
an electronic tracking device attached to a vehicle. It does not cover long-
distance microphones or equipment based on laser beam or microwave tech-
nology whose use does not involve interference with property. It also does not
apply where the police are acting with the consent ˜of a person able to give per-
mission in respect of relevant property™ (Code, para. 2.1). This could raise
di¬cult questions, for instance, in a landlord“tenant case as to who can give
such consent, but presumably an employer could agree to an employee being
bugged. The bugging of police cells would always have the approval of the police
and would not require the approval of a Commissioner.
The 1984 Home O¬ce guidelines continue to apply to any surveillance oper-
ations not covered by the PA 1997.
See further M. Colvin, ˜Part III Police Act 1997™, 149 New Law Journal, 26
February 1999, p. 311 and S. Uglow, ˜Covert Surveillance and the European
Convention on Human Rights™, Criminal Law Review, 1999, pp. 287 and 296.
The Regulation of Investigatory Powers Act 2000 (RIPA 2000)300 Prior to the
2000 Act, the UK had no system of statutory or judicial controls on undercover
investigations.301 In so far as there was any regulation it was in the form, again,
of semi-published guidelines (¬rst issued in 1969302 and reissued by the
Association of Chief Police O¬cers (ACPO) in 1999).303
RIPA 2000 puts onto a statutory basis, inter alia, ˜directed surveillance™,304
˜covert human intelligence™ i.e. the use of informers and ˜intrusive surveillance™
in residential premises or private vehicles including ˜(a) monitoring, observing
or listening to persons, their movement, their conversations or their other
activities or communications; (b) recording anything monitored, observed or

300
For the background to the Act see the Government™s consultation paper Interception of
Communications in the United Kingdom, Cm. 4368, 1999.
301
For the history leading to the 2000 Act see Lord Bingham™s speech in Attorney General™s
Reference(No 5 of 2002) [2004] UKHL 40, [2004] 4 All ER 901 at 905“11.
302
Home O¬ce Circular 97/1969 set out in New Law Journal, 1969, p. 513.
303
They were on the National Criminal Intelligence Service (NCIS) Website “ www.ncis.co.uk
but are now subsumed in the Code under the RIPA 2000.
304
De¬ned as surveillance ˜undertaken (a) for the purpose of a speci¬c investigation; and (b) in
order to obtain information about or to determine who is involved in the matter under
investigation™ (s. 26(2)).
238 Pre-trial criminal proceedings


listened to in the course of surveillance; and (c) surveillance by or with the assis-
tance of a surveillance device™.
However, the ˜bug and burgle™ provisions of the PA 1997 (above) remain in
being. The provisions of RIPA 2000, ss. 32“40 apply with regard to the surveil-
lance of private property that does not require the physical placing of a device
in or on the property. If the activity involves physical trespass on the property,
the PA 1997 governs. The 2000 Act applies to private, but not to public, tele-
phone or telecommunication systems.305
The authorising o¬cer, designated in the legislation, has to be satis¬ed the
authorised surveillance is proportionate and necessary. Authorisation of
˜directed surveillance™ and of ˜covert human intelligence sources™ requires only
internal oversight which could be from the organisations carrying out the
surveillance (ss. 28 and 29). For the police it is normally at superintendent
level.
Authorisation of ˜intrusive surveillance™ is more narrowly restricted, requir-
ing the decision of the Home Secretary or of one ˜of the senior authorising
o¬cers™. Senior authorising o¬cers for the police are chief constables (s. 32).
(In cases that are urgent authorisation can be obtained from an Assistant Chief
Constable.) However, even when such authority has been obtained, the further
step is required of notifying the Surveillance Commissioner306 who must
decide whether to approve the authorisation based on a consideration of the
relevant grounds and the issue of proportionality (s. 35). The authorisation
only takes e¬ect when approved in writing by the Surveillance Commissioner
(s. 36).
It should be noted that RIPA 2000 does not impose a duty to obtain authori-
sation nor does it make unauthorised activity unlawful. If the activity was lawful
before the passage of the Act it remains lawful even if it is not authorised under
RIPA 2000 (s. 80). What it does do is to make lawful activities that have been
authorised which would otherwise be unlawful.
It should also be noted that the fact that evidence has been obtained by means
that are unlawful does not mean that it will necessarily be held to be inadmissi-
ble (as to which see pp. 477“78 below).
See further Y. Akdeniz, N. Taylor and C. Walker, ˜Regulation of Investigatory
Powers Act 2000 : Bigbrother.gov.uk: State Surveillance in the Age of
Information and Rights™, Criminal Law Review, 2001, pp. 73“90; E. Cape, ˜The
Right to Privacy “ RIP™, Legal Action, January 2001, pp. 21“3; D. Ormerod and
S. McKay, ˜Telephone Intercepts and their Admissibility™, Criminal Law Review,
2004, pp. 15“38.

305
Attorney General™s Reference (No 5 of 2002) “ n. 294 above. The case related to a private system
installed in a police station. See discussion in the commentary on the case in Criminal Law
Review, 2005, pp. 222“4.
306
The Chief Surveillance Commissioner is the same Commissioner appointed under s. 91 of the
Police Act 1997. RIPA 2000, s. 62 states that his duties cover intrusive surveillance under both
Acts.
239 Getting the evidence


Seizure of evidence
The law of seizure is closely related to, but separate from, the law of search.
Traditionally, the common law required that search be by warrant and that the
warrant be particular and faithfully followed. Thus, as already seen, in Entick v.
Carrington307 it was held that the police could not ransack a man™s house on a
general warrant looking for evidence of a crime. In Price v. Messenger308 it was
said that a constable who ¬nds goods while searching under a warrant, which
are not covered by the warrant, commits a trespass by seizing them.
However, in the late 1960s and the 1970s the common law on this crucial
topic considerably modi¬ed the strict rule. Since the topic is now governed by
PACE and the common law is therefore no longer of practical importance it is
no longer covered in this work.309

The Philips Royal Commission
The Philips Royal Commission dealt with the problem posed by seizure of evi-
dence not covered by the search warrant. It did not think it realistic to restrict
lawful seizure to prohibited articles or evidence speci¬ed in the warrant. (˜It
de¬es common sense to expect the police not to seize such items incidentally
found during the course of a search™ (para. 3.48).) It proposed that the police
should be permitted to seize evidence of a grave o¬ence which they ¬nd inci-
dentally in the course of a lawful search (para. 3.49).

PACE
The Government went somewhat beyond this recommendation. Section 19 of
PACE gives the police power to seize articles where a search is carried out law-
fully either with the consent of the occupier or under any statutory power. The
article may be seized if the o¬cer reasonably believes that it is evidence in rela-
tion to an o¬ence which he is investigating or any other o¬ence or that it has been
obtained in consequence of the commission of an o¬ence and that it is neces-
sary to seize it in order to prevent its concealment, loss or destruction. The only
articles exempted are those covered by legal professional privilege (s. 19(6)) and
even they may be seized under the new power to ˜seize and sift™ (below). It is
immaterial whether an arrest has or has not taken place and equally whether the
occupier is suspected of any involvement in criminal activity.
An article may be held for use as evidence at the trial, for forensic examina-
tion or, where it appears to be stolen, for restoration to its lawful owner
(s. 22(2)). If requested by the occupier or the person having possession of the

307 308
(1765) 2 Wils 275. (1800) 2 Bos & P 158.
309
For the relevant common law decisions see Elias v. Pasmore [1934] 2 KB 164; Chic Fashions
(West Wales) Ltd v. Jones [1968] 2 QB 299; Ghani v. Jones [1969] 3 All ER 1700; Gar¬nkel v.
Metropolitan Police Commissioner [1972] Crim LR 44; Frank Truman Export Ltd v.
Metropolitan Police Commissioner [1977] 3 All ER 431. See also R v. Water¬eld, R v. Lynn
[1964] 1 QB 164; Je¬rey v. Black [1978] 1 All ER 555 and McLorie v. Oxford [1982] QB 1290.
240 Pre-trial criminal proceedings


article, the police must give that person a record of what was seized (s. 21(1))
or a photocopy or photographs of items seized (s. 21(3)). Alternatively, the
o¬cer should be prepared to grant access, under supervision, to the items in
question (s. 21(3)), but neither photographs, nor photocopies nor access need
be granted if ˜the o¬cer in charge of the investigation has reasonable grounds
for believing that to do so would prejudice the investigation™ (s. 21(8)).
Power to ˜seize and sift™ In R v. Chester¬eld Justices, ex p Bramley310 the
Divisional Court held that the police could not lawfully take away material that
included items covered by legal professional privilege in order to sift and sort
them at leisure at police premises. If such material was taken it had to be
returned immediately and damages might have to be paid. The Government
moved swiftly to change this. The Criminal Justice and Police Act 2001311 gives
the police a power to remove material for the purpose of sifting it elsewhere
where it is not practicable to examine it on the spot. The power applies not only
to seizure under PACE but to other legislation covering law enforcement agen-
cies. The Police Reform Act 2002 extended the power to civilian investigating
o¬cers.
Having sifted the material, they can retain only what they are permitted to
seize under the previous seizure powers “ though they can hold on to ˜inextri-
cably linked material™ that cannot be separated. Anyone with a su¬cient inter-
est in the material being held can apply to a High Court judge for its return. (For
the Code B provisions, see s. 7(b).)


The power to freeze the suspect™s assets
A new development in the law in recent years has been the power to freeze assets
of a defendant prior to a trial. It is similar to developments in civil procedure,
especially of ˜freezing orders™ (formerly Mareva injunctions) (p. 102 above).
The ¬rst step was taken in West Mercia Constabulary v. Wagener 312 where the
police used civil process to seize and preserve property of a suspect. The High
Court judge granted the police an injunction to restrain the alleged proceeds of
fraud from being withdrawn from a bank account. The court said that since
magistrates could not issue a search warrant to deal with proceeds of an alleged
crime held in a bank account, the High Court would ¬ll the gap. The new power
was applied by the Court of Appeal in Chief Constable of Kent v. V313 even though
the alleged proceeds of crime had been mingled with the defendant™s own
moneys.314
310
[2000] 1 All ER 411.
311
CJPA 2001, ss. 50“66 and Schs. 1 and 2. See also Code B, paras. 7.7“7.12.
312 313
[1981] 3 All ER 378. [1982] 3 All ER 36.
314
Cf Chief Constable of Hampshire v. A Ltd [1984] 2 All ER 385 where the mingling of the alleged
proceeds of crime with other moneys proved fatal to the police request for the same
injunction. See similarly Chief Constable of Leicestershire v. M [1988] 3 All ER 1015 per
Ho¬mann J holding that the proceeds of crime could not be the subject of an interlocutory
injunction. In A-G v. Blake [1998] 1 All ER 833 the Court of Appeal granted the Crown an
241 The prosecution process


The common law power to freeze the defendant™s assets was supplemented
by the Drug Tra¬cking O¬ences Act 1986 (DTOA). The basic scheme of
the DTOA was to give the court powers to freeze property or assets, whether
in the hands of a defendant or a third party, which might subsequently
be needed to satisfy the con¬scation order for which the Act made provision.
(Under the DTOA the court was required to make a con¬scation order on
every person convicted of a drug tra¬cking o¬ence who had received any
payment or reward in connection with drug tra¬cking at any time. The
requirement was mandatory. The con¬scation order was in addition to any
sentence including a ¬ne. The amount was the amount assessed by the
court to be the full value of the o¬ender™s drug tra¬cking activities. For
this purpose the court could assume that, unless the contrary was shown, all
the o¬ender™s assets, plus any assets he had had in the previous six years,
represented the proceeds of drug tra¬cking.) Similar powers under Part VI
of the Criminal Justice Act 1988, by contrast, applied only to o¬ences
where the court was satis¬ed that the proceeds of the crime were more than
£10,000.
The power to con¬scate the proceeds of crime was greatly expanded by the
Proceeds of Crime Act 1995. The relevant powers are now to be found in the
Proceeds of Crime Act 2002. They are not restricted to cases where the proceeds
are more than £10,000.
The Proceeds of Crime Act provides extraordinary ancillary civil powers
which permit the High Court to make a restraint order preventing any dealing
with the defendant™s assets. Such an order is similar to a ˜freezing order™
and the prosecutor is given priority over unsecured creditors. The High
Court can make disclosure orders requiring disclosure by a¬davit of the
nature and extent of assets. It can also make receivership orders to manage
assets or realise them to enforce payment of a con¬scation order made by the
Crown Court.315


7. The prosecution process

The police have a wide discretion
The police have a major ¬eld of discretion in deciding whether and how to
respond to criminal conduct. A former police o¬cer turned journalist
described once how he had walked from Waterloo Station to Holborn in order
to see how many criminal o¬ences he could identify:

injunction to stop the notorious spy, George Blake, from receiving royalties from his
autobiography. It was held to be part of the court™s support for the criminal law
to enforce public policy by restraining receipt by the criminal of further bene¬t from his crime.
315
On the 1995 Act see K. Talbot, ˜The Proceeds of Crime Act 1995™, New Law Journal, 15
December 1995, p. 1857 and K. Rees, ˜Con¬scating the Proceeds of Crime™, New Law Journal,
6 September 1996, p. 1270.
242 Pre-trial criminal proceedings


C.R. Rolph, ˜Police Discretion™, New Statesman, 2 February 1969
I got the following bag:

• A girl feeding the pigeons inside Waterloo Station.
• Two cars with expired Excise Licences.
• Three cars with none at all.

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