Warrants and the Police
Three cases this year (1992) have highlighted possible pitfalls in the execution of warrants. The first concerns s.9(1) of PACE Act 1984; the second the Police Property Act 1897; and the third a search warrant.
The case of R v Central Criminal Court, ex parte AJD Holdings, (1992) The Times, 24 February, concerned the issue of a search warrant by the Central Criminal Court under s.9(1) of Sched 1 to the PACE Act 1984.
In ordering the documents seized by the British Transport Police to be returned and quashing the search warrant, the Queen's Bench Divisional Court said a power to search was a necessary but draconian power. The safeguards provided by ss 15 and 16 of the PACE Act 1984 were therefore stringent in their effect.
The following important principles were emphasised by the court:
a It is important for police officers to consider carefully the practical steps concerning the application for a search warrant so as not to risk rendering the search unlawful and thereby frustrate an otherwise legitimate attempt to investigate crime;
b The application should make clear that the material sought related to the crime under investigation;
c At the application stage it was generally desirable that a written note should be made of everything said in support of the application, as questions might arise as to what the Judge had said if the lawfulness of the search was later questioned;
d There should be careful briefing of the officers who were to execute the search warrant, including details of how the material might be thought to relate to the crime under investigation.;
e The officer in charge of the search team needed to choose his team with care and ensure that both the extent of the limits of the search and seizure operation were fully understood.
f An error made by the team, albeit honestly made, which led to an unlawful seizure, might because of s.16(2) render the whole execution of the warrant unlawful.
In Chief Constable of the West Midlands Police v White (1992) The Times, 25 March, police had raided a licensed premises with a warrant issued under the Licensing Act 1964. They seized a quantity of intoxicating liquor and £1,268.16 found on the premises. White subsequently pleaded guilty to offences under the 1964 Act: he was sentenced to a conditional discharge and an order was made for all liquor found to be forfeited. The justices made no order in respect of the money.
Under s.1 Police Property Act 1897, where property has come into the possession of police in connection with their investigation of a suspected offence, a court of summary jurisdiction may, on application by a police officer make an order for the delivery of the property to the person appearing to the magistrate or court to be the owner thereof, or, if the owner cannot be ascertained, make such order with respect to the property as they think fit.
The police applied for an order under s.1, for an order as to the owner of the money. The stipendiary magistrate found that the money was the proceeds of the sale of alcohol and non-alcoholic liquor, and that White was "the owner" of the money even though the sale involved was illegal and the contracts of sale void and unenforceable. Under the Police Property Act justices are discouraged from using the procedure in cases which involve a real issue of law or any real difficulty in determining whether a particular person is or is not the owner. The term "owner" is to be given its ordinary popular meaning.
Dismissing the appeal, the Judge said that there was no power under the warrant to seize and retain the money; the statutory power was confined to the seizure and removal of intoxicating liquor and the vessels containing such liquor.
The police were justified in retaining the money for the limited purpose of establishing the lawful owner and having retained it, they were entitled to apply under s.1 of the 1879 Act. The power of the court to make an order was expressly preserved by s.22(5) of the PACE Act 1984.
A submission that it would be contrary to public policy to allow White to retain the money also failed. If Parliament had intended that money found on unlicensed premise should be confiscated, provision to that end would have been made in the 1964 Act. It could not be said that the owners of the money were the purchasers of the liquor since they could in no circumstances claim any right of interest, or for that matter be identified.
In R v Chief Constable of Lancashire,ex parte Parker & McGrath (1992) The Times, 8 April, warrants to search the homes of Parker & McGrath had been issued to the Lancashire police. These warrants had consisted of an authorisation and schedule listing the items being sought. Unfortunately at the time of execution a photocopy of the schedule was attached to the original authorisation and the Parker & McGrath were supplied with a copy of the authorisation which did not have a copy of the schedule attached to it.
S.22 of the PACE Act 1984 states that anything which has been seized by a constable or taken away by a constable following a requirement made by virtue of s.19 or 20 (seizure of property or computerised information) may be retained as long as is necessary in all the circumstances. The reasons as given are: to use as evidence or, for forensic examination or, investigation re a criminal offence.
S.15(7) & (8) of PACE Act 1984 required that two copies be made of a warrant which should be clearly certified as copies: this was the courts responsibility. The net result was a breach of s.16(5)(c),- a copy to be supplied to the occupier. The Chief Constable accepted this but argued that the replacement of the original schedule by a photocopy had been authorised by the Judge. That would not do: when the Act referred to a warrant issued by a Judge it meant the whole of the original document seen and approved by him.
The Chief Constable had argued that even though the entry and search were unlawful he was entitled to retain the documents and other material which he had seized. The searches were purportedly made under the authority of warrants issued under paragraph 12 of Schedule 1 of the PACE Act 1984, the power to seize and retain being under paragraph 13. The only authority invoked by the police was under paragraph 13, consequently the entries, searches and seizures were unlawful, so depriving the police of any authority under schedule 13 to retain any of the material.
Defence counsel relied however on s.22(2)(a) which he submitted, was designed to authorise the retention by the police of material which had come into their hands by unlawful means. He referred to R v Sang [1980] AC 402, and s.78 PACE Act 1984, discussing evidence obtained by unlawful means. The Court rejected that argument; neither Sang nor s.78 provided support for the proposition that the police had a right to retain unlawfully seized material as against its owner for use as evidence. Such a right could only be conferred by express statutory language.
Rob Jerrard