When search warrants go wrong
Police will often need to search premises to find wanted persons or property and material related to crimes like stolen property, drugs, firearms and evidence of serious offences. There are several powers under which the police can enter and search your premises, be it your home or your business. The first is with your consent. The second is a set of powers arising out of the arrest of you or someone else linked with your property. The third is under a search warrant. There are separate powers under terrorism legislation.
Search warrants are generally used when there is less urgency, the police do not want to tip you off beforehand, they cannot use their other search powers, and/or they are not in a position to make an arrest. They can only be granted by a Justice of the Peace sitting in a magistrates' court, following a written application by a police officer.
A search of your home, especially if carried out as part of a raid and when force is used, will often be intrusive and traumatic, all the more so if children are present. A search of your business can be disruptive and damaging to your business' reputation, and crucial items may be seized and kept for considerable periods. To make sure that the power to enter and search a property under a warrant is not abused, it is subject to safeguards at all stages. These are set out in Code of Practice B issued under the Police and Criminal Evidence Act 1984 ('PACE') and include the following:
- Diligence and care in preparing the application, including ascertaining as specifically as possible details of any articles and occupiers in question and providing the Justice of the Peace with any information which undermines the application.
- The inclusion of certain specific details on the application, including the object of the search and the grounds for the application.
- Searches must be carried out within three months of the date the warrant was issued.
- Only the specific premises identified in the warrant as issued by the Justice of the Peace may be searched.
- Searches must be made at a reasonable hour unless this might frustrate the purpose of the search.
- Additional authorisation for repeated searches under the same warrant
- Requesting entry by consent first, subject to certain exceptions.
- Identification of the officers and explanation of the purpose and grounds of the search.
- Use of reasonable and proportionate force to enter only if it is if necessary on certain grounds.
- Giving the occupier a copy of the warrant and a notice explaining the procedure and their rights, unless it is impracticable to do so, or if they are not there, leaving the documents in a prominent place.
- The warrant must be endorsed with the necessary details.
- A search may be conduct only to the extent necessary to achieve the purpose of the search, and may not continue after the items specified in the warrant have been found or the officer in charge is satisfied that they are not there.
- Searches must be conducted with due consideration for the property and privacy of the occupier and with no more disturbance than necessary.
- Reasonable force may be used only when necessary and proportionate because the co-operation of the occupier cannot be obtained or is insufficient for the purpose.
- A friend, neighbour or other person must be allowed to witness the search if the occupier wishes unless the officer in charge of the search has reasonable grounds for believing the presence of the person asked for would seriously hinder the investigation or endanger officers or other people, or there would be unreasonable delay.
- Any questioning beyond that which is solely necessary for the purpose of furthering the search must meet the additional safeguards in place for police interviews.
- Premises entered by force must be left secure.
If the police do not follow the proper procedures but then decide to charge you with a crime, it may be that all or part of any evidence obtained should not be relied on in a criminal prosecution. This is something our Criminal Defence Team can advise you on.
Whether or not a search ends in a charge, it may be that you can bring a civil claim against the police to hold them accountable for any wrongdoing. The right to private and family life, including your home, is protected under Article 8 of the European Convention on Human Rights and enshrined in our national law under the Human Rights Act 1998. A defective search warrant or failure to follow key safeguards may make all or part of the entry and search unlawful and therefore a trespass to property which can be pursued in the civil courts. You may also have a claim for malicious procurement of a search warrant. If the police use force against you during a search which is unnecessary or excessive, or if the search was in fact unlawful, this will be an assault. The police are also not allowed to discriminate against you and must make reasonable adjustments if you have a disability.
If you are concerned that the police may have broken the rules around search warrants and you have suffered as a result, our Civil Liberties Team can advise you on the range of options open to you. Apart from a civil claim for damages and a finding of wrongdoing, you may be able to challenge the lawfulness of a search warrant by judicial review and have it quashed. We can also advise you on making a complaint to the police or the IOPC (Independent Office for Police Conduct) to ask for an investigation into what went wrong and whether individual officers should be held to account. We can also advise you on your options if you have suffered as a result of searches carried out by other public bodies, such as the Home Office under immigration powers or the HMRC when investigating tax-related crime. If you are financially eligible, legal aid may be available to fund the costs.
Contact Saunders Law Solicitors London
We have successfully represented clients who have found themselves in situations where the police or Home Office have abused their search powers, or simply made a mistake which has nevertheless had far-reaching consequences for our clients. There are strict deadlines for bringing claims related to search warrants, so if you have been affected contact us today to see whether we can help.