Current project status
The current status of this project is: Complete.
List of project stages:
- Analysis of responses
- Initiation: Could include discussing scope and terms of reference with lead Government Department
- Pre-consultation: Could include approaching interest groups and specialists, producing scoping and issues papers, finalising terms of project
- Consultation: Likely to include consultation events and paper, making provisional proposals for comment
- Policy development: Will include analysis of consultation responses. Could include further issues papers and consultation on draft Bill
- Reported: Usually recommendations for law reform but can be advice to government, scoping report or other recommendations
This project has concluded.
A search warrant is a written authorisation that allows an investigator to enter premises to search for material or individuals. Search warrants are usually issued by a court following an application by a police officer or other investigator. Most search warrants authorise the investigator to seize and retain relevant material found during the search.
Around 40,000 search warrants are issued in England and Wales every year. There are over 175 different powers to issue search warrants. Some, like the general power under section 8 of the Police and Criminal Evidence Act 1984 (“PACE”), are used to look for evidence of a criminal offence. Some more specific powers allow the searcher to remove stolen goods, drugs, firearms or other dangerous materials, or to rescue people or animals in danger or distress. Other powers relate to complex financial or specialised investigations.
A number of issues have been identified with the current law, including:
- Errors: A 2016 review by the National Crime Agency found that 79% of investigations had defective warrants (of which 8% had significant deficiencies). Operation Midland is a high-profile example, in which six search warrants were obtained following false allegations made relating to historic child sexual abuse.
- Inefficiency: It has taken police forces on occasion three weeks to obtain a search warrant, during which time evidence might have been lost and further crimes committed.
- Insufficient powers: Law enforcement agencies do not have effective powers to obtain electronic evidence, such as indecent images of children, which might be stored on remote servers in an unknown jurisdiction. Being able to obtain this material is vital for the successful investigation and prosecution of serious criminal offences.
- Inadequate safeguards: There is currently not enough protection for individuals whose electronic devices are seized (such devices could contain data including personal information which is irrelevant to the investigation). Safeguards also vary depending on the type of warrant issued, resulting in some individuals having fewer statutory protections than others.
The Home Office invited the Law Commission to conduct a review to identify and address pressing problems with the law governing search warrants, and to produce proposals for reform which would clarify and rationalise the law. Work began on the project in January 2017.
The Law Commission published a consultation paper on 5 June 2018. This marked the beginning of a three-month public consultation period, ending on 5 September 2018. During the consultation, we engaged in a number of events with stakeholders and received 47 responses to the paper.
With the kind assistance of several stakeholders, we undertook several activities to assist in understanding the practical side of search warrants. We spent time with Staffordshire Police, who gave us operational insight into applying for and executing search warrants. This included accompanying constables during the execution of a search warrant. We attended the offices of Privacy International, who demonstrated to us first-hand the capability of mobile phone extraction tools and the quantity of data that they can extract. We also attended a number of court hearings that concerned the treatment of material seized following the execution of a search warrant.
An analysis of the responses to the consultation paper, and the experiences gained, has led to the recommendations contained in our final report.
In our final report, laid before Parliament on 7 October 2020, the Law Commission has made 64 recommendations. These aim to make the law simpler, fairer, more modern and efficient and to strike a balance between effectively investigating crime whilst strengthening safeguards for those being investigated.
The key recommendations include:
- Strengthened law enforcement powers: We make a number of recommendations to give law enforcement agencies the powers they need to investigate crime successfully. These include:
- Updating law enforcement powers so that they more clearly apply to electronic devices and data and allow digital evidence to be seized and copied effectively. We discuss this further below.
- The expansion of “multiple entry warrants” which would allow for a property to be searched on multiple occasions and “all premises warrants” which would allow all premises occupied or controlled by a specified person to be searched.
- Permitting a police constable to search a person found on premises under the authority of a search warrant issued under PACE.
- Giving the Insolvency Service and NHS Counter Fraud Authorities in England and Wales the ability to apply for and execute search warrants. The National Health Service (“NHS”) is estimated to be vulnerable to £1.21 billion worth of fraud each year. However, they currently are unable to apply for a search warrant (and are therefore to some extent reliant the cooperation of the police), which may complicate the effective investigation of fraud.
- Improved process: The Law Commission is also making a series of recommendations that would improve procedural efficiency, reduce the scope for serious errors and ensure that the issuing authority, a magistrate or judge, is presented with an accurate and complete picture of the investigation.
- We make a host of recommendations to ensure that the duty of an applicant to provide full and frank disclosure to the court is properly adhered to.
- We make recommendations relating to warrant forms, including the introduction of standardised entry warrant application forms and a template for entry warrants. Currently, law enforcement agencies must modify search warrant forms and templates when applying for entry warrants, which increases the risk that errors will be made.
- We also conclude that an online search warrants application portal would bring a host of benefits, and therefore recommend that Her Majesty’s Courts and Tribunals Service (HMCTS) consider the practicability of designing and implementing such a facility.
- We make a series of recommendations relating to how search warrant applications are heard in order to improve efficiency and make sure that there is adequate judicial oversight.
- Electronic evidence and materials: Digital devices increasingly provide evidence in criminal trials, yet the legal framework that currently governs the search and seizure of electronic material is no longer adequate and reform is needed. Our recommendations would facilitate the effective collection and prompt examination of electronic material in a way which does not inhibit criminal investigations or impose unreasonable demands on law enforcement agencies.
- We recommend that warrants allow for electronic devices to be searched and data to be copied while on the premises – and that the Government should consider whether this should include data stored remotely (even if in another jurisdiction).
- We have also recommended safeguards to ensure transparency, accountability and limit the interference with property and privacy rights. These would ensure that unneeded data is swiftly deleted, and devices returned as soon as is practical.
- The problems relating to electronic material transcend search warrants. We therefore recommend a wider review of the law governing the acquisition and treatment of electronic material in criminal investigations.
- Safeguards: Reforming the safeguards that must be followed when applying for and executing a search warrant.
- This includes ensuring that non-police investigators, such as members of the Serious Fraud Office, are subject to similar safeguards as the police.
- Our amendments will also clarify when and in what form a search warrant must be provided to an occupier, and state that an occupier has a right to ask for a legal representative to be present to observe the execution of a warrant.
- We are also recommending the introduction of a statutory requirement for law enforcement agencies executing search warrants to provide an occupier with a notice of powers and their rights.
- Personal records and journalistic material: In relation to personal records and confidential journalistic material, we conclude that they should remain obtainable under PACE in very limited circumstances. We recommend that the Government considers whether the law governing access to these categories of material under PACE strikes the right balance between the competing interests at play, and whether the law ought to be reformed.
It is now time for the Government to review and consider the recommendations in our final report. We await an interim response.
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Area of law
Professor Penney Lewis