Powers to enter premises

The series continues with an introduction to police powers to enter and search premises.

At common law the Englishman’s ‘home was his castle’. In the 17th Century justices began to grant warrants to enter premises and search for stolen goods. Increasingly statutory powers of entry were granted, and there are now a range of entry and search powers available to investigators.

Nowadays safeguards are provided against the abuse of power. These are largely contained in PACE and the Code of Practice for the searching of premises by Police Officers and the seizure of Property found by Police Officers on Persons or Premises (Code B). In addition to PACE there are a number of other statutory powers, many of which are regulated by Code B. The exercise of a power of entry, search and seizure will always trigger issues under Art 8 and must be justified under Art 8 (2). Independent judicial scrutiny is an important element in considering whether the conditions in Art 8 (2) are satisfied. On this see R v Chesterfield Justices, ex p Bramley and Feldman (2002).

It is to be noted that a breach of Art 8 will not, of itself, result in exclusion of evidence (R v Khan (1997)).

Recognition of human rights principles is built into Code B for the first time, at Para 1.3 as follows:

“Powers of entry, search and seizure should be fully and clearly justified before use because they may significantly interfere with the occupier’s privacy. Officers should consider if the necessary objectives can be met by less intrusive means.”

Para 1.5 reminds investigators that if the Code and Act are not complied with, evidence gained may be ‘open to question’.

Part II of the PACE Act (Part III of the PACE (NI) Order) deals with the powers and procedures whereby the police and civilians designated under the Police Reform Act 2002 may, first, enter and search premises and, second, seize and retain property discovered during a search of premises.

The Act (Order) codifies much of the earlier statutory and common law, and implements some of the recommendations of the Royal Commission on Criminal Procedure (1981) (Cmnd 8092). The passage of the Act through Parliament was dominated by discussion of the favourable treatment accorded to certain confidential information (eg medical records, journalistic material). The following preliminary points should be noted:

(a) Part II of the Act (Part III of the Order) deals with the powers of a constable and designated civilians;

(b) It is in part without prejudice to earlier powers (eg various statutes permitting the issue of search warrants are preserved);

(c) As elsewhere, Part II (Part III of the Order) must be read in conjunction with the Code of Practice B, for the latter arguably includes items of sufficient importance to have merited inclusion within the former;

(d) The broad powers of seizure in S19 (Art 21) accompany all powers of search contained in this or any other statute and consensual searches, but are dealt with separately at Para 4.44, post.

Part II (Part III of the Order) deals with powers of entry and search in relation to premises, and ‘premises’ are given an extended meaning.

Throughout the Act (Order), and with particular relevance to this chapter, ‘premises’ are defined very widely. They include ‘any place’. This can be of a private or public nature and open or enclosed and, somewhat incongruously, vehicles, vessels, aircraft, hovercraft, tents and other movable structures are specifically mentioned as examples in S23 (Art 25). Thus, a garden, a forecourt, a public registry office, a car in a garage, a bicycle, a houseboat, a caravan and a workmen’s tent are included. As to limitations, a Canadian court in Re Laporte and R (1972) has held that a person’s body cannot fall within the word ‘place’ and, whilst an English court is likely to follow suit, it is difficult to imagine what else cannot be counted as premises, especially since S23 (Art 25) does not offer an exhaustive definition. The word ‘place’ arose for consideration in Powell v Kempton Park Racecourse Co Lt