Post-arrest powers of search

In this edition I will discuss the powers available to search premises following arrest for an indictable offence (S18, Police and Criminal Evidence Act 1984) and contrast the power with the Section 32 power to search premises.

Where a person has been arrested away from his home, for example, at a police station, it will often be necessary for the police to enter and search his premises for evidence of the offence. At common law the legality of searches after arrest was, however, open to doubt but the police carried out such searches relying on consent, bluff and ignorance of the law. In McLorie v Oxford (1982) the Divisional Court resolved the doubts and held that, once a person has been arrested away from his premises, the police have no common law power subsequently to search the premises. Section 18 reversed this decision and restored the position to what the police in practice believed it to be.

The power of search under S18 is available where a person has been arrested for an indictable offence and extends to premises which are ‘occupied or controlled’ by that person. There is no room for ‘reasonable belief’ here (the premises must in fact be ‘occupied or controlled’ by the suspect) and, lest the suspect gives a false address, the police should seek to confirm the occupation or control by, for example, documentary evidence found on the premises or by asking neighbours. ‘Controlled’ is not defined. It clearly extends beyond normal occupation and could include a person who has a legal title over the premises such as the landlord of a boarding house or even a block of flats. It may well extend further to cover an arrested night watchman or caretaker or office manager. The degree of control which a person exercises, the location of the premises and the relationship between that person and the person under arrest will determine the degree of suspicion that the premises contain evidence; eg. if D owns a flat occupied by his girlfriend, she would clearly be in a position to store articles stolen by D. In R v Badham (1987) it was held that the search power under S32(2)(b) was an immediate power, that it had to be exercised at the time of arrest, and that a constable could not return to the premises in which the arrest took place some four hours later in order to search them. Section 18 is not so limited. Indeed in most cases the search will take place some time after the arrest. It would also seem that the power may be exercised more than once in respect of the same premises. It can clearly be exercised in respect of premises occupied by D and in respect of premises controlled by D, but suppose premises occupied by D are searched with negative results? Later D makes admissions and directs the police to where the property is hidden. There appears to be no reason why another S18 search should not take place.

Section 18 envisages two types of search:

(a) where the person is in police detention at a police station and the police decide to search his premises;

(b) where the person is arrested away from a police station and the police wish to search the premises before taking him to the station.

In the first case, the search must be authorised in writing by an officer of at least the rank of inspector. In the second case the constable may act without prior authorisation and need only inform an inspector or more senior officer after the search has taken place (S18(5)). This type of search preserves the ideas underlying Dallison v Caffery (1965), where Lord Denning permitted a constable a degree of latitude in investigating an offence before taking a person to a police station, provided only that the constable acts reasonably. This principle is preserved in Sections 18 and 30.

Section 18(1) gives the constable the power to enter, S18(3) contains the element of reasonableness with regard to the extent of the search, and S18(5) demands that the person`s presence at the place of search be ‘necessary for the effective investigation of the offence’. This last condition