Powers of search and seizure under S.9

Special powers to obtain material or to search premises under Section 9 and Schedule 1 of the PACE Act 1984

Before the PACE Act 1984, the police lacked a general power to obtain material which was likely to be relevant evidence of an offence by A but was in the possession of B who was not himself implicated in the crime.

If the material happened to be prohibited articles which it was an offence to possess, such as stolen goods, drugs, firearms, etc, a search warrant could be obtained to search for and seize the material even if it was innocently possessed by B. If not within that category there was no general power to obtain access to such material. An exception is provided by the Bankers` Books Evidence Act 1879. Under this Act a High Court Judge may order the inspection of any entries in a banker`s books, on application by a party to civil or criminal proceedings.

This procedure is, however, of limited use as an investigative tool. First it is confined to banks, second to bankers’ books (this includes computerised accounts but not bank managers’ notes or diary or paid cheques and credit slips) and third, to current legal proceedings. In other words a charge must have been laid or a summons issued. Banks could not consent to requests by the police for access to material not covered by the Act because to do so would lay them open to an action for breach of confidentiality (a banker`s duty of confidentiality being firmly established in Tournier v National Provincial and Union Bank of England (1924)). If that duty did not extend to bank managers` notes, banks feared that they might be exposed to an action for defamation if such notes were surrendered voluntarily.

Alternatively such co-operation with the police might lead to loss of custom. If legally compelled to disclose information no civil action could follow and, it was thought, customers would understand the necessity to comply with the law.

As for other evidence held by third parties, S.8 gives the police the opportunity to apply for a search warrant if any indictable offence is involved. The confidential basis which might be jeopardised by such searches aroused considerable furore during passage of the 1984 Bill and forced the Government to make concessions so as to protect confidential information. Section 9 and Sch 1 were the result of this modification. The attempted balancing of the rights of the citizen and the needs of the police service result in much complexity.

In essence, three new categories of material were created. The first of these, legally privileged material, is always unavailable to the police unless the client, whose privilege it is, surrenders it and permits the police access to the material. The second category, excluded material, may also be given its literal meaning. In exceptional circumstances a circuit judge (county court judge in Northern Ireland) may make an order for the production to a constable of, or issue a warrant to search for and seize, excluded material. This is rare and will be considered later. Subject to this exception, excluded material cannot be the subject of a magistrate`s warrant or a judicial order permitting police access to it. Access can, however, more readily be obtained to the third category of material, special procedure material.

As the name implies, the 1984 Act created a special procedure under which application may be made to a circuit judge (county court judge) for an order requiring the person in possession of the material to produce it to a constable for him to take away, or give him access to it. These procedures can be circumvented and excluded and special procedure material can be searched for and seized using the powers under S.32(2)(b) and S.19. The introduction of these provisions coincided with an upsurge in offences of fraud, much of which resulted from the economic boom of the early 1980s. This led to a massive increase in mortgage lending in which banks plunged into a market previously the province of building societies. This