Powers to enter premises

The series continues with a discussion of the administrative arrangements required in obtaining warrants under Section 8 of PACE.

Nature of a warrant

Provided that the applicant for a warrant acts in good faith, sets out his application fully, complies with the terms of the warrant and executes it in accordance with S16 of the 1984 Act, he is immune from legal action by the occupier even if the warrant has been improperly issued. The occupier’s remedy in such a case lies against the issuing authority, but it will be extremely difficult to substantiate the complaint. For, though the magistrate acts judicially in assessing whether there is sufficient ground for issuing a warrant (Hope v Evered (1886)), the application is heard ex parte and the governing test is that of reasonable grounds — a test which is readily satisfied in practice. The Act does offer some assistance here, since S15 and the Code of Practice provides a checklist of criteria which must be satisfied for all search warrants, and S8 and Sch 1 list those which a magistrate or circuit judge must additionally observe when hearing an application for a warrant or order for production under the Act in relation to an indictable offence involving confidential information. Earlier statutory powers of search gave magistrates a discretion as to whether to issue a warrant even if a prima facie case is made out and S8 retains this principle — a magistrate ‘may’ issue such a warrant.

Entry and search under a search warrant

‘There is no mystery about the word “warrant”; it simply means a document issued by a person in authority under power conferred in that behalf authorising the doing of an act which would otherwise be illegal.’ (Lord Wilberforce in IRC v Rossminster Ltd (1980))

The common law permitted only one type of search warrant — a justice of the peace could authorise a warrant to search for stolen goods. Over the years Parliament provided specific warrant powers: indeed, S26 of the Theft Act 1968 (Theft Act (NI) 1969, S25) in practice superseded the solitary common law power. These statutory powers do not conform to a standard formula but Sections 15 and 16 of the PACE Act 1984 now provide a standard form of application for, and standard execution of, all search warrants whether issued under the authority of an Act passed before or after the 1984 Act.

With the exception of a superintendent’s power to issue an authority to search under S26(2) of the Theft Act 1968 (which was repealed by Sch 7 of the PACE Act 1984; S25(2) of the Theft Act (NI) 1969 was repealed by Sch 7 of the 1989 Order), all pre-existing powers survived the 1984 Act (S8(5)) and the 1989 Order (Art 10(5)). The piecemeal development of statutory warrant powers meant that under the law as it existed before the 1984 Act and the 1989 Order, warrants could be obtained to search for items which it is an offence knowingly to possess, for example, stolen goods, drugs, firearms, explosives (hereinafter prohibited goods) and for evidence of specific offences under the authority of a particular statutory power, for example, illegal gaming under S43(4) of the Gaming Act 1968. However, there was no general power to issue a warrant to search for evidence of an offence which was not prohibited goods or not specifically provided for. One could obtain a warrant to search for evidence of fraud under the Hop (Prevention of Fraud) Act 1866 but not for evidence of murder. The law was therefore ripe for reform. The Royal Commission on Criminal Procedure (1981) recommended the retention of these existing powers, most of which permitted a magistrate to issue a warrant to search premises, including the premises of someone not himself implicated in the offence or of someone innocently possessing prohibited goods, but recommended a general power to issue a warrant to search for evidence of crime which is reasonably believed to be on premises which are not occupied or controlled by the suspect. However, it sought to mark the seriousness of the intrusion on innocent citizens, by:

(a) confining suc