Search warrants: Avoiding the pitfalls

A search warrant application before the magistrates’ court can take a matter of minutes; the search itself a matter of hours. But when a claim is brought against the police for the way in which a warrant was obtained or executed, the consequence can be long, drawn out and costly litigation. Police forces risk paying out compensation for trespass to property, breach of Article 8 and malicious procurement of a search warrant.

In a number of cases, the courts have given important guidance on how search warrant applications should be made and how warrants should be executed. Regrettably, all too often this guidance is overlooked. This article explores some of the common pitfalls associated with search warrants and offers practical suggestions on how to avoid them.

(1) Appreciate the significance of search warrants

At every stage – from preparing for, to applying for, to executing a search warrant – it must be remembered that search warrants are a serious interference with the rights of the subject. The right to private life is enshrined in Article 8 of the European Convention on Human Rights (ECHR). Even before the Human Rights Act 1998 came into force, Lord Widgery CJ said: “Generations of justices have… been brought up to recognise that the issue of a search warrant is a very serious interference with the liberty of the subject, and a step which would only be taken after the most mature careful consideration of all the facts of the case.” (Williams v Summerfield [1972] 1 QB 512).

(2) PACE matters

The Police and Criminal Evidence Act (PACE) 1984 sets out clear rules covering how a search warrant application should be made in the magistrate’s court. A breach of those rules – however trivial it might seem – will result in the search warrant being void ab initio, ie, from the outset. All action taken pursuant to the warrant will be unlawful, even if the officers executing it had nothing to do with the application, and acted entirely in good faith.

In R (Faisaltex) v Chief Constable of Lancashire Constabulary [2008] EWHC 2832 (Admin) the court stated that “[t]he requirements which have to be met for the issue of a search warrant, whether under [s]8 of PACE or under Schedule 1 thereof may seem numerous and onerous. But… that is only to be expected when a police officer is seeking authority to enter a person’s home… without that person’s consent and to search for and seize items present there. It has rightly been described as a draconian power”.

(3) The Information must contain the entire basis for the application

Section 15(3) of PACE 1984 requires a search warrant application to be supported by an Information in writing. In Austen v Chief Constable of Wiltshire [2011] EWHC 3385 (Admin) the Court said that “[t]he necessary foundation for the issue of the warrants should be on the face of the information unless there are good reasons for not including it there. Police practice to the contrary should be changed forthwith”.

Search warrant applications are made ex parte and the Information (which is disclosable after the warrant is executed) is the subject’s only way of knowing the basis for the warrant.

Officers may be reluctant to record the basis of the application in full because it is based on sensitive intelligence which they do not wish the subject to know. Nevertheless, the courts have repeatedly emphasised that the Information must contain the entire basis of the application. If the application is based on intelligence, sufficient detail must be provided to allow the magistrate to test its credibility. Options for protecting sensitive intelligence and its sources include: (i) not to rely on the sensitive intelligence (there may be sufficient other material to succeed in the application); (ii) to sanitise the intelligence; and (iii) to record the sensitive intelligence in a confidential Schedule to the Information, over which the chief constable can claim public interest immunity (PII) i