The proper procedures for obtaining search warrants
The series continues with further discussion of the administrative arrangements required in obtaining search warrants. The table below represents a summary of the relevant legislation in respect of search warrants:
The series continues with further discussion of the administrative arrangements required in obtaining search warrants. The table below represents a summary of the relevant legislation in respect of search warrants:
(a) Warrants for indictable offences
(b) Warrants for material which it is an offence to possess
(c) Any warrant involving confidential information
(d) Manner of execution of all warrants
S8 PACE and the Code of Practice
S15 PACE and the terms of the governing statute eg S26 of the Theft Act 1968 and the Code of Practice
Sections 9-14 and Sch 1 PACE and the Code of Practice
Sections 16, 19 PACE and the Code of Practice
The following preliminary points should be noted.
(i) Sections 15 and 16 govern the application for and execution of search warrants issued under the PACE Act and any other enactment whether passed before or after the PACE Act and Order. Importantly S15(1) states that
an entry on or search of premises under a warrant is unlawful unless it complies with this section and S16.
(It is not clear from the wording of S15 whether it refers to the warrant or the entry and search. The clearer formulation in Art 17(1) of the PACE (NI) Order, which states an entry on or search of premises under a warrant is unlawful unless the warrant complies with this Article and is executed in accordance with Article 18, makes it clear that it is the entry on or search of premises which is unlawful if Sections 15 and 16 are not complied with (see R v Longman [1988] Crim LR 534 and R v Central Criminal Court and British Railway Board, ex p AJD Holdings Ltd (1992)).
(ii) One distinction between (a) and (b) (above) is that material sought under (a) need not be unlawfully possessed or involve a breach of the law, whilst material under (b) must meet that requirement and must also be governed by a statutory power to issue a warrant. For example, stolen goods, drugs, explosives and obscene publications come under (b), whereas documents indicating the source of, for example, the explosives can only be obtained under S8 if the offence is an indictable offence.
(iii) Warrants under (b) are issued under other legislation and can cover offences which may or may not be indictable offences.
(iv) In all cases the occupier or owner of the premises to be searched need not be suspected of an offence. Indeed, applications for a warrant (particularly under S8) are likely to be made more often in respect of third parties who are not themselves suspected of involvement.
(v) The complexity of these procedures is intensified by the fact that some of the preconditions for obtaining a search warrant appear in the Act whilst others are contained in Code of Practice B.
(vi) The issuing authority will usually either be a magistrate or a circuit judge (a county court judge in NI) (under the special procedure provisions) or under the terms of certain pre-existing statutes — eg Incitement to Disaffection Act 1934. The 1984 Act did not endorse a recommendation of the Royal Commission (1981) (Para 3.45) that senior police officers should be allowed to authorise warrants in cases of urgency. However, some statutes, which do permit such authorisation by the police, survive the 1984 Act (eg Explosives Act 1875, S73; Official Secrets Act 1911, S9(2); Licensing Act 1964, S45; but not the Theft Act 1968, S26(2), which was repealed by Sch 7 of the 1984 Act. The same provision in S25(2) of the Theft Act (NI) Act 1969 is also repealed by Sch 7 of the NI Order). The remaining authorisations are not warrants and are not therefore governed by Sections 15 and 16 of the 1984 Act. The powers of seizure under S19 do, however, apply.
Application for a warrant general
An application for a search warrant can in principle be made by any police officer, but Code B 3.4 (a) requires each application to be supported by a signed written authority from an officer of at least inspector rank (or, if the application is more urgent, by the most senior officer on duty). This is a prudent safeguard given the sometimes