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Having your property, business premises or vehicle searched is a huge invasion of privacy. If this has happened to you, you might be wondering: was the search legal? Here, we explain what you need to know about search warrants and the law.
Speak to our criminal defence solicitors
If you are under investigation for a crime – be it a financial crime or otherwise – please contact us for expert legal advice. We can discuss whether you have been subject to an unlawful search, and can challenge the admissibility of evidence as part of your defence.
Police powers of entry and search of premises
Various UK authorities have the power to enter and search a premises, including the police, HMRC and the Serious Fraud Office.
However, the law recognises that it is an invasion of privacy, which is why safeguards exist. To conduct a search, the police and other authorities must comply with the legislation.
Broadly speaking, the police cannot enter your home or other private premises without a search warrant, unless they are:
- Attempting to save a life or prevent injury to a person or property
- Recapturing someone who has escaped from custody or is otherwise being lawfully pursued
- Arresting someone they believe to be on the premises
- Invited in by the owner or occupier
Also, the police cannot search for items in your home or other private premises without a search warrant, unless:
- You have been arrested for an indictable offence; and
- The police have reasonable ground to believe that they will find evidence to support the prosecution
Otherwise, the police must get a search warrant from the Magistrates’ Court, if they wish to enter and search a premises.
Search warrant application
To get a search warrant, the police or other regulatory authority must make an application to the Magistrates’ Court.
Most warrants are issued under the Police and Criminal Evidence Act 1984, or the Proceeds of Crime Act 2002. Whoever applies for the search warrant must show that the search meets the criteria set out under the relevant legislation.
For example, section 15 of the Police and Criminal Evidence Act 1984, a warrant application must state:
- The grounds for making the application
- The power under which the warrant will be issued
- Whether the application is for one or multiple entries
- The offence committed
- The suspect and their previous offending history
- The person who controls the premises and any other occupants
- Information that supports and undermines the application
- The premises to be searched
- Why it is believed that the material sought will be found on the premises
- The item(s) being sought
- What each person involved in the search needs to know
The Magistrates’ Court will consider the application and decide whether or not to grant a search warrant.
What are reasonable grounds for a search UK?
The Magistrates’ Court should only grant a search warrant if they are satisfied that there are reasonable grounds for doing so. These grounds are determined by the legislation. For instance, under the Police and Criminal Evidence Act 1984, a search warrant should only be granted if there are reasonable grounds for believing:
- That an offence has been committed; and
- That there is material on the premises which is likely to be of substantial value to the investigation of the offence; and
- That the material is likely to be relevant evidence; and
- That it does not consist of or include items subject to legal privilege, excluded material or special procedure material; and
- That one of the following conditions applies:
- It is not practicable to communicate with any person entitled to grant entry to the premises
- It is not practicable to communicate with any person entitled to grant access to the evidence
- That entry to the premises will not be granted unless a warrant is produced
- That the purpose of a search may be prejudiced without a warrant
Therefore, the police must have reasonable grounds to believe that an offence has been committed, and that they will find evidence to relation to that offence. They must also show that a warrant is necessary in the circumstances.
How long does a search warrant last?
A search warrants lasts for three months in England and Wales. This means the police or other investigatory authority has three months to conduct the search as permitted on the warrant, starting from the date of issue. If the warrant expires, another application must be made.
How does a search take place?
Once a search warrant has been issued by the courts, the police can choose when to execute that search (although as mentioned above, it must be within three months of the date of issue). The search must take place at a reasonable hour, unless this could compromise the purpose of the search. That is why some searches take place early in the morning, known commonly as ‘dawn raids’.
Force can be used to gain entry to the premises where appropriate. If the occupier is at the premises when the search is carried out, the officer leading the search must identify themselves, produce the search warrant and supply a copy of it. If no one is present who appears to be in charge, then a copy of the warrant should be left on site.
Officers can then conduct a search, although it must be performed in accordance with the terms specified in the warrant. You cannot obstruct a search if a warrant is produced. However, you can call your solicitor and ask for their advice.
How many times can a property be searched?
The number of times a property can be searched depends on the type of search warrant that has been obtained.
When making an application, the police must state whether they wish to gain entry on more than one occasion. Unless the warrant authorises multiple entries, a premises can only be searched once.
The warrant application must also state which premises are to be searched. The police can only enter and search the premises listed on the warrant, which may include one or more properties.
Can the police seize my belongings?
If the police find items they believe to be relevant to their investigation, these items can be taken from the premises/vehicle and detained. The police can also seize cash with a minimum value of £1,000, if they believe it to be the proceeds of crime, or they believe it will be used to commit an offence.
Is any material protected?
The police cannot seize paperwork that is subject to legal professional privilege. This includes communication between yourself and your solicitor or barrister.
Special warrants must also be obtained if the police want to search for (and seize):
- Excluded material – such as business trade records or journalistic materials held in confidence, and human tissue or tissue fluid used for a medical diagnosis or treatment
- Special procedure material – which covers other material held in confidence
Can I challenge a search?
Search warrants are sometimes granted in error by the courts. Often, this happens because the officer who applies for the warrant does not provide full and frank disclosure. This means the judge is given a misleading picture, and therefore issues a warrant without being in possession of all the facts.
If a warrant is issued unlawfully then it can be quashed. This involves applying for a Judicial Review. If successful, your items must be returned to you. You may also be awarded costs and damages.
Improperly obtained evidence
Furthermore, evidence that is obtained during an unlawful search may amount to ‘unlawfully obtained evidence’. If this evidence would prejudice a trial, then it must be excluded by the judge.
Fraud and financial crime solicitors
Search warrants often have serious deficiencies which render them unlawful. This can have major implications for your case, as you may be entitled to have your items returned. You may even be entitled to compensation. Also, it may mean that certain evidence is inadmissible at trial. If so, it cannot be used by the prosecution.
If your property is searched by the authorities, these are all things that our criminal defence solicitors will assess very carefully. If there is any indication that the letter of the law was not followed, we will be sure to pursue every avenue to redress the balance of power.
If your property has been searched, contact us now for expert legal advice. We have a leading team of criminal defence solicitors, including specialist fraud and financial crime solicitors.
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