Part II Powers of Entry, Search and Seizure
Search warrants
8 Power of justice of the peace to authorise entry and search of premises.
(1)
If on an application made by a constable a justice of the peace is satisfied that there are reasonable grounds for believing—
(a)
that F1an indictable offence has been committed; and
(b)
that there is material on premises F2mentioned in subsection (1A) below which is likely to be of substantial value (whether by itself or together with other material) to the investigation of the offence; and
(c)
that the material is likely to be relevant evidence; and
(d)
that it does not consist of or include items subject to legal privilege, excluded material or special procedure material; and
(e)
that any of the conditions specified in subsection (3) below applies,
he may issue a warrant authorising a constable to enter and search the premises F3in relation to each set of premises specified in the application .
F4(1A)
The premises referred to in subsection (1)(b) above are—
(a)
one or more sets of premises specified in the application (in which case the application is for a “specific premises warrant”); or
(b)
any premises occupied or controlled by a person specified in the application, including such sets of premises as are so specified (in which case the application is for an “all premises warrant”).
(1B)
If the application is for an all premises warrant, the justice of the peace must also be satisfied—
(a)
that because of the particulars of the offence referred to in paragraph (a) of subsection (1) above, there are reasonable grounds for believing that it is necessary to search premises occupied or controlled by the person in question which are not specified in the application in order to find the material referred to in paragraph (b) of that subsection; and
(b)
that it is not reasonably practicable to specify in the application all the premises which he occupies or controls and which might need to be searched.
F5(1C)
The warrant may authorise entry to and search of premises on more than one occasion if, on the application, the justice of the peace is satisfied that it is necessary to authorise multiple entries in order to achieve the purpose for which he issues the warrant.
(1D)
If it authorises multiple entries, the number of entries authorised may be unlimited, or limited to a maximum.
(2)
A constable may seize and retain anything for which a search has been authorised under subsection (1) above.
(3)
The conditions mentioned in subsection (1)(e) above are—
(a)
that it is not practicable to communicate with any person entitled to grant entry to the premises;
(b)
that it is practicable to communicate with a person entitled to grant entry to the premises but it is not practicable to communicate with any person entitled to grant access to the evidence;
(c)
that entry to the premises will not be granted unless a warrant is produced;
(d)
that the purpose of a search may be frustrated or seriously prejudiced unless a constable arriving at the premises can secure immediate entry to them.
(4)
In this Act “relevant evidence”, in relation to an offence, means anything that would be admissible in evidence at a trial for the offence.
(5)
The power to issue a warrant conferred by this section is in addition to any such power otherwise conferred.
F6(6)
This section applies in relation to a relevant offence (as defined in section 28D(4) of the Immigration Act 1971) as it applies in relation to F1an indictable offence .
F7(7)
Section 4 of the Summary Jurisdiction (Process) Act 1881 (execution of process of English courts in Scotland) shall apply to a warrant issued on the application of an officer of Revenue and Customs under this section by virtue of section 114 below.
9 Special provisions as to access.
(1)
A constable may obtain access to excluded material or special procedure material for the purposes of a criminal investigation by making an application under Schedule 1 below and in accordance with that Schedule.
(2)
Any Act (including a local Act) passed before this Act under which a search of premises for the purposes of a criminal investigation could be authorised by the issue of a warrant to a constable shall cease to have effect so far as it relates to the authorisation of searches—
(a)
for items subject to legal privilege; or
(b)
for excluded material; or
(c)
for special procedure material consisting of documents or records other than documents.
F8(2A)
Section 4 of the Summary Jurisdiction (Process) Act 1881 (c. 24) (which includes provision for the execution of process of English courts in Scotland) and section 29 of the Petty Sessions (Ireland) Act 1851 (c. 93) (which makes equivalent provision for execution in Northern Ireland) shall each apply to any process issued by a circuit judge under Schedule 1 to this Act as it applies to process issued by a magistrates’ court under the Magistrates’ Courts Act 1980 (c. 43).
10 Meaning of “items subject to legal privilege”.
(1)
Subject to subsection (2) below, in this Act “items subject to legal privilege” means—
(a)
communications between a professional legal adviser and his client or any person representing his client made in connection with the giving of legal advice to the client;
(b)
communications between a professional legal adviser and his client or any person representing his client or between such an adviser or his client or any such representative and any other person made in connection with or in contemplation of legal proceedings and for the purposes of such proceedings; and
(c)
items enclosed with or referred to in such communications and made—
(i)
in connection with the giving of legal advice; or
(ii)
in connection with or in contemplation of legal proceedings and for the purposes of such proceedings,
when they are in the possession of a person who is entitled to possession of them.
(2)
Items held with the intention of furthering a criminal purpose are not items subject to legal privilege.
11 Meaning of “excluded material”.
(1)
Subject to the following provisions of this section, in this Act “excluded material” means—
(a)
personal records which a person has acquired or created in the course of any trade, business, profession or other occupation or for the purposes of any paid or unpaid office and which he holds in confidence;
(b)
human tissue or tissue fluid which has been taken for the purposes of diagnosis or medical treatment and which a person holds in confidence;
(c)
journalistic material which a person holds in confidence and which consists—
(i)
of documents; or
(ii)
of records other than documents.
(2)
A person holds material other than journalistic material in confidence for the purposes of this section if he holds it subject—
(a)
to an express or implied undertaking to hold it in confidence; or
(b)
to a restriction on disclosure or an obligation of secrecy contained in any enactment, including an enactment contained in an Act passed after this Act.
(3)
A person holds journalistic material in confidence for the purposes of this section if—
(a)
he holds it subject to such an undertaking, restriction or obligation; and
(b)
it has been continuously held (by one or more persons) subject to such an undertaking, restriction or obligation since it was first acquired or created for the purposes of journalism.
12 Meaning of “personal records”.
In this Part of this Act “personal records” means documentary and other records concerning an individual (whether living or dead) who can be identified from them and relating—
(a)
to his physical or mental health;
(b)
to spiritual counselling or assistance given or to be given to him; or
(c)
to counselling or assistance given or to be given to him, for the purposes of his personal welfare, by any voluntary organisation or by any individual who—
(i)
by reason of his office or occupation has responsibilities for his personal welfare; or
(ii)
by reason of an order of a court has responsibilities for his supervision.
13 Meaning of “journalistic material”.
(1)
Subject to subsection (2) below, in this Act “journalistic material” means material acquired or created for the purposes of journalism.
(2)
Material is only journalistic material for the purposes of this Act if it is in the possession of a person who acquired or created it for the purposes of journalism.
(3)
A person who receives material from someone who intends that the recipient shall use it for the purposes of journalism is to be taken to have acquired it for those purposes.
14 Meaning of “special procedure material”.
(1)
In this Act “special procedure material” means—
(a)
material to which subsection (2) below applies; and
(b)
journalistic material, other than excluded material.
(2)
Subject to the following provisions of this section, this subsection applies to material, other than items subject to legal privilege and excluded material, in the possession of a person who—
(a)
acquired or created it in the course of any trade, business, profession or other occupation or for the purpose of any paid or unpaid office; and
(b)
holds it subject—
(i)
to an express or implied undertaking to hold it in confidence; or
(ii)
to a restriction or obligation such as is mentioned in section 11(2)(b) above.
(3)
Where material is acquired—
(a)
by an employee from his employer and in the course of his employment; or
(b)
by a company from an associated company,
it is only special procedure material if it was special procedure material immediately before the acquisition.
(4)
Where material is created by an employee in the course of his employment, it is only special procedure material if it would have been special procedure material had his employer created it.
(5)
Where material is created by a company on behalf of an associated company, it is only special procedure material if it would have been special procedure material had the associated company created it.
(6)
A company is to be treated as another’s associated company for the purposes of this section if it would be so treated under F9section 449 of the Corporation Tax Act 2010.
15 Search warrants—safeguards.
(1)
This section and section 16 below have effect in relation to the issue to constables under any enactment, including an enactment contained in an Act passed after this Act, of warrants to enter and search premises; and an entry on or search of premises under a warrant is unlawful unless it complies with this section and section 16 below.
(2)
Where a constable applies for any such warrant, it shall be his duty—
(a)
to state—
(i)
the ground on which he makes the application; F10. . .
(ii)
the enactment under which the warrant would be issued; F11and
F12(iii)
if the application is for a warrant authorising entry and search on more than one occasion, the ground on which he applies for such a warrant, and whether he seeks a warrant authorising an unlimited number of entries, or (if not) the maximum number of entries desired;
F13(b)
to specify the matters set out in subsection (2A) below; and
(c)
to identify, so far as is practicable, the articles or persons to be sought.
F14(2A)
The matters which must be specified pursuant to subsection (2)(b) above are—
F15(a)
if the application relates to one or more sets of premises specified in the application, each set of premises which it is desired to enter and search;
(b)
F16if the application relates to any premises occupied or controlled by a person specified in the application–
(i)
as many sets of premises which it is desired to enter and search as it is reasonably practicable to specify;
(ii)
the person who is in occupation or control of those premises and any others which it is desired to enter and search;
(iii)
why it is necessary to search more premises than those specified under sub-paragraph (i); and
(iv)
why it is not reasonably practicable to specify all the premises which it is desired to enter and search.
(3)
An application for such a warrant shall be made ex parte and supported by an information in writing.
(4)
The constable shall answer on oath any question that the justice of the peace or judge hearing the application asks him.
(5)
A warrant shall authorise an entry on one occasion only F17unless it specifies that it authorises multiple entries.
F18(5A)
If it specifies that it authorises multiple entries, it must also specify whether the number of entries authorised is unlimited, or limited to a specified maximum.
(6)
A warrant—
(a)
shall specify—
(i)
the name of the person who applies for it;
(ii)
the date on which it is issued;
(iii)
the enactment under which it is issued; and
F19(iv)
each set of premises to be searched, or (in the case of an all premises warrant) the person who is in occupation or control of premises to be searched, together with any premises under his occupation or control which can be specified and which are to be searched; and
(b)
shall identify, so far as is practicable, the articles or persons to be sought.
F20(7)
Two copies shall be made of a F21warrant which specifies only one set of premises and does not authorise multiple entries; and as many copies as are reasonably required may be made of any other kind of warrant.
(8)
The copies shall be clearly certified as copies.
16 Execution of warrants.
(1)
A warrant to enter and search premises may be executed by any constable.
(2)
Such a warrant may authorise persons to accompany any constable who is executing it.
F22(2A)
A person so authorised has the same powers as the constable whom he accompanies in respect of—
(a)
the execution of the warrant, and
(b)
the seizure of anything to which the warrant relates.
(2B)
But he may exercise those powers only in the company, and under the supervision, of a constable.
(3)
Entry and search under a warrant must be within F23three months from the date of its issue.
F24(3A)
If the warrant is an all premises warrant, no premises which are not specified in it may be entered or searched unless a police officer of at least the rank of inspector has in writing authorised them to be entered.
F25(3B)
No premises may be entered or searched for the second or any subsequent time under a warrant which authorises multiple entries unless a police officer of at least the rank of inspector has in writing authorised that entry to those premises.
(4)
Entry and search under a warrant must be at a reasonable hour unless it appears to the constable executing it that the purpose of a search may be frustrated on an entry at a reasonable hour.
(5)
Where the occupier of premises which are to be entered and searched is present at the time when a constable seeks to execute a warrant to enter and search them, the constable—
(a)
shall identify himself to the occupier and, if not in uniform, shall produce to him documentary evidence that he is a constable;
(b)
shall produce the warrant to him; and
(c)
shall supply him with a copy of it.
(6)
Where—
(a)
the occupier of such premises is not present at the time when a constable seeks to execute such a warrant; but
(b)
some other person who appears to the constable to be in charge of the premises is present,
subsection (5) above shall have effect as if any reference to the occupier were a reference to that other person.
(7)
If there is no person who appears to the constable to be in charge of the premises, he shall leave a copy of the warrant in a prominent place on the premises.
(8)
A search under a warrant may only be a search to the extent required for the purpose for which the warrant was issued.
(9)
A constable executing a warrant shall make an endorsement on it stating—
(a)
whether the articles or persons sought were found; and
(b)
whether any articles were seized, other than articles which were sought
F28(10)
A warrant shall be returned to the appropriate person mentioned in subsection (10A) below—
(a)
when it has been executed; or
(b)
in the case of a specific premises warrant which has not been executed, or an all premises warrant, or any warrant authorising multiple entries, upon the expiry of the period of three months referred to in subsection (3) above or sooner.
(10A)
The appropriate person is—
(a)
if the warrant was issued by a justice of the peace, the designated officer for the local justice area in which the justice was acting when he issued the warrant;
(b)
if it was issued by a judge, the appropriate officer of the court from which he issued it.
(11)
A warrant which is returned under subsection (10) above shall be retained for 12 months from its return—
(a)
by the F29designated officer for the local justice area , if it was returned under paragraph (i) of that subsection; and
(b)
by the appropriate officer, if it was returned under paragraph (ii).
(12)
If during the period for which a warrant is to be retained the occupier of F30premises to which it relates asks to inspect it, he shall be allowed to do so.
Entry and search without search warrant
17 Entry for purpose of arrest etc.
(1)
Subject to the following provisions of this section, and without prejudice to any other enactment, a constable may enter and search any premises for the purpose—
(a)
of executing—
(i)
a warrant of arrest issued in connection with or arising out of criminal proceedings; or
(ii)
a warrant of commitment issued under section 76 of the M1Magistrates’ Courts Act 1980;
(b)
of arresting a person for an F31indictable offence;
(c)
of arresting a person for an offence under—
(i)
section 1 (prohibition of uniforms in connection with political objects), . . . F32 of the M2Public Order Act 1936;
(ii)
any enactment contained in sections 6 to 8 or 10 of the M3Criminal Law Act 1977 (offences relating to entering and remaining on property);
F33(iii)
section 4 of the Public Order Act 1986 (fear or provocation of violence);
F34(iiia)
section 4 (driving etc. when under influence of drink or drugs) or 163 (failure to stop when required to do so by constable in uniform) of the Road Traffic Act 1988;
(iiib)
section 27 of the Transport and Works Act 1992 (which relates to offences involving drink or drugs);
F35(iv)
section 76 of the Criminal Justice and Public Order Act 1994 (failure to comply with interim possession order);
F36(v)
any of sections 4, 5, 6(1) and (2), 7 and 8(1) and (2) of the Animal Welfare Act 2006 (offences relating to the prevention of harm to animals);
F37(vi)
section 144 of the Legal Aid, Sentencing and Punishment of Offenders Act 2012 (squatting in a residential building);
F38(ca)
of arresting, in pursuance of section 32(1A) of the Children and Young Persons Act 1969, any child or young person who has been remanded F39to local authority accommodation or youth detention accommodation under section 91 of the Legal Aid, Sentencing and Punishment of Offenders Act 2012 ;
F40(caa)
of arresting a person for an offence to which section 61 of the Animal Health Act 1981 applies;
(cb)
of recapturing any person who is, or is deemed for any purpose to be, unlawfully at large while liable to be detained—
(i)
in a prison, F41 young offender institution, secure training centre or secure college , or
(ii)
in pursuance of F42section 92 of the Powers of Criminal Courts (Sentencing ) Act 2000 (dealing with children and young persons guilty of grave crimes), in any other place;
(d)
of recapturing F43any person whatever who is unlawfully at large and whom he is pursuing; or
(e)
of saving life or limb or preventing serious damage to property.
(2)
Except for the purpose specified in paragraph (e) of subsection (1) above, the powers of entry and search conferred by this section—
(a)
are only exercisable if the constable has reasonable grounds for believing that the person whom he is seeking is on the premises; and
(b)
are limited, in relation to premises consisting of two or more separate dwellings, to powers to enter and search—
(i)
any parts of the premises which the occupiers of any dwelling comprised in the premises use in common with the occupiers of any other such dwelling; and
(ii)
any such dwelling in which the constable has reasonable grounds for believing that the person whom he is seeking may be.
(3)
The powers of entry and search conferred by this section are only exercisable for the purposes specified in subsection (1)(c)(ii) F44, (iv) or (vi) above by a constable in uniform.
(4)
The power of search conferred by this section is only a power to search to the extent that is reasonably required for the purpose for which the power of entry is exercised.
(5)
Subject to subsection 6 below, all the rules of common law under which a constable has power to enter premises without a warrant are hereby abolished.
(6)
Nothing in subsection (5) above affects any power of entry to deal with or prevent a breach of the peace.
18 Entry and search after arrest.
(1)
Subject to the following provisions of this section, a constable may enter and search any premises occupied or controlled by a person who is under arrest for an F45indictable offence, if he has reasonable grounds for suspecting that there is on the premises evidence, other than items subject to legal privilege, that relates—
(a)
to that offence; or
(b)
to some other F45indictable offence which is connected with or similar to that offence.
(2)
A constable may seize and retain anything for which he may search under subsection (1) above.
(3)
The power to search conferred by subsection (1) above is only a power to search to the extent that is reasonably required for the purpose of discovering such evidence.
(4)
Subject to subsection (5) below, the powers conferred by this section may not be exercised unless an officer of the rank of inspector or above has authorised them in writing.
F46(5)
A constable may conduct a search under subsection (1)—
(a)
before the person is taken to a police station or released on bail under section 30A, and
(b)
without obtaining an authorisation under subsection (4),
if the condition in subsection (5A) is satisfied.
(5A)
The condition is that the presence of the person at a place (other than a police station) is necessary for the effective investigation of the offence.
(6)
If a constable conducts a search by virtue of subsection (5) above, he shall inform an officer of the rank of inspector or above that he has made the search as soon as practicable after he has made it.
(7)
An officer who—
(a)
authorises a search; or
(b)
is informed of a search under subsection (6) above, shall make a record in writing—
(i)
of the grounds for the search; and
(ii)
of the nature of the evidence that was sought.
(8)
If the person who was in occupation or control of the premises at the time of the search is in police detention at the time the record is to be made, the officer shall make the record as part of his custody record.
Seizure etc.
19 General power of seizure etc.
(1)
The powers conferred by subsections (2), (3) and (4) below are exercisable by a constable who is lawfully on any premises.
(2)
The constable may seize anything which is on the premises if he has reasonable grounds for believing—
(a)
that it has been obtained in consequence of the commission of an offence; and
(b)
that it is necessary to seize it in order to prevent it being concealed, lost, damaged, altered or destroyed.
(3)
The constable may seize anything which is on the premises if he has reasonable grounds for believing—
(a)
that it is evidence in relation to an offence which he is investigating or any other offence; and
(b)
that it is necessary to seize it in order to prevent the evidence being concealed, lost, altered or destroyed.
(4)
The constable may require any information which is F47stored in any electronic form and is accessible from the premises to be produced in a form in which it can be taken away and in which it is visible and legible F48or from which it can readily be produced in a visible and legible formif he has reasonable grounds for believing—
(a)
that—
(i)
it is evidence in relation to an offence which he is investigating or any other offence; or
(ii)
it has been obtained in consequence of the commission of an offence; and
(b)
that it is necessary to do so in order to prevent it being concealed, lost, tampered with or destroyed.
(5)
The powers conferred by this section are in addition to any power otherwise conferred.
(6)
No power of seizure conferred on a constable under any enactment (including an enactment contained in an Act passed after this Act) is to be taken to authorise the seizure of an item which the constable exercising the power has reasonable grounds for believing to be subject to legal privilege.
20 Extension of powers of seizure to computerised information.
(1)
Every power of seizure which is conferred by an enactment to which this section applies on a constable who has entered premises in the exercise of a power conferred by an enactment shall be construed as including a power to require any information F49stored in any electronic form contained in a computer and accessible from the premises to be produced in a form in which it can be taken away and in which it is visible and legible F50or from which it can readily be produced in a visible and legible form.
(2)
This section applies—
(a)
to any enactment contained in an Act passed before this Act;
(b)
to sections 8 and 18 above;
(c)
to paragraph 13 of Schedule 1 to this Act; and
(d)
to any enactment contained in an Act passed after this Act.
21 Access and copying.
(1)
A constable who seizes anything in the exercise of a power conferred by any enactment, including an enactment contained in an Act passed after this Act, shall, if so requested by a person showing himself—
(a)
to be the occupier of premises on which it was seized; or
(b)
to have had custody or control of it immediately before the seizure,
provide that person with a record of what he seized.
(2)
The officer shall provide the record within a reasonable time from the making of the request for it.
(3)
Subject to subsection (8) below, if a request for permission to be granted access to anything which—
(a)
has been seized by a constable; and
(b)
is retained by the police for the purpose of investigating an offence,
is made to the officer in charge of the investigation by a person who had custody or control of the thing immediately before it was so seized or by someone acting on behalf of such a person, the officer shall allow the person who made the request access to it under the supervision of a constable.
(4)
Subject to subsection (8) below, if a request for a photograph or copy of any such thing is made to the officer in charge of the investigation by a person who had custody or control of the thing immediately before it was so seized, or by someone acting on behalf of such a person, the officer shall—
(a)
allow the person who made the request access to it under the supervision of a constable for the purpose of photographing or copying it; or
(b)
photograph or copy it, or cause it to be photographed or copied.
(5)
A constable may also photograph or copy, or have photographed or copied, anything which he has power to seize, without a request being made under subsection (4) above.
(6)
Where anything is photographed or copied under subsection (4)(b) above, the photograph or copy shall be supplied to the person who made the request.
(7)
The photograph or copy shall be so supplied within a reasonable time from the making of the request.
(8)
There is no duty under this section to grant access to, or to supply a photograph or copy of, anything if the officer in charge of the investigation for the purposes of which it was seized has reasonable grounds for believing that to do so would prejudice—
(a)
that investigation;
(b)
the investigation of an offence other than the offence for the purposes of investigating which the thing was seized; or
(c)
any criminal proceedings which may be brought as a result of—
(i)
the investigation of which he is in charge; or
(ii)
any such investigation as is mentioned in paragraph (b) above.
F51(9)
The references to a constable in subsections (1), (2), (3)(a) and (5) include a person authorised under section 16(2) to accompany a constable executing a warrant.
22 Retention.
(1)
Subject to subsection (4) below, anything which has been seized by a constable or taken away by a constable following a requirement made by virtue of section 19 or 20 above may be retained so long as is necessary in all the circumstances.
(2)
Without prejudice to the generality of subsection (1) above—
(a)
anything seized for the purposes of a criminal investigation may be retained, except as provided by subsection (4) below—
(i)
for use as evidence at a trial for an offence; or
(ii)
for forensic examination or for investigation in connection with an offence; and
(b)
anything may be retained in order to establish its lawful owner, where there are reasonable grounds for believing that it has been obtained in consequence of the commission of an offence.
(3)
Nothing seized on the ground that it may be used—
(a)
to cause physical injury to any person;
(b)
to damage property;
(c)
to interfere with evidence; or
(d)
to assist in escape from police detention or lawful custody,
may be retained when the person from whom it was seized is no longer in police detention or the custody of a court or is in the custody of a court but has been released on bail.
(4)
Nothing may be retained for either of the purposes mentioned in subsection (2)(a) above if a photograph or copy would be sufficient for that purpose.
(5)
Nothing in this section affects any power of a court to make an order under section 1 of the M4Police (Property) Act 1897.
F52(6)
This section also applies to anything retained by the police under section 28H(5) of the M5Immigration Act 1971.
F53(7)
The reference in subsection (1) to anything seized by a constable includes anything seized by a person authorised under section 16(2) to accompany a constable executing a warrant.
Supplementary
23 Meaning of “premises” etc.
In this Act—
“premises” includes any place and, in particular, includes—
(a)
any vehicle, vessel, aircraft or hovercraft;
(b)
any offshore installation;
(c)
F54any renewable energy installation;
(d)
any tent or movable structure; F55. . .
“offshore installation” has the meaning given to it by section 1 of the M6Mineral Workings (Offshore Installations) Act 1971.
F56“renewable energy installation” has the same meaning as in Chapter 2 of Part 2 of the Energy Act 2004.