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Search warrantsHC 852Law Com No 396
Law Com No 396Search warrantsPresented to Parliament pursuant to section 3(2) of the Law Commissions Act 1965.Ordered by the House of Commons to be printed on 7 October 2020.HC 852i
Crown copyright 2020This publication is licensed under the terms of the Open Government Licence v3.0 exceptwhere otherwise stated. To view this licence, visit /version/3.Where we have identified any third party copyright information you will need to obtainpermission from the copyright holders concerned.This publication is available at www.gov.uk/official-documents.Any enquiries regarding this publication should be sent to usat search warrants@lawcommission.gov.uk .ISBN 978-1-5286-2169-4CCS092027911610/20Printed on paper containing 75% recycled fibre content minimumPrinted in the UK by the APS Group on behalf of the Controller of Her Majesty’s StationeryOfficeii
The Law CommissionThe Law Commission was set up by the Law Commissions Act 1965 for the purpose of promotingthe reform of the law.The Law Commissioners are:The Right Honourable Lord Justice Green, ChairmanProfessor Sarah GreenProfessor Nick HopkinsProfessor Penney LewisNicholas Paines QCThe Chief Executive of the Law Commission is Phil Golding.The Law Commission is located at 1st Floor, Tower, 52 Queen Anne's Gate, London SW1H 9AG.The terms of this Report were agreed on 29 July 2020.The text of this Report is available on the Law Commission's website at http://www.lawcom.gov.uk.iii
ContentsGLOSSARYIXCHAPTER 1: INTRODUCTION1Background to the project1The purpose of the project1The scope of the project2The history of the project3The problems with the current law4The aims of our project6Summary of the Report chapters and our recommendations7Acknowledgments24The team who worked on this report24CHAPTER 2: THE OPERATION OF THE STATUTORY SAFEGUARDSIntroduction2525When should sections 15 and 16 of the Police and Criminal Evidence Act 1984apply?26Extending sections 15 and 16 of the Police and Criminal Evidence Act 1984 toentry and inspection warrants37When regard should be had to Code B of PACE40When an entry on or search of premises under a warrant is rendered unlawful 44CHAPTER 3: AGENCIES EMPOWERED TO APPLY FOR AND EXECUTESEARCH WARRANTS53Introduction53Agencies entitled to apply for a search warrant53Agencies entitled to execute a search warrant63Required presence of a constable in order to exercise powers69CHAPTER 4: SEARCH WARRANT APPLICATION DOCUMENTS75Introduction75The need for bespoke application forms76Content of application forms and the duty of candour82The draft search warrant99Online applications portal100iv
CHAPTER 5: APPLYING FOR A SEARCH WARRANT104Introduction104Clarifying the scope of the duty of candour105Arranging a search warrants application hearing115The level of knowledge required when appearing at a hearing124Searching premises following arrest instead of applying for a warrant127CHAPTER 6: ISSUING A SEARCH WARRANT131Introduction131Distribution between judges and magistrates132Specialist training for the magistracy136Formalising the requirement for a magistrate to be advised by a legal adviser 140A minimum number of magistrates hearing an application142Issuing a search warrant during out of court hours143Formalising the application procedure during normal court hours149Crown Court applications screened by a legal adviser157Recording additional material provided during hearings160Providing written reasons for issuing the search warrant163Requirement to keep records and statistics165CHAPTER 7: THE CONDUCT OF A SEARCH UNDER WARRANT169Introduction169Specifying who may accompany a person executing a warrant170The period for which a search warrant remains valid175The number of times premises can be entered178Accessing all premises occupied or controlled by an individual181The search of persons on premises pursuant to a warrant186The time at which the search is conducted190The information provided to the occupier during the search195An authoritative guide to search powers197How to apply for the underlying information201The presence of legal representatives during the search203CHAPTER 8: CHALLENGING A SEARCH WARRANT208Introduction208A new Crown Court procedure for challenging search warrants208Amendments to section 59 of the Criminal Justice and Police Act 2001222v
CHAPTER 9: SENSITIVE MATERIAL AND PUBLIC INTEREST IMMUNITY228Introduction228The current law229The consultation paper233Outline of consultation responses233The storage of sensitive material234The investigator’s right to register an objection238Formalising the matters relevant to the decision to disclose sensitive material241The consequences of a decision to order disclosureCHAPTER 10: INIQUITOUS MATERIAL242246Introduction246The current law247Consultation responses253Analysis258CHAPTER 11: THE TREATMENT OF LEGALLY PRIVILEGED MATERIAL260Introduction260Formalising independent counsel procedure260Claiming privilege in respect of material sought under a warrant265CHAPTER 12: THE TREATMENT OF EXCLUDED MATERIAL272Introduction272Personal records273Confidential journalistic material293Abolishing the second set of access conditions303The protection of excluded material and special procedure material in cases ofseizure not under warrant305CHAPTER 13: THE TREATMENT OF SPECIAL PROCEDURE MATERIALIntroduction311311Difficulties in practice in searches which relate to special procedure material 312A uniform route to the availability of special procedure material313Special procedure material mixed with ordinary material317Special procedure material mixed with excluded material318Disclosure of non-confidential journalistic material320Expanding the definition of special procedure material320Further guidance on the meaning of special procedure material322vi
CHAPTER 14: AN INTRODUCTION TO ELECTRONIC MATERIAL AND THELAW324Introduction324The nature of electronic material325An overview of the relevant legal regimes governing the acquisition and treatmentof electronic material330How searches under warrant for electronic material operate in practice349Problems with the current law352CHAPTER 15: SEARCH FOR AND SEIZURE OF LOCALLY STOREDELECTRONIC MATERIAL359Introduction359Electronic material as the target of a search warrant361Satisfying the statutory access conditions when electronic data is sought363Applying for a warrant to search for and seize electronic devices366Drafting warrants to search for and seize electronic devices376The seizure of electronic devices383The search of electronic devices on premises and subsequent seizure ofelectronic data390CHAPTER 16: SEARCH FOR AND SEIZURE OF REMOTELY STOREDELECTRONIC DATA397Introduction397The extraterritorial application of search, seizure and production powers402The circumstances in which the search, seizure and production of remotelystored data is permissible under international law408The search of premises for and copying of remotely stored data418Compelling access to protected information436Preventing interference with remotely stored data441CHAPTER 17: THE TREATMENT OF ELECTRONIC MATERIAL445Introduction445Summary of the current law446The Consultation Paper447Consultation responses450A new legislative regime456CHAPTER 18: A WIDER REVIEW OF THE LAW GOVERNING ELECTRONICMATERIAL475Introduction475vii
Reasons justifying a wider review475Topics relevant as part of a wider review477CHAPTER 19: CONSOLIDATING SEARCH WARRANTS LEGISLATION493Introduction493Repealing unnecessary search warrant provisions494Consolidating all search warrant provisions497Partial consolidation of search warrant provisions502Standardising the accessibility conditions506CHAPTER 20: LIST OF RECOMMENDATIONS510APPENDIX 1: LIST OF CONSULTEES529APPENDIX 2: EXTRACTS FROM RELEVANT LEGISLATION531Police and Criminal Evidence Act 1984531Criminal Justice and Police Act 2001551viii
GlossaryAccess conditionsThe statutory conditions that must be met for the issue of a search warrant. Depending on thesearch warrant provision, these may include that there are reasonable grounds for believing thatan offence has been committed and that there is relevant material on the premises. The term isused in this sense in schedule 1 to the Police and Criminal Evidence Act 1984 (“PACE”).Accessibility conditionsThe term we use to describe a particular subset of access conditions that relate to theimpracticability of gaining access to the premises or materials without a search warrant.All premises warrantA search warrant that allows for the entry and search of all premises associated with a particularperson.Associated powersThe term we use to refer to powers other than search powers that are authorised under a searchwarrant. For example, a search warrant may have an associated power to use reasonable force, tosearch persons found on the premises and to seize material.ApplicantThe term we use occasionally to refer to an individual officer or investigator who applies for asearch warrant.Code B of PACEThe PACE Code of Practice which governs the search of premises by police officers and theseizure of property found by police officers on persons or premises.Criminal Practice DirectionsThe Criminal Practice Directions (“CrimPD”) are made by the Lord Chief Justice and relate to thepractice and procedure of the criminal courts. CrimPD Division XI (47A and 47B) relates to searchwarrants.Criminal Procedure RulesThe Criminal Procedure Rules (“CrimPR”) govern the way criminal cases are managed and set outthe processes of the criminal courts. Part 47 of the CrimPR governs search warrant applications.There are search warrant application forms which accompany Part 47 of the CrimPR.Duty of candourix
This describes the duty owed by any person making an application for a search warrant to providefull and frank disclosure to the court of all relevant information including that which might militateagainst the granting of the search warrant.Electronic dataThe term we use to refer to data stored in electronic form.Electronic deviceThe term we use to refer to all devices that control and direct electric currents.Electronic materialThe term we use to refer to both devices themselves (“electronic devices”) and data stored inelectronic form (“electronic data”).Entry warrantA warrant issued by a judge that authorises entry onto premises.Ex parteA hearing in which an interested party is absent and, in the context of search warrant hearings,unnotified. In the search warrants context, the occupier of the premises will be absent andunnotified when an investigator makes an application for a search warrant, as the presence of theoccupier would frustrate the purpose of the search warrant.Excluded materialMaterial that is partially exempt from searches under a search warrant. Excluded material isdefined in section 11 of PACE. It broadly covers material in the following categories, which is heldin confidence: medical records acquired or created in the course of an occupation; human tissue;and confidential journalistic material. It can be searched for under the second set of accessconditions under schedule 1 to PACE.ImagingImaging an electronic device involves capturing and storing a copy of the data on a device for laterinspection away from the premises.Independent lawyerThe term we use to refer to a lawyer who is not connected to the case, whose role is to advise theinvestigator on what may and may not be seized. This person is referred to in practice as“independent counsel”.Iniquitous materialThe term we use to refer to protected material that has lost its protected status, or is to beregarded as never having been afforded confidential status, because it is tainted by “iniquity”.Under the iniquity or “crime-fraud” exception, the protection afforded to special categories ofmaterial is lost when, broadly speaking, it is created, acquired or held for an iniquitous purpose.x
InformationThe technical name for the document sworn in support of the application for a search warrant. TheCrimPR provide application forms that constitute the information.Inspection warrantA warrant issued by a judge that authorises entry onto, and the inspection of, premises.Inter partesA hearing in which all interested parties are present.Issuing authorityThe term we use to describe the person or court empowered to grant the search warrantapplication and issue a search warrant.Legally privileged materialLegally privileged material is defined in section 10 of PACE and broadly covers communicationsmade in connection with the giving of legal advice or in contemplation, and for the purpose, of legalproceedings between: a professional legal adviser and their client; and a professional legal adviserand any third party representing their client. It is absolutely exempt from searches under a searchwarrant.MetadataA set of data that describes and gives information about other data. An example is communicationsdata, which is data on the who, where, when and how of a communication but not its content.Communications data is defined in section 261(5) of the Investigatory Powers Act 2016.Multiple entry warrantA search warrant that allows for the entry of premises on more than one occasion, either up to astated maximum number of times or an unlimited number.OccupierThe term we occasionally use for a person in possession or control of the premises to be searchedunder a search warrant. We also use the terms “suspect” and “person affected by the warrant”depending on the nature of the discussion.Off-siteThe term we use to refer to activity, such as the sifting of material, that takes place once aninvestigator has left premises following the execution of a search warrant.On-siteThe term we use to refer to activity, such as the imaging of devices, that takes place while aninvestigator is on premises following the execution of a search warrant.Premisesxi
The place to be entered and searched under a warrant. Premises is defined in section 23 of PACE.Other statutes may provide their own definitions of premises.Production orderA court order compelling a party to produce a particular category of material as specified under theorder.Protected materialThe term we use to refer to material which is legally privileged, excluded material or specialprocedure material, and other categories of material that cannot be searched for or seized whensearching premises. In our consultation paper we used the term “exempted material” to refer tothese categories of material. All three of these categories have varying degrees of restriction inrelation to search and seizure.Public interest immunityA determination made by an issuing authority that the public interest demands that some of thematerial relied upon to satisfy the issuing authority to issue a search warrant should not bedisclosed.Remotely stored electronic dataThe term we use, along with “remotely stored data”, to refer to electronic data which is physicallystored on a different electronic device from the device which is accessing the electronic data.Remotely stored data can be accessed by connecting to an online account or remote storageaccount.Search warrantA warrant issued by a judge that authorises entry onto, and the search of, premises.Seize and siftPowers of seizure under Part 2 of the Criminal Justice and Police Act 2001, which provides thepower to seize indeterminable or inseparable material and to sift off the premises that which aninvestigator was entitled to seize from that which they were not.Sensitive materialAny information relied on in support of an application for a warrant which the applicant regardswould be damaging to the public interest were it to be disclosed. An investigator may later assertpublic interest immunity over the sensitive material on the grounds that there would be a real risk ofserious prejudice to an important public interest were it to be disclosed.Special procedure materialMaterial that is partially exempt from searches under a search warrant. It can be searched forunder the first set of access conditions under schedule 1 to PACE. Special procedure material isdefined in section 14 of PACE. It broadly covers material other than excluded material, which wasacquired or created in the course of an occupation and which is held in confidence, and also nonconfidential journalistic material.xii
Specific premises warrantA search warrant that allows for the entry and search only of premises specified in the warrant;these may be either one or more sets of premises.xiii
Search WarrantsTo the Right Honourable Robert Buckland QC MP, Lord Chancellor and Secretary of State for JusticeChapter 1: IntroductionBACKGROUND TO THE PROJECT1.1A search warrant is a document issued by a magistrate or judge (“the issuing authority”) to apolice officer or other investigator, granting legal authority to enter premises and search forspecified items. There are approximately 176 different search warrant provisions across 138different pieces of legislation. Most search warrants are obtained in order to search premisesfor evidence of a criminal offence.1 Around 40,000 search warrants are issued in Englandand Wales every year.21.2The importance of the law and procedure governing search warrants operating efficientlyand fairly is clear. Search warrants are a vital tool for the effective investigation of all formsof crime – including murder, terrorism, fraud, rape and child sexual abuse – and theprotection of the public from harm. At the same time, search warrants are one of the mostintrusive powers of the state, the execution of which not only amounts to an interference withan individual’s privacy rights, but may significantly adversely impact on an individual’s lifeand lead to the collection of large volumes of personal material.1.3The consequences of search warrants law and procedure failing to operate properly can besevere. Where there are deficiencies in the law, law enforcement agencies will not have themeans to obtain evidence and effectively investigate, detect, prevent and prosecute seriouscriminality. This creates a heightened risk of harm to members of the public. Where thereare procedural errors, the search warrant and any entry, search and seizure may bedeclared unlawful. In recent years, dozens of search warrants have been declared unlawfulby the courts. Inappropriately obtained search warrants can lead to entire criminalinvestigations collapsing and millions of pounds incurred by public bodies on legal fees anddamages. This can also erode public trust and confidence in law enforcement agencies.Significant reputational damage and stress may also be caused to innocent individuals whoare the subject of a search. The impact on a person’s social life, academic studies or therunning of their business can also be particularly acute where electronic devices are seizedand retained.THE PURPOSE OF THE PROJECT1.4We undertook this project at the request of the Home Office, starting work in January 2017.This request followed from comments made by senior members of the judiciary suggestingthat the law governing search warrants was in need of reform, due to its complexity andfollowing a series of high-profile cases in which search warrants were declared unlawful.1For an overview of the law of search warrants, see Search Warrants (2018) Law Commission Consultation PaperNo 235, ch 2.2Data collated and provided to us by HMCTS.1
1.5The purpose of this project is therefore to recommend ways in which the law of searchwarrants can be simplified, rationalised, modernised and made fairer. Our recommendationswould equip law enforcement agencies with the means to investigate crime effectively whileensuring that enforcement powers are exercised appropriately, in a proportionate mannerand subject to proper safeguards.1.6This is the most extensive independent review of the law governing search warrants evercarried out in this jurisdiction. In this project we review the law and practice governing searchwarrants. We examine the law and procedure when applying for, issuing, and challenging asearch warrant, and carrying out a search under warrant. We also examine the lawgoverning the treatment of sensitive material, electronic material and categories of materialthat are exempt from being the subject of a warrant. Finally, we consider the extent to whichthe wider landscape of search warrant provisions should be consolidated.1.7This report sets out our 64 recommendations for reform.3 A full list of our recommendationscan be found in Chapter 20 of this report. A full list of those who submitted a consultationresponse can be found at appendix 1. Extracts from the most frequently cited statutoryprovisions in this report can be found at appendix 2.THE SCOPE OF THE PROJECT1.8The complete terms of reference for the project, as agreed in a memorandum ofunderstanding between the Law Commission and the Home Office signed on 11 January2017, are as follows:The law reform objectives of the review encompass elements of rationalisation andstreamlining of the current law, as well as identifying and addressing pressing problems.The focus of this review is on making search warrants legislation more transparent andaccessible, thus reducing the scope for errors, which in turn can lead to substantiveinjustice and wasted costs.The review will include consideration of reform by legislative change, as well as nonstatutory guidance, Criminal Procedure Rules and other initiatives.1.9In the course of working on the project it became clear that the application of search warrantpowers to electronic material was an area of considerable uncertainty and one which causessignificant difficulties in practice. We therefore extended the project timeline and terms ofreference to include the following paragraph:The review will include consideration of how the existing search warrants legislation dealswith electronic material. For the avoidance of doubt, any revisions to the InvestigatoryPowers Act 2016, and the Regulation of Investigatory Powers Act 2000 are outside scope.Furthermore, questions relating to encryption are beyond the scope of this review.1.10 The law and procedure governing search warrants is vast and complex. We identified 176distinct search warrant provision on the statute book in our consultation paper.4 This listdoes not include warrants to enter premises (“entry warrants”) and warrants to enter and3The report is available online at .4See Search Warrants (2018) Law Commission Consultation Paper No 235, appendix 1.2
inspect premises (“inspection warrants”). Statutory provisions that are exercised inconjunction with a warrant and govern the treatment of seized material are also contained inthe Police and Criminal Evidence Act 1984 (“PACE”) and Part 2 of the Criminal Justice andPolice Act 2001 (“CJPA”).1.11 Beyond the primary legislation, there are supplementary provisions in Code B of PACE, theCriminal Procedure Rules 2020 (“CrimPR”) and the Criminal Practice Directions (“CrimPD”).There are a number of other guidance documents and codes of practice pertaining tocriminal investigations that may involve the execution of a search warrant.1.12 This project only concerns search warrant provisions relating to a criminal investigation. Itdoes not concern powers of stop and search or police powers more generally; however, wediscuss these powers to the extent that they inevitably overlap with search warrants law andprocedure.THE HISTORY OF THE PROJECT1.13 This report represents the conclusion of our search warrants project. As noted above, workbegan on the project in January 2017. We met with a diverse range of stakeholders togather evidence of the problems with the current law and set about producing provisionalproposals in a consultation paper. In preparing the consultation paper, we conducted anextensive literature review and discussed the law with academics, lawyers, judges, courtorganisations, law enforcement agencies, Government departments and special interestgroups. This iterative discussion process was invaluable in helping us to understand how thecurrent law operates, its deficiencies and potential avenues for reform.1.14 Our consultation paper was published on 5 June 2018, which marked the beginning of athree-month open public consultation period, ending on 5 September 2018. During theconsultation period, we invited responses to the 64 consultation questions contained in ourconsultation paper. We received 47 consultation responses in total.51.15 To encourage discussion and foster ideas for reform, we held an operational roundtableevent on 23 July 2018 and a practitioners’ roundtable event on 24 July 2018.6 We also helda roundtable at the Royal Courts of Justice on 21 November 2018 with senior Circuitjudges,7 High Court judges and judges of the Court of Appeal.8 In addition, we gave anumber of presentations on the project to human rights organisations, special interestgroups and members of the legal and medical professions.1.16 With the kind assistance of several stakeholders, we undertook several activities to assist inunderstanding the practical side of search warrants. We spent time with Staffordshire Police,who gave us operational insight into applying for and executing search warrants. Thisincluded accompanying constables during the execution of a search warrant.9 We attendedthe offices of Privacy International, who demonstrated to us first-hand the capability of5We list those individuals and organisations who submitted a consultation response at appendix 1 to this report.6We are grateful to Northumbria Law School for organising a regional public roundtable, which informed theirconsultation response.7A senior Circuit judge (resident judge) carries out leadership and management duties in running the court centre atwhich they are based.8We refer to this in our report as a roundtable with the senior judiciary.9We would like to thank DC Anthony David in particular for all of his assistance.3
mobile phone extraction tools and the quantity of data that they can extract. We alsoattended a number of court hearings that concerned the treatment of material seizedfollowing the execution of a search warrant.1.17 An analysis of consultation responses followed our consultation exercise which, along withthe other events discussed above, has shaped the formulation of our policy and informed the64 recommendations contained in this report.THE PROBLEMS WITH THE CURRENT LAW1.18 This section provides an overview of the problems with the current law and procedure thatgovern search warrants. There are three principal ways in which these problems manifestthemselves. First, errors are often made. Operation Midland is a high-profile case in point, inwhich six search warrants were obtained following false allegations made relating to historicchild sexual abuse. A report by Sir Richard Henriques into Operation Midland found seriouserrors in the search warrant applications.10 The consequences of errors such as these –which include millions of pounds incurred by public bodies, the erosion of public trust andconfidence in law enforcement agencies and significant reputational damage to innocentindividuals – have already been set out at paragraph 1.3 above.1.19 Secondly, the problems that we have identified lead to procedural inefficiency andunfairness. In some cases, it can take police forces three weeks to obtain a search warrantdue to a lack of available hearing slots. The longer it takes to obtain and execute a searchwarrant, the higher the risk of evidence being lost and the longer the period of potentialoffending and therefore harm being caused to members of the public. When a searchwarrant has been executed, and material seized, logistical challenges may arise whenmaterial is subsequently examined. This can lead to excessive cost and delay, therebyimpeding law enforcement agencies from investigating crime effectively. The significantbacklog of electronic devices awaiting examination – in some cases up to a year – alsomeans that individuals whose electronic devices are seized may be left without material thatis integral to their social lives, academic studies or the running of their business.1.20 Thirdly, law enforcement agencies lack the powers to investigate, detect, prevent andprosecute crime effectively. Nowhere is this issue more acute than in the area of electronicmaterial. By way of example, relevant evidence may be stored remotely in a cloud accountprotected by two-factor authentication. The law has failed to keep pace with the moderndigital landscape and the ways in which criminality now occurs. As a result, law enforcementagencies may fail to obtain electronic evidence which is vital for the successful investigationand prosecution of serious criminal offences.Complexity1.21 The complexity of provisions regulating search warrants leads to a confusing legislativelandscape. Search warrants legislation has repeatedly been acknowledged to be an10Sir Richard Henriques, Independent Review of the Metropolitan Police Service’s handling of non-recent sexualoffence investigations alleged against persons of public prominence (4 October 2019) para 2.4.64. Available -report/.4
“unfortunate jumble of legislative provisions”,11 with a former Lord Chief Justice alsocommenting that associated legislation “could have been more felicitously drafted”.121.22 Accordingly, there is a heightened risk that errors will occur when applying for and executinga search warrant, which may lead to inordinate cost, delay and investigations collapsing.Investigators also often spend time and money deciphering the law to ascertain preciselywhat conduct is legally permissible.1.23 For individuals, the complexity of the law means that it is difficult to understand the extent o
The Criminal Practice Directions ("CrimPD") are made by the Lord Chief Justice and relate to the practice and procedure of the criminal courts. CrimPD Division XI (47A and 47B) relates to search warrants. Criminal Procedure Rules . The Criminal Procedure Rules ("CrimPR") govern the way criminal cases are managed and set out
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