Search warrants: time for reform - Jonathan Dixey writes for Police Professional
Search warrants are undoubtedly an invaluable tool in the law enforcement armoury: the evidence obtained is often crucial in proving or disproving suspicions of involvement in criminality. In England and Wales alone, around 40,000 are issued every year. However, they are also controversial: they are one of – if not the – most intrusive powers available to the State. Moreover, in recent years they have attracted high-profile criticism. In his report into the MPS’ investigation Operation Midland, Sir Richard Henriques identified serious errors in the way in which search warrants were applied for. Howard Riddle, the former Senior District Judge and Chief Magistrate for England and Wales, who granted some of the warrants agreed with Henriques’ criticisms.
In what has been described as the most extensive independent review of the law governing search warrants ever carried out in this jurisdiction, the Law Commission has concluded (in a report presented to Parliament on 7 October 2020) that fundamental changes should be made. Those changes include strengthening law enforcement powers, including the expansion of ‘multiple entry’ and ‘all premises’ warrants, reforming the safeguards which must be adhered to and strengthening the judicial oversight of the process for applying for and challenging the grant of search warrants. It is beyond the scope of this article to analyse all of the 64 recommendations which have been made, but for officers involved in obtaining search warrants two proposals for reform are likely to be greeted with relief (if not cautious enthusiasm). Firstly, improvements to the process for obtaining search warrants which are aimed to reduce errors and increasing speed and efficiency; and secondly, reforms to facilitate the effective collection and prompt examination of electronic material.
The problems with the law as it stands are well-documented and will be familiar to those who have considered applying for a search warrant in the past. Chief amongst the complaints is the law’s sheer complexity. When a Lord Justice of Appeal describes the law as an “unfortunate jumble of legislative provisions” the likelihood of error by front-line officers is great (Gross LJ in Gittins v Central Criminal Court  EWHC 131 (Admin)). A 2016 review by the National Crime Agency concluded that in 268 operations in which search warrants were obtained, potentially significant deficiencies were identified in 22 operations and minor deficiencies in a further 189 operations.
The higher courts are regularly called upon to determine the legality of warrants and the manner in which they executed, often concluding that the warrant was obtained and / or executed unlawfully. The consequences of such findings are often extremely serious: not only for the individual(s) affected, but for the investigation and any subsequent prosecution.
To remedy some of these issues, the Law Commission has proposed a suite of reforms, including:
- New, standardised application forms and warrant templates which should reduce the scope for errors when officers and courts ‘adapt’ existing documents.
- An online search warrants application portal which would allow officers to populate an application template.
- Amending the guidance provided to officers on how their duty of candour to the court is discharged. This is a particularly welcome change: one of the most important protections for the individual is that officers inform the court of all relevant factors, i.e. those which support the application for a warrant and those which undermine it. Unfortunately, the reported cases demonstrate this is not always done.
The other area of reform that many investigators will welcome concerns electronic evidence and materials. Presently, there are many problems: should a warrant be targeted at the electronic device itself (such as a mobile telephone) or the data held on it? What about devices which contain or are likely to contain special procedure material, excluded material or legally privileged material? How can data stored overseas or in the cloud be obtained? When electronic devices are obtained, how are they reviewed and the relevance of their content determined?
The Law Commission’s proposals on these issues are to be welcomed: laws drafted in the age of the floppy disk have been in need of modernisation for some time. Greater clarity should assist both investigators and offer greater protection to the individuals from whom electronic devices are seized. The Commission recommends that a new statutory regime governing the treatment of seized electronic material is introduced. Again, this reform, which should bring a greater coherence to the disparate powers concerning electronic data, is long-overdue.
The Government have yet to respond to the Law Commission’s report. If the proposals are adopted, the breadth of police powers is unlikely to be expanded considerably. However with greater clarity and consistency, it is to be hoped that some of the bear-traps and trip-wires that have resulted in successful challenges to warrants will be avoided.