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Tue, 27 October 2020

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Search warrants reform to help law enforcement investigate crime

Law Commission

7 min read Partner content

Reforms that would reduce the number of unlawful search warrants being issued and help law enforcement to investigate crime and collect evidence (especially that stored electronically) have today [7 October 2020] been recommended by the Law Commission, the Government’s independent law reform body.

A search warrant is a document issued by a magistrate or judge (“the issuing authority”) to a police officer or other investigator. A search warrant grants legal authority to enter premises and search for specified material. Around 40,000 search warrants are issued in England and Wales every year and they are a vital tool for investigating all forms of crime – including murder, terrorism, fraud, rape and child sexual abuse – and the protection of the public from harm. They are also one of the most intrusive powers of the state, and amount to an interference with an individual’s privacy rights.

However, the laws that govern search warrants are unnecessarily complex, inconsistent, outdated and inefficient.

The Law Commission’s recommendations – to be laid in Parliament today – would make the law simpler, fairer, more modern and efficient whilst striking a balance between improved investigative powers for law enforcement and greater safeguards for those being investigated. Our recommendations include:

  • Strengthening law enforcement powers so they can successfully investigate crime, for example by extending the availability of warrants that allow a property to be entered multiple times, and for all properties controlled by an individual to be searched.
  • Improving the procedure of applying for a warrant to reduce the number of mistakes and therefore unlawful warrants being executed.
  • Ensuring that law enforcement is able to access electronic evidence, including that which is held remotely on servers, and copy required data whilst on site.
  • Improving safeguards for those being investigated, for example by requiring them to be given a notice of powers and their rights and allowing them to request legal representation whilst their property is being searched.

Professor Penney Lewis, Criminal Law Commissioner said:

“Search warrants are vital for investigating crime and it’s important that the law is effective and able to meet modern challenges such as access to electronic evidence, which is often stored in the cloud.

“The law is not currently working as well as it should. Our recommendations would simplify the law and modernise the powers needed by law enforcement, while crucially also extending safeguards to ensure any search is limited to what is necessary and proportionate.”

Issues with the current law

Search warrants are a vital tool for the effective investigation of all forms of crime and for the protection of the public from harm. At the same time, search warrants are one of the most intrusive powers of the state and the execution of a warrant significantly interferes with an individual’s right to privacy.

However, the law and procedure which governs search warrants is unnecessarily complex, inconsistent, outdated and inefficient. This has led to a number of issues including:

  • Errors: A 2016 review by the National Crime Agency found that 78.73% of investigations had defective warrants (of which 8.2% had significant deficiencies). Operation Midland is a high-profile example, in which six search warrants were obtained following false allegations made relating to historic child sexual abuse.
  • Inefficiency: It has taken some police forces three weeks to obtain a search warrant, during which time evidence might be lost and further crimes committed.
  • Insufficient powers: Law enforcement agencies do not have effective powers to obtain electronic evidence, such as indecent images of children, which might be stored on remote servers in an unknowable jurisdiction. Being able to obtain this material is vital for the successful investigation and prosecution of serious criminal offences.
  • Inadequate safeguards: There is currently not enough protection for individuals who have electronic data seized (which could include personal information which is irrelevant to the investigation). Safeguards also vary depending on the type of warrant issued, resulting in some individuals having fewer statutory protections than others.

These issues have led to a system in which law enforcement do not always have the means to obtain evidence and effectively investigate, detect, prevent and prosecute serious criminality. Procedural errors can lead to the unlawful use of search warrants, with innocent individuals suffering significant reputational damage and stress when subject to a search.

Recommendations in detail

The Law Commission has made 64 recommendations which aim to make the law simpler, fairer, more modern and efficient, and strike a balance between effectively investigating crime whilst strengthening safeguards for those being investigated.

The key recommendations include:

  • Strengthened law enforcement powers: We make a number of recommendations to give agencies and law enforcement the powers they need to successfully investigate crime. This includes:
    • The expansion of “multiple entry warrants” which would allow for a property to be searched on multiple occasions and “all premises warrants” which would allow all premises occupied or controlled by a specified person to be searched.
    • Permitting a police constable to search a person found on premises under the authority of a search warrant issued under the Police and Criminal Evidence Act 1984.
    • Giving the NHS Counter Fraud Authorities in England and Wales the ability to apply for search warrants. The National Health Service (“NHS”) is estimated to be vulnerable to £1.21 billion worth of fraud each year. However, they currently are unable to apply for a search warrant, inhibiting the effective investigation of fraud.
  • Improved process: The Law Commission is also making a series of recommendations that would improve procedural efficiency, reduce the scope for serious errors and ensure that the issuing authority, a magistrate or judge, is presented with an accurate and complete picture of the investigation.
    • This would include standardised entry warrant application forms and a template for entry warrants. Currently, law enforcement agencies must modify forms and templates, which increases the risk that errors will be made.
    • We also recommend that an online search warrants application portal would bring a host of benefits, and therefore recommend that Her Majesty’s Courts and Tribunals Service (HMCTS) consider the practicability of designing and implementing an interactive online search warrants application portal.
  • Electronic evidence and materials: According to the Crown Prosecution Service, digital devices increasingly provide evidence in criminal trials, yet the legal framework that currently governs the search and seizure of electronic material is no longer adequate and reform is needed. Our recommendations would facilitate the effective collection and prompt examination of electronic material in a way which does not inhibit criminal investigations or impose unreasonable demands on law enforcement agencies.
    • We recommend that warrants should allow for electronic data stored on an electronic device to be copied while on the premises – and that the Government should consider whether this should include data stored remotely (even if in another jurisdiction).
    • We have also recommended safeguards to ensure transparency, accountability and limit the interference with property and privacy rights. These would ensure that unneeded data is swiftly deleted, and devices returned as soon as is practical.
    • The problems relating to electronic material transcend search warrants. We therefore recommend a wider review of the law governing the acquisition and treatment of electronic material in criminal investigations.
  • Safeguards: Reforming the safeguards that must be followed when applying for and executing a search warrant.
    • This includes ensuring that non-Police investigators, such as members of the Serious Fraud Office, are subject to similar safeguards as the police.
    • Our amendments will also clarify when and in what form a search warrant must be provided to an occupier, and state that an occupier has a right to ask for a legal representative to observe the execution of a warrant.
    • We are also recommending the introduction of a statutory requirement for law enforcement agencies executing search warrants to provide an occupier with a notice of powers and their rights.

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