News

7 June 2018

Jessica Parker and Maia Cohen-Lask contribute to the Law Commission’s Consultation Paper on Search Warrants

Jessica Parker and Maia Cohen-Lask are pleased to have contributed to  the Law Commission’s Consultation Paper No 235 on Search Warrants. A wide range of topics were discussed, including problems pertaining to applicants for search warrants not having sufficient knowledge to answer questions on oath; the types of electronic material investigators search under a search warrant; and aspects of search warrant provisions that are unnecessary.

Consultation Question 15

We also invite consultees’ views on whether there ought to be more detail in rules of court or Code B of the Police and Criminal Evidence Act 1984 on what is required from an applicant at a hearing for a search warrant.

“…where a journalist is arrested under section 24 of PACE and premises are searched under sections 18 or 32, the protection afforded to journalistic material does not apply. This point was also raised by Jessica Parker, Partner at Corker Binning, who observed that the police have unrestricted access to journalistic material, which would have been special procedure material under Schedule 1 to PACE had the search been under a warrant.” Section 4.104 (Page 88)

 

Consultation Question 50

We invite consultees to share examples of the types of electronic material that investigators seek under a search warrant. We are particularly interested in any examples of search warrants granted in relation to intangible material stored remotely in electronic form.

“A number of stakeholders have all raised such concerns regarding device seizures. Jessica Parker, Partner at Corker Binning, observed how the electronic material contained on these devices can “give unfettered access to someone’s life”. It can also cause huge inconvenience for those subject to device seizures. It was pointed out that, in today’s world, a family home has all sorts of internet enabled electronic devices, which are capable of storing data. These devices may be used by one or more family members. It may cause considerable distress or inconvenience for a person to be without an electronic device for a period of time. For example, a child’s education may be affected by the seizure of a device which they use for their studies. Likewise, the operation of a business could effectively be paralysed if all associated devices are seized pursuant to a search warrant.” Section 10.43 (Page 213)

 

Consultation Question 58

We invite consultees’ views on whether there are any search warrant provisions that are unnecessary and therefore ought to be repealed.

“The Criminal Law Committee of the Law Society advocated wider structural reform. They argued that the variety of routes and codes of practice provide little assistance in ensuring that applications are made clearly, precisely and objectively. Further, the availability of numerous routes to obtain the same outcome is likely to reduce the effectiveness of training received by applicants and issuing authorities. It was therefore argued that consideration should be given to a consolidation of all powers of entry. Jessica Parker, Partner at Corker Binning, argued that that search powers should be in one statute, as most practitioners deal with a spectrum of offences. Further, she suggested that codes of practice and guidance should also be consolidated in a single document.” Section 11.10 (Page 249)

 

Consultation Question 15

We invite consultees’ views on whether problems commonly arise because applicants for search warrants do not have sufficient knowledge to answer the questions on oath. If so, do consultees consider that reform is needed to increase the likelihood that a person will have sufficient knowledge to answer questions asked?

We also invite consultees’ views on whether there ought to be more detail in rules of court or Code B of the Police and Criminal Evidence Act 1984 on what is required from an applicant at a hearing for a search warrant.

“As a result, it remains unclear whether the intention to search premises on its own can constitute a lawful motive for arrest. Maia Cohen-Lask of Corker Binning argued that R (L) v Chief Constable of Surrey Police presented a missed opportunity and that the lack of clarity on important questions relating to the manner in which agents of the state are entitled to exercise their coercive powers needs to be resolved.” Section 4.110 (pages 89-90)

 

Access the full consultation paper here

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