What is entry and search?
In certain circumstances outlined in the Police and Criminal Evidence Act 1984 (PACE), the police have the power to enter premises and search them to either arrest someone, seize items in connection with a crime, or both.
Do police need a warrant?
Police usually need to obtain a warrant from the court before they can enter and search premises. There are situations, however, when the police may enter premises to search them without a warrant.
When is a warrant not necessary?
It is not necessary for the police to be in possession of a warrant to enter and search premises in the following circumstances:
- to arrest a person for whom a warrant of arrest has been issued during criminal proceedings;
- to arrest a person for an indictable offence (ie, a serious offence which would be heard at Crown Court);
- to arrest a person for an offence under the Public Order Act 1936, s1 which states that it is prohibited to wear a uniform in a public place or at a public meeting signifying an association with a political organisation, without permission to do so;
- to arrest a person for an offence under the Public Order Act 1986, s 4 which prohibits anyone placing another in fear of violence;
- to arrest a person for using or threatening violence for the purposes of entering premises (Criminal Law Act 1977, s 6);
- to arrest a person who is a trespasser on the premises and who has failed to leave those premises after being asked to do so (Criminal Law Act 1977, s 7);
- to arrest a trespasser who has with him any weapon (Criminal Law Act 1977, s 8);
- to arrest a person who interferes with an officer of the court when they are trying to enforce a judgment (Criminal Law Act 1977, s 10);
- to arrest someone for failure to comply with an interim possession order (Criminal Justice and Public Order Act 1994, s 76);
- to arrest a child or young person who has been remanded or committed to local authority accommodation;
- recapturing a person, including a young offender, who has escaped from custody;
- recapturing a person unlawfully running who is being pursued;
- in an attempt to save a life or prevent injury to someone or serious damage to property.
Other than to save a life, or prevent injury or serious damage to property, the police can only exercise the above powers if they have reasonable grounds to believe that the person they are searching for is on the premises. In connection to searching for items, the police can enter premises in search of items only if the suspect has been arrested for an indictable offence and there are items relating to the offence that will be useful as evidence. In this case an officer of the rank of inspector or above must give their authorisation in writing.
When is a warrant needed?
An application will be made to the court by a constable when there is a need for a warrant. There are two types of warrant that may be issued for the search of premises; these are a specific premises warrant or an all premises warrant.
Specific premises warrant
The constable can only enter and search the premises specified in the application. This warrant will only be issued if the court is satisfied that all the following criteria are fulfilled:
- an indictable offence (one of the more serious offences) has been committed; and
- there are items on the premises that will be of significant value when investigating the offence; and
- these items will be useful as evidence during a trial; and
- that the items are not protected by legal privilege; and
- that a constable will be prevented from entering the premises, either because there will be nobody available to grant them entry or they will not allow them entry and the search may be seriously affected if the constable does not gain immediate access, if they do not possess a warrant.
All premises warrant
This warrant will only be issued if all the above criteria are satisfied in addition to which the court must be satisfied that:
- it is not reasonable to name all the premises that may need to be searched in the warrant; and
- it is necessary, because of the details and nature of the offence, to search any premises owned or controlled by the person in question which are not included in the application.
There are certain materials that are offered some protection from police search and seizure:
- Legally privileged material: any material relating to legal advice or to legal proceedings and any items related to either of these;
- Excluded material: special warrants must be obtained by the constable to seize this material. This category includes business trade records which are held in confidence, medical samples taken to diagnose illnesses and any journalistic material;
- Special procedure material: any material that doesn’t fall under the first two categories but which the person holding it has stated they will keep confident or have been entrusted to do so. Again, in this situation the constable will require a special warrant.
Execution of search warrants
- Under s 16 of PACE, a warrant to enter and search premises may be executed by any constable.
- The warrant may authorise someone else to accompany any constable who is executing it. This person has the same powers as the constable whom he accompanies in respect of the execution of the warrant, and the seizure of anything to which the warrant relates, but he may exercise those powers only in the company, and under the supervision, of a constable.
- Entry and search under a warrant must be within three months from the date of its issue.
- 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 authorises entry in writing.
- 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 authorises this in writing.
- 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.
- 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; (b) produce the warrant to him; and (c) supply him with a copy of it.
- If there is no person present 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.
- A search under a warrant may only be a search to the extent required for the purpose for which the warrant was issued.
- 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.