STRAIN

Date: 2018-03-15

In Entick v Carrington (1765), a case concerning the entry to and searching of premises, the court ruled:

“…if this is law it would be found in our books, but no such law ever existed in this country; our law holds the property of every man so sacred, that no man can set his foot upon his neighbour’s close without his leave.”

Entick v Carrington is probably the earliest case law concerning the law of search and seizure, a legal power now described as a ‘nuclear option’ in the court’s arsenal (R (Mercury Tax Group) v HMRC [2008] EWHC 2721). But, it is certainly not the last word, and over the previous few years, there has been a substantial body of developing case law designed to ensure that this most potent state intrusion into the lives of individuals and business is exercised lawfully and proportionately.

Why does it matter?

First and foremost, core constitutional principles are at stake, the power of the state to enter private property (very often during a dawn raid and with the family present) should not be used lightly, particularly during what is normally the early stages of a criminal investigation.

Warrants should only be sought as a “last resort and should not be employed where other less draconian powers can achieve the relevant objective” (R (Mills) v Sussex Police and Southwark Crown Court [2014] EWHC 2523 (Admin)).

The taking of documents, files, computer servers and systems can have a profound reputational impact on business when staff see what is happening, and they and clients lose confidence in the business. The inability to carry out ‘business as normal’ can put the survival of business at risk and can place an unbearable toll on the individuals involved.

Can I challenge a search warrant?

The powers of search and seizure are spread out over a great many legislative provisions, and the key message is to take legal advice as soon as you are aware that anything might happen or has already happened.

What is clear is that warrants are very often granted on an erroneous basis, with scant regard for the legal principles involved.

Drawing a warrant too widely is a frequent issue (see: R (F, J and K) v Blackfriars Crown Court and Commissioner of Police of the Metropolis [2014] EWHC 1541 (Admin)).

While warrants are issued via a judicial process, the Judge will only be able to rely on what is disclosed by the investigator in private.

Police officers are duty bound to provide the court with full and frank disclosure, highlighting any material which is potentially adverse to the application. This includes a duty not to mislead the judge in any material way. The judge must then apply a rigorous critical analysis to the application so that they can be satisfied that the evidence provided justifies the grant of the warrant and give reasons for their decision.

In Redknapp v Commissioner of Police of the Metropolis [2008] EWHC 1177 (Admin) the court ruled:

“The obtaining of a search warrant is never to be treated as a formality. It authorizes the invasion of a person’s home. All the material necessary to justify the grant of a warrant should be contained in the information provided on the form. If the magistrate or Judge in the case of an application under s.9, does require any further information in order to satisfy himself that the warrant is justified, a note should be made of the additional information so that there is a proper record of the full basis upon which the warrant has been granted.”

There are various avenues of legal address available, including judicial review. Early intervention may result in the return of documents and property, and in some instances, a claim for damages might be possible.

How we can assist

To discuss any aspect of your case please contact Bethan Williams on 01758 455 500 or office@strainandco.co.uk

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