Search and seizure operations and search orders relate to powers granted either by statute or by a court to permit the search of premises in order to locate, seize and retain documentation or other material relevant to an investigation.
Often the first indication of a criminal investigation is the arrival of a number of investigating officers at your home or office. Officers may be there to arrest individuals and/or to search for, seize and retain material relevant to a criminal investigation. The seizure and retention of computers and other devices is often a major issue in raids. Relevant material may be inextricably linked to information that has no bearing on an investigation but is vital to your day-to-day work. If you should find yourself or your premises subject to a search order, you need to act quickly to obtain legal advice as to whether the order could be set aside before the search begins.
The First step a Solicitor shall take is immediately check the validity, legality and scope of the search and advise you on the protections available, particularly where material is subject to conditions of confidentiality and/or Legal Professional Privilege (LPP).
Police Search and Seizure Powers can be divided into the following categories:
- Stop and search of persons and/or vehicles
- Searches of premises
- A. search with a warrant
- B. Search without a warrant
- Seizure of property
- Retention of property
1. Stop and search of persons and/or vehicles.
The police have powers to stop, detain and search you and/ or your vehicle under a number of different acts such as section 1 of the Police and Criminal Evidence Act 1984, section 60 of the Criminal Justice and Public Order Act 1994 and sections 43 and 44 of the Terrorism Act 2000.
2. Searches of Premises
A. Search with a warrant
Section 8 of the Police and Criminal Evidence Act, 1984 provides for Search with Warrant. Before the police can search your home or workplace for people or articles linked to an offence they must get awarrant. The offence must also be a serious or `indictable' offence .Also it is necessary to establish thst the offence is triable either way or triable only in the Crown Court. A magistrate can authorise entry and search of your home or workplace when there exists a reasonable grounds that an`indictable' offence has been committed, that there is material on the premises of substantial value to the investigation and that is likely to be relevant evidence and that it's not possible to gain entry any other way. The police must specify in the application which premises are to be searched and what articles/persons are being searched for however the same is subjected to relaxation as per the law 'and no constable can go beyond the ambit as prescribed under the law.
B. Search without a warrant
Section 18 of the Police and Criminal Evidence Act, 1984 provides for Search without a Warrant. Once a person has been arrested for an indictable offence the police shall no longer need a warrant to search your home or workplace.In such a case the police can enter premises which are occupied or under such person’s control.
3. Seizure of Property
Section 19 of the Police and Criminal Evidence Act, 1984 provides for the Seizure of property. A police officer lawfully on premises can seize any item which they reasonably suspect is evidence of any offence or has been obtained as a consequence of an offence.
4. Retention of Property
Section 22 of the Police and Criminal Evidence Act, 1984 provides for the Retention of property however there's plenty of room for abuse there.
The law suggests that the right to privacy and respect to personal property are key principles of the Human Rights Act 1998. Powers of entry, search and seizure should be fully and clearly justified before use because they may interfere with the occupier’s privacy. The officers at the time of investigation should consider if the necessary objectives can be met by the less intrusive means. It is submitted that the powers to search and seizure must be used fairly and responsibly giving respect for people who occupy the premises that are being searched or are in-charge of the property being seized and without unlawful discrimination. When the warrants are issued the wording of the warrants has to be precise in terms of search and seizure. A search can only be authorised to the extent required for the purpose of which warrant was issued. The law does not authorise entry and search for legally privileged, excluded or special procedure material by a warrant under section SS 8 and 15 PACE. In accordance with section 16 (8) of PACE a search is only authorised to the extent required the purpose for which warrant was issued.
In accordance with section 15 (6) (B) of PACE a warrant has to identify the articles or person sought and has to be capable of being understood as a free standing document. In the instant case the warrant has been poorly drafted and the ambit of search is un-clear. After the seizure it explicitly clear that the articles taken into possession are beyond the scope of the warrant and it has failed to comply with provisions of section 15 (6) (B) and thus is invalid. The present warrants contained defining words, the wording was direct at searching Benzocaine, other bulking agents for controlled drugs, documentation relating to supply of Benzocaine, Mobile Phones, Mobile Phone packaging, Sim Cards, Computer, Electronic Storage Devices. The warrants were not, prima facie directed to seize the tool bank cards, log books, chemicals, paper files of different companies which did not concern Benzocaine in any manner whatsoever and the other ancillary paper work. However, the search and seizure operation has gone beyond the ambit of the warrants issued in the present case and the same has become unlawful as the warrant issued is word definite.