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Law Commission Launches a Public Consultation on Search Warrants

Posted on 04 July 2018 by Matthew Ewens and Alex Tyerman

Law Commission Launches a Public Consultation on Search Warrants

On 5 June 2018 the Law Commission announced a public consultation to consider reforms in relation to the law and practice governing search warrants. Undertaken at the request of the Home Office, the consultation broadly identifies four problem areas in the current law relating to search warrants, which are set out below, and suggests provisional proposals to deal with them.

What is a search warrant

A search warrant is the written authority which allows a police officer or other investigator to enter premises to search for material or individuals. It will usually allow the investigator to seize relevant material found during the search, as well as use reasonable force where necessary.

Areas of concern highlighted by the Law Commission

  1. The law governing search warrants is complex and not cohesive, consisting of 176 statutory provisions written in 138 separate pieces of legislation. The Law Commission has proposed these statutory instruments are consolidated and simplified, thereby reducing the risk of procedural errors and increasing accessibility.  
  2. A further problem is the lack of consistency between the various statutes. The range of legislation can lead to confusion as to who can apply for a search warrant and carry out a search under any given statute. Similarly, the conditions pursuant to which a search warrant is granted vary, as does the application of statutory safeguards and protection afforded to certain material. This may give rise to individuals not being afforded the rights conferred by statute either as an applicant or an interested party.  One option being considered by the Law Commission is to expand the statutory safeguards found in sections 15 and 16 of the Police and Criminal Evidence Act 1984 (PACE) to all search warrants, not just those warrants granted to police constables. Another suggestion is to enshrine the common law duty of candour into statute. This is the duty owed by any person making an application to provide full and frank disclosure of all relevant information to the court, including that which might militate against the granting of the search warrant.
  3. The Law Commission also commented that the search warrant regime is outdated and does not effectively take advantage of technological developments. For example, a high proportion of search warrants are granted under section 8 of PACE, which predates major advancements in technology, such as electronic document storage, remote servers and cloud technology.
  4. Finally, the Law Commission raised concerns about the costs associated with search warrants. The complexity of procedure and execution gives rise to increased litigation and often considerable costs by those seeking or challenging a warrant. To assist with this, the Law Commission has proposed introducing new appeal procedures.

Next steps

Search warrants serve an important purpose in the effective administration of justice and are a key tool for investigators. However, they are also an invasive investigatory power which restrict individuals' constitutional rights. Parliament faces the challenge of balancing the need of the State to investigate criminal acts against the rights of the individual or company affected by a warrant. 

Any recommendations to improve the current search warrant regime are eagerly awaited.  Provided there is no loss of current safeguards, the consultation marks a positive move forward in consolidating and simplifying outdated legislation.

The public consultation will run until 5 September 2018, and following review the Law Commission will publish its final recommendations. 

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