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June 6th 2018

Andrew Petherbridge

Review of warrant system is welcome as too many are granted without required scrutiny and used as ‘fishing exercises’ by police

Andrew Petherbridge

Andrew Petherbridge

Lawyer and Head of Civil Liberties

Review of warrant system is welcome as too many are granted without required scrutiny and used as ‘fishing exercises’ by police

Too often in my work have I seen cases where innocent people have found the police at their door with a warrant to search their properties when there was no justifiable reason for subjecting them to such personal intrusion.

Too often in my work have I seen cases where innocent people have found the police at their door with a warrant to search their properties when there was no justifiable reason for subjecting them to such personal intrusion.

A search warrant is a written order which gives police officers the authority to enter a building to search and seize material of a kind specified in the warrant.

They are in place to help police forces secure further evidence when there is already strong reason to suspect or believe something significant and relevant to their investigation will be found at the property searched.

However, increasingly in recent years I have come across situations where warrants have been applied for, and granted by judges, which have simply allowed them to go on ‘fishing exercises’ in the hope, not reasoned expectation, something will be found.

These have been situations where there hasn’t been any strong reasoning for the search taking place, and often see people already known to police forces, perhaps because they have previously been arrested or suspected of a specific type of crime, singled out with their properties searched through association, not evidence.

I have also seen cases in my work where the wrong kind of warrants have been used to search for other items, and have represented people who have had their homes or other properties searched simply because police forces did not complete simple checks before securing the warrant which would have confirmed they were at the wrong address, or targeting the wrong person.

This is simply wrong, and damaging to those who suffer as a result. It can cause huge amounts of stress and cause damage to reputations amongst friends, colleagues, family and neighbours.

This wrongful use of the warrant system has become too commonplace.

The Law Commission has highlighted the complicated current procedural nature of granting warrants – there are more than 175 different issuing statutory powers available to investigators when applying for a warrant – saying it has led to judges and magistrates sometimes perceiving issuing a warrant simply as a rubber-stamping exercise.

In one case which has been highlighted, investigations had to be dropped, at a cost of £7.5m to the taxpayer, after a pair of property tycoons successfully challenged the manner that the agency had obtained its search warrants.

It emerged that the issuing judge, in a 20-minute hearing, asked just one question about the street name.

Changes must bring clarity around seizing and searching of smartphones and tablets

Unless changes are made I fear we will only see overstretched police forces doing more ‘fishing’ and less following up of real hard evidence. Less evidence based policing, less investigating, more assumption and unfair targeting.

Applications for warrants must be prepared properly and then given sufficient scrutiny if basic human rights are to be protected.

With that in mind, I certainly agree with the Law Commission’s view that the current system for granting warrants needs reviewing, and that the public should be given greater protection given the frequent errors made.

There certainly also needs to be greater clarity over the rights of police forces to use warrants to search mobile phones, tablets and computers in the modern age, given these devises are now one of the first things many officers will be told to find and seize during property searches.

As Law Commissioner Professor David Ormerod QC has said, warrants are a key part of police work and investigation and serve an important purpose, but the law always has to strike the balance between the powers of the state and the rights of individuals.

Currently, that balance is not maintained on too many occasions and damaging searches are being carried out which are unlawful themselves and certainly not necessary not proportionate to the evidence at hand.

The Law Commission review of the use of warrants was commissioned by the Home Office in December 2016. Consultation on proposals will run until September 5 before a final report is published.

It is something our civil liberties team at Hudgell Solicitors will be following closely.

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