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7.1 Search with a warrent - general, Section
8, PACE
7.2 Other powers to search premises with a warrant
7.3 Safeguards for any search with a warrant
7.4 Section 18, PACE search without warrant after arrest
7.5 Section 32 PACE search without warrant upon arrest
8 Other police powers of entry
9 Police powers to seize and retain property
Under Section 8 of PACE, magistrates may authorize the police to enter and search premises, where the police reasonably suspect that a “serious arrestable offence” has been committed. They must also have reason to believe that it is not practical to gain entry otherwise and that there is material on the premises likely to be of substantial value to the investigation.
The police can also apply for warrants to search premises under other legislation including the following Acts:
It is beyond the remit of this booklet to examine these search powers in detail here, suffice to say that the safeguards for any search of premises as described below apply to these powers as well.
When applying for any warrant, the police must specify the reasons they are asking for it, and identify the items or persons sought.
The actual warrant must specify:
The police are supposed to enter at a reasonable hour, unless this would “frustrate
the purpose of the search”. They must identify themselves and supply the
occupier with a copy of the warrant. If there is no person present on the premises
at the time, the police must leave a copy of the warrant in a prominent place.
After the search has finished, the police must return it to the magistrates’
court where it was issued, where it must be retained for 12 months, during which
period the occupier has a right to inspect it.
Points to Note
In practice it is not difficult for police to satisfy the conditions in Section
8 PACE for getting a warrant. The hearing is held “ex parte” –
ie without your representative present - and the magistrates are usually sympathetic.
A warrant under Section 8 may only be issued where the police reasonably suspect that a “serious arrestable offence” (‘SAO’) has been committed. This is defined under Section 116 of PACE as an “arrestable offence” which has led or is intended or likely to lead to any of the following consequences:
The police can use reasonable force to exercise the warrant, often at around 6-7am in the morning. It may or may not involve your door being kicked in, depending on the nature of the search and whether or not the police believe that the search will be prejudiced by alerting you to their presence. If they do damage your door, the police are under a duty to secure the property afterwards.
The police may only search for items covered by the warrant and may seize anything for which they are searching under the warrant. But they may also seize anything else under their general power of seizure, which they reasonably regard is evidence in relation to any other offence.
Case law has established that where a search warrant authorises the search of persons as well as the premises, then the police can restrict the movement of people on the premises, for example by stipulating that they must all wait in one room of the building while the search takes place.
The police can not get a search warrant under Section 8 for an offence which is not “arrestable”. So, for example, the police could not search your home under Section 8 PACE where they suspect merely that aggravated trespass has occurred, as this is not an “arrestable offence”.
This entitles a constable to enter and search premises, which are occupied or controlled by someone under arrest for an “arrestable offence”, where they reasonably suspect that there is evidence on the premises relating to the offence for which they have been arrested or to some other similar arrestable offence. This power must be authorized in writing by an officer ranked Inspector or higher.
This power is not therefore exercisable where you are under arrest for a non-arrestable offence – eg aggravated trespass. This is why the police sometimes arrest you initially for an “arrestable offence”, in order to trigger the Section 18 power of search. For example, they may arrest you for violent disorder (arrestable offence) even though the evidence may only support a charge of threatening behaviour (non-arrestable offence).
The police may only search those parts of the premises occupied or controlled by the suspect. The police would not be able to search a room within the premises occupied or controlled by someone else, but would be able to search communal areas.
Although the police may only search for evidence relating to the offence, they may seize anything which they reasonably believe is evidence relating to any offence, under the general power of seizure – Section 19 PACE (see below).
This section confers the power on a police officer to search an arrested person, who was not arrested at a police station, for anything which might be evidence relating to an offence or which could be used to assist escape from custody.
The officer may also enter and search the premises where the suspect was arrested, or immediately before s/he was arrested, for evidence relating to the offence for which they have been arrested.
The constable may only exercise these powers if s/he reasonably suspects that he will find on those premises items relating to the offence for which the suspect was arrested.
This power is not limited to “arrestable offences”, unlike Section 18 PACE above. However, you have to be on the premises at the time of the arrest or immediately before. Case law has also established that the police can only exercise this power at or around the time of the arrest. So the police are unlikely to use it very often to search your house.
Under this section the police may enter property in order to execute an arrest warrant issued by a magistrate, to arrest you for an arrestable offence or to arrest you for one of the offences specified in the section (including Section 4 Public Order Act 1986). The power can only be exercised by a police officer in uniform.
The police can enter and remain on premises (including homes) in order to prevent a breach of the peace at common law.
Section 19 of the Police and Criminal Evidence Act (PACE) states that an officer lawfully on premises may seize any item which he reasonably suspects is evidence of any offence, or which he suspects has been obtained in the consequence of an offence.
The police may seize items from you on demos – eg camcorders – even though you have not been arrested, if they reasonably suspect that they contain evidence in relation to an offence. So make sure to get rid of any video or photographic evidence, which you think the police may use against other activists.
If the police are searching your house, they can seize items even though they were not specifically looking for them.
“Premises” is defined so as to include any place and includes vehicles or movable structures such as tents.
The police must be lawfully on your premises in order to exercise the Section 19 power. If you invited the police in to your house to discuss an issue, they would be lawfully on your property and therefore potentially able to exercise the power to seize property.
Under Section 22 PACE the police may retain any items seized “for as long as is necessary in all the circumstances”.
The section does not further elaborate. As a result this power has been abused by the police to keep hold of peoples’ property for lengthy periods, while they say they are investigating other matters.
[<<6. Police personal search powers][Contents][10. Face Masks>>]
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