The challenge of challenging search warrants

It is an accepted principle in law that the issuing of a search warrant, particularly those involving private property, should only be granted after careful consideration of all the facts and in compliance with statutory guidance.  The courts recognise that the power invested in the police to search a home is a ‘draconian’ one and should only be used as a last resort.  In practice however, the granting of search warrants is rarely challenged.

Duty of candour

When a police officer makes an application to a Magistrates' Court for a search warrant s/he is under a statutory ‘duty of candour’ to provide the Court will full and frank disclosure and provide detail of any material that may be potentially adverse to the application.  This is because the application is 'without notice' or 'ex parte'; the target of the warrant is not aware of the application or represented.  It is incumbent upon the officer not to mislead the court in any way so that the judge is able thoroughly analyse the application whilst appraised of all the facts.  The application must be made in good faith and not as a means of a fishing expedition.

Failure to comply with the relevant statutory provisions may render the seizure of any items unlawful and subject to challenge.

What information should be on a search warrant?

The search warrant must include details (as far as practicable) as to the type of articles to be sought and the description of the articles so as to be clear enough to whoever is executing it as to whether an item falls within the warrant or not.  However, there is no statutory provision for the allegation under investigation to be documented on the warrant.

What are the usual challenges made to search warrants?

Typical challenges usually cover one of, or a combination of, the following scenarios:-

• The statutory criteria has not been included and thus the warrant is ‘too wide’;
• The Magistrates' Court was not provided with full and frank disclosure; or
• The execution of the warrant was in an unlawful manner.

On the issue of ‘widely drawn’ search warrants, the caselaw seems to imply that provided any police officer could determine the type of items that he should be seizing then the warrant will be lawful.  Cases where it has successfully been argued that the search warrant was too widely drawn tend to be where a generic term has been used such as ‘all business records’ or ‘stated offence’.

How do I challenge a search warrant?

If there is a suspicion that the warrant has been unlawfully obtained then an application can be made to the Crown Court (under section 59 Criminal Justice and Police Act 2001) that there was no power to seize the items.   This provision however allows retention of items, even in situations where they may have been seized unlawfully.  The Court will weigh up and balance the right of the public to be protected against the police misusing their powers against those powers being thwarted by technical issues in relation to warrants.

If an application under section 59 fails then there remains expensive routes of seeking judicial review of the legality of the warrant or pursuing a civil claim for trespass.

Law Commission Report

The Law Commission report of October 2020 identified a number of alarming issues including errors, inefficiency, insufficient powers and inadequate safeguards arising under the current law.  One National Crime Agency (NCA) statistic provided reported that in 2016 79% of investigations had defective warrants; of which 8% were significantly deficient.  A number of recommendations were provided which appear to strengthen and expand existing powers but also tighten up the application procedure.  An interim response to the recommendations is still awaited from government.

If you have been subjected to seizure of items under a search warrant and wish to seek specialist legal advice click here for more information on Brett Wilson LLP’s areas of expertise or call 020 7183 8950