PACE update

In cases where the Administrative Court
has quashed a search warrant granted under section 8 of the Police and Criminal Evidence Act 1984 (PACE), it has often been the practice
of the investigating authority to make an application to the Crown Court under section 59
of the Criminal Justice and Police Act 2001 (CJPA) for retention of the property.

The case of Panesar and others [2014] EWHC 2821 was one such example in which search warrants applied for by HMRC were quashed by the Administrative Court. HMRC subsequently made an application under section 59 CJPA at
the Central Criminal Court.

The claimants opposed the application on
the basis that the Crown Court had no jurisdiction to hear the application, a submission which was ultimately rejected. The argument was then considered by the Administrative Court in
August 2014. The basis of the claimants’
argument was that the drafting of section 59
CJPA was insufficiently precise to give rise to the jurisdiction that HMRC contended, particularly given that a search warrant represents a serious invasion of liberty and that such a fundamental right cannot be overridden by ambiguous wording.

Additionally, the claimants argued that the particular wording of section 59(5)(b) CJPA referred to seizure under “a relevant power of seizure” and not the “purported exercise of a relevant power of seizure”. The claimants argued that the wording used demonstrated that parliament must have intended that where the “relevant power of seizure” has been quashed,
the material has not been seized pursuant to
that power and as such there is no power to
apply to retain the unlawfully seized material.

It was accepted by the Administrative Court
that section 59(5) CJPA could have been “more felicitously drafted”, but the court stated that the wording of the section as a whole, and the plain intention of parliament, could not be interpreted as lending support to the claimants’ argument.

The court noted that an alternative meaning would result in the “highly undesirable consequence that documents that might yield evidence of serious criminality must be returned (or returned without copies being made) to those with potentially a clear interest in their destruction before the investigating authority has had an opportunity to apply for and obtain a warrant free from the deficiencies infecting the first warrant”.

This suggests that, in the Administrative Court’s view, successful challenges to search warrants are often due to technical flaws that can be easily remedied, and that there is a delicate balance
to be struck between the risk of potential loss
or destruction of evidence and the potential interference with the liberty of the subject of
the warrant.

The provisions of section 59 CJPA remain a useful fall-back provision for investigating bodies, and are an important factor to consider when weighing up the potential costs and benefits of challenging a search warrant.

New code updates

The EU Directive 2010/13/EU on the Right to Information in Criminal Proceedings took effect
on 2 June 2014. Updates to PACE Codes C and H were drafted to reflect the position as set out in
the directive and came into force on the same date.

As a result, suspects in detention must now be told about their right to medical assistance, the right to remain silent, the right to interpretation >> >> and translation (if applicable), the right to contact their high commission, embassy or consulate, and the right to be told about the offence and why they have been detained. These changes are reflected in a revised version of the ‘Notice of Rights and Entitlements’ that must be given to suspects in detention.

Interestingly, although the directive states that suspects must now be provided with “information about the criminal act that they are suspected or accused of having committed, promptly and in such detail as is necessary to safeguard the fairness of proceedings and to allow for the effective exercise of the rights of the defence”, this element has not been incorporated into the changes to Codes C and H. It remains to be seen how this will be put into practice or, more importantly, how any breaches of this aspect of the directive will be challenged and potentially remedied.

Stop and search

On 26 August 2014, the Home Office published details of the ‘Best Use of Stop and Search’ scheme. This is a voluntary scheme announced by the
home secretary on 20 April 2014. It is currently anticipated that all forces will sign up to the scheme, aimed at improving transparency and community involvement and providing a more intelligence-led approach to the use of stop
and search.

Those forces participating in the scheme will be asked to record more information in relation to the outcomes, recording arrests, summons or charge by post, cautions, warnings, penalty notices for disorder (PNDs), community resolutions and no further actions (NFAs). It is intended that capturing more information, in relation to the way an individual is dealt with following a stop and
search, will enable a more accurate and effective assessment of the use of stop and search, and also hold the police more accountable in the exercise
of their powers.

Additionally, the scheme envisages allowing members of the public to accompany officers where they may use their powers of stop and search. This is designed to enable communities
to watch officers execute their powers and for communities to provide feedback.

The greatest change in the scheme relates
to the use of police powers under section 60 of
the Criminal Justice and Public Order Act 1994 (CJPOA). This provision currently allows the police to stop and search all individuals within a particular locality for a set period of time if an officer of the rank of inspector or above reasonably believes
that incidents involving serious violence may
take place, or that persons are carrying dangerous instruments or offensive weapons in that locality.

Those forces signing up to the ‘Best Use of Stop and Search’ scheme will require the authorisation of an assistant chief constable, commander of
the Metropolitan Police or commander of the
City of London Police or above before a section 60 authorisation can be put in place, and the maximum duration for the initial authorisation
will be limited to 15 hours.

All forces are reminded that the authorisation must be ‘necessary’ to prevent serious violence
or to find dangerous instruments or weapons
after an incident involving serious violence,
or to apprehend persons carrying weapons.
No definition of ‘necessary’ is provided in the
scheme details but some guidance is provided
in the proposed amendments to PACE Code A.

Code A consultation

The ‘Best Use of Stop and Search’ scheme coincides with the release of a consultation on the revision
of PACE Code A. The draft revised Code A aims to make clear what constitutes ‘reasonable grounds for suspicion’. It also aims to emphasise that where officers are not using their powers properly they will be subject to formal performance or disciplinary proceedings.

An explanation of ‘reasonable grounds for suspicion’ is set out in a new paragraph 2.2 as a ‘genuine suspicion in their own mind that they will find the object for which the search power being exercised allows them to search’ and ‘the suspicion that the object will be found must be reasonable’.

This is an objective test based on facts and information which are relevant, ‘the officer must therefore be able to explain the basis for their suspicion by reference to intelligence or information about, or some specific behaviour
by, the person concerned’. They remind the
police that personal factors such as race, physical appearance, ethnicity, sexuality or previous convictions cannot be used to stop and search an individual: information or intelligence is required, which should be accurate and current. Officers
are reminded that ‘[a] hunch or instinct which cannot be explained or justified to an objective observer can never amount to reasonable
grounds’ [2.6A, Code A].

The new paragraph 1.4 makes clear that
the misuse of these powers can lead to disciplinary action.

The proposed changes to Code A, along with
the ‘Best Use of Stop and Search’ scheme, appear
to be positive steps to address public concern about the potential for the police to misuse their powers in this regard. The proposed restrictions
on the use of section 60 will be welcomed, but it will be interesting to see whether the proposed changes to Code A, if implemented, result in any practical difference in the exercise of stop and search powers. SJ

Vivien Cochrane, pictured, and Claire Hegarty are solicitors in the criminal team at Kingsley Napley