Publication - Guidance

Guidance on instructing Counsel: common legislative solutions

Published: 16 Jan 2018
Directorate:
Justice Directorate
Part of:
Law and order
ISBN:
9781788513722

This guidance is intended to help officials to develop policy and produce instructions for primary legislation of certain commonly occurring types.

74 page PDF

804.0 kB

74 page PDF

804.0 kB

Contents
Guidance on instructing Counsel: common legislative solutions
Powers of Entry

74 page PDF

804.0 kB

Powers of Entry

Description of the legislative solution

This solution confers, and regulates, the power to enter premises and to inspect or search them, possibly seizing and removing items found there. Such powers are usually – but not always – exercised for the purpose of finding out whether a criminal offence has been committed.

The power to enter premises may be conferred on constables or on other public officials (such as employees of a Department, a local authority or a statutory body).

The Home Office Code of Practice on Powers of Entry issued under sections 47 to 53 of the Protection of Freedoms Act 2012 gives further information and guidance regarding "non-devolved" powers of entry (see section 47 of the Act for detail about what "non-devolved" means here). 'Relevant persons' as defined in those sections must have regard to the guidance.

Elements of the solution

1. Are new powers of entry needed?

Two initial issues are:

1.1 What is the purpose of any proposed new power (for example, to investigate an offence or to facilitate the exercise of some other function)?

1.2 Is a new power necessary? It may be that existing powers are sufficient to meet the policy intention.

The following powers of entry are of general application:

  • In England and Wales, and probably in Northern Ireland, a power at common law for constables to enter premises to deal with or prevent a breach of the peace. In Scotland the police have some powers of entry at common law when (a) they are in close pursuit of someone who they believe has committed, or is about to commit, a serious crime; (b) they detect a disturbance; or (c) they hear cries for help or of distress.
  • In England and Wales and Northern Ireland, a power for constables with a warrant to enter premises in connection with the investigation of indictable offences: see section 8 of the Police and Criminal Evidence Act 1984 ("the PACE Act") and Article 10 of the Police and Criminal Evidence (Northern Ireland) Order 1989 ("the PACE Order").
  • In England and Wales and Northern Ireland, a power for constables without a warrant to enter premises for a number of specified purposes, mostly to do with arresting persons for certain offences or recapturing persons unlawfully at large (see section 17 of the PACE Act and Article 19 of the PACE Order).
  • In England and Wales and Northern Ireland, a power for constables without a warrant to enter any premises occupied or controlled by a person who is under arrest for an indictable offence, if the constable has reasonable grounds for suspecting that there is evidence there that relates to that offence or another indictable offence (see section 18 of the PACE Act and Article 20 of the PACE Order).
  • In England and Wales and Northern Ireland, where a person has been arrested for an indictable offence, a power for constables without a warrant to enter any premises in which the person was when, or immediately before, being arrested, for the purpose of searching for evidence relating to the offence (see section 32 of the PACE Act and Article 34 of the PACE Order).

In each case it will need to be decided, in the light of the existing common law and statutory powers (whether or not listed above), whether new provision is necessary. Where a common law power already exists, that power could be replaced by a statutory power if it were considered desirable to do so (for example, in the interests of clarity or of updating the law), even though it is not strictly necessary.

Note also that sections 15 and 16 of the PACE Act and Articles 17 and 18 of the PACE Order provide various procedural safeguards for the operation of entry-and-search powers by constables under warrants (whether under that Act or Order or under other legislation). Where a new power is conferred on constables, some of the questions considered below will be answered by those sections/Articles. (Note that "constable", in England and Wales and Northern Ireland, is not confined to police constables; for Northern Ireland, see section 43A of the Interpretation Act ( NI) 1954.)

2. If a new power of entry is needed, how will it be exercisable: only with a warrant, or without one?

Some powers of entry are exercisable only if a warrant is obtained. Others are exercisable without this requirement. If a new power is to be conferred, should it be exercisable only by warrant?

  • It is almost unheard of for a power to enter private dwellings to be exercisable without a warrant.
  • The following factors may tilt the policy balance in favour of requiring a warrant:
    • Powers of seizure may be exercised on entry.
    • The purpose of the entry is to allow a search to be carried out to ascertain whether an offence has been committed.
    • Force may be used to effect entry.
    • The powers are exercisable by persons other than constables or other law enforcement officers.
  • Sometimes a power is split into two, so that it is exercisable in some circumstances only with a warrant and in other circumstances without. See the splits between sections 239 and 240 of the Housing Act 2004 and between sections 62A and 62D of the Animal Health Act 1981 (on the one hand) and sections 62B and 62E of that Act (on the other).

Whether the power is to be exercisable with or without a warrant, what conditions (substantive and procedural) will need to be fulfilled before exercising the power?

  • If a warrant is to be required, the following matters will need to be resolved:—
    • the grounds for the issue of the warrant (that is, the grounds for entry);
    • who issues the warrant;
    • who may apply for the warrant;
    • who may execute the warrant (that is, who may exercise the power);
    • the form and contents of the application;
    • the contents of the warrant.

It will be necessary to specify most or all of these in the statute.

  • Where it is decided that the power of entry is to be exercisable without a warrant, the relevant statute will need to specify:—
    • the grounds for the exercise of the power of entry;
    • who may exercise the power.
  • In order to provide appropriate safeguards in the absence of a judicial warrant, powers exercisable without warrant are usually also subject to one or more other conditions prior to their exercise, such as:
    • authorisation by a senior official (a safeguard falling short of judicial approval);
    • the giving of notice to the owner or occupier of the premises.

All of these matters are dealt with below under separate headings.

3. Questions arising on warrant powers

3.1 What are the grounds for the issue of the warrant to be?

  • The choice of grounds for the issue of a warrant will depend on the policy.
  • It is often the case that two different types of ground are set out, and that both need to be satisfied.
  • The first type of ground relates to why entry is required at all. It might be that there are reasonable grounds for suspecting that there has been a breach of a requirement and that there is material evidence on the premises, or that an offence is being committed on the premises. Or entry might be required in order to inspect or investigate some activity or state of affairs on the premises even if no wrongdoing is suspected.
  • The second type of ground relates to why a warrant (with the element of coercion which accompanies it) is justified. Commonly these are: that entry has been requested and has been refused, or is likely to be refused if it is requested; that the owner or occupier cannot be found; that requesting entry would defeat the purpose of the entry (such as by giving the occupier the opportunity to destroy evidence).
  • The usual test is that the person issuing the warrant must be "satisfied" that the grounds exist. Often there is an explicit test of reasonableness. It might be that the issuer must be satisfied that entry is "reasonably required" for one or more of the listed purposes. Or it might be that there are reasonable grounds for believing that a state of affairs exists.

3.2 Who is to issue the warrant?

  • In the vast majority of cases, the warrant is to be issued by (and the application is to be made to): in England and Wales, a justice of the peace; in Scotland, a sheriff, summary sheriff [7] or justice of the peace; in Northern Ireland, a lay magistrate.
  • In some exceptional cases, the power to issue a warrant is vested in a more senior judge.

3.3 Who may apply for the warrant and to whom is it issued?

  • Should the statute specify who is to make an application for a warrant? The person who exercises the power of entry may or may not be the same as the person who makes the application for the warrant. Some statutes make clear that the applicant and the executor may be different individuals, as when a warrant applied for by one official of a statutory body may be executed by any other official of it.
  • Some statutes specify the person to whom the warrant is issued, but not the person who is to execute it. In the absence of any indication to the contrary, the implication in such cases is probably that the warrant must be executed by the person to whom it is issued (and no-one else). But it is better to leave no doubt. See further below under "...who will be able to exercise the power?".

3.4 What are the form and content of the application for a warrant?

  • Should the legislation spell out in any more detail what the application must contain? In particular, will the application be required to be supported by particular material or by evidence of a particular kind?
  • It is the usual - but not universal - practice to specify some formal requirements as to how the application is to be supported:
    • For England and Wales, this is usually by "information in writing", by "information [given] on oath", or by "sworn information in writing".
    • For Scotland, all the above expressions are used, as well as "evidence on oath".
    • For Northern Ireland, it is by "complaint on oath", by "complaint in writing" or by "a complaint in writing [and] substantiated on oath".

3.5 What information should the warrant contain?

  • Should the legislation spell out what is to be contained in the warrant (such as the name of the applicant, the date of issue, the premises to be searched and the articles sought)?

3.6 How long should the warrant to be valid for? Will it authorise entry on more than one occasion?

  • Should there be a period within which entry must be effected (ie, how long is the warrant to be valid for)? Many provisions require that a warrant must be executed within one month. Some provide for it to remain valid for three months. Occasionally, statutes provide that a warrant is to remain in force until it is executed.
  • Does the warrant permit entry on more than one occasion? The law on this point is not entirely clear, but from a drafting point of view, it seems that the only safe course is to assume that the result of silence will be that only one entry is permitted. If the policy is that more than one entry is to be possible under a single warrant, clear words to that effect will be needed.

4. Questions arising on powers exercisable without warrant

4.1 What are the grounds for exercising the power to be?

  • Even where a power is exercisable without warrant, setting out some grounds for its exercise is an essential element. These will often be similar to those discussed above (under the equivalent heading for warrant-based powers), except of course they will not be expressed as matters of which the issuer of the warrant must be satisfied. Instead, they will be expressed either as objective criteria or as matters of which the person exercising the power must be satisfied.

4.2 Should authorisation by a senior official be necessary?

  • Should the person seeking to exercise the power be required to obtain prior authorisation of a senior official in his or her organisation? This requirement is sometimes added as a safeguard against the improper use of the power.

4.3 Should notice to the owner or occupier be necessary?

  • Should the legislation require advance notice of the exercise of the power to be given to the owner and/or to the occupier of the premises? This is an important safeguard, but in some cases the giving of notice may defeat the purpose of the exercise of the power. Notice is more likely to be required where the power is exercisable in relation to a private dwelling.
  • Where notice is required, the legislation ought to indicate how much notice must be given. The appropriate length of the notice period will differ according to the circumstances. Should it be specified, or is "reasonable" notice sufficient?

5. Further questions arising in either case

5.1 Who should be able to exercise the power?

  • A statute will need to state:
    • for a power exercisable by warrant, who is authorised to execute the warrant;
    • for a power exercisable without warrant, who may exercise a power of entry.
  • Should the power be conferred on an artificial person (such as a body corporate)? If so, it must be remembered that the power of entry must ultimately be exercised by an individual. The most prudent course may be to require that the warrant be issued to an "officer" or "member [of staff]" of the body, or even that the warrant is to be issued to an individual named in it. If it is to be issued to an officer (or member of staff), can it be any officer (or member of staff) or must they be specified or authorised to perform this function on behalf of the body? If so, who should be able to authorise this? Should the legislation provide that the exercise of the power can be delegated to someone else (eg, if the warrant is issued in the name of the body, or to an officer but does not name him/her, can it be executed by another officer)?
  • Where an entry-and-search warrant is issued to a constable, the default position is that the warrant may be executed by any constable (not just the constable to whom it is issued): see section 16(1) of the PACE Act and Article 18(1) of the PACE Order. Where a new power exercisable by warrant is to be conferred on a constable in England and Wales or Northern Ireland, should this default position be changed?

5.2 Should the person authorised to exercise the power be able to take other persons?

  • Should it be possible for other persons to accompany the person exercising the power of entry? In the absence of express provision, it is unlikely that a power to take accompanying persons would be implied unless their presence is a necessary part of exercising the power or is otherwise clearly envisaged by the power.
  • If accompanying persons are to be permitted, what is their role to be? How much detail should be spelled out about this? In particular, should accompanying persons be required to be persons of a particular type (eg, constables or particular types of inspector), or can they be anyone the person exercising the power thinks appropriate? Where the power is to be exercisable by warrant, should it be the case that the person exercising the power can bring other people with them only if authorised to do so by the warrant (and should the warrant have to name the person, or type of person, who can accompany them)?

5.3 What property (premises) should the power extend to?

  • If the power is to be exercisable in relation to "premises", does anything need to be said about the meaning of that word in the particular context? Particular attention may need to be given to whether to include vehicles or vessels.
  • In particular, are there to be any special rules in relation to private dwellings (or other particular kinds of premises relevant to the context)? Should the power cover Crown property?
  • In the case of a warrant, should it be for specified premises or should it (exceptionally) be for "all premises" (see section 8(1A) of the PACE Act and Article 10(1A) of the PACE Order)?
  • Should there be any geographical limitations on the power of entry (eg, is a power conferred on a local authority only to be exercisable in relation to premises in the area of the authority)?

5.4 At what time of day should the power be exercisable?

  • Should the power be exercisable at any time? Or only at a reasonable hour? Or at a reasonable hour unless it appears that the purpose of the entry may be frustrated if it is exercised at a reasonable hour?

5.5 Should there be a duty to produce the warrant or other evidence of the authority for exercising the power?

  • In the case of a power exercisable by warrant, should there be a duty to produce the warrant or a copy of it and/or other documentation to the occupier of the premises? If so, is that duty to arise only when production is requested (or, to the contrary, even in the absence of a request)?
  • In the case of power exercisable without a warrant, should there be a requirement to show documentation (such as written authority to exercise the power, or identification)? If so, should this duty arise only when production is requested?

5.6 Should it be permitted to use force in the exercise of the power?

  • Should anything be said about the use of force (bearing in mind that the law is unclear about whether force is permitted in the absence of words to that effect)?
  • In the case of warrants, should the use of force be authorised only if this is mentioned in the warrant? Or should the use of force be authorised (by words in the statute) on the basis of a warrant which is silent about it?

5.7 Should there be an express power to permit the taking of equipment onto the premises?

  • What equipment might be necessary or desirable for the purpose for which the entry is required?
  • Does anything need to be said to permit the bringing of that equipment onto the premises? (This is only likely to be necessary if the power of entry may entail the use of substantial equipment which would significantly interfere with the occupier's rights over and above what would ordinarily be involved in such an entry.)

5.8 Should there be any associated powers, such as the power to require the occupier to produce documents or other items, or to require an explanation of matters, or to permit the seizure of property?

Is express provision needed about any of the following:

  • A power to inspect / examine / measure / sample any "items" or "things"
  • A power to inspect and take copies of or extracts from "documents" (or "records", if that adds anything)
  • A power to "seize" (and "remove"? and "retain"?) items or things
  • A power to require others to provide an explanation of documents (or anything else)
  • A power to require others to provide assistance
  • How any of the above powers operate in relation to computers and IT equipment (including the possible need for a power to require the information to be rendered into visible and legible form, and made capable of being taken away).

5.9 If there is a power to search for or to seize material, should any particular material be excluded from the exercise of that power?

  • For example, should the power exclude material which is (in England and Wales or Northern Ireland) subject to legal professional privilege or (in Scotland) material in respect of which a claim to confidentiality of communications could be maintained?

5.10 If it should be possible to seize property, what is to happen to it?

  • A power to seize items is almost invariably accompanied by some provision about what is to happen to them afterwards.
  • Property seized by the police is governed, in England and Wales and Northern Ireland, by section 22 of the PACE Act and Article 24 of the PACE Order and by the Police (Property) Act 1897 and, in Scotland, by the common law (see also section 3I of the Victims and Witnesses (Scotland) Act 2014).
  • Where property is seized by persons other than the police, express provision is usually made reproducing at least some of the effect of section 22 of the PACE Act and Article 24 of the PACE Order.
  • One possibility is provision that "anything that has been seized or taken away under [this power] may be retained for so long as is necessary in all the circumstances".
  • Other provisions expressly refer to use as evidence at a trial for a relevant offence and/or forensic examination or for investigation in connection with a relevant offence.
  • This is frequently combined with a qualification where the item itself is not needed, for example "no item may be retained for [those purposes] if a photograph or a copy would be sufficient for [them]".
  • Alternatively, there may be a qualified duty to return items.
  • Occasionally, there is a power to destroy things that have been seized, although care must be taken here to ensure compatibility with Convention rights.

5.11 Should there be an obligation to re-secure the premises against trespassers?

  • Should the legislation include provision requiring unoccupied premises to be left "as effectively secured against trespassers [or unauthorised entry] as when the person exercising the power found them" (or other words to similar effect)?
  • The inclusion of this obligation may be taken as an indication that force may be used in the exercise of the power (since if no force is required to enter a property, it is not secure against trespassers). If the policy is that force may not be used to exercise a particular power, then this provision should be included with caution (if at all).
  • Almost invariably, the obligation is imposed only when the premises are empty at the time of entry. (This suggests that its purpose is to prevent further entry by unauthorised persons rather than to compensate the property owner for damage to the property.)

5.12 Should there be a sanction for obstructing exercise of the power of entry (or associated powers)?

  • What sanction, if any, should the occupier of premises face for obstructing the exercise of a power of entry or failing to comply with requirements associated with such a power? This will need to be considered alongside the question of whether force may be used in the exercise of the power (because if force is not permitted, the sanction for obstruction may be the only means of ensuring that the power is effective).
  • Where the power of entry is conferred on a constable, no special provision is needed: it is an offence in all UK jurisdictions to wilfully obstruct a constable in the execution of his or her duty, or a person assisting a constable in the execution of his or her duty.
  • Some powers conferred on persons other than constables contain provisions making it an offence to obstruct that person in the exercise of the power.
  • A number of statutory provisions confer on someone entering premises the power to require persons on the premises to assist them in various ways. In such cases, it will be necessary to consider whether any general sanction for "obstructing" the exercise of a power should apply to a refusal to provide the assistance requested and, if not, whether there should be a separate sanction for failing to provide the requested assistance.

5.13 Should anything be said about the effect of failure by the person exercising a power to comply with any requirements concerning its exercise?

  • Entry to premises which is not authorised by a warrant or a statutory provision (or by the consent of the owner/occupier) will be unlawful and actionable in trespass.
  • But what if, where an entry is apparently authorised by a warrant or statute, there is a breach of one or more of the statutory requirements - for example, if the procedure for applying for a warrant is not followed correctly, or evidence of authorisation is not produced to the occupier? Should this render the whole exercise of the power unlawful?
  • It cannot be predicted with confidence how the courts will approach legislation which is silent on the point, so it may be that making express provision as to the consequences of the breach of any requirements would lead to greater certainty. But care needs to be taken with the width of any express provision which validates something that would otherwise be irregular.

5.14 Does anything else need to be said?

For example, about:

  • The making and keeping of records relating to the entry.
  • The return of the warrant to the court that issued it. Some provisions require the warrant to be returned to the issuing court when it is has expired or has been exercised, although the purpose of this type of provision is not entirely clear.
  • Compensation where land or property is damaged in the course of exercising the power (perhaps unless the damage results from actions of the owner or occupier).

Examples of the legislative solution

Animal Health Act 1981 sections 60 to 62F

Police and Criminal Evidence Act 1984 Part 2 (see in particular sections 8 and 15 to 18)

Police and Criminal Evidence (Northern Ireland) Order 1989 Part 3 (see in particular Articles 10 and 17 to 20)

Housing Act 2004 sections 239 and 240

Animal Health and Welfare (Scotland) Act 2006 Schedule 1

Marine and Coastal Access Act 2009 Part 8 Chapter 2 (see in particular sections 246 to 252 and Schedule 17)

Marine (Scotland) Act 2010 Part 7

Housing (Scotland) Act 2014 sections 53 to 56

Revenue Scotland and Tax Powers Act 2014 Part 7

Regulation and Inspection of Social Care (Wales) Act 2016 Part 1 Chapter 3

Houses in Multiple Occupation Act (Northern Ireland) 2016 sections 78 to 80

Tax Collection and Management (Wales) Act 2016 Part 4 Chapters 4 and 5

Public Health (Wales) Act 2017 Part 3 to 5 (link to Bill)


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