Search warrants [2020] EWLC 396 (07 October 2020)

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Law Commission

Reforming the law

Search warrants

HC 852

Law Com No 396



Search warrants

Presented to Parliament pursuant to section 3(2) of the Law Commissions Act 1965.

Ordered by the House of Commons to be printed on 7 October 2020.

© Crown copyright 2020

This publication is licensed under the terms of the Open Government Licence v3.0 except where otherwise stated. To view this licence, visit nationalarchives.gov.uk/doc/open-government-licence/version/3.

Where we have identified any third party copyright information you will need to obtain permission from the copyright holders concerned.

This publication is available at www.gov.uk/official-documents.

Any enquiries regarding this publication should be sent to us at search warrants@lawcommission.gov.uk .

ISBN 978-1-5286-2169-4

CCS0920279116        10/20

Printed on paper containing 75% recycled fibre content minimum

Printed in the UK by the APS Group on behalf of the Controller of Her Majesty’s Stationery Office

The Law Commission

The Law Commission was set up by the Law Commissions Act 1965 for the purpose of promoting the reform of the law.

The Law Commissioners are:

The Right Honourable Lord Justice Green, Chairman

Professor Sarah Green

Professor Nick Hopkins

Professor Penney Lewis

Nicholas Paines QC

The Chief Executive of the Law Commission is Phil Golding.

The Law Commission is located at 1st Floor, Tower, 52 Queen Anne's Gate, London SW1H 9AG.

The terms of this Report were agreed on 29 July 2020.

The text of this Report is available on the Law Commission's website at http://www.lawcom.gov.uk.

Contents

GLOSSARY

Background to the project

The purpose of the project

The scope of the project

The history of the project

The problems with the current law

The aims of our project

Summary of the Report chapters and our recommendations

Acknowledgments

The team who worked on this report

Introduction

When should sections 15 and 16 of the Police and Criminal Evidence Act 1984 apply?

Extending sections 15 and 16 of the Police and Criminal Evidence Act 1984 to entry and inspection warrants

When regard should be had to Code B of PACE

When an entry on or search of premises under a warrant is rendered unlawful 44

SEARCH WARRANTS

Introduction

Agencies entitled to apply for a search warrant

Agencies entitled to execute a search warrant

Required presence of a constable in order to exercise powers

Introduction

The need for bespoke application forms

Content of application forms and the duty of candour

The draft search warrant

Online applications portal

Introduction

Clarifying the scope of the duty of candour

Arranging a search warrants application hearing

The level of knowledge required when appearing at a hearing

Searching premises following arrest instead of applying for a warrant

Introduction

Distribution between judges and magistrates

Specialist training for the magistracy

Formalising the requirement for a magistrate to be advised by a legal adviser140

A minimum number of magistrates hearing an application

Issuing a search warrant during out of court hours

Formalising the application procedure during normal court hours

Crown Court applications screened by a legal adviser

Recording additional material provided during hearings

Providing written reasons for issuing the search warrant

Requirement to keep records and statistics

Introduction

Specifying who may accompany a person executing a warrant

The period for which a search warrant remains valid

The number of times premises can be entered

Accessing all premises occupied or controlled by an individual

The search of persons on premises pursuant to a warrant

The time at which the search is conducted

The information provided to the occupier during the search

An authoritative guide to search powers

How to apply for the underlying information

The presence of legal representatives during the search

Introduction

A new Crown Court procedure for challenging search warrants

Amendments to section 59 of the Criminal Justice and Police Act 2001

Introduction

The current law

The consultation paper

Outline of consultation responses

The storage of sensitive material

The investigator’s right to register an objection

Formalising the matters relevant to the decision to disclose sensitive material241

The consequences of a decision to order disclosure

Introduction

The current law

Consultation responses

Analysis

Introduction

Formalising independent counsel procedure

Claiming privilege in respect of material sought under a warrant

Introduction

Personal records

Confidential journalistic material

Abolishing the second set of access conditions

The protection of excluded material and special procedure material in cases of seizure not under warrant

Introduction

Difficulties in practice in searches which relate to special procedure material 312

A uniform route to the availability of special procedure material

Special procedure material mixed with ordinary material

Special procedure material mixed with excluded material

Disclosure of non-confidential journalistic material

Expanding the definition of special procedure material

Further guidance on the meaning of special procedure material

LAW

Introduction

The nature of electronic material

An overview of the relevant legal regimes governing the acquisition and treatment of electronic material

How searches under warrant for electronic material operate in practice

Problems with the current law

ELECTRONIC MATERIAL

Introduction

Electronic material as the target of a search warrant

Satisfying the statutory access conditions when electronic data is sought

Applying for a warrant to search for and seize electronic devices

Drafting warrants to search for and seize electronic devices

The seizure of electronic devices

The search of electronic devices on premises and subsequent seizure of electronic data

ELECTRONIC DATA

Introduction

The extraterritorial application of search, seizure and production powers

The circumstances in which the search, seizure and production of remotely stored data is permissible under international law

The search of premises for and copying of remotely stored data

Compelling access to protected information

Preventing interference with remotely stored data

Introduction

Summary of the current law

The Consultation Paper

Consultation responses

A new legislative regime

MATERIAL

Introduction

Reasons justifying a wider review

Topics relevant as part of a wider review

Introduction

Repealing unnecessary search warrant provisions

Consolidating all search warrant provisions

Partial consolidation of search warrant provisions

Standardising the accessibility conditions

Police and Criminal Evidence Act 1984

Criminal Justice and Police Act 2001

Glossary

Access conditions

The statutory conditions that must be met for the issue of a search warrant. Depending on the search warrant provision, these may include that there are reasonable grounds for believing that an offence has been committed and that there is relevant material on the premises. The term is used in this sense in schedule 1 to the Police and Criminal Evidence Act 1984 (“PACE”).

Accessibility conditions

The term we use to describe a particular subset of access conditions that relate to the impracticability of gaining access to the premises or materials without a search warrant.

All premises warrant

A search warrant that allows for the entry and search of all premises associated with a particular person.

Associated powers

The term we use to refer to powers other than search powers that are authorised under a search warrant. For example, a search warrant may have an associated power to use reasonable force, to search persons found on the premises and to seize material.

Applicant

The term we use occasionally to refer to an individual officer or investigator who applies for a search warrant.

Code B of PACE

The PACE Code of Practice which governs the search of premises by police officers and the seizure of property found by police officers on persons or premises.

Criminal Practice Directions

The Criminal Practice Directions (“CrimPD”) are made by the Lord Chief Justice and relate to the practice and procedure of the criminal courts. CrimPD Division XI (47A and 47B) relates to search warrants.

Criminal Procedure Rules

The Criminal Procedure Rules (“CrimPR”) govern the way criminal cases are managed and set out the processes of the criminal courts. Part 47 of the CrimPR governs search warrant applications.

There are search warrant application forms which accompany Part 47 of the CrimPR.

Duty of candour

This describes the duty owed by any person making an application for a search warrant to provide full and frank disclosure to the court of all relevant information including that which might militate against the granting of the search warrant.

Electronic data

The term we use to refer to data stored in electronic form.

Electronic device

The term we use to refer to all devices that control and direct electric currents.

Electronic material

The term we use to refer to both devices themselves (“electronic devices”) and data stored in electronic form (“electronic data”).

Entry warrant

A warrant issued by a judge that authorises entry onto premises.

Ex parte

A hearing in which an interested party is absent and, in the context of search warrant hearings, unnotified. In the search warrants context, the occupier of the premises will be absent and unnotified when an investigator makes an application for a search warrant, as the presence of the occupier would frustrate the purpose of the search warrant.

Excluded material

Material that is partially exempt from searches under a search warrant. Excluded material is defined in section 11 of PACE. It broadly covers material in the following categories, which is held in confidence: medical records acquired or created in the course of an occupation; human tissue; and confidential journalistic material. It can be searched for under the second set of access conditions under schedule 1 to PACE.

Imaging

Imaging an electronic device involves capturing and storing a copy of the data on a device for later inspection away from the premises.

Independent lawyer

The term we use to refer to a lawyer who is not connected to the case, whose role is to advise the investigator on what may and may not be seized. This person is referred to in practice as “independent counsel”.

Iniquitous material

The term we use to refer to protected material that has lost its protected status, or is to be regarded as never having been afforded confidential status, because it is tainted by “iniquity”. Under the iniquity or “crime-fraud” exception, the protection afforded to special categories of material is lost when, broadly speaking, it is created, acquired or held for an iniquitous purpose.

Information

The technical name for the document sworn in support of the application for a search warrant. The CrimPR provide application forms that constitute the information.

Inspection warrant

A warrant issued by a judge that authorises entry onto, and the inspection of, premises.

Inter partes

A hearing in which all interested parties are present.

Issuing authority

The term we use to describe the person or court empowered to grant the search warrant application and issue a search warrant.

Legally privileged material

Legally privileged material is defined in section 10 of PACE and broadly covers communications made in connection with the giving of legal advice or in contemplation, and for the purpose, of legal proceedings between: a professional legal adviser and their client; and a professional legal adviser and any third party representing their client. It is absolutely exempt from searches under a search warrant.

Metadata

A set of data that describes and gives information about other data. An example is communications data, which is data on the who, where, when and how of a communication but not its content. Communications data is defined in section 261(5) of the Investigatory Powers Act 2016.

Multiple entry warrant

A search warrant that allows for the entry of premises on more than one occasion, either up to a stated maximum number of times or an unlimited number.

Occupier

The term we occasionally use for a person in possession or control of the premises to be searched under a search warrant. We also use the terms “suspect” and “person affected by the warrant” depending on the nature of the discussion.

Off-site

The term we use to refer to activity, such as the sifting of material, that takes place once an investigator has left premises following the execution of a search warrant.

On-site

The term we use to refer to activity, such as the imaging of devices, that takes place while an investigator is on premises following the execution of a search warrant.

Premises

The place to be entered and searched under a warrant. Premises is defined in section 23 of PACE. Other statutes may provide their own definitions of premises.

Production order

A court order compelling a party to produce a particular category of material as specified under the order.

Protected material

The term we use to refer to material which is legally privileged, excluded material or special procedure material, and other categories of material that cannot be searched for or seized when searching premises. In our consultation paper we used the term “exempted material” to refer to these categories of material. All three of these categories have varying degrees of restriction in relation to search and seizure.

Public interest immunity

A determination made by an issuing authority that the public interest demands that some of the material relied upon to satisfy the issuing authority to issue a search warrant should not be disclosed.

Remotely stored electronic data

The term we use, along with “remotely stored data”, to refer to electronic data which is physically stored on a different electronic device from the device which is accessing the electronic data. Remotely stored data can be accessed by connecting to an online account or remote storage account.

Search warrant

A warrant issued by a judge that authorises entry onto, and the search of, premises.

Seize and sift

Powers of seizure under Part 2 of the Criminal Justice and Police Act 2001, which provides the power to seize indeterminable or inseparable material and to sift off the premises that which an investigator was entitled to seize from that which they were not.

Sensitive material

Any information relied on in support of an application for a warrant which the applicant regards would be damaging to the public interest were it to be disclosed. An investigator may later assert public interest immunity over the sensitive material on the grounds that there would be a real risk of serious prejudice to an important public interest were it to be disclosed.

Special procedure material

Material that is partially exempt from searches under a search warrant. It can be searched for under the first set of access conditions under schedule 1 to PACE. Special procedure material is defined in section 14 of PACE. It broadly covers material other than excluded material, which was acquired or created in the course of an occupation and which is held in confidence, and also non-confidential journalistic material.

Specific premises warrant

A search warrant that allows for the entry and search only of premises specified in the warrant; these may be either one or more sets of premises.

Search Warrants

To the Right Honourable Robert Buckland QC MP, Lord Chancellor and Secretary of State for Justice

BACKGROUND TO THE PROJECT

THE PURPOSE OF THE PROJECT

THE SCOPE OF THE PROJECT

The law reform objectives of the review encompass elements of rationalisation and streamlining of the current law, as well as identifying and addressing pressing problems.

The focus of this review is on making search warrants legislation more transparent and accessible, thus reducing the scope for errors, which in turn can lead to substantive injustice and wasted costs.

The review will include consideration of reform by legislative change, as well as non-statutory guidance, Criminal Procedure Rules and other initiatives.

The review will include consideration of how the existing search warrants legislation deals with electronic material. For the avoidance of doubt, any revisions to the Investigatory Powers Act 2016, and the Regulation of Investigatory Powers Act 2000 are outside scope. Furthermore, questions relating to encryption are beyond the scope of this review.

THE HISTORY OF THE PROJECT

THE PROBLEMS WITH THE CURRENT LAW

Complexity

“unfortunate jumble of legislative provisions”,11 with a former Lord Chief Justice also commenting that associated legislation “could have been more felicitously drafted”.12

Inconsistency

Outdated

Costly

THE AIMS OF OUR PROJECT

There is an obvious tension between these two public interests because crime could be most effectively investigated and prosecuted if the personal and property rights of citizens could be freely overridden and total protection of the personal and property rights of citizens would make investigation and prosecution of many crimes impossible or virtually so.14

Simplify the law

Make the law fairer

Modernise the law

Make the law more cost-efficient

SUMMARY OF THE REPORT CHAPTERS AND OUR RECOMMENDATIONS

1.104 In Chapter 11 of this report, we consider reform to the way in which legally privileged material is treated. We do not propose altering the protection which is currently afforded to legally privileged material. Instead, we consider changes to how legally privileged material is sifted and how disputes regarding its treatment are resolved.

the right to freedom of expression protected by article 10 of the European Convention on Human Rights when exercising its discretion.

ACKNOWLEDGMENTS

THE TEAM WHO WORKED ON THIS REPORT

Chapter 2: The operation of the statutory safeguards

INTRODUCTION

This section and section 16 below have effect in relation to the issue to constables under any enactment, including an enactment contained in an Act passed after this Act, of warrants to enter and search premises; and an entry on or search of premises under a warrant is unlawful unless it complies with this section and section 16 below.

WHEN SHOULD SECTIONS 15 AND 16 OF THE POLICE AND CRIMINAL EVIDENCE ACT 1984 APPLY?

The current law

The consultation paper

1984 (Department of Trade and Industry Investigations) Order 2002 (SI 2002 No 2326), art 3; Police and Criminal Evidence Act 1984 (Application to Labour Abuse Prevention Officers) Regulations 2017 (SI 2017 No 520), reg 3.

Proceeds of Crime Act 2002 (Application of Police and Criminal Evidence Act 1984) Order 2015 (SI 2015 No 759) (as modified by SI 2017 No 1222), art 2.

Food and Environment Protection Act 1985, sch 2, para 7(4); Animal Welfare Act 2006, sch 2, para 1(1).

Immigration Act 1971, ss 28J and 28K.

Inland Revenue Commissioners v Rossminster Ltd [1980] AC 952. See R Stone, The Law of Entry, Search, and Seizure (5th ed 2013) para 1.48.

Consultation Question 1.

Consultation Question 3.

under any given search warrant provision. Accordingly, we provisionally proposed that any “search warrant that relates to a criminal investigation” should be defined as any search warrant for which the grounds for the application include facts or beliefs which (if true) would show that:

of crime;

Consultation responses

Extending the application of statutory safeguards to all search warrants relating to a criminal investigation
Defining a search warrant that relates to a “criminal investigation”

to a criminal investigation; and

Analysis

The appropriateness of an objective test
The appropriateness of a subjective test

35 purposes.47

The appropriateness of an all-encompassing test
Targeted reform of the statutory safeguards

Recommendation 1

EXTENDING SECTIONS 15 AND 16 OF THE POLICE AND CRIMINAL EVIDENCE ACT 1984 TO ENTRY AND INSPECTION WARRANTS

The current law

The powers conferred necessarily connote a power to, for example, search a desk or cabinet to see if there are relevant documents which may be required to be copied, if a breach has reasonably been suspected; they connote that an enforcement officer may, for example, go into back rooms and store rooms to see if there are goods that should be seized or detained, if there is reason or cause to believe (not just suspect) a breach; and likewise may search for containers or vending machines.57

The consultation paper

Consultation responses

Analysis

WHEN REGARD SHOULD BE HAD TO CODE B OF PACE

The current law

Persons other than police officers who are charged with the duty of investigating offences or charging offenders shall in the discharge of that duty have regard to any relevant provision of a code.

The consultation paper

Consultation responses

Analysis

This Code does not apply to the exercise of a statutory power to enter premises or to inspect goods, equipment or procedures if the exercise of that power is not dependent on the existence of grounds for suspecting that an offence may have been committed and the person exercising the power has no reasonable grounds for such suspicion (emphasis added).

Recommendation 2

WHEN AN ENTRY ON OR SEARCH OF PREMISES UNDER A WARRANT IS RENDERED UNLAWFUL

... an entry on or search of premises under a warrant is unlawful unless it complies with this section and section 16 below.

Conduct which must comply with the statutory safeguards

The current law

2.101 Section 15(1) of PACE states that “an entry on or search of premises under a warrant is unlawful unless it complies with this section and section 16 below”. There is an ambiguity in the word “it”. Does “it” refer to the warrant, to the entry and search, or to both?

2.102 The seemingly favoured view as expressed by the Divisional Court is that “it” refers to both the warrant, and the entry and search:

We read "it" as referring to the composite process of entering and searching under a warrant so that in order for that process to be lawful the application for and issue of the warrant has to have been in compliance with section 15 and its execution has to comply with section 16. This does no violence to the language of the subsection and gives effect to what seems to us to be its obvious legislative purpose.83

2.103 This reading accords with the Police and Criminal Evidence (Northern Ireland) Order 1989, which provides that the warrant, entry and search must comply with the requirements of the articles.84 This view also accords with the modifications to section 15(1) in respect of search warrants under the Proceeds of Crime Act 2002,85 which states that “an entry on or search of premises under such a warrant is unlawful unless the warrant complies with this section and is executed in accordance with section 16.”

The consultation paper
Consultation responses
Analysis

2.110 As above, we remain of the view that section 15(1) of PACE would benefit from clarification in this regard and have received no responses which cause us to change our provisional view.

Recommendation 3

2.111 We recommend that section 15(1) of the Police and Criminal Evidence Act 1984 be amended to clarify that entry, search and seizure are unlawful unless the warrant, entry and search comply with sections 15 and 16 of the Police and Criminal Evidence Act 1984.

Elements of the search rendered unlawful following breach

The current law

2.112 Section 15(1) of PACE states that failure to comply with the provisions in sections 15 and 16 of PACE will render any entry or search unlawful. It is important to note, though, that noncompliance with sections 15 and 16 does not render the warrant itself unlawful. Therefore, it does not follow that a warrant will be quashed where there has been a breach of section 15 or 16 of PACE: the quashing of a warrant is a discretionary form of relief on judicial review.

2.113 Although not in the wording of the statute, the Divisional Court has on a number of occasions expressed the view that non-compliance with section 15(1) also renders seizure unlawful.92 Seizure may occur under the authority of the warrant itself,93 or under other statutory powers that require a constable to be lawfully on premises.94

The consultation paper

2.114 It was suggested by one stakeholder during our preliminary discussions that section 15(1) should be clarified to state that, unless the safeguards are complied with, any seizure is also unlawful. We agreed and therefore provisionally proposed95 that section 15(1) of the Police and Criminal Evidence Act 1984 should be amended to clarify that an entry on, search of, or seizure of materials from, any premises under a warrant is unlawful unless the warrant, entry, search and seizure complies with sections 15 and 16 of the Police and Criminal Evidence Act 1984.

Consultation responses

2.115 Eighteen consultees answered this question: 15 agreed;96 one disagreed;97 and two expressed other views.98

2.116 As with the provisional proposal above, our focus here was a narrow one: clarifying the elements of the search rendered unlawful following a breach of the statutory safeguards. Our provisional proposal was in effect to codify the decisions of the Divisional Court holding that any subsequent seizure would also be rendered unlawful by breach of the statutory safeguards. Consultation responses regarding the appropriate threshold to be reached before a breach occurs are discussed in the context of Consultation Question 7 below.

2.117 The majority of consultees agreed with our provisional proposal and no concerns were raised that caused us to doubt its utility. The Magistrates Association viewed the provisional proposal as sensible, but considered that thought should be given to its operational impacts. Dijen Basu QC agreed with the provisional proposal, with the proviso that it should be made clear for the avoidance of doubt, by way of an express saving, that the sections have no effect on the lawfulness of an otherwise lawful entry, search or seizure in reliance on other powers (for example sections 17, 18 and 32 of PACE).

Analysis

2.118 As stated above, the majority of consultees agreed with this provisional proposal. We have received no responses which cause us to change our view. Further, we remain of the view that clarifying section 15(1) would be beneficial.

2.119 Consideration of the operational impact of our recommendations is crucial in relation to all aspects of this report. However, as the proposed amendment to section 15(1) would amount only to a clarification of the existing law rather than a substantive change, we consider that its operational impact will be limited to helping to ensure that the existing law is properly understood.

2.120 We agree that a finding of unlawfulness in relation to section 15(1) of PACE has no direct bearing on the lawfulness of other search powers, the legality of which would need to be specifically challenged. We do not consider that statutory amendment is required to make this clear.

Recommendation 4

2.121 We recommend that section 15(1) of the Police and Criminal Evidence Act 1984 be amended to clarify that an entry on, search of, or seizure of materials from, any premises under a warrant is unlawful unless the warrant, entry and search comply with sections 15 and 16 of the Police and Criminal Evidence Act 1984.

Breaches resulting in unlawfulness

The current law

2.122 Although section 15(1) of PACE provides that “an entry or search of premises under a warrant is unlawful unless it complies with this section and section 16”, there is no consistent approach regarding the circumstances in which a failure to comply with those sections renders the entry, search and any subsequent seizure unlawful. As we have indicated at paragraph 2.104, case law suggests that section 15(1) of PACE does not apply to events that occur after the entry and search have been completed; therefore, entry and search does not include post-search activity (section 16(9) to (12) of PACE).99

2.123 The courts have sometimes held that the wording of section 15(1) is unequivocal100 and that the requirements of sections 15 and 16 of PACE should be applied stringently.101 In other circumstances, the courts have taken a more pragmatic approach, observing that the statutory safeguards must be applied in a manner which takes careful account of the practical realities of running complex criminal investigations.102 It has also been said that the court may readily find reasons for overlooking trivial or unimportant irregularities.103 A breach may therefore be regarded as de minimis and so not lead to a finding of unlawfulness.104

2.124 Even where the courts find a breach of section 15(1) of PACE, relief is discretionary. For example, in Hicks, the Divisional Court held that:

In the present case we are not satisfied that the breach of s.16(10) has caused the claimants any real injustice, let alone that it should lead to the invalidation of what were, in our judgment, otherwise lawful searches. We would therefore decline to grant the claimants any relief in respect of this issue even if the point taken is technically well founded.105

2.125 By way of another example, in Glenn & Co (Essex) Ltd, the Divisional Court, following a finding of a breach of section 16(5) of PACE, observed that the impracticality of handing over a copy of the warrant should not inevitably lead to the grant of what is discretionary relief.106 Accordingly, it was not ordered that any material obtained in the search should be returned.

87

88

89

2.126 In R (Goode), Lord Justice Pitchford wrote:

In my judgment the only ground of challenge to these warrants which has legal merit is the omission of DI Kennedy’s name as the applicant on the face of the warrants. It is my view that the breach of section 15(6)(a) was so technical that in the circumstances of the present case there is no prospect that the court would use its discretionary powers either to quash the warrants or to make a declaration of invalidity.107

The consultation paper

2.127 Given these inconsistent approaches, we considered that clarity should be brought to the following question: when does non-compliance with the statutory provisions render the entry, search and seizure unlawful? Again, it is important to note that non-compliance with sections 15 and 16 does not render the warrant itself unlawful but only the subsequent entry, search and seizure under the warrant.108

2.128 For this reason, we invited consultees’ views on whether every breach of section 15 or 16 of PACE ought to have the effect that any search and seizure of material is unlawful. If not, which breaches should and should not have this effect? In particular, we were interested in consultees’ views on:

We also invited consultees’ views on whether it would be desirable to confirm the above position in statute.

Consultation responses
Whether all forms of non-compliance with sections 15 or 16 PACE 1984 ought to result in unlawfulness
Consequence of a finding of unlawfulness
Analysis
Whether all forms of non-compliance with the safeguards ought to result in unlawfulness

2.137 To take an example: the requirement to identify the “articles” sought under section 15(6)(b) of PACE could be breached. A lack of specificity must be viewed in light of the nature of the investigation. Determining whether the breach renders the entry, search and seizure unlawful will be fact dependent. Should the warrant have specified a “black iPhone X 512GB” rather than a “phone”? This will depend on, amongst other factors, the information known and the type of investigation: a complex, urgent investigation may justify a search warrant being couched in broader terms. We consider that this wide margin of judicial discretion is both essential and adequately catered for under the current law.

2.138 The statutory safeguards provide an important constitutional check. At the same time, unmeritorious technical challenges should be discouraged and the safeguards applied pragmatically. This balancing exercise can be seen in operation within the case law. For this reason, we do not consider that legislative amendment is necessary.

Consequence of a finding of unlawfulness

2.139 We understand that the main concern of law enforcement is to avoid the introduction of a rule whereby a finding of unlawfulness automatically triggers the return of material, which may result in the collapse of complex criminal investigations. We do not consider that every breach should result in material being returned, a view reflected in current case law. We endorse the pragmatic view taken by the courts to technical challenges of breaches of sections 15 and 16.

2.140 We agree that, from an evidential standpoint, section 78 of PACE provides an important avenue through which to assess whether material ought to be excluded. Section 78 provides the court with a discretion to refuse to allow prosecution evidence if, having regard to all the circumstances, including those in which the evidence was obtained, its admission would have an adverse effect on the fairness of the proceedings. Lord Justice Leveson described section 78 of PACE as an ample control mechanism in the context of material seized

104 Justices’ Clerks’ Society. pursuant to unlawful warrants.116 At the same time, we agree that there are cases in which the return of the material seized is an appropriate remedy. Again, this an area in which we consider judicial discretion has operated successfully and ought to be retained.

Chapter 3: Agencies empowered to apply for and execute search warrants

INTRODUCTION

AGENCIES ENTITLED TO APPLY FOR A SEARCH WARRANT

The current law

For example, Anti-terrorism, Crime and Security Act 2001, s 66; Channel Tunnel (Security) Order 1994 (SI 1994 No 570), art 14(5); Control of Trade in Endangered Species (Enforcement) Regulations 1997 (SI 1997 No 1372), reg 9(1); Copyright Act 1956, s 21A; Copyright (Computer Software) Amendment Act 1985, s 3; Copyright, Patents and Designs Act 1988, ss 109, 200 and 297B; Crime (International Co-operation) Act 2003, s 17; Criminal Justice Act 1988, s 142; Customs and Excise Management Act 1979, s 161A(3); Dogs (Protection of Livestock) Act 1953, s 2A;

(“NCA”).117 The power to apply for a search warrant under PACE has been extended by statute to other investigators, including Welsh Revenue Authority officers;118 officers of HM Revenue and Customs (“HMRC”);119 immigration officers and designated customs officials;120 officers of the department for Business, Energy and Industrial Strategy;121 and labour abuse prevention officers.122

Other provisions allow an application to be made by either a police constable or some other specified category of investigator.123 A large number of agencies have the power to apply for a search warrant, or authorise an individual to apply for a warrant on their behalf. These include the Charity Commission;124 the Immigration Services Commissioner;125 the Information Commissioner;126 an immigration officer;127 the Bank of England;128 the Serious Fraud Office (“SFO”);129 the Financial Conduct Authority; (“FCA”)130 the Competition and Markets Authority (“CMA”);131 the Prudential Regulation Authority;132 an officer of HMRC;133 approved mental health professionals;134 the Gas and Electricity Markets authority;135 the European Securities and Markets Authority;136 and the Office of Communications (colloquially known as “Ofcom”).137

The consultation paper

Consultation responses

The NHS Counter Fraud Authority

Excluded material may be the subject of a search warrant under the Police and Criminal Evidence Act 1984, sch 1, however, for reasons that we will come on to explain at para 3.33 below, this option will not be possible.

evidence of fraud by evidencing that NHS treatment was unnecessary, not provided or that no materials were used.

The Insolvency Service

Analysis

The NHS Counter Fraud Authority

section 197 of the NHS Act 2006, or under section 145 of the NHS (Wales) Act 2006 in the case of the NHSCFSW;

Recommendation 5

The Insolvency Service

Recommendation 6

AGENCIES ENTITLED TO EXECUTE A SEARCH WARRANT

The current law

The consultation paper

Consultation responses

The NHS Counter Fraud Authority
The Insolvency Service

Analysis

The NHS Counter Fraud Authority

Recommendation 7

The Insolvency Service

Recommendation 8

REQUIRED PRESENCE OF A CONSTABLE IN ORDER TO EXERCISE POWERS

Consultation responses

Analysis

under a search warrant.

We discuss each of these in turn below.

The application and modification of section 16 of PACE
The application and modification of Code B of PACE
The creation of a new obstruction offence

Recommendation 9

Chapter 4: Search warrant application documents

INTRODUCTION

R (Brook) v Preston Crown Court [2018] EWHC 2024 (Admin), [2018] ACD 95; R (Superior Import / Export Ltd) v Revenue and Customs Commissioners [2017] EWHC 3172 (Admin), [2018] Lloyd’s Rep FC 115; R (Hart) v Blackfriars Crown Court [2017] EWHC 3091 (Admin), [2018] Lloyd’s Rep FC 98; Hargreaves v Brecknock and Radnorshire Magistrates’ Court [2015] EWHC 1803 (Admin), (2015) 179 JP 399; R (Chatwani) v National Crime Agency [2015] EWHC 1283 (Admin), [2015] ACD 110; R (Kouyoumjian) v Hammersmith Magistrates' Court [2014] EWHC 4028 (Admin), [2015] ACD 27; R (Mills) v Sussex Police [2014] EWHC 2523 (Admin), [2015] 1 WLR 2199; Sweeney v Westminster Magistrates’ Court [2014] EWHC 2068 (Admin), (2014) 178 JP 336; R (CPW) v Harrow Crown Court [2014] EWHC 2061 (Admin); R (F) v Blackfriars Crown Court [2014] EWHC 1541 (Admin); (B) v Huddersfield Magistrates’ Court [2014] EWHC 1089 (Admin), [2015] 1 WLR 4737; R (Golfrate Property Management Ltd) v Southwark Crown Court [2014] EWHC 840 (Admin), [2014] 2 Cr App R 12; Lees v Solihull Magistrates’ Court [2013] EWHC 3779 (Admin), [2014] Lloyd’s Rep FC 23; R (S) v Chief Constable of the British Transport Police [2013] EWHC 2189 (Admin), [2014] 1 WLR 1647; R (Hoque) v City of London Magistrates’ Court [2013] EWHC 725 (Admin), [2013] ACD 67; R (Global Cash & Carry Ltd) v Birmingham Magistrates’ Court [2013] EWHC 528 (Admin), [2013] ACD 48; R (Anand) v Revenue and Customs Commissioners [2012] EWHC 2989 (Admin), [2013] CP Rep 2; R (Rawlinson and Hunter Trustees) v Central Criminal Court [2012] EWHC 2254 (Admin), [2013] 1 WLR 1634; R (G) v Commissioner of Police of the Metropolis [2011] EWHC 3331 (Admin); R (Power-Hynes) v Norwich Magistrates’ Court [2009] EWHC 1512 (Admin), [2009] Lloyd’s Rep FC 619; Bates v Chief Constable of Avon and Somerset [2009] EWHC 942 (Admin), (2009) 173 JP 313; R (Faisaltex) v Preston Crown Court [2008] EWHC 2832 (Admin), [2009] 1 WLR 1687; R (Redknapp) v Commissioner of the City of London Police [2008] EWHC 1177 (Admin), [2009] 1 WLR 2091.

Also known as the duty of candour, which we discuss in further detail in Chapter 5.

investigators through the application process, generate relevant documents and allocate hearing slots.

THE NEED FOR BESPOKE APPLICATION FORMS

The current law

The forms should still be used, as far as is practicable, and adapted as necessary. The applicant should pay particular attention to the specific legislative requirements for the granting of such an application to ensure that the court has all of the necessary information, and, if the court might be unfamiliar with the legislation, should provide a copy of the relevant provisions.211

The consultation paper

relevant information in narrative form.

Consultation responses

Problems in practice
The numbers of forms

encourage consistency and precision;220

Analysis

In the CMA’s experience, the best way of presenting the relevant facts and considerations, as well as discharging the CMA’s duty of full and frank disclosure, and ensuring that all relevant matters are fully considered by the court, is by setting out a comprehensive narrative in writing, the precise form and structure of which will vary from case to case. The CMA does not consider that the creation of prescribed application forms would assist in the case of CMA warrants. In fact, there is a risk that the creation of prescribed forms, unless specifically designed for the purpose of the legislation under which the warrant is being sought, may increase the risk that one or more of the requirements for a warrant may be overlooked.

Recommendation 10

CONTENT OF APPLICATION FORMS AND THE DUTY OF CANDOUR

The current law

Is there anything of which you are aware that might reasonably be considered capable of undermining any of the grounds of this application, or which for some other reason might affect the court’s decision? Include anything that reasonably might call into question the credibility of information you have received, and explain why you have decided that that information still can be relied upon. ...

Information that might undermine any of the grounds of the application must be included in the application, or the court’s authority for the search may be ineffective. The court will not necessarily refuse to issue a warrant in every case in which there is information that undermines the grounds of the application.

The applicant must explain why information is thought to be credible where it comes from a source that cannot be tested (for example, a report from an anonymous informant).

The applicant must inform the court if there is anything else that might influence the court’s decision to issue a warrant. This may include whether the premises have been searched before, and with what outcome, or whether there is any unusual feature of the investigation or of any potential prosecution.

The consultation paper

The duty of candour
Other amendments to application forms

Consultation responses

The duty of candour
Other amendments to application forms
Summary of consultation responses

Analysis

Factors relevant to discharging the duty of candour

Recommendation 11

The scope of the duty of candour
Previous applications

The applicant must inform the court if there is anything else that might influence the court’s decision to issue a warrant. This may include whether the premises have been searched before, and with what outcome.

Associated powers which may be exercised
The intended prosecutor
The type of premises to be searched
Anticipated timing of the search
Suspected presence of legally privileged material on the premises

Is there any reason to suspect or believe that the material sought consists of or includes material which cannot be searched for under the main search power (such as legally privileged material, excluded material or special procedure material)?

encountered; and

The existence of good character
Conduct of the occupier
Presence of children or vulnerable persons

warrant.

4.103 We agree that the above matters are important and may influence a court’s decision as to whether to issue a warrant. The presence of children, vulnerable adults or staff or customers may also affect what may be considered to be a “reasonable hour” for any warrant to be executed, as required by section 16(4) of PACE.

Reliability of informants

4.104 Sometimes an application for a search warrant will be based on information provided by an informant. Where an informant may not be completely reliable, this is a matter that we consider must be disclosed under the duty of candour. However, such information is clearly sensitive and would need protection.

4.105 The Magistrates Association argued that where an informant has provided intelligence relied upon in an application there ought to be a section where information on the informant can be recorded. They suggested that the following details could be included.

The West London Magistrates’ Bench also suggested that applicants should indicate the quality grading278 of the informant.

Other amendments to application forms
Guidance on completing the application form
Confirming the applicant’s detailed knowledge
Recording the time taken to consider an application
Greater opportunity for the issuing authority to provide reasons

THE DRAFT SEARCH WARRANT

The current law

The consultation paper

Consultation responses

2002 include a pro forma (standard format) for search warrants issued under those Acts.289 They did not consider that a standardised approach to all warrants across the enforcement landscape, including the creation of a standard warrant, would be desirable.

Analysis

Recommendation 12

ONLINE APPLICATIONS PORTAL

The current law

The consultation paper

Consultation responses

In twenty-first century Britain, it seems to me that it should be easy to design a single downloadable interactive form which contains drop down menus which expand/reveal or contract/hide parts of the form which are relevant or irrelevant to a given application. An interactive form could better prompt the applicant to ensure that the appropriate test has been met (e.g. reasonable grounds to suspect or to believe, etc). It could require the positive discharge of the duty of candour by requiring the applicant positively to state that there is nothing which it is necessary to disclose under this head. Such a form could more easily be transmitted to court electronically, triggering reminders to court staff to list the matter before a particular (level of) judge and ensuring that relevant information was readily available. This would also enable electronic monitoring of warrant applications for statistical purposes. The form could require a countersignature - to a suitable declaration -from a senior officer or manager, in order to ensure oversight and accountability.

Analysis

Recommendation 13

4.154 We recommend that Her Majesty’s Courts and Tribunals Service consider the practicability of designing and implementing an interactive online search warrants application portal.

Chapter 5: Applying for a search warrant

INTRODUCTION

CLARIFYING THE SCOPE OF THE DUTY OF CANDOUR

The current law

The consultation paper

Consultation responses

The accessibility and comprehensibility of the duty of candour
Where should the duty of candour be set out?

5.27    On the question of where the duty of candour ought to be set out:
Enshrining the duty of candour in primary legislation

investigators may decide that a warrant is not necessary;313 and

Enshrining the duty of candour in rules of court
Enshrining the duty of candour in Code B of PACE
A list of information which must be disclosed

Each application is fact specific and the CMA has concerns that, at least in respect of the regimes it enforces, prescribing a list of things which must be covered in the application may have the unintended consequence that relevant information falling outside the list is omitted or that the scrutiny applied by the courts becomes unduly focussed on whether the list has been complied with.

Analysis

Enshrining the duty of candour in statute

Where a constable applies for a warrant, the constable is under a duty to disclose—

Recommendation 14

Enshrining the duty of candour in rules of court and Code B of PACE

exercise. In the light of the Competition and Markets Authority’s concerns, we are hesitant to recommend that the information listed must be disclosed. The wording should do no more than draw to the applicant’s attention the type of information which might influence the court’s decision to issue a warrant.330

Recommendation 15

ARRANGING A SEARCH WARRANTS APPLICATION HEARING

The current law

The consultation paper

Consultation responses

Preparing an application

We consider each of these routes in turn.

Arranging a non-urgent search warrant application hearing
Arranging an urgent search warrant application hearing during court hours
Arranging an urgent search warrant application hearing outside court hours

5.102 Sometimes an applicant will want to obtain a search warrant urgently but the court centres will be closed because it is out of normal sitting hours. In such cases, applications can be made out of court hours.

5.103 The Justices’ Clerks’ Society informed us that out of hours applications always begin with the applicant, or someone acting on their behalf, contacting a legal adviser who arranges the hearing. In most cases the legal adviser is on a rota, with a standard telephone number assigned to their mobile phone. In a few areas, applicants have to ring a list of legal advisers until one answers, however, this method of working is being phased out.

5.104 The Magistrates Association stated that magistrates also operate a rota system for out of hours availability. A legal adviser or clerk has to call magistrates listed as dealing with out of hours warrant applications to find someone who is available to hear the application. There are concerns that this process can be inefficient and very time-consuming for legal advisers and clerks.

5.105 In addition to speaking with the applicant, we were informed that in most cases the legal adviser will be sent the application before it is sent to the magistrate. It was considered that sight of the application form by a legal adviser made the process more efficient as advice could be given on specific issues.

5.106 In the South-East region, three magistrates are assigned every day, one for each half of the region and a reserve. The application is made by three-way telephone call, between the applicant, justice and legal adviser. The application is sent by email and the warrant completed and signed by the legal adviser in the same way. HMCTS aims to adopt the same system nationally. Outside the South-East region and some parts of Wales, there are no assigned justices. In these areas legal advisers have to telephone justices from a list until they find one who is available.

5.107 Apart from in the South-East region, hearings take place at the justice’s home. Magistrates reported long delays between being called by the legal adviser and the applicant arriving at their home. Legal advisers give advice in advance and are available to give advice if the justice seeks it, but do not attend the actual application. Service of the application by email is common but not universal.

5.108 HM Council of District Judges (Magistrates’ Court) stated that out of hours applications are also currently dealt with in many different ways across the police regions. It was argued that any reformed process must also include a single process for dealing with out of hours applications.

5.109 We were informed by Staffordshire Police that there have been recent changes to how out of hours applications are arranged in the Midlands. We were told that it can be difficult to apply for search warrants out of hours due to the lack of available magistrates, with the local justice area struggling to cope with demand for hearings. In some cases, the police have had to wait until the following morning and attend a court centre seeking an urgent hearing.

Analysis

5.110 The information provided by consultees in response to Consultation Question 14 has informed a number of our recommendations throughout this report. In the next chapter, we consider the desirability of introducing a standard national procedure for search warrant application hearings. It has also influenced our recommendation for an online search warrants portal at Recommendation 13,338 which would streamline the application process and remove potential inconsistencies.

5.111 Based on consultees’ experiences as described above, we are fortified in our view that there ought to be a standard procedure for search warrant application hearings nationally, which maximises the use of technology to encourage remote hearings. We note that HMCTS intends to extend the dedicated search warrant court model and the remote out of hours model to the rest of England and Wales. We welcome these developments and discuss reform further at paragraphs 6.92 to 6.99 below in respect of out of hours applications and paragraphs 6.121 to 6.141 below in respect of in court hours applications.

5.112 There are two additional matters relating to the arranging of search warrant applications which require consideration irrespective of the model adopted: first, the training delivered to law enforcement agencies and, secondly, the availability of hearing slots.

Training delivered to law enforcement agencies

Overall, the standards of warrant applications were good. The effort that has been invested in training staff was evident. Applications were precise and explained the offences in sufficient detail; sufficient court time was allocated and intelligence managed appropriately.340

Recommendation 16

5.126 We recommend that all law enforcement agencies take steps to ensure that sufficient training is provided to officers involved in applying for and executing search warrants to ensure that applications are consistently completed to a high standard.

The availability of hearing slots

5.127 Several law enforcement consultees and the Law Society expressed concerns over the availability of hearing slots. Discussions with police forces in July 2020 confirmed that there remains in some cases a three-week waiting time to have search warrant applications heard.

5.128 There are two main reasons why, in our view, more hearing slots should be made available, which have been touched on above. First, search warrants applications must be dealt with in a timely manner, irrespective of whether they are especially urgent. The longer the delay, the greater the likelihood of intelligence becoming out of date and the statutory conditions not being satisfied.

5.129 Anecdotal evidence from speaking with several police forces suggests that the majority of investigations in which search warrants are obtained concern the supply of drugs. Other investigations often concern firearms, offences against persons, theft and related offences. In all these cases, the longer it takes to obtain and execute a search warrant, the higher the risk of evidence being lost and the longer the period of potential offending and therefore harm being caused to members of the public.

5.130 Secondly, where slots are unavailable, applicants may be left with little choice but to attend court in person. As identified above, this may waste police and court time, disrupt court business and put pressure on courts to deal with search warrant applications immediately. It is therefore in the interests of all those involved in the criminal justice system, and the wider public, that search warrants can be obtained without undue delay.

5.131 In the light of concerns raised by several law enforcement agencies, we consider that more search warrant application hearing slots should be made available. This would decrease the length of time it takes to obtain a search warrant. We accept that court availability is limited, however, creating more slots would reduce disruption to court business, including reducing delays to trials.

5.132 We also accept that more hearing slots would not resolve all problems in the application process; formalising and streamlining the application process is also extremely important. However, regardless of the model adopted, there must be sufficient hearing slots.

Recommendation 17

5.133 We recommend that Her Majesty’s Courts and Tribunals Service consider the practicability of making more search warrant application hearing slots available or pursuing other measures which would decrease both the length of time it takes to obtain a search warrant and the disruption to other court business.

THE LEVEL OF KNOWLEDGE REQUIRED WHEN APPEARING AT A HEARING

The current law

5.134 Section 15(4) of PACE provides that the constable applying for a search warrant constable shall answer on oath any question that the justice of the peace or judge hearing the application asks them. At present, there is no requirement that the applicant be involved in the criminal investigation to which the warrant relates, or that an adequate level of knowledge regarding the investigation must be held. Nor do Code B or rules of court impress the importance of having sufficient knowledge to answer questions on oath. However, clearly the less knowledgeable an applicant is, the lesser the chance that a warrant will be issued.

The consultation paper

5.135 In the consultation paper, we made clear our desire to improve the way that applicants provide information at search warrant hearings. We were informed anecdotally by one magistrate that it is not uncommon for officers who know very little about the case to apply for search warrants. This often leads to the application being refused and another hearing being arranged, wasting both the court and the investigator’s time.

5.136 For this reason, we invited346 consultees’ views on whether problems commonly arise because applicants for search warrants do not have sufficient knowledge to answer the questions on oath. If so, we asked whether consultees consider that reform is needed. We also invited consultees’ views on whether there ought to be more detail in rules of court or Code B of PACE on what is required from an applicant at a search warrant hearing.

Consultation responses

5.137 Twenty consultees347 answered this question.

Insufficient knowledge of the case

5.138 Several consultees348 stated that applicants lacking a detailed knowledge of the case frequently causes problems. This is often only revealed when additional information is requested and the applicant explains that they cannot provide any answers. The Magistrates Association surveyed their members and 60% of respondents said that they had experienced cases where applicants did not know enough about the case to answer detailed questions.

More detail on what is required from an applicant

Analysis

the officer should be prepared to answer any questions the magistrate or judge may have about:

Recommendation 18

5.149 We recommend that the PACE Strategy Board consider amending Code B of the Police and Criminal Evidence Act 1984 to include the requirement that a person applying for a search warrant has adequate knowledge to answer questions asked by the issuing authority.

SEARCHING PREMISES FOLLOWING ARREST INSTEAD OF APPLYING FOR A WARRANT

The current law

5.150 Not all searches of premises require a warrant.354 Section 18 of PACE provides that a constable may enter and search any premises occupied or controlled by a person who is under arrest for an indictable offence. Section 32 of PACE also gives the police the power to enter and search any premises where the person was located when arrested (or immediately before being arrested) for an indictable offence.

5.151 Sections 18 and 32 of PACE are both triggered by lawful arrest. The power to arrest without a warrant is found in section 24 of PACE. There are, in effect, two conditions for lawful arrest, both of which must be satisfied.

5.152 The issue with which we are concerned here is whether the police, or other officers who have powers of arrest, can arrest an individual solely to activate the power to search premises in preference to securing a search warrant.

The consultation paper

5.153 Stakeholders who defend and represent the interests of individuals affected by a warrant expressed concern regarding the interplay between sections 18, 32 and the search warrant procedure. First, they were concerned that there may be a tendency to sidestep the warrant procedure by arresting individuals under section 24 of PACE and then searching their premises under section 18 or 32 of PACE. In effect, this allows the investigator to avoid the higher threshold for securing a search warrant and the time it takes to apply for one. Secondly, they were concerned that where premises are searched under section 18 or 32 of PACE, the protection afforded to journalistic material does not apply. This is because the only restriction on the categories of material that can be searched for and seized under sections 18 and 32 of PACE is for legally privileged material.355

Consultation responses

search warrant or use other less obtrusive means such as voluntary or compelled production.

Analysis

Chapter 6: Issuing a search warrant

INTRODUCTION

DISTRIBUTION BETWEEN JUDGES AND MAGISTRATES

The current law

The consultation paper

Consultation responses

Analysis

SPECIALIST TRAINING FOR THE MAGISTRACY

The current law

The consultation paper

Consultation responses

Extent of training
Content of training

Analysis

Recommendation 19

FORMALISING THE REQUIREMENT FOR A MAGISTRATE TO BE ADVISED BY A LEGAL ADVISER

The current law

The consultation paper

Consultation responses

Requirement for a legal adviser
Requirement for a legal adviser for District Judges (Magistrates’ Courts)

Analysis

Office for Police Conduct; The Law Society; Justices’ Clerks’ Society; Dijen Basu QC; National Crime Agency; Bar Council and the Criminal Bar Association; Serious Fraud Office; Financial Conduct Authority.

that it should be formalised given that it is an important safeguard which provides an additional layer of scrutiny. It may also be said that, given it is firmly established practice, there is no harm in putting the requirement in the CrimPR.

Recommendation 20

A MINIMUM NUMBER OF MAGISTRATES HEARING AN APPLICATION

The current law

The consultation paper

Consultation responses

Analysis

ISSUING A SEARCH WARRANT DURING OUT OF COURT HOURS

The current law

The consultation paper

Consultation responses

Obtaining legal advice
Remote submissions and hearings
Rota system of legally qualified judges

applications.451 It was doubted that there are sufficient judges available to participate in such a rota, which would have to operate out of hours seven days per week and 365 days a year.452 Similarly, where work is taken away from other sources, additional magistrates may be required. In addition, introducing a rota system of legally qualified judges would incur large costs.453

Analysis

Recommendation 21

FORMALISING THE APPLICATION PROCEDURE DURING NORMAL COURT HOURS

The current law

The consultation paper

Consultation responses

Submitting applications electronically
Screening applications by legal adviser
Dealing with simple applications on the documents alone
Arrange hearing via live link, telephone or in person

Analysis

General observations
Submitting applications electronically
Filtering applications by legal adviser
Dealing with simple applications on the documents alone
Arrange hearing via live link, telephone or in person

Recommendation 22

CROWN COURT APPLICATIONS SCREENED BY A LEGAL ADVISER

The current law

6.142 All search warrants which can be issued by a justice of the peace can be issued by judges in the magistrates’ court or Crown Court. Certain agencies may apply to the Crown Court either because a statute requires it or because they would prefer the scrutiny of a professional judge. Section 47B of the Criminal Practice Directions discusses several principles to be borne in mind regarding the selection of Crown Court centres for the purposes of an application.

The consultation paper

6.143 Under the search warrants application procedure recommended above, applications sent to the magistrates’ court would be screened by a legal adviser unless not practicable in the circumstances to do so. In the Crown Court, however, there are no equivalently qualified court staff who could sift the application before it was considered by a judge. As a result, our recommendation would create a mismatch whereby search warrant applications made before the Crown Court would not be screened for defects.

Consultation responses

Analysis

RECORDING ADDITIONAL MATERIAL PROVIDED DURING HEARINGS

The current law

The consultation paper

Consultation responses

warrant hearing transcripts should only be transcribed and made available to the occupier in the same manner as the information sworn in support of the warrant under the CrimPR: 11 agreed;524 and two expressed other views.525

Analysis

Criminal Procedure Rules. In addition, we observe that in the Crown Court transcripts of search warrant hearings can be ordered to be prepared at the claimant’s cost.538

Recommendation 23

PROVIDING WRITTEN REASONS FOR ISSUING THE SEARCH WARRANT

The current law

The consultation paper

Consultation responses

Analysis

REQUIREMENT TO KEEP RECORDS AND STATISTICS

The current law

The consultation paper

Consultation responses

Analysis

occasions on which those powers are exercised, and should report those figures annually to Parliament.558 The New Zealand Law Commission identified several benefits that may arise from the introduction of reporting requirements regarding search powers, including the shedding of light on the value and appropriateness of law enforcement powers, together with the need for changes in substance or procedure.559

Recommendation 24

Chapter 7: The conduct of a search under warrant

INTRODUCTION

warrant;

SPECIFYING WHO MAY ACCOMPANY A PERSON EXECUTING A WARRANT

The current law

The consultation paper

Consultation responses

Analysis

What should the position be?
What does the current law permit?
Should the current law be amended?

Recommendation 25

THE PERIOD FOR WHICH A SEARCH WARRANT REMAINS VALID

The current law

The consultation paper

Consultation responses

Analysis

THE NUMBER OF TIMES PREMISES CAN BE ENTERED

The current law

The consultation paper

Consultation responses

Analysis

England and Wales. The geographical scope of this project applies to the law of England and Wales. We are not proposing changes that would extend beyond England and Wales.

Recommendation 26

ACCESSING ALL PREMISES OCCUPIED OR CONTROLLED BY AN INDIVIDUAL

The current law

of the Serious Organised Crime and Police Act 2005. Their introduction was aimed at addressing high level fraud or organised crime where evidence may be moved between locations but where the details of the addresses may only come to light after initial searches of other premises.598

The consultation paper

Consultation responses

Analysis

Recommendation 27

THE SEARCH OF PERSONS ON PREMISES PURSUANT TO A WARRANT

The current law

An officer must not search a person, even with his or her consent, where no power to search is applicable. Even where a person is prepared to submit to a search voluntarily, the person must not be searched unless the necessary legal power exists, and the search must be in accordance with the relevant power and the provisions of this code.

The consultation paper

Consultation responses

Analysis

(whether by itself or together with other material) to the investigation of the offence for which the warrant was issued;

Recommendation 28

7.126 We recommend that the Police and Criminal Evidence Act 1984 be amended to include a power to search any person found on premises searched pursuant to a warrant under section 8 of, or paragraph 12 of schedule 1 to, the Act. The power should be subject to stringent safeguards regarding when the power can be exercised and the manner in which it can be exercised.

THE TIME AT WHICH THE SEARCH IS CONDUCTED

The current law

The consultation paper

Consultation responses

Prescribed times
Guidance on the reasonable hour requirement

Analysis

7.152 We recommend at paragraph 4.80 above that application forms should invite applicants to include the anticipated timing of the search. We would add to this the suggestion from the Senior District Judge (Chief Magistrate) that the court should always record in the reasons where warrants may be executed outside usual hours. This requirement would encourage the issuing authority to consider whether it would be proportionate to conduct the search outside reasonable hours.

Recommendation 29

7.153 We recommend that the Criminal Procedure Rule Committee consider amending application forms to invite the issuing authority to record their reasons for granting a warrant which may be executed outside usual hours.

Recommendation 30

THE INFORMATION PROVIDED TO THE OCCUPIER DURING THE SEARCH

The current law

7.156 Section 16(5) of PACE provides that, if the occupier is on the premises at the time of the search, they must be provided with documentary evidence of the status of the person conducting the search; have the search warrant itself produced; and be supplied with a copy of it. Section 16(6) of PACE applies in the same way where the occupier is not on the premises but there is some other person who appears to be in charge.

The consultation paper

7.157 In the consultation paper, we observed that section 16(5) of PACE has become heavily qualified by the case law. In particular, case law states:

Consultation responses

7.159 Seventeen consultees answered this question: 16 agreed in full;648 and one expressed another view.649 Every consultee but one agreed with our provisional proposal to amend section 16(5) of PACE. The SFO took a slightly different view, arguing that guidance in Code B of PACE would be preferable to statutory amendment for two reasons. First, Code B of PACE is more likely to be read by officers. Secondly, the SFO queried whether augmenting section 16(5) of PACE may overload the provision, thereby rendering it less comprehensible.

Analysis

7.160 While every consultee agreed with our provisional proposal, the SFO provided the most comprehensive response to the consultation question. We agree with the SFO that Code B of PACE, and in particular a guidance note, is a more suitable place in which to state developments from case law. In this regard, we are differing with the majority only on the point of where the change should be.

7.161 Code B of PACE is more likely to be read by officers. Further, the developments identified expand on the statutory wording, they do not drastically alter the meaning of it. Such expansion is well suited for Code B of PACE. We also agree that statutory expansion risks making section 16(5) of PACE less comprehensible.

Recommendation 31

AN AUTHORITATIVE GUIDE TO SEARCH POWERS

The current law

7.163 As indicated at paragraph 7.156 above, section 16(5) and 16(6) of PACE require various items of information to be disclosed to an occupier. If an officer conducts a search to which Code B of PACE applies, Code B of PACE states that the officer shall, unless it is impracticable to do so, provide the occupier with a copy of a “notice of powers and rights”.650 Code B of PACE prescribes the matters that should be included in a notice of powers and rights and the manner in which it should be given to the occupier.651

The consultation paper

7.164 Concern has been raised that occupiers are not provided with sufficient information to understand what can and cannot occur during a search. Professor Helen Fenwick has argued that section 16(5) of PACE is presentational in nature and in fact serves little purpose as it does not provide much detail about how a search should be conducted.652 One stakeholder with whom we met who worked for a law enforcement agency suggested that the occupier should be given a copy of the statutory provision authorising the entry and search of their home.

Consultation responses

Analysis

The notice of powers and rights

Recommendation 32

7.179 We recommend that:

Information page on the Government website

7.180 In addition to recommending amending the current notice of powers and rights, we have considered whether a more permanent and detailed document could be created. We agree with the Bar Council and the CBA that it would be desirable to have a website page with a guide for individuals on search warrants.

7.181 We note that the Government website has a dedicated section on “crime, justice and the law”. This contains an A to Z list of various topics, include arrest and stop and search. There is not, however, a section on search warrants.

7.182 We consider that there would be real value in a dedicated webpage hosted on that site on search warrants, which incorporates the areas raised by consultees. Those areas were the right to obtain the information provided in support of the warrant and how to do so, rights of challenge, appeals, rights to compensation, and how to access legal advice. A link could be included on the notice of powers and rights. Thought should also be given to translations.

Recommendation 33

7.183 We recommend the introduction of a specific search warrants “your rights and the law” webpage on the Government website. This should involve consultation with those with experience of the needs of individuals affected by a warrant.

HOW TO APPLY FOR THE UNDERLYING INFORMATION

The current law

7.184 An occupier must be provided with a copy of the search warrant. However, after the search of their premises, an occupier may want to obtain other relevant information. This includes the information which the investigator provided to the issuing authority in support of their application for a search warrant, the time taken to consider the application, additional notes taken during the hearing and the statement of reasons by the court for the issue of the search warrant. A person affected by a search warrant has a right to apply for this information, following the procedure set out in rule 5.7(6) to (9) of the CrimPR.656

The consultation paper

7.185 In the interests of transparency, in our consultation paper we provisionally proposed657 that a search warrant should be required to state clearly that the occupier is entitled to the information sworn in support of the warrant and provide instructions on how to apply for a copy of that information.

Consultees responses

7.186 Nineteen consultees answered this question: 14 agreed;658 three disagreed;659 and four expressed other views.660 The majority of consultees agreed with our provisional proposal based on the need for fairness and transparency. One consultee suggested that we could go further, and consider recommending that the information sworn in support of the warrant should be disclosed as a matter of course.

7.187 A large proportion of consultees who responded raised the concern that some of the information applied for may be sensitive and therefore redacted or unable to be disclosed to the occupier. Those consultees who disagreed with the provisional proposal did so on the ground that the right to information was in fact qualified and therefore it would be misleading to suggest that the occupier is entitled to the information.

7.188 Other consultees considered it possible to clarify that occupiers are not automatically entitled to the information sworn in support of a warrant, but rather that they have a right to apply for such information.

7.189 The SFO suggested that it may be preferable for the right to apply for the information sworn in support of the warrant to be stated in the guidance proposed above, or the notice of powers and rights, rather than on the face of the warrant.

Analysis

How to obtain a copy of the application form

7.190 We remain of the view that that an occupier should be provided with instructions on how to apply for a copy of the information. We agree with consultees that the instructions should not state that the person is entitled to the information but rather they are entitled to apply for the information. This should be qualified to explain that that the court may restrict what they are able to obtain or redact parts of it.

7.191 Given that we make a recommendation to require the production of a notice of powers and rights at Recommendation 32 above,661 we consider that it would be appropriate to include in the notice of powers and rights how to obtain a copy of the information sworn in support of the warrant.

7.192 We agree with the SFO that it would be preferable for the right to be included in the notice of powers and rights rather than on the face of the warrant. This is because, provided Recommendation 32 above was implemented, provision of the notice to an occupier would be compulsory. The rights of an occupier would be contained in a single, self-contained document that would lend itself better to narrative text than a search warrant. We also consider that it would keep the content, presentation and purpose of a search warrant simple and straightforward: to indicate the extent of a law enforcement agencies authority to enter and search premises.

Disclosure of the application form as a matter of course

7.193 We do not consider that the application form should be provided as a matter of course for the reasons set out at paragraph 8.33 of our consultation paper. Disclosure of the application form may be legitimately withheld for a number of reasons, such as on public interest grounds.662 Requiring disclosure as a matter of course would require the courts to determine matters such as public interest immunity during the application stage before the application is automatically disclosed. This would impose a disproportionate burden on law enforcement agencies and the courts. It would be undesirable as not every occupier will request a copy of the information and would therefore be an onerous and unnecessary task for the court to determine, in advance of such a request, what can and cannot be disclosed.

7.194 We understand that law enforcement agencies adopt different practices and may list for disclosure both the warrant and the information sworn in support unless they contain sensitive information which needs to be protected. We regard the matter of pre-request disclosure as a matter properly left to individual law enforcement agencies.

THE PRESENCE OF LEGAL REPRESENTATIVES DURING THE SEARCH

The current law

7.195 The execution of a search warrant does not, in itself, divest an occupier of their power to invite third parties onto the premises. However, as discussed at paragraph 3.99 above, persons on premises must not, through their number or by their behaviour, obstruct the search. It is a matter of discretion for the officer in charge of the search whether to delay the search to await the arrival of an invitee.

7.196 In large-scale financial investigations, it is common for occupiers to ask a legal representative to be present at the search. However, there is no specific statutory right for a legal representative to be present during the execution of a search warrant. Nor is there guidance which sets out the functions or limits of a legal representative who is present during a search. Code B of PACE states:

A friend, neighbour or other person must be allowed to witness the search if the occupier wishes unless the officer in charge of the search has reasonable grounds for believing the presence of the person asked for would seriously hinder the investigation or endanger officers or other people. A search need not be unreasonably delayed for this purpose. A record of the action taken should be made on the premises search record including the grounds for refusing the occupier’s request.663

7.197 Code B of PACE treats a legal representative as “another person”: there is no separate right to a legal representative that goes beyond the general right to have a friend, neighbour or other person present. This general right is also often set out in the notice of powers and rights, which we discussed at paragraphs 7.173 to 7.177 above.

The consultation paper

7.198 Stakeholders have informed us that the lack of statutory guidance results in inconsistent practices across different investigative agencies. It was suggested that Code B of PACE should acknowledge the distinct position of a legal representative and provide clearer guidance on the issue.

Consultation responses

Analysis

Accordingly, a similar approach might be regarded as sensible in this context. Additionally, paragraph 6.11 of PACE applies to the search of premises generally, be it pursuant to a search warrant or another power to enter premises. To avoid inconsistency, thought should also be given to whether our recommendation ought to be limited to searches pursuant to a warrant.

Recommendation 34

Chapter 8: Challenging a search warrant

INTRODUCTION

A NEW CROWN COURT PROCEDURE FOR CHALLENGING SEARCH WARRANTS

The current law

Judicial review
Section 59 of the Criminal Justice and Police Act 2001

additional claims to obtain the relief sought; and

The consultation paper

aside and allow the investigator to retain the materials. For this to happen, the investigator would have to satisfy the judge on the balance of probabilities that the conditions for issuing a warrant were fulfilled and it was in the interests of justice for the material to be retained (having regard to a non-exhaustive list of factors).

Consultation responses

Analysis

Appropriateness of the Crown Court reviewing a Crown Court decision

The issue of a warrant is a judicial act. It would be a novel and surprising development of the law if a court of equal jurisdiction enjoyed the power to declare invalid the judicial act of another.732

Whether the Crown Court is suitable forum
Delay and expense
Issues arising from having two avenues of challenge
Summary of objections to a new Crown Court procedure

This would permit a person with an interest in an electronic device or data on that device to apply for its return or deletion notwithstanding that the material is lawfully held and therefore an application for its return could not be made under section 59(3) of the CJPA.

AMENDMENTS TO SECTION 59 OF THE CRIMINAL JUSTICE AND POLICE ACT 2001

The power to order costs between parties

The current law
The consultation paper

[2015] EWHC 723 (Admin), [2016] 1 WLR 631 at [28].


Consultation responses
Analysis

Criminal Procedure Rules may make provision about proceedings under this section on an application to a judge of the Crown Court in England and Wales.

I would add that there is, potentially, an important difference between the separate legal concepts of “a judge of the Crown Court” and “the Crown Court”, on the basis that legislation has, on occasion, treated certain types of judges as being legally distinct from the court in which they sit. Put in a nutshell, there is a possible argument that a judge dealing with an application under section 59 of the 2001 Act is not exercising the general jurisdiction of the Crown Court as a superior court of record. Instead, he is simply acting pursuant to the discrete powers given to a judge of the Crown Court in this particular situation: see sections 59(2) and 64(1)(a) of the [CJPA]. However, this argument is dependent on drawing something of a fine distinction between these two concepts and we have not received submissions on the issue. In any event, it is unnecessary to resolve the point given the conclusions that I have reached above and I therefore say no more about it.765

Recommendation 35

High Court ancillary powers

The current law
The consultation paper
Consultation responses
Analysis

Recommendation 36

Chapter 9: Sensitive material and public interest immunity

INTRODUCTION

THE CURRENT LAW

Preparing a search warrant application

It is no doubt sensible practice for applicant officers to adopt, where practicable and where time permits, the permissive rule 47.26(4) procedure and to identify information which they contend ought not to be supplied to anyone but the court. That may reduce the risk of accidental disclosure, and no doubt a magistrate considering an application would, where this is done, bear in mind that there is information which a person affected might never be able to test. But there is no suggestion, or I think likelihood, that [rule 47.26(4)] intended the constable or magistrate at this early stage, when speed is often of the essence, to try to form a definitive view as to what the public interest might ultimately prove to require. That is an exercise which in accordance with the rules falls to be undertaken at a later stage by a magistrate under the procedure in Bangs and/or a Crown Court under section 59 of CJPA.770

The search warrant application hearing

Making an application for information following the execution of a search warrant

Objecting to an application for information

the court; and

The closed material procedure and determination of public interest immunity

However, the court may direct other arrangements for the hearing.

THE CONSULTATION PAPER

OUTLINE OF CONSULTATION RESPONSES

THE STORAGE OF SENSITIVE MATERIAL

Comments made by consultees

Analysis

The storage of sensitive material

Recommendation 37

References to sensitive material in the application
Requiring sensitive material to be appended in a separate document

THE INVESTIGATOR’S RIGHT TO REGISTER AN OBJECTION

Comments made by consultees

Analysis

We discuss each of these possible amendments below in turn.

Requiring confirmation that the investigator received the request
Extending the period of 14 days to object
Requiring the court to contact the investigator
Requiring the warrant to specify a contact address
Conclusion

Recommendation 38

FORMALISING THE MATTERS RELEVANT TO THE DECISION TO DISCLOSE SENSITIVE MATERIAL

Comments made by consultees

Analysis

Recommendation 39

THE CONSEQUENCES OF A DECISION TO ORDER DISCLOSURE

Comments made by consultees

Analysis

information relied upon by the investigator to assess whether to make an application for the return of material under section 59 of the Criminal Justice and Police Act 2001 (“CJPA”).

Information may contain details of an informer which it would be contrary to the public interest to reveal. The information may also contain other statements to which public interest immunity might apply. But, subject to that, if a person who is in the position of this claimant asks perfectly sensibly for a copy of the information, then speaking for myself I can see no objection to a copy of that information being provided. The citizen, in my judgment, should be entitled to be able to assess whether an information contains the material which justifies the issue of a warrant. This information contained the necessary evidence to justify issuing the warrant.804

INTRODUCTION

THE CURRENT LAW

Legal professional privilege

Items held with the intention of furthering a criminal purpose are not items subject to legal privilege.826

Excluded material

One problem for the MPS has been that it is not clear whether journalistic material continues to fall within the scope of the excluded material definition, and thus remain subject to the second set of access conditions, if the journalist has created or acquired it in furtherance of a crime. The question that arises is as follows: if there was iniquity such as crime or fraud did the duty of confidence ever arise? If not, then the journalistic material will not be held under an undertaking, restriction or obligation of confidence as required by s 11(3) of PACE.833

It is certainly remarkable that Parliament might have provided greater protection for journalistic material than in relation to legal professional privilege as a matter of general law. Even more so that it would provide less protection for the material where the public interest is served in relation to a terrorist investigation than might be the case if that material has been created or acquired in furtherance of crime. Although the circumstances in which the provision might bite will hopefully be very rare, I see force in the submission that s11(3) PACE should be amended by providing that journalistic material is only held in confidence for the PACE provisions if it is held, or has continuously been held since it was first acquired or created, subject to an enforceable or lawful undertaking, restriction or obligation.

I am very conscious that I have received submissions only from the MPS on this topic and that there is potential room for argument that any amendment to PACE will have far wider ramifications of which I have not been apprised and go beyond the limited goals that DC Mackey seeks to achieve. Before any conclusion can be reached on any of these issues, appropriate consultation will be essential.

In the circumstances, without pre-judging any conclusion, I recommend that the Home Office should consider and, if necessary, consult upon ... whether s 11(3) of PACE should be amended by providing that journalistic material is only held in confidence for the PACE provisions if it is held or has continuously been held since it was first acquired or created subject to an enforceable or lawful undertaking, restriction or obligation.834

The material so sought would not have amounted to "excluded material" because it would not have been impressed with the necessary quality of confidentiality to bring it within section 11. It is well established in the context of legal professional privilege that a communication made in furtherance of a crime prevents the privilege from arising by reason of what is commonly called the iniquity exception. Iniquity for these purposes includes the commission of a crime, although it is not so limited and extends to fraud or equivalent underhand conduct which is in breach of a duty of good faith or contrary to public policy or the interests of justice. The reason such iniquity prevents the existence of legal privilege in the relevant communication is that it precludes the existence of confidentiality in the communication; and confidentiality is a necessary condition for legal privilege. These principles are well established by a long line of cases from R v Cox & Railton (1884) 14 QBD 153, which were considered and analysed in JSC BTA Bank v Ablyazov [2014] EWHC 2788 (Comm), [2014] 2 CLC 263 at paragraphs [68] to [93]. The appellant's communications with Mr Moyes were in furtherance of his criminal conduct and so attracted no confidentiality. They are not therefore excluded material for the purposes of a PACE production order. The position might be otherwise for a genuine whistleblower acting in the public interest whose conduct vis a vis the journalist would retain its express or implied undertaking of confidentiality.836

The [crime-fraud exception] is not confined to criminal purposes, but extends to fraud or other equivalent underhand conduct which is in breach of a duty of good faith or contrary to public policy or the interests of justice.837

It is of the highest importance, in the first place, that the rule as to privilege of protection from production to an opponent of those communications which pass between a litigant, or an expectant or possible litigant, and his solicitor should not be in any way departed from. However hardly the rule may operate in some cases, long experience has shewn that it is essential to the due administration of justice that the privilege should be upheld. On the other hand, where there is anything of an underhand nature or approaching to fraud, especially in commercial matters, where there should be the veriest good faith, the whole transaction should be ripped up and disclosed in all its nakedness to the light of the Court.838

did not cite any Strasbourg authority which suggests that this inclusion is problematic, nor do we think that the inclusion creates any difficulty with the compatibility of the definition taken as a whole with the Convention rights.842

Special procedure material

Conclusion

CONSULTATION RESPONSES

Legally privileged material

Excluded material

The position [that no privilege attaches to communications in furtherance of criminal conduct] might be otherwise for a genuine whistleblower acting in the public interest whose conduct vis a vis the journalist would retain its express or implied undertaking of confidentiality.848

Special procedure material

ANALYSIS

A statutory iniquity exception

The wording of the test

The effect of iniquity

Procedure

Recommendation 40

Chapter 11: The treatment of legally privileged material

INTRODUCTION

FORMALISING INDEPENDENT COUNSEL PROCEDURE

The current law

of the Criminal Justice and Police Act 2001 (“CJPA”). However, these powers are only designed to allow for material to be sorted through at a later stage because it is not reasonably practicable, during the search, to determine which category the material falls into or to separate the material into what may and may not be seized.

The consultation paper

Consultation responses

Consequently, it agreed that formalising the procedure through secondary legislation would be desirable, because it would lead to a clearer and more consistent approach.

Analysis

Recommendation 41

CLAIMING PRIVILEGE IN RESPECT OF MATERIAL SOUGHT UNDER A WARRANT

The current law

The consultation paper

Consultation responses

sifting will be conducted in the absence of more detailed information.

Analysis

INTRODUCTION

Personal records and journalistic material are further defined in sections 12 and 13 of PACE respectively. We set out these definitions in the sections which follow.

PERSONAL RECORDS

The current law

The definition of “personal records” and “in confidence”

personal welfare, by any voluntary organisation or by any individual who—

The provisions of PACE relating to excluded material

We now discuss these rules in further detail.

Case law relating to the second set of access conditions

I question whether Parliament could have intended that the exemption of “personal records” should place such a restriction upon the investigation of serious crime as the appellants contend that it does. We were not referred to any parliamentary material, but Professor Zander in the (sic) The Police & Criminal Evidence Act 1984 (2nd ed.) attributes the width of the statutory definition to “the fierce campaign waged in particular by the British Medical Association, the bishops and Citizens Advice Bureau” (p.34).

must be given their ordinary and natural meaning. This is so even if the result may seriously impede Police investigations into a terrible murder and allow a very dangerous man to remain at large and a real risk to others. Parliament defines “excluded material”, as a matter of public policy, presumably, because it considered that the confidentiality of records of identifiable individuals relating to their health should have paramountcy over the prevention and investigation of serious crime. It is not for the Courts to question whether Parliament has struck the right balance or unreasonably over-emphasised the importance of confidentiality.

Other statutory provisions under which excluded material may be available

The consultation paper

We were therefore interested in consultees’ views on whether the current law constitutes an undesirable fetter on the investigation of these offences.

Consultation responses

A uniform rule
A general prohibition on access
An exception to the general prohibition on access

You must not disclose personal information to a third party such as a solicitor, police officer or officer of a court without the patient’s explicit consent, unless it is required by law, or ordered by a court, or can be justified in the public interest. You may disclose information without consent to your own legal adviser to get their advice.910

Disclosing personal information may be justified in the public interest if failure to do so may expose others to a risk of death or serious harm. The benefits to an individual or to society of the disclosure must outweigh both the patient’s and the public interest in keeping the information confidential.911

Such a situation might arise, for example, if a disclosure would be likely to be necessary for the prevention, detection or prosecution of serious crime, especially crimes against the person. When victims of violence refuse police assistance, disclosure may still be justified if others remain at risk, for example from someone who is prepared to use weapons, or from domestic violence when children or others may be at risk.912

A patient’s right to be informed and make recommendations
The treatment of human tissue and fluid

Analysis

A uniform rule
Should confidential personal records be obtainable under PACE?

exercise to that which would be conducted when considering the public interest.923 Furthermore, paragraph 3(c) of schedule 1 to PACE requires the court to consider whether the issue of the warrant is “appropriate”, which is likely to encompass these matters.924

The line which ought to be drawn is not that which has been drawn in these amendments —which is that confidential information in files that are held by people in certain privileged occupations is exempt. It does not matter how serious the offence is or what the consequences will be if the police do not get that information: the Government say that that material will be exempt. That is not a fair balance. It is one of the rare issues in this Bill where the balance has been drawn against the police to an unacceptable extent. That has been done because the Government have given in to the campaign that was engineered by the press.927

A disclosure in the public interest is a disclosure that is essential to prevent a serious threat to public health, national security, the life of the individual or a third party, or to prevent or detect serious crime. This includes crimes such as murder, manslaughter, rape, treason, kidnapping and abuse of children or other vulnerable people. Serious harm to the security of the state or to public order and serious fraud will also fall into this category. In contrast, theft, minor fraud or damage to property, where loss or damage is less substantial, would generally not justify the breach of confidence necessary to make the disclosure.

If it is not practicable or appropriate to seek consent, and in exceptional cases where a patient has refused consent, disclosing personal information may be justified in the public interest if failure to do so may expose others to a risk of death or serious harm. The benefits to an individual or to society of the disclosure must outweigh both the patient’s and the public interest in keeping the information confidential. ... Such a situation might arise, for example, if a disclosure would be likely to be necessary for the prevention, detection or prosecution of serious crime, especially crimes against the person. When victims of violence refuse police assistance, disclosure may still be justified if others remain at risk, for example from someone who is prepared to use weapons, or from domestic violence when children or others may be at risk.

When should personal records be obtainable pursuant to a search warrant under PACE?

The access conditions under which confidential personal records can be sought under the Terrorism Act 2000 are broadly modelled on the first set of access conditions under PACE.941 Given that the investigations for which confidential personal records may be sought under PACE include very serious offences against the person, we consider that there is an equally strong public interest in there being a similar power in PACE through which to seek access to the material.

Recommendation 42

CONFIDENTIAL JOURNALISTIC MATERIAL

The current law

The definition of “journalistic material” and “in confidence”
The definition of “for the purposes of journalism”

Information should only be found to be held for the purposes of journalism ... if an immediate object of holding the information is to use it for one of those purposes.949

The central question to be asked . will be . whether there remains any sufficiently direct link between the BBC’s continuing holding of the information and the achievement of its journalistic purposes.950

The question whether information is held for the purposes of journalism should thus be considered in a relatively narrow rather than a relatively wide way.951

The Home Office should consider and, if necessary, consult upon . whether PACE should be amended to provide a definition of the phrase “for the purposes of journalism” in s13(2) [of PACE].952

The accessibility of journalistic material

The consultation paper

Consultation responses

A uniform rule
A general prohibition on access in all cases
Exception to the prohibition on access in terrorism cases

Analysis

A uniform rule
Should confidential journalistic material be obtainable under PACE?

In common with many other aspects of modern life, the Internet has transformed the way in which we communicate with one another. Where the printed press and broadcast media were once the main sources of information, the Internet has made it possible for any person to publish ideas, information and opinions to the entire world. In particular, blogging and social media now rival newspapers and television as dominant sources of news and information. Unsurprisingly, these developments have also called into question the very definition of ‘journalism’ and ‘media’ in the digital age. It has also raised difficult questions of how the activities of bloggers and ‘citizen journalists’ can be reconciled to existing models of media regulation.972

In what circumstances should confidential journalistic material be obtainable under PACE?

The importance of the right and the weight of the justification required for an interference that compels a journalist to reveal confidential material about or provided by a source has been frequently stated both in Strasbourg and in our courts. It is sufficient to refer to Goodwin v United Kingdom (1996) 22 EHRR 123 at [39] and [40] "protection of journalistic sources is one of the basic conditions for press freedom" and "limitations on the confidentiality of journalistic sources call for the most careful scrutiny by the court"; Tillack v Belgium (Application no 20477/05, 27 November 2007) at [53]; John v Express Newspapers [2000] 1 WLR 1931 at [27] where the court of appeal said: "Before the courts require journalists to break what a journalist regards as a most important professional obligation to protect a source, the minimum requirement is that other avenues should be explored"; and Ashworth Hospital Authority v MGN Ltd [2002] UKHL 29, [2002] 1 WLR 2033 at [61] where Lord Woolf CJ said that disclosure of a journalist's sources has a chilling effect on the freedom of the press and that the court will "normally protect journalists' sources".973

Recommendation 43

ABOLISHING THE SECOND SET OF ACCESS CONDITIONS

The current law

The consultation paper

Consultation responses

material.

Analysis

THE PROTECTION OF EXCLUDED MATERIAL AND SPECIAL PROCEDURE MATERIAL IN CASES OF SEIZURE NOT UNDER WARRANT

The current law

The consultation paper

material falls within a right guaranteed within the ECHR.981 As a result, if the law fails adequately to protect this material, a breach of ECHR rights may be established.

Consultation responses

Analysis

Therefore, pure protected material would not be subject to seizure under the CJPA.

Chapter 13: The treatment of special procedure material

INTRODUCTION

Accordingly, we discuss the following issues in this chapter:

DIFFICULTIES IN PRACTICE IN SEARCHES WHICH RELATE TO SPECIAL PROCEDURE MATERIAL

A UNIFORM ROUTE TO THE AVAILABILITY OF SPECIAL PROCEDURE MATERIAL

The consultation paper

Consultation responses

Analysis

SPECIAL PROCEDURE MATERIAL MIXED WITH ORDINARY MATERIAL

Consultation responses

Analysis

SPECIAL PROCEDURE MATERIAL MIXED WITH EXCLUDED MATERIAL

Consultation responses

That there is material which consists of special procedure material or includes special procedure material and [that the specific material sought and which the respondent is capable of identifying] does not also include excluded material on premises specified in the application, or on premises occupied or controlled by a person specified in the application (including all such premises on which there are reasonable grounds for believing that there is such material as it is reasonably practicable so to specify).

Analysis

DISCLOSURE OF NON-CONFIDENTIAL JOURNALISTIC MATERIAL

Consultation responses

Analysis

EXPANDING THE DEFINITION OF SPECIAL PROCEDURE MATERIAL

Consultation responses

Analysis

FURTHER GUIDANCE ON THE MEANING OF SPECIAL PROCEDURE MATERIAL

Consultation responses

Analysis

Recommendation 44

Chapter 14: An introduction to electronic material and the law

INTRODUCTION

THE NATURE OF ELECTRONIC MATERIAL

Electronic devices

Electronic data

For instance, where a document is created in Microsoft Word, the document will exist in native form as a .doc or .docx file. This will likely enable a person to view metadata about the file, such as when it was created and by whom. Electronic data may also exist in a foreign format. For example, if the Microsoft Word document was printed out, scanned, or converted into a PDF format, the file would exist digitally as a picture with a loss of original metadata.

Remotely stored data

AN OVERVIEW OF THE RELEVANT LEGAL REGIMES GOVERNING THE ACQUISITION AND TREATMENT OF ELECTRONIC MATERIAL

Powers to search for and seize electronic material pursuant to a search warrant

Electronic device warrants

Any electronic storage devices, including but not exclusively mobile phones, computers, lap tops, iPads and any other digital or electronic storage devices.1033

Electronic data warrants

All records, details, notes and files held whether on computer or otherwise ...

All files and correspondence whether by email, letter or otherwise ... between customers and/or clients and .

Any material recorded on servers accessible from the subject premises.

Powers to seize electronic material under other statutory provisions

Powers to operate electronic devices

Powers to require production or access

There are particular ambiguities as to how the production powers under PACE operate, which we discuss in more detail at paragraphs 18.25 to 18.68 below.

Powers to request legal assistance from other states

Powers to intercept communications

“related systems data”1074) from communications or the disclosure of anything obtained under the warrant.1075 An “intercepting authority”1076 may apply to the Secretary of State for an interception warrant,1077 which requires various criteria to be met1078 and approval by a Judicial Commissioner1079 (unless the case is urgent1080).

Powers of inspection, search or seizure or of any other enactment by virtue of which the conduct in question is authorised or required.1096

It follows that where an electronic device is accessed following the execution of a search warrant pursuant to a power which confers such authority, no offence is committed under the CMA 1990.

Powers to interfere with equipment and property

Equipment interference
Property Interference

Consent as a lawful basis for acquiring electronic material

Powers to retain material

The duty to provide a record of material seized

The duty to sift electronic material

reasonably practicable, following the examination, to separate from property falling within either of the two categories above.

The duty to retain relevant material

Where material is retained for evidential purposes there will be a strong argument that the whole thing (or an authenticated image or copy) should be retained for the purpose of proving provenance and continuity.1144

Therefore, data seemingly falling outside the scope of a warrant may nonetheless constitute relevant material for the purpose of the CPIA.

The duty to pursue all reasonable lines of enquiry

The duty to process data lawfully

Human rights law

The protection afforded by art 8 of the Convention would be unacceptably weakened if the use of modern scientific techniques in the criminal-justice system were allowed at any cost and without carefully balancing the potential benefits of the extensive use of such techniques against important private-life interests ... any state claiming a pioneer role in the development of new technologies bears special responsibility for striking the right balance in this regard.1161

The need for such safeguards is all the greater where the protection of personal data undergoing automatic processing is concerned, not least when such data are used for police purposes. The domestic law should notably ensure that such data are relevant and not excessive in relation to the purposes for which they are stored; and preserved in a form which permits identification of the data subjects for no longer than is required for the purpose for which those data are stored. The domestic law must also afford adequate guarantees that retained personal data was efficiently protected from misuse and abuse. The above considerations are especially valid as regards the protection of special categories of more sensitive data.1162

International law

Codes of practice and guidance documents

HOW SEARCHES UNDER WARRANT FOR ELECTRONIC MATERIAL OPERATE IN PRACTICE

The point at which electronic data extraction takes place

Types of data extraction

Data extraction devices

PROBLEMS WITH THE CURRENT LAW

electronic material.

The lack of clear and effective legal bases to acquire electronic material

The lack of sufficient safeguards in respect of the acquisition and treatment of electronic material

Searches of computers (including smart phones) raise special privacy concerns, because of the nature and extent of the information that they hold, and which searchers must examine, if a search is to be effective.1179

It is difficult to imagine a more intrusive invasion of privacy than the search of a personal or home computer ... when connected to the internet, computers serve as portals to an almost infinite amount of information that is shared between different users and is stored almost anywhere in the world.1180

Computers — and I would add cell phones — may have immense storage capacity, may generate information about intimate details of the user’s interests, habits and identity without the knowledge or intent of the user, may retain information even after the user thinks that it has been destroyed, and may provide access to information that is in no meaningful sense “at” the location of the search.1181

Modern cell phones, as a category, implicate privacy concerns far beyond those implicated by the search of a cigarette pack, a wallet, or a purse . Cell phones differ in both a quantitative and a qualitative sense from other objects that might be kept on an arrestee’s person.1182

You could search a person, and their entire home and never find as much information as you can from searching their phone.1184

Searching someone’s property and taking copies of all photographs, documents, letters, films, albums, books and files.1185

Chapter 15: Search for and seizure of locally stored electronic material

INTRODUCTION

would satisfy the statutory conditions.

ELECTRONIC MATERIAL AS THE TARGET OF A SEARCH WARRANT

The current law

The consultation paper

Consultation responses

Analysis

The forms of electronic material that can be the target of a search warrant
What forms of electronic material should be able to be the target of a search warrant?

SATISFYING THE STATUTORY ACCESS CONDITIONS WHEN ELECTRONIC DATA IS SOUGHT

The current law

The consultation paper

Consultation responses

Analysis

Recommendation 45

APPLYING FOR A WARRANT TO SEARCH FOR AND SEIZE ELECTRONIC DEVICES

The current law

The consultation paper

and

Consultation responses

Introducing additional steps to consider the necessity and proportionality of device seizures
Introducing additional criteria during the application procedure
Requiring search protocols

the myriad of digital devices that a proportionate search and seizure strategy can be determined.1244 For these reasons, detailed and meaningful protocols could not be drafted.

Analysis

Introducing additional steps or criteria during the application procedure
Detailing the information sought on electronic devices

Recommendation 46

Detailing how information satisfies the statutory conditions

Recommendation 47

15.66 We recommend that the Criminal Procedure Rule Committee consider amending search warrant application forms to require an investigator, when they are seeking to obtain a warrant to search for and seize electronic devices to acquire electronic data, to explain why they believe that the information is on the device and why the information would satisfy the statutory conditions.

Requiring pre-search protocols
Defining pre-search protocols
Evaluating the efficacy of pre-search protocols

We are not convinced that a requirement to impose conditions would be useful in every case. It seems to us that a certain degree of flexibility is needed when searching electronic devices, given that the searcher is unlikely to know in advance exactly where and in what format the targeted material is stored. There is a risk that investigations would be hindered through the routine imposition of unworkable or unduly prescriptive conditions.1256

DRAFTING WARRANTS TO SEARCH FOR AND SEIZE ELECTRONIC DEVICES

The current law

EWHC 70 (Admin) at [74], [2017] 1 WLR 3567 at

EWHC 70 (Admin) at [78], [2017] 1 WLR 3567 at

EWHC 70 (Admin) at [81], [2017] 1 WLR 3567 at

EWHC 70 (Admin) at [84], [2017] 1 WLR 3567 at


The consultation paper

For my part, while it is difficult to generalise, there are significant advantages to the warrants—if suitably drafted, as discussed above—identifying the computers or phones sought under section 9 and schedule 1, rather than a necessarily much lengthier list of the contents or classes of contents. ... Given its constitutional and practical importance, it is imperative that a warrant is capable of simple and practical execution (the Energy Financing case) and is clear on its face. Having regard to the realities of a search, seeking specified items, things or articles rather than a list of electronic contents is potentially much quicker, more practical and less intrusive. It is also much less prone to misunderstandings on the day. The better place for the explanation and description of the contents or classes of contents sought is the application for the warrant before the judge, where the applicant is in any event under a duty to give appropriate disclosure.1264

Consultation responses

Advantages of specifying electronic devices on the face of the warrant

This is especially so during the early stages of an investigation. Specifying an entire device therefore prevents an unreasonable constraint being placed on the investigation.1275

Disadvantages of specifying electronic devices on the face of the warrant

Analysis

The risk of tipping-off will be present when hard copy documents are sought, which will require specificity. We see no reason for an investigator to enjoy a level of secrecy when electronic devices are the target material that is not possible when the target material includes hard copy documents.

Recommendation 48

sought.

THE SEIZURE OF ELECTRONIC DEVICES

The current law

The consultation paper

Consultation responses

Advantages of being permitted to seize entire electronic devices
Disadvantages of being permitted to seize entire electronic devices

Analysis

The seizure of entire electronic devices
The copying of electronic devices
Can investigators copy electronic data instead of seizing an electronic device?
Should investigators be permitted to copy electronic data instead of seizing an electronic device?
Should search warrant provisions be amended to make clear that investigators may copy electronic data instead of seizing an electronic device?

Recommendation 49

THE SEARCH OF ELECTRONIC DEVICES ON PREMISES AND SUBSEQUENT SEIZURE OF ELECTRONIC DATA

The current law

The consultation paper

We were informed by stakeholders that the searching of electronic devices on premises in the way described is likely to be deemed permissible by several law enforcement agencies when search warrants are executed. Although it clearly happens in practice, we were concerned that there was no clear legal basis for it. We considered that this position ought to be clarified.

Consultation responses

Analysis

Should investigators have express powers to conduct a search of electronic devices while on premises?
How should an express power to conduct a search of electronic devices while on premises be framed?

Recommendation 50

Chapter 16: Search for and seizure of remotely stored electronic data

INTRODUCTION

The issues in outline

The structure of this chapter

Summary of our conclusions and recommendations concerning remotely stored electronic data

The extraterritorial application of search, seizure and production powers
The circumstances in which the search, seizure and production of remotely stored data is permissible under international law
The search of premises for and copying of remotely stored data
Compelling access to protected information
Preventing interference with remotely stored data

THE EXTRATERRITORIAL APPLICATION OF SEARCH, SEIZURE AND PRODUCTION POWERS

Electronic data and extraterritoriality

The consultation paper

Consultation responses

that powers were not exercised extraterritorially. The second set of arguments sought to challenge the meaningfulness of treating electronic data as being located somewhere.

The jurisdictional connection
The meaningless of describing data as having a location

Analysis

Does the search, seizure and production of overseas data involve an extraterritorial exercise of power?
The jurisdictional connection

Second Circuit on the point of extraterritoriality has also been the subject of academic criticism.1369

Turning to section 2(3) itself, in my judgment and as a matter of first importance, it must have an element of extraterritorial application. It is scarcely credible that a UK company could resist an otherwise lawful section 2(3) notice on the ground that the documents in question were held on a server out of the jurisdiction.1371

A Party may, without the authorisation of another Party:

The un-territorial nature of electronic data

Modern technology challenges basic assumptions about what is “here” and “there.” It challenges the centrality of territoriality within the relevant statutory and constitutional provisions governing the search and seizure of digitized information. After all, territorialbased dividing lines are premised on two key assumptions: that objects have an identifiable and stable location, either within the territory or without; and that location matters—that it is, and should be, determinative of the statutory and constitutional rules that apply. Data challenges both of these premises. First, the ease, speed, and unpredictability with which data flows across borders make its location an unstable and often arbitrary determinant of the rules that apply. Second, the physical disconnect between the location of data and the location of its user—with the user often having no idea where his or her data is stored at any given moment—undercuts the normative significance of data’s location.1378

Conclusion

The question of whether data is held abroad extraterritorially is one about which technologists and others may disagree. While the location of data may be arbitrary, it is still legally significant. With so many variables, including who created the data and where, the facts of individual cases may point to different conclusions. A different answer may also be arrived at based on the power being exercised: as powers of production are exercised in personam (against the person), a claim of extraterritoriality may be regarded as more tenuous.

Would the presumption against extraterritoriality operate to prevent the search and seizure of data stored outside the jurisdiction?

Turning next to the policy considerations underpinning a finding of extraterritoriality, a common theme is the risk of rendering the provisions ineffective. It is scarcely credible, so the argument goes, that Parliament would not have intended the powers to be effective. Therefore, a finding of extraterritoriality prevents the powers from becoming toothless. In an increasingly interdependent world in which borders are routinely transcended, this argument must surely apply across the landscape of investigative powers.1389

THE CIRCUMSTANCES IN WHICH THE SEARCH, SEIZURE AND PRODUCTION OF REMOTELY STORED DATA IS PERMISSIBLE UNDER INTERNATIONAL LAW

The relevance of international law

Enforcement jurisdiction

Now the first and foremost restriction imposed by international law upon a state is that -failing the existence of a permissive rule to the contrary - it may not exercise its power in any form in the territory of another state. In this sense jurisdiction is certainly territorial; it cannot be exercised by a state outside its territory except by virtue of a permissive rule derived from international custom or from a convention.1394

The governing principle of enforcement jurisdiction is that a state cannot take measures on the territory of another state by way of enforcement of its laws without the consent of the latter. Persons may not be arrested, a summons may not be served, police or tax investigations may not be mounted, orders for production of documents may not be executed, on the territory of another state, except under the terms of a treaty or other consent given.1395

The circumstances in which the search, seizure and production of overseas electronic data is a permissible exercise of enforcement jurisdiction

The question has notably arisen whether, and under what circumstances, States can carry out remote searches with respect to information held on websites, computers, or servers outside their territory.1396

Mutual legal assistance
Bilateral treaties

16.72 The Crime (Overseas Production Orders) Act 2019 (“COPOA”) grants law enforcement agencies and prosecuting authorities the power to apply for and obtain electronic communications content data directly from service providers (those who create, process, communicate or store electronic communications data) for the purposes of criminal investigations and prosecutions. Such orders may only be used when permitted under a designated international co-operation arrangement, that is, a relevant treaty between the UK and the country whose jurisdiction the data concerned is located.

Consent
Publicly accessible data
Unknowable location

If an enforcement agency cannot determine where the data is located, it is legitimate for it to conclude that the location is unknowable. In those circumstances, we consider that the Act should enable enforcement officers to access the data pursuant to a search warrant. In this respect, we endorse the Law Commission’s conclusion in 2007 that, while principles of territorial sovereignty should be recognised to the maximum extent possible, those principles are impossible to observe where the identity of the relevant jurisdiction is unknown. This is the rationale that underlies the current remote access provisions in the Act and we are not convinced that there is a need to reverse that policy. From an international perspective, that rationale is the most prevalent justification for transborder access to data. New Zealand therefore is unlikely to raise any international relations concerns by continuing to adopt this stance.1405

Sufficient or substantial jurisdictional connection
The adoption of the test in this jurisdiction

Act 2002 (“POCA”) to admit of limited extraterritorial effect where there was a “sufficient jurisdictional connection” between a part of the UK and the criminal proceeds.1412 He considered that such jurisdictional links contemplated by the then in force section 286 of POCA in respect of civil recovery orders would not be exorbitant, nor would it offend the sovereignty of other states.1413 The links envisaged included the crime being committed within the jurisdiction and the offender or holder of the property being domiciled, resident or present in the jurisdiction.1414

The adoption of the test at a supranational and international level

With this proposal, the European Commission moves away from territoriality as the determinative factor for enforcement jurisdiction in cyberspace. Thereby it could possibly set an international precedent to modernize international law in the area of transborder access to e-evidence.1423

In “loss of (knowledge) of location” situations ... it is problematic to rely on the principle of territoriality (defined by the location of the data or computer system) to determine the jurisdiction to enforce a search or seizure of electronic evidence. It has been argued, therefore, that an approach beyond territoriality was required. A connecting legal factor that provides an alternative to territoriality could be the “power of disposal” or “the person in possession or control”. Even if the location of data cannot be clearly determined, data can be connected to a person having the power to “alter, delete, suppress or to render unusable as well as the right to exclude others from access and any usage whatsoever”. Specific conditions and safeguards would need to be established.1424

Our observations
Other circumstances in which the search, seizure and production of overseas data is permissible
Notification requirement

Concluding observations

Despite there being views on transborder access that argue the activity to be generally in line with territorial sovereignty, neither States nor international organisations have univocally approved such access without any additional legal grounds such as the consent of the other State, nor is the legality of transborder access widely supported by scholars. In fact, according to a recent UN study, around two-thirds of countries in all regions of the world perceived foreign law enforcement’s access to other State’s computer systems or data as impermissible, even if it may occur in practice either with or without the knowledge of investigators.1430

In the absence of an agreed upon international framework with safeguards, more and more countries will take unilateral action and extend law enforcement powers to remote trans-border searches either formally or informally with unclear safeguards. Such unilateral or rogue assertions of jurisdiction will not be a satisfactory solution.1431

It is submitted that the sui generis nature of electronic data, the location of which may be unstable or unknown, justifies a more nuanced approach to traditional international law concepts of jurisdiction and territoriality. ... This suggests a need to recalibrate focus from the location of the data to matters such as who owns or controls the data, where it has been created or accessed and the extent to which it is accessible from within the jurisdiction.1433

The global nature of the modern communications environment renders laws basing access to data purely on location ineffective and likely to lead to unintended and perverse outcomes. Further, for a nation’s law enforcement functions to operate effectively, it requires access in limited and regulated circumstances to the electronic communications relating to those in its jurisdiction, wherever those communications are stored.1434

THE SEARCH OF PREMISES FOR AND COPYING OF REMOTELY STORED DATA

The current law

Satisfying the statutory access conditions

Any material recorded on servers accessible from the subject premises.

Searching for and copying remotely stored data when on premises

The consultation paper

Consultation responses

The current law
Problems with the current law
The restrictive nature of the statutory access conditions
The need for powers to search for and copy remotely stored data
The practicability of other methods to obtain remotely stored data
Suggestions for reform

The first condition would seem to require consideration of a hypothetical: but for the availability of remote storage, would the data have been stored locally on a device found on the premises? Electronic data would then be deemed to be stored within England or Wales notwithstanding any claim that it is or might be outside England or Wales.

Analysis

Model 1: data is accessible from an electronic device on premises
The model in outline

16.157 Modifying Recommendations 46 and 47, application forms would require an investigator, when they are seeking to obtain a warrant to search for and remotely stored data, to explain:

16.158 Modifying Recommendation 48, the second part of the warrant should specify the information accessible from the electronic device(s) that is sought. The first part of the warrant should perhaps specify, in as much detail as practicable, the electronic device(s) to be searched for and examined rather than seized.

16.159 Modifying Recommendation 50, an investigator could be permitted to apply for authority to conduct a search of electronic devices found during the course of a search where it is necessary to do so for the purpose for which the warrant is issued. If granted, the warrant could authorise the search for and copying of any electronic data accessible from the device that is responsive to the information specified in the second part of a search warrant.

Advantages of the model
Disadvantages of the model

The exercise [of the investigative power] is plainly subject to judicial review on the usual grounds. Fishing expeditions would be unlikely to survive scrutiny. Moreover, insofar as any notice can be seen as oppressive or unreasonable, Art. 8 of the ECHR may well be engaged.1460

Model 2: storage on or access from premises
The model in outline

Therefore, such material would be deemed to be stored within England or Wales notwithstanding any claim that it is or might be outside England or Wales.

Advantages of the model
Disadvantages of the model
Model 3: sufficient connection
The model in outline
Advantages of the model
Disadvantages of the model
Model 4: remote storage account warrant
The model in outline
Advantages of the model
Disadvantages of the model
Amending the CJPA regime
Conclusion

Recommendation 51

COMPELLING ACCESS TO PROTECTED INFORMATION

The current law

The consultation paper

Consultation responses

immediately, on pain of similar penalties as in part 3 RIPA for failure to comply without reasonable excuse.

Analysis

The necessity of powers to compel access to protected information

In recent years there has been a significant growth in encryption technologies that hinder law enforcement’s access to devices and online accounts ...

Due to these developments, law enforcement agencies around the world are increasingly struggling to access data held on electronic devices and in online accounts, even when they have lawful authority to do so in the form of a warrant.

We consider that, if an electronic device or online account is the subject of a search warrant, the Act should provide law enforcement officers with meaningful and appropriate tools to lawfully obtain the necessary passwords, encryption keys and other access information. Without such tools, these warrants would be redundant.1474

Although advances in de-encryption are constantly being made, it is quite possible in the near future that terrorism investigations will be defeated by suspects withholding passwords meaning that police cannot obtain access to electronic evidence of attack planning or terrorist publications or the like... it is questionable whether the existing law provides an adequate framework for deterring individuals from refusing to allow access to information on their devices.

Whether the current law requires reform

106 notices were issued across the UK in 2017.1479 We understand that the process for obtaining a RIPA notice is regarded as too slow and onerous. We were also informed by one law enforcement agency that there is a reluctance to prosecute individuals for failing to comply with a notice that is served.

Recommendation 52

PREVENTING INTERFERENCE WITH REMOTELY STORED DATA

The current law

The consultation paper

Consultation responses

Analysis

Recommendation 53

INTRODUCTION

SUMMARY OF THE CURRENT LAW

Criminal Justice and Police Act 2001, s 52.

By this we mean material that does not fall within the scope of the warrant (see Criminal Justice and Police Act 2001, s 53).

under the CJPA1489 and not under the authority of the warrant or in response to a power of production.

THE CONSULTATION PAPER

electronic material.

The inapplicability of Criminal Justice and Police Act 2001 seizure powers where authorised to seize an entire device

Subsection (1) applies where a constable or other person exercising an existing power of search is unable to determine whether something may be or may contain something for which he is authorised to search, e.g. where there is a large bulk of material. Subsection (2) applies to the situation where the constable is unable to separate out the material he is able to seize from that which he is not e.g. where the material is on a computer. If it is not “reasonably practicable” to carry out the determination or separation required by subsections (1) and (2) the material can be seized to be examined elsewhere (emphasis added).

The limited reach of the Criminal Justice and Police Act 2001 statutory safeguards

The difficulty in applying the Criminal Justice and Police Act 2001 regime in investigations with large volumes of material

The consultation questions

CONSULTATION RESPONSES

The operation of the Criminal Justice and Police Act 2001

The adequacy of the content of the safeguards relating to electronic material

The extent to which safeguards ought to apply

A NEW LEGISLATIVE REGIME

Guiding principles

The police will be entitled to search the computer in order to identify any relevant material, generally off-site. If relevant material is identified, downstream issues of some difficulty may arise, for example, as to how relevant material is to be preserved, what steps should be taken in relation to irrelevant material and how material is to be returned/made available to the suspect. We are not in a position to provide specific guidance on these matters in the abstract as much will depend on the circumstances of particular cases and the particular characteristics of the technology involved.1529

When the new regime should apply

The exercise of a relevant power
Issues caused by a new regime
Limited to relevant powers exercised following the execution of a search warrant
Limited to relevant powers exercised in respect of electronic material

Recommendation 54

The duty to provide details of what was seized

Where it is impractical to record a description of the electronically stored information at the scene, the inventory may list the physical storage media seized. Recording a description of the electronically stored information at the scene is likely to be the exception, and not the rule, given the large amounts of information contained on electronic storage media and the impracticality for law enforcement to image and review all of the information during the execution of the warrant.

Recommendation 55

The duty to provide details of action taken in respect of electronic devices on premises

record of the action taken should be made on the premises search record, including the grounds for refusing an occupier’s request for a person to witness the search.1537 The third principle of the ACPO guidelines also provides that an audit trail or other record of all processes applied to digital evidence should be created and preserved.1538

One option for reducing the amount of irrelevant material that is seen during digital searches would be for the Act to require a person undertaking a search of a computer or other data storage device to produce a record of their search procedure. That record would then be available on request to the owner of the computer or device searched. This option has three advantages. First, it would ensure that the person conducting the search is accountable for each step taken in the process. Knowing that someone may check up on the procedure followed should help ensure that the search is conducted within lawful limits. Second, it would provide a defendant in subsequent criminal proceedings with the means of checking whether or not evidence from the search used against him or her was lawfully obtained. Third, even if criminal proceedings did not eventuate, it would enable the person who owned the computer or device to know the extent to which his or her privacy had been interfered with and make a complaint to the Privacy Commissioner, where appropriate.1539

Of particular note were the submissions from agencies that employ specialist digital forensic staff. Those agencies advised that these specialists are always mindful of the need to conduct targeted searches, for principled reasons and also as a result of time and resource constraints. They observed that specialists already make technical notes of the steps involved but argued that creating a more accessible detailed record in every case would be impractical. They suggested that such a requirement could significantly impede investigations given the large number of files that may need to be reviewed and the large number of keyword searches and other filters that may need to be used to find those files. In light of those observations, we consider that a record-keeping requirement is not appropriate in cases where the search is conducted pursuant to a search warrant or in an urgent situation. If there is a warrant, there is scope for case-specific conditions to be put in place. If the situation is urgent and is premised on responding to an emergency rather than collecting evidence, a recordkeeping requirement would be unduly onerous. We do, however, think that a record-keeping requirement should attach to warrantless Internet searches.1540

Recommendation 56

The duty to provide details of how electronic material will be examined

Recommendation 57

The duty to return electronic devices

While consideration was given to a presumptive national or uniform time period within which any subsequent off-site copying or review of the media or electronically stored information would take place, the practical reality is that there is no basis for a “one size fits all” presumptive period. A substantial amount of time can be involved in the forensic imaging and review of information. This is due to the sheer size of the storage capacity of media, difficulties created by encryption and booby traps, and the workload of the computer labs. The rule does not prevent a judge from imposing a deadline for the return of the storage media or access to the electronically stored information at the time the warrant is issued. However, to arbitrarily set a presumptive time period for the return could result in frequent petitions to the court for additional time.1547

Recommendation 58

The duty to return and/or delete protected electronic material

to identify and return any material that the investigator was not entitled to seize. Sections 54 and 55 of the CJPA also mandate that legally privileged, excluded and special procedure material (ie protected material) must be returned as soon as reasonably practicable after seizure unless it is not reasonably practicable for the material to be separated without prejudicing the property.

We note that it is not mandated by section 53(4) of the CJPA but instead only due regard need be had to its desirability: it is therefore an optional part of the procedure which we agree will be impracticable in cases with large volumes of electronic material. Moreover, we regard it as better expressed in a Code of Practice given that it concerns the method by which sifting occurs rather than what the result of the sift should be.

Recommendation 59

The duty to return and/or delete non-responsive electronic material

Recommendation 60

Application regarding the treatment of property

Recommendation 61

Application for the return and/or deletion of electronic material

Recommendation 62

A new Code of Practice governing the acquisition and treatment of electronic material

Reasons justifying a new Code of Practice
Scope of a new Code of Practice

Difficulty may also arise were the Code of Practice limited to criminal investigations involving search warrants: it may not be known whether a search warrant or other investigative power will be applied for or exercised during an investigation. Further, other statutory powers involving seizure or compulsory production may be exercised during the course of the same investigation in which a search warrant has been exercised. The scope of a Code of Practice is also a matter that should be considered as part of a wider review of the acquisition and treatment of electronic material in criminal investigations, which we recommend in Chapter 18.

Content of a new Code of Practice

Recommendation 63

Chapter 18: A wider review of the law governing electronic material

INTRODUCTION

REASONS JUSTIFYING A WIDER REVIEW

TOPICS RELEVANT AS PART OF A WIDER REVIEW

A power to search devices not contingent on premises

A power to search electronic data directly

Reform to sections 19 and 20 of the Police and Criminal Evidence Act 1984

The constable may require any information which is stored in any electronic form and is accessible from the premises to be produced in a form in which it can be taken away and in which it is visible and legible or from which it can readily be produced in a visible and legible form if he has reasonable grounds for believing—

Every power of seizure which is conferred by an enactment to which this section applies1580 on a constable who has entered premises in the exercise of a power conferred by an enactment shall be construed as including a power to require any information stored in any electronic form contained in a computer and accessible from the premises to be produced in a form in which it can be taken away and in which it is visible and legible or from which it can readily be produced in a visible and legible form.

The search of electronic devices
When material is deemed accessible

Absent judicial guidance, it is submitted that resolving whether electronic data is “accessible from the premises” is a question of fact. Data is likely to be deemed “accessible” if the occupier of the premises can, of his own volition, retrieve it via an electronic device. That is, if the data can be retrieved at the push of a button, it is accessible, even if the server or cloud on which the data is stored is outside the UK. Likewise, if the data is encrypted, so that the occupier of the premises needs to enter a password in order to retrieve the data, it is still accessible. The process of accessing the data takes place entirely domestically.

Material stored remotely overseas
Requiring the production of passwords
The consequences of failing to comply with a request

The regulation of data extraction tools

A summary of the concerns raised
Analysis

was searched.47

Extraction of data from complainants’ mobile phones

and serious sexual offences. This is achieved through asking complainants to sign consent forms, which detail the reasoning for extracting data and how data will be extracted. The purpose of extracting data is to pursue reasonable lines of enquiry. The topic has been the subject of recent case law.1617

Recommendation 64

Chapter 19: Consolidating search warrants legislation

INTRODUCTION

Public Health (Minimum Price for Alcohol) (Wales) Act 2018, s 14; Ivory Act 2018, s 17; Counter-Terrorism Act 2008, s 56A (inserted by the Counter-Terrorism and Border Security Act 2019, s 13); Wild Animals in Circuses Act 2019, sch 1, para 3.

codification or “strict consolidation”.1622 Search warrant provisions form part of wider enforcement regimes and sit better in the statutes that regulate each law enforcement agency more generally, especially given the presence of related investigative powers in those statutes that interact with search warrant provisions. The burden of consolidation, in terms of the Law Commission, Parliamentary Counsel, consultees and Parliament’s time, would be unlikely to outweigh any benefit. Other changes, including issuing clearer guidance, would be a more proportionate response to the problems with the current law.

REPEALING UNNECESSARY SEARCH WARRANT PROVISIONS

The consultation paper

Consultation responses

Analysis

CONSOLIDATING ALL SEARCH WARRANT PROVISIONS

The consultation paper

Consultation responses

than consolidating legislation. They hoped that full and detailed guidance for investigators on each power, which could be updated with new case law as necessary, could be produced urgently.

Analysis

Codifying search warrant provisions in a single statute
The strict consolidation of search warrant provisions in a single statute

Consider carefully whether a new power is necessary, other similar powers might be applied, or whether alternative enforcement options or sanctions could be used instead.1656

Where Parliament provides two different procedures which are available to the state in respect of the same subject matter ... it is for the state to choose which to use. The state ought to choose the procedure which will produce the greatest benefit to the public, providing that no injustice is caused to the respondent.1657

PARTIAL CONSOLIDATION OF SEARCH WARRANT PROVISIONS

The consultation paper

Consultation responses

Partial consolidation in general

the fewer provisions for obtaining search warrants and the more consistent they are, the more likely that correct, appropriate applications will be made and granted by the court and thereafter, the more likely that warrants will be properly executed.1676

Consolidating search warrants relating to evidence of a criminal offence
Consolidating search warrants to remedy dangerous situations
Consolidating search warrants issued in default of production orders
Different schemes of consolidation

Analysis

STANDARDISING THE ACCESSIBILITY CONDITIONS

The consultation paper

provisions, the issuing authority need only be satisfied that there is reason to believe that one of the accessibility conditions is met; in others they must be satisfied that one of the conditions is in fact met. We considered that it would make more sense if:

Consultation responses

Analysis

Chapter 20: List of recommendations

Recommendation 1

Paragraph 2.56

Recommendation 2

Paragraph 2.98

Recommendation 3

Paragraph 2.111

Recommendation 4

Paragraph 2.121

Recommendation 5

Paragraph 3.41

Recommendation 6

Paragraph 3.46

Recommendation 7

Paragraphs 3.68 and 3.69

Recommendation 8

Paragraphs 3.80 and 3.81

Recommendation 9

Paragraphs 3.105 and 3.106

Recommendation 10

Paragraph 4.34

Recommendation 11

Paragraph 4.54

Recommendation 12

20.15 We recommend that the Criminal Procedure Rule Committee consider prescribing a standard entry warrant template.

Paragraph 4.134

Recommendation 13

Paragraph 4.154

Recommendation 14

Paragraph 5.55

Recommendation 15

Paragraph 5.69

Recommendation 16

Paragraph 5.126

Recommendation 17

Paragraph 5.133

Recommendation 18

Paragraph 5.149

Recommendation 19

20.22 We recommend that only those magistrates who have undergone specialist training should have the power to issue a search warrant.

Paragraph 6.48

Recommendation 20

Paragraph 6.62

Recommendation 21

Recommendation 22

Paragraph 6.141

Recommendation 23

Paragraph 6.176

Recommendation 24

Paragraph 6.204

Recommendation 25

Paragraph 7.40

Recommendation 26

Paragraphs 7.74 to 7.76

Recommendation 27

Paragraphs 7.105 to 7.107

Recommendation 28

Paragraph 7.126

Recommendation 29

Paragraph 7.153

Recommendation 30

Paragraph 7.155

Recommendation 31

Paragraph 7.162

Recommendation 32

Paragraph 7.179

Recommendation 33

Paragraph 7.183

Recommendation 34

Paragraph 7.217

Recommendation 35

Paragraph 8.94

Recommendation 36

Paragraph 8.101

Recommendation 37

Paragraph 9.44

Recommendation 38

Paragraph 9.72

Recommendation 39

Paragraph 9.77

Recommendation 40

20.47 We recommend that the Government considers whether the law relating to iniquitous material in the context of criminal investigations ought to be reformed.

Paragraph 10.71

Recommendation 41

20.48 We recommend that the procedure for instructing independent counsel or other experts to resolve issues of legal privilege be dealt with in a new Code of Practice which we recommend at Recommendation 63 of this Report.

Paragraph 11.35

Recommendation 42

20.49 We recommend that the Government considers whether the law governing access to confidential personal records, human tissue and tissue fluid under the Police and Criminal Evidence Act 1984 strikes the right balance between (1) the prevention and investigation of serious crime; and (2) the protection of the confidentiality of health and counselling records, and whether the law ought to be reformed.

Paragraph 12.111

Recommendation 43

20.50 We recommend that the Government considers whether the law governing access to confidential journalistic material under the Police and Criminal Evidence Act 1984 strikes the right balance between (1) the prevention and investigation of serious crime; and (2) the freedom of the press and the protection of journalistic sources, and whether the law ought to be reformed.

Paragraph 12.173

Recommendation 44

20.51 We recommend that the PACE Strategy Board consider amending Code B of the Police and Criminal Evidence Act 1984 to provide guidance on when material constitutes special procedure material.

Paragraph 13.72

Recommendation 45

20.52 We recommend that search warrant provisions be amended to clarify that, when electronic data is sought, electronic devices can be the target of a search warrant so long as the data satisfies the statutory conditions relating to the target material.

Paragraph 15.34

Recommendation 46

20.53 We recommend that the Criminal Procedure Rule Committee consider amending search warrant application forms to require an investigator, when they are seeking to obtain a warrant to search for and seize electronic devices to acquire electronic data, to explain in as much detail as practicable what information on devices is sought.

Paragraph 15.62

Recommendation 47

20.54 We recommend that the Criminal Procedure Rule Committee consider amending search warrant application forms to require an investigator, when they are seeking to obtain a warrant to search for and seize electronic devices to acquire electronic data, to explain why they believe that the information is on the device and why the information would satisfy the statutory conditions.

Paragraph 15.66

Recommendation 48

20.55 We recommend that search warrants be required to contain two parts when electronic devices are sought for the purpose of obtaining information in the form of electronic data:

(1)

the first part should specify the electronic device(s) to be searched for and seized; and

(2)

the second part should specify the information on the electronic device(s) that is sought.

Paragraph 15.118

Recommendation 49

20.56 We recommend that search warrant provisions be amended, where necessary, to make clear that the power to seize an electronic device includes the power to copy all or some of the electronic data stored on an electronic device while on premises.

Paragraph 15.159

Recommendation 50

20.57 We recommend that search warrant provisions be amended to permit an investigator to apply for authority to conduct a search of electronic devices found during the course of a search where it is necessary to do so for the purpose for which the warrant is issued.

20.58 If granted, the search warrant should authorise the search for and copying of any electronic data stored on the device that corresponds to the information specified in the second part of the warrant.

Paragraphs 15.193 and 15.194

Recommendation 51

20.59 We recommend that the Government considers the desirability of amending the law to permit law enforcement agencies to obtain authorisation to search for and copy remotely stored data when executing a search warrant.

Paragraph 16.197

Recommendation 52

20.60 We recommend that the Government considers the desirability of amending the law governing the power to compel the production of passwords and other access information with the aim of making the law clearer and more effective. This should include consideration of an integrated power to form part of search warrant regimes.

Paragraph 16.222

Recommendation 53

20.61 We recommend that the Government considers the desirability of introducing a power to modify or alter remotely stored data exercisable pursuant to a search warrant for the purposes of preventing interference with or preserving the data.

Paragraph 16.238

Recommendation 54

20.62 We recommend the introduction of a new statutory regime governing the treatment of electronic material. The regime ought to apply whenever a relevant power of seizure or production is exercised in respect of electronic material following the execution of a search warrant.

Paragraph 17.74

Recommendation 55

20.63 We recommend that, under the new statutory regime in Recommendation 54 above, an investigator be required to provide as specific a description of what was seized as reasonably practicable to a person with an interest in the electronic material within a reasonable time from the making of the request for it.

Paragraph 17.85

Recommendation 56

20.64 We recommend that, under the new statutory regime in Recommendation 54 above, an investigator be required to provide details of what action was taken in respect of electronic devices on premises, in as much detail as practicable, to a person with an interest in the electronic device within a reasonable time from the making of the request for it.

Paragraph 17.95

Recommendation 57

20.65 We recommend that, under the new statutory regime in Recommendation 54 above, an investigator be required to provide protocols setting out how electronic material is to be examined to a person with an interest in the property within a reasonable time from the making of the request for it.

Paragraph 17.101

Recommendation 58

20.66 We recommend that, under the new statutory regime in Recommendation 54 above, an investigator be required to return electronic devices following seizure on premises as soon as reasonably practicable.

Paragraph 17.110

Recommendation 59

20.67 We recommend that, under the new statutory regime in Recommendation 54 above, an investigator be required to return and/or delete protected electronic material as soon as reasonably practicable.

Paragraph 17.117

Recommendation 60

20.68 We recommend that, under the new statutory regime in Recommendation 54 above, an investigator be required to return and/or delete non-responsive electronic material, so far as is reasonably practicable.

Paragraph 17.125

Recommendation 61

20.69 We recommend that, under the new statutory regime in Recommendation 54 above, a person with an interest in electronic material be able to apply to the Crown Court for a judge to approve of or adjudicate on disputes regarding the way in which the investigator intends to examine electronic material.

Paragraph 17.133

Recommendation 62

20.70 We recommend that, under the new statutory regime in Recommendation 54 above, a person with an interest in electronic material be able to apply to the Crown Court for the return or deletion of particular electronic data or return of an electronic device on the grounds that:

Paragraph 17.139

Recommendation 63

Paragraph 17.153

Recommendation 64

Paragraph 18.101

POLICE AND CRIMINAL EVIDENCE ACT 1984

he may issue a warrant authorising a constable to enter and search the premises.

(1A) The premises referred to in subsection (1)(b) above are—

constable arriving at the premises can secure immediate entry to them.

(2A) Section 4 of the Summary Jurisdiction (Process) Act 1881 (c. 24) (which includes provision for the execution of process of English courts in Scotland) and section 29 of the Petty Sessions (Ireland) Act 1851 (c. 93) (which makes equivalent provision for execution in Northern Ireland) shall each apply to any process issued by a judge under Schedule 1 to this Act as it applies to process issued by a magistrates' court under the Magistrates' Courts Act 1980 (c. 43).

restriction or obligation since it was first acquired or created for the purposes of journalism.

In this Part of this Act “personal records” means documentary and other records concerning an individual (whether living or dead) who can be identified from them and relating—

welfare, by any voluntary organisation or by any individual who—

it is only special procedure material if it was special procedure material immediately before the acquisition.

(2A) The matters which must be specified pursuant to subsection (2)(b) above are—

(5A) If it specifies that it authorises multiple entries, it must also specify whether the number of entries authorised is unlimited, or limited to a specified maximum.

(2A) A person so authorised has the same powers as the constable whom he accompanies in respect of—

subsection (5) above shall have effect as if any reference to the occupier were a reference to that other person.

and, unless the warrant is a warrant specifying one set of premises only, he shall do so separately in respect of each set of premises entered and searched, which he shall in each case state in the endorsement.

(10A) The appropriate person is—

(iiia) section 4 (driving etc. when under influence of drink or drugs) or 163 (failure to stop when required to do so by constable in uniform) of the Road Traffic Act 1988;

(iiib) section 27 of the Transport and Works Act 1992 (which relates to offences involving drink or drugs);

(ca) of arresting, in pursuance of section 32(1A) of the Children and Young Persons Act 1969, any child or young person who has been remanded to local authority accommodation or youth detention accommodation under section 91 of the Legal Aid, Sentencing and Punishment of Offenders Act 2012;

(caa) of arresting a person for an offence to which section 61 of the Animal Health Act 1981 applies;

(cab) of arresting a person under any of the following provisions—

(cb) of recapturing any person who is, or is deemed for any purpose to be, unlawfully at large while liable to be detained—

if the condition in subsection (5A) is satisfied.

(5A) The condition is that the presence of the person at a place (other than a police station) is necessary for the effective investigation of the offence.

altered or destroyed.

provide that person with a record of what he seized.

is made to the officer in charge of the investigation by a person who had custody or control of the thing immediately before it was so seized or by someone acting on behalf of such a person, the officer shall allow the person who made the request access to it under the supervision of a constable.

may be retained when the person from whom it was seized is no longer in police detention or the custody of a court or is in the custody of a court but has been released on bail.

In this Act—

“premises” includes any place and, in particular, includes—

(ba) any renewable energy installation;

“offshore installation” has the meaning given to it by section 1 of the Mineral Workings (Offshore Installations) Act 1971.

“renewable energy installation” has the same meaning as in Chapter 2 of Part 2 of the Energy Act 2004.

person in question;

Schedule 1 to the Police and Criminal Evidence Act 1984.

If on an application made by a constable a judge1 is satisfied that one or other of the sets of access conditions is fulfilled, he may make an order under paragraph 4 below.

The first set of access conditions is fulfilled if—

that the material should be produced or that access to it should be given.

It is unclear whether District Judges (Magistrates’ Courts) also have jurisdiction, along with Circuit judges, to hear applications for production orders and search warrants under the Police and Criminal Evidence Act 1984, sch 1. For a discussion of this issue see Alex Davidson, “Production Orders: R (BBC) v Newcastle Crown Court (Case Comment)” [2020] Criminal Law Review 247, 250.

The second set of access conditions is fulfilled if—

An order under this paragraph is an order that the person who appears to the judge to be in possession of the material to which the application relates shall—

not later than the end of the period of seven days from the date of the order or the end of such longer period as the order may specify.

Where the material consists of information stored in any electronic form—

For the purposes of sections 21 and 22 above material produced in pursuance of an order under paragraph 4(a) above shall be treated as if it were material seized by a constable.

An application for an order under paragraph 4 above that relates to material that consists of or includes journalistic material shall be made inter partes.

Notice of an application for an order under paragraph 4 above that relates to material that consists of or includes journalistic material may be served on a person either by delivering it to him or by leaving it at his proper address or by sending it by post to him in a registered letter or by the recorded delivery service.

9.

Notice of an application for an order under paragraph 4 above that relates to material that consists of or includes journalistic material may be served—

For the purposes of paragraph 8, and of section 7 of the Interpretation Act 1978 in its application to paragraph 8 , the proper address of a person, in the case of secretary or clerk or other similar officer of a body corporate, shall be that of the registered or principal office of that body, in the case of a partner of a firm shall be that of the principal office of the firm, and in any other case shall be the last known address of the person to be served.

Where notice of an application for an order under paragraph 4 above has been served on a person, he shall not conceal, destroy, alter or dispose of the material to which the application relates except—

until—

If on an application made by a constable a judge—

he may issue a warrant authorising a constable to enter and search the premises or (as the case may be) all premises occupied or controlled by the person referred to in paragraph 2(a)(ii) or 3(a), including such sets of premises as are specified in the application (an “all premises warrant”) .

12A.

The judge may not issue an all premises warrant unless he is satisfied—

A constable may seize and retain anything for which a search has been authorised under paragraph 12 above.

The further conditions mentioned in paragraph 12 (a)(ii) above are—

15A.

Criminal Procedure Rules may make provision about proceedings under this Schedule, other than proceedings for an order under paragraph 4 above that relates to material that consists of or includes journalistic material.

The costs of any application under this Schedule and of anything done or to be done in pursuance of an order made under it shall be in the discretion of the judge.

17.

In this Schedule “judge” means a Circuit judge a qualifying judge advocate (within the meaning of the Senior Courts Act 1981) or a District Judge (Magistrates' Courts).1698

CRIMINAL JUSTICE AND POLICE ACT 2001

that person’s powers of seizure shall include power under this section to seize so much of what he has found as it is necessary to remove from the premises to enable that to be determined.

that person’s powers of seizure shall include power under this section to seize both the seizable property and that from which it is not reasonably practicable to separate it.

to prejudice the use of some or all of the separated seizable property for a purpose for which something seized under the power in question is capable of being used.

nothing in this section, so far as it has effect by reference to the power to take copies of documents under section 28(2)(b) of the Competition Act 1998 (c. 41), shall be taken to confer any power to seize any document.

that person’s powers of seizure shall include power under this section to seize so much of what he has found as it is necessary to remove from that place to enable that to be determined.

that person’s powers of seizure shall include power under this section to seize both the seizable property and that from which it is not reasonably practicable to separate it.

to prejudice the use of some or all of the separated seizable property for a purpose for which something seized under the power in question is capable of being used.

subsection (1) of this section shall have effect as if it required the notice under that subsection to be given to that other person.

annulment in pursuance of a resolution of either House of Parliament.

following the examination, to separate from property falling within paragraph (a) or (b).

and

it shall be the duty of that person to secure that the item is returned as soon as reasonably practicable after the seizure.

constable by or under any enactment, including an enactment passed after this Act.

it shall be the duty of that person to secure that the item is returned as soon as reasonably practicable after the seizure.

this section shall have effect with the omission of every reference to special procedure material.

(Northern Ireland) Order 1989 (S.I. 1989 1341 (N.I. 12)),

“special procedure material” means special procedure material consisting of documents or records other than documents.

accompanied by a constable, and

is authorised by this section if the property falls within subsection (2) or (3).

damaged, altered or destroyed.

(4A) Subsection (1)(a) includes property seized on any premises—

the obligation to return it shall (subject to the following provisions of this section) be an obligation to return it to the person from whom it was seized.

his duty to return it shall, instead, be a duty to return it to that other person or, as the case may be, to the person appearing to him to have the best right to the thing in question.

are references to that person.

and subsections (5) and (6) of section 55 shall apply for the purposes of paragraph (c) as they apply for the purposes of that section.

in consequence of its seizure under a relevant power of seizure, or

may give such directions as the authority thinks fit as to the examination, retention, separation or return of the whole or any part of the seized property.

if that authority is satisfied that the retention of the property is justified on grounds falling within subsection (7).

under which the property would fall to be delivered up or produced to the person mentioned in paragraph (a).

the facts mentioned in paragraph (a) shall not be taken into account by the appropriate judicial authority in deciding whether the retention of the property is justified on grounds falling within subsection (7).

by or under any enactment, including an enactment passed after this Act.

property immediately before the seizure.

the second condition is satisfied only if the application states that the seized property is or contains excluded material

(Northern Ireland) Order 1989 (S.I. 1989 1341 (N.I. 12)),

the second condition is satisfied only if the application states that the seized property is or contains excluded material or special procedure material consisting of documents or records other than documents.

(except section 8(2) of that Act);

(ga) section 23E(5)(b) (as read with section 23K(2)) of the Criminal Law (Consolidation) (Scotland) Act 1995;

(aa) the power of seizure conferred by section 352(4) of the Proceeds of Crime Act 2002, if the power is exercisable for the purposes of a civil recovery investigation or a detained cash investigation (within the meaning of Part 8 of that Act);

references in this Part to an item subject to legal privilege shall be read as references to a privileged communication within the meaning of section 30 of that Act.

(3A) In relation to property which has been seized in exercise, or purported exercise, of—

to that power,

references in this Part to an item subject to legal privilege shall be read as references to privileged material within the meaning of section 354(2) of that Act.

(8B) An item which is, or is comprised in, property which has been seized in exercise or purported exercise of the power of seizure conferred by paragraph 27(1)(b) or 29(1) of Schedule 5 to the Consumer Rights Act 2015 shall be taken for the purposes of this Part to be an item subject to legal privilege if, and only if, the seizure of that item was in contravention of paragraph 27(6) or (as the case may be) 29(6) of that Schedule (privileged documents).

shall be taken for the purposes of this Part to be an item subject to legal privilege if, and only if, the item would have been taken for the purposes of this Part to be an item subject to legal privilege had it been seized under the power of seizure by reference to which the power conferred by section 50 was exercised.

“appropriate judicial authority” has the meaning given by section 64;

“documents” includes information recorded in any form;

“item subject to legal privilege” shall be construed in accordance with section 65;

“marine installation” has the meaning given by section 262 of the Marine and Coastal Access Act 2009;

“premises” includes any vehicle, stall or moveable structure (including an offshore installation or other marine installation) and any other place whatever, whether or not occupied as land;

“offshore installation” has the same meaning as in the Mineral Workings (Offshore Installations) Act 1971 (c. 61);

“return”, in relation to seized property, shall be construed in accordance with section 58, and cognate expressions shall be construed accordingly;

“seize”, and cognate expressions, shall be construed in accordance with section 63(1) and subsection (5) below;

“seized property”, in relation to any exercise of a power of seizure, means (subject to subsection (5)) anything seized in exercise of that power; and

“vehicle” includes any vessel, aircraft or hovercraft.

(ja) paragraph 5 of Schedule 3B to the Human Fertilisation and Embryology Act 1990;

enforcement authority);

and references in this Part to seizure and to seized property shall be construed accordingly.

The powers conferred by section 114(2) of the 1984 Act and Article 85(1) of the Police and Criminal Evidence (Northern Ireland) Order 1989 (application of provisions relating to police officers to officers of Revenue and Customs) shall have effect in relation to the provisions of this Part as they have effect in relation to the provisions of that Act or, as the case may be, that Order.

67A.— Application to Welsh Revenue Authority

(2A) Where the power designated by the order made under subsection (1) is a power conferred in relation to Northern Ireland, the Secretary of State shall consult the Department of Justice in Northern Ireland before making the order.

Schedule 2 (which applies enactments in relation to provision made by this Part and contains minor and consequential amendments) shall have effect.

1

For an overview of the law of search warrants, see Search Warrants (2018) Law Commission Consultation Paper No 235, ch 2.

2

Data collated and provided to us by HMCTS.

3

The report is available online at https://www.lawcom.gov.uk/project/search-warrants/.

4

See Search Warrants (2018) Law Commission Consultation Paper No 235, appendix 1.

5

We list those individuals and organisations who submitted a consultation response at appendix 1 to this report.

6

We are grateful to Northumbria Law School for organising a regional public roundtable, which informed their consultation response.

7

A senior Circuit judge (resident judge) carries out leadership and management duties in running the court centre at which they are based.

8

We refer to this in our report as a roundtable with the senior judiciary.

9

We would like to thank DC Anthony David in particular for all of his assistance.

10

Sir Richard Henriques, Independent Review of the Metropolitan Police Service’s handling of non-recent sexual offence investigations alleged against persons of public prominence (4 October 2019) para 2.4.64. Available at https://www.met.police.uk/police-forces/metropolitan-police/areas/about-us/about-the-met/henriques-report/.

11

Gittins v Central Criminal Court [2011] EWHC 131 (Admin), [2011] Lloyd's Rep FC 219 at [36(1)] per Gross LJ; R

(A) v Central Criminal Court and another [2017] EWHC 70 (Admin) at [38], [2017] 1 WLR 3567 at [11]; and Business Energy Solutions Ltd v The Crown Court at Preston [2018] EWHC 1534 (Admin), [2018] 1 WLR 4887 at [15].

12

R (Panesar) v Central Criminal Court [2014] EWHC 2821 (Admin), [2015] 1 WLR 2577 at [44].

13

National Crime Agency, Warrant Review Closing Report (31 March 2016) p 15.

14

R v Lewes Crown Court ex parte Hill (1991) 93 Cr App R 60, 66.

15

Police and Criminal Evidence Act 1984, s 67(2).

16

That is typically, depending on the statutory regime: (1) legally privileged material; (2) excluded material (confidential personal records, human tissue, tissue fluid and confidential journalistic material); and (3) special procedure material (confidential business records and non-confidential journalistic material).

17

We explain what these security features are at paragraph 14.23.

18

Kent Pharmaceuticals v Director of the Serious Fraud Office [2002] EWHC 3023 (QB) at [30] by Lord Woolf CJ.

19

For example, R (Brook) v Preston Crown Court [2018] EWHC 2024 (Admin), [2018] ACD 95; R (Superior Import / Export Ltd) v Revenue and Customs Commissioners [2017] EWHC 3172 (Admin), [2018] Lloyd’s Rep FC 115; and R (F) v Blackfriars Crown Court [2014] EWHC 1541 (Admin).

20

Welsh Revenue Authority (Powers to Investigate Criminal Offences) Regulations 2018 (SI 2018 No 400), sch 1, para 1; Police and Criminal Evidence Act 1984 (Application to Revenue and Customs) Order 2015 (SI 2015 No

21

1783), sch 1; Police and Criminal Evidence Act 1984 (Application to immigration officers and designated customs officials in England and Wales) Order 2013 (SI 2013 No 1542), schs 1 and 2; Police and Criminal Evidence Act

22

Professor Richard Stone; HM Council of District Judges (Magistrates’ Court); Senior District Judge (Chief Magistrate); Council of Her Majesty’s Circuit Judges; Kent County Council Trading Standards; Guardian News and Media; Insolvency Service; Birmingham Law Society; Norfolk and Suffolk joint Cyber, Intelligence and Serious Organised Crime Directorate; The Law Society; Southern Derbyshire Magistrates’ Bench; Independent Office for Police Conduct; Justices’ Clerks’ Society; Magistrates Association; Dijen Basu QC; National Crime Agency; Bar Council and the Criminal Bar Association; Metropolitan Police Service; Serious Fraud Office; Financial Conduct Authority.

23

Competition and Markets Authority.

24

Crown Prosecution Service; Bar Council and the Criminal Bar Association.

25

Professor Richard Stone; HM Council of District Judges (Magistrates’ Court); Senior District Judge (Chief Magistrate); Council of Her Majesty’s Circuit Judges; Insolvency Service; Birmingham Law Society; Norfolk and Suffolk joint Cyber, Intelligence and Serious Organised Crime Directorate; The Law Society; Southern Derbyshire Magistrates’ Bench; Independent Office for Police Conduct; Justices’ Clerks’ Society; Magistrates Association; National Crime Agency; Metropolitan Police Service.

26

Crown Prosecution Service; Bar Council and the Criminal Bar Association; Competition and Markets Authority; Financial Conduct Authority.

27

Dijen Basu QC.

28

  Council of Her Majesty’s Circuit Judges.

29

  Council of Her Majesty’s Circuit Judges.

30

  Kent County Council Trading Standards.

31

  Birmingham Law Society.

32

We discuss the Police and Criminal Evidence Act 1984, s 16(2) at paragraph 7.9 below.

33

  Financial Conduct Authority.

34

  Bar Council and the Criminal Bar Association.

35

  Bar Council and the Criminal Bar Association; Birmingham Law Society.

36

Crown Prosecution Service; Financial Conduct Authority.

37

Financial Services and Markets Act 2000, sch 2, para 6.

38

  Financial Services and Markets Act 2000, s 19.

39

  Financial Services and Markets Act 2000, s 23.

40

  Financial Services and Markets Act 2000, s 168(2).

41

  Financial Services and Markets Act 2000, s 168(4)(c).

42

  Financial Services and Markets Act 2000, s 173(2) where appointed under s 168(2) and Financial Services and

Markets Act 2000, s 172(2)(b) where appointed under s 168(4).

43

Financial Services and Markets Act 2000, s 176(2).

44

We observe, however, the difficulty seemingly simple phrases have generated, such as a “criminal cause of matter”. See R (Belhaj) v DPP [2018] UKSC 33, [2019] AC 593 at [73].

45

Proceeds of Crime Act 2002 (Application of Police and Criminal Evidence Act 1984) Order 2015 (SI 2015 No 759) (as modified by SI 2017 No 1222), art 2.

46

  R (BBC) v Newcastle Crown Court [2019] EWHC 2756 (Admin), [2020] 1 Cr App R 16 at [22].

47

  This problem could be met by statutory drafting which provides that the safeguards apply where the purpose, or one

of the purposes, for which a warrant is sought is for a criminal investigation.

48

See https://www.gov.uk/govemment/collections/reviews-of-all-powers-of-entry. See paragraphs 19.19 to 19.20 for further discussion of the Government’s powers of entry review.

49

Kent Pharmaceuticals v Director of the Serious Fraud Office [2002] EWHC 3023 (QB) at [30] by Lord Woolf CJ.

50

Proceeds of Crime Act 2002 (Application of Police and Criminal Evidence Act 1984) Order 2015 (SI 2015 No 759) (as modified by SI 2017 No 1222), art 2.

51

R v Southwark Crown Court ex parte Bowles [1998] AC 641, 648 per Lord Hutton.

52

Kent Pharmaceuticals v Director of the Serious Fraud Office [2002] EWHC 3023 (QB).

53

Theatres Act 1968, s 15; Local Government (Miscellaneous Provisions) Act 1982, ch 3, para 25; Food Safety Act 1990, s 32(2); Civil Aviation (Investigation of Air Accidents and Incidents) Regulations 2018 (SI 2018 No 321), reg 14(3); Public Regulated Service (Galileo) Regulations 2018 (SI 2018 No 230), reg 22 (not yet in force).

54

Gambling Act 2005, s 306; Local Government (Miscellaneous Provisions) Act 1982, s 12; Alternative Fuels Infrastructure Regulations 2017 (SI 2017 No 897), reg 10(1); Nuclear Security (Secretary of State Security Directions) Regulations 2018 (SI 2018 No 408), sch 1, para 2.

55

R (Helidon Vuciterni) v Brent Magistrates’ Court [2012] EWHC 2140 (Admin), (2012) 176 JP 705; Hargreaves v Brecknock and Radnorshire Magistrates’ Court [2015] EWHC 1803 (Admin), (2015) 179 JP 399 at [34].

56

  R (Helidon Vuciterni) v Brent Magistrates’ Court [2012] EWHC 2140 (Admin), (2012) 176 JP 705 at [48].

57

  R (Helidon Vuciterni) v Brent Magistrates’ Court [2012] EWHC 2140 (Admin), (2012) 176 JP 705.

58

Law Commission, Search Warrants: Consultation Paper (2018) CP No 235 paras 3.30 to 3.37.

59

Consultation Question 4.

60

Professor Richard Stone; Council of Her Majesty’s Circuit Judges; Kent County Council Trading Standards; Birmingham Law Society; The Law Society; Justices’ Clerks’ Society; Magistrates Association; Dijen Basu QC; National Crime Agency; Bar Council and the Criminal Bar Association; Metropolitan Police Service.

61

Southern Derbyshire Magistrates’ Bench; Competition and Markets Authority.

62

HM Council of District Judges (Magistrates’ Court); Crown Prosecution Service; Senior District Judge (Chief Magistrate); Financial Conduct Authority.

63

Kent County Council Trading Standards.

64

Southern Derbyshire Magistrates’ Bench; Competition and Markets Authority.

65

Council of HM Circuit Judges; Crown Prosecution Service; and Law Society.

66

Southern Derbyshire Magistrates’ Bench.

67

Competition and Markets Authority; Financial Conduct Authority.

68

We discuss the provision of a notice of powers and rights in more detail at paragraphs 7.172 to 7.179 below.

69

Police and Criminal Evidence Act 1984, s 67(10).

70

Police and Criminal Evidence Act 1984, s 67(11).

71

R v Keenan [1990] 2 QB 54.

72

Produced pursuant to the Protection of Freedoms Act 2012, s 47. Home Office, Code of Practice: Powers of Entry (December 2014). Available at https://www.gov.uk/govemment/publications/powers-of-entry-code-of-practice.

73

Consultation Question 2.

74

Professor Richard Stone; HM Council of District Judges (Magistrates’ Court); Senior District Judge (Chief Magistrate); Council of Her Majesty’s Circuit Judges; Kent County Council Trading Standards; Insolvency Service; Birmingham Law Society; Norfolk and Suffolk joint Cyber, Intelligence and Serious Organised Crime Directorate; The Law Society; Southern Derbyshire Magistrates’ Bench; Independent Office for Police Conduct; Justices’ Clerks’ Society; Magistrates Association; Dijen Basu QC; National Crime Agency; Bar Council and the Criminal Bar Association; Metropolitan Police Service.

75

  Competition and Markets Authority.

76

  Serious Fraud Office; Financial Conduct Authority.

77

  Serious Fraud Office.

78

  Law Society.

79

  Bar Council and the Criminal Bar Association.

80

  Serious Fraud Office.

81

  Serious Fraud Office.

82

  R v Central Criminal Court ex parte AJD Holdings [1992] Criminal Law Review 669.

83

  R v Chief Constable of Lancashire ex parte Parker and another [1993] QB 577, 584. See for a discussion R Stone,

The Law of Entry, Search, and Seizure (5th ed 2013) para 4.19.

84

  Police and Criminal Evidence (Northern Ireland) Order 1989 (SI 1989 No 1341), Art 17(1).

85

  Proceeds of Crime Act 2002 (Application of Police and Criminal Evidence Act 1984) Order 2015 (SI 2015 No 759)

(as modified by SI 2017 No 1222), art 2(2).

86

R (Hicks) v Commissioner of the Metropolis [2012] EWHC 1947 (Admin), [2012] ACD 102 at [247] per Richards LJ; R (Haly) v Chief Constable of West Midlands Police [2016] EWHC 2932 (Admin) at [17].

87

  R v Chesterfield Justices, ex parte Bramley [2000] QB 576, 588 to 589.

88

  R v Chief Constable of Lancashire ex parte Parker and another [1993] QB 577.

89

Consultation Question 6.

90

One member of the public; Professor Richard Stone; Crown Prosecution Service; Senior District Judge (Chief Magistrate); Council of Her Majesty’s Circuit Judges; Kent County Council Trading Standards; Birmingham Law Society; Norfolk and Suffolk joint Cyber, Intelligence and Serious Organised Crime Directorate; The Law Society; Southern Derbyshire Magistrates’ Bench; Justices’ Clerks’ Society; Magistrates Association; Dijen Basu QC; Bar Council and the Criminal Bar Association; Serious Fraud Office.

91

National Crime Agency.

92

R (Bhatti) v Croydon Magistrates’ Court [2010] EWHC 522 (Admin), [2011] 1 WLR 948 at [31] by Elias LJ. See also Lees v Solihull Magistrates’ Court [2013] EWHC 3779 (Admin), [2014] Lloyd’s Rep FC 23 at [39]; R v Chief Constable of the Warwickshire Constabulary, ex parte Fitzpatrick [1999] 1 WLR 564, 569A; R v Chief Constable of Lancashire ex parte Parker and another [1993] QB 577, 587C.

93

  Police and Criminal Evidence Act 1984, s 8(2).

94

  Police and Criminal Evidence Act 1984, s 19.

95

Consultation Question 5.

96

One member of the public; Professor Richard Stone; Crown Prosecution Service; Senior District Judge (Chief Magistrate); Council of Her Majesty’s Circuit Judges; Kent County Council Trading Standards; Birmingham Law Society; Norfolk and Suffolk joint Cyber, Intelligence and Serious Organised Crime Directorate; The Law Society; Southern Derbyshire Magistrates’ Bench; Justices’ Clerks’ Society; Magistrates Association; Dijen Basu QC; Bar Council and the Criminal Bar Association; Serious Fraud Office.

97

  Insolvency Service.

98

  National Crime Agency; Competition and Markets Authority.

99

R v Chesterfield Justices, ex parte Bramley [2000] QB 576, 588 to 589.

100

R (Bhatti) v Croydon Magistrates’ Court [2010] EWHC 522 (Admin), [2011] 1 WLR 948 at [31] by Elias LJ.

101

R v Central Criminal Court ex parte AJD Holdings [1992] Criminal Law Review 669.

102

R (Superior Import / Export Ltd) v Revenue and Customs Commissioners [2017] EWHC 3172 (Admin), [2018] Lloyd’s Rep FC 115 at [85]. See also Intertrade Wholesale Ltd v Revenue and Customs Commissioners [2018] EWHC 3476 (QB).

103

Krohn v DPP [1997] EWHC 286 (Admin) at [20] and [25] per Brooke LJ. See also Intertrade Wholesale Ltd v Revenue and Customs Commissioners [2018] EWHC 3476 (QB) at [39]

104

  R v Chief Constable of the Warwickshire Constabulary, ex parte Fitzpatrick [1999] 1 WLR 564, 575G.

105

  R (Hicks) v Commissioner of the Metropolis [2012] EWHC 1947 (Admin), [2012] ACD 102 at [247] by Richards LJ.

106

R (Glenn & Co (Essex) Ltd) v HMRC [2011] EWHC 2998 (Admin), [2012] 1 Cr App R 22 at [77].

107

R (Goode) v Nottingham Crown Court [2013] EWHC 1726 (Admin), [2014] ACD 6 at [48].

108

Lees v Solihull Magistrates’ Court [2013] EWHC 3779 (Admin), [2014] Lloyd’s Rep FC 23 at [43].

109

One member of the public; Professor Richard Stone; HM Council of District Judges (Magistrates’ Court); Crown Prosecution Service; Senior District Judge (Chief Magistrate); Council of Her Majesty’s Circuit Judges; Kent County Council Trading Standards; Insolvency Service; Birmingham Law Society; Norfolk and Suffolk joint Cyber, Intelligence and Serious Organised Crime Directorate; The Law Society; Southern Derbyshire Magistrates’ Bench; Independent Office for Police Conduct; Justices’ Clerks’ Society; Magistrates Association; Dijen Basu QC; National Crime Agency; Bar Council and the Criminal Bar Association; Serious Fraud Office; Competition and Markets Authority; Financial Conduct Authority.

110

  Law Society.

111

  Bar Council and the Criminal Bar Association.

112

 Law Society.

113

Council of Her Majesty’s Circuit Judges; Southern Derbyshire Magistrates’ Bench; Justices’ Clerks’ Society.

114

 HM Council of District Judges (Magistrates’ Court).

115

Insolvency Service.

116

R (Cummins) v Manchester Crown Court [2010] EWHC 2111 (Admin), [2010] Lloyd's Rep FC 551 at [13].

117

Drug Trafficking Act 1994, s 56; Extradition Act 2003, s 156; International Criminal Court Act 2001, s 37 and sch 5;

118

Knives Act 1997, s 5; Northern Ireland (Location of Victims’ Remains) Act 1999, s 6; Protection from Harassment Act 1997, s 2B; Public Order Act 1936, s 2(5); Public Order Act 1986, ss 24 and 29H; Sexual Offences Act 2003, s

119

96B; Terrorism Act 2000, s 42 and sch 5, para 11; Terrorism Prevention and Investigation Measures Act 2011, sch

120

para 8; Trade Marks Act 1994, s 92A.

121

Crime and Courts Act 2013, s 10.

122

Welsh Revenue Authority (Powers to Investigate Criminal Offences) Regulations 2018 (SI 2018 No 400), sch 1, para 1.

123

Police and Criminal Evidence Act 1984 (Application to Revenue and Customs) Order 2015 (SI 2015 No 1783), sch 1.

124

Police and Criminal Evidence Act 1984 (Application to immigration officers and designated customs officials in England and Wales) Order 2013 (SI 2013 No 1542), schs 1 and 2.

125

Police and Criminal Evidence Act 1984 (Department of Trade and Industry Investigations) Order 2002 (SI 2002 No 2326), art 3.

126

Police and Criminal Evidence Act 1984 (Application to Labour Abuse Prevention Officers) Regulations 2017 (SI 2017 No 520), reg 3.

127

Animal Welfare Act 2006, ss 19(4) and 23(1): either a constable or an inspector as appointed by the appropriate national authority or a local authority under the Animal Welfare Act 2006, s 51; Wireless Telegraphy Act 2006, s 97(1): either a constable or person authorised by the Office of Communications (“Ofcom”) or the Secretary of State.

128

Charities Act 2011, s 48: a member of staff of the Charity Commission.

Immigration and Asylum Act 1999, s 92A: the Immigration Services Commissioner (this includes a reference to a member of staff authorised in writing by the Immigration Services Commissioner under the Immigration and Asylum Act 1999, s 92A(7)).

129

Data Protection Act 2018, sch 15, para 1(1).

Immigration Act 1971, ss 28FB, 28B and 28D.

130

Banking Act 2009, s 194: an inspector (as appointed by the Bank of England under the Banking Act 2009, ss 83ZC and 83ZD).

131

Criminal Justice Act 1987, s 2(4).

Financial Services and Markets Act 2000, ss 122D and 131FB: by, or on behalf of, the Financial Conduct Authority.

132

Competition Act 1998, ss 28, 28A, 62, 62A, 63 65G and 65H and Enterprise Act 2002, s 194.

Friendly Societies Act 1992, s 62A: by, or on behalf of, the Financial Conduct Authority or the Prudential Regulation Authority.

133

Customs and Excise Management Act 1979, s 161A(1).

134

Mental Health Act 1983, s 135: an approved mental health professional (as approved by a local social services authority (as defined in s 145(1)) under the Mental Health Act 1983, s 114).

135

Electricity and Gas (Market Integrity and Transparency) (Enforcement etc) Regulations 2013 (SI 2013 No 1389), reg 16: a person authorised by the Gas and Electricity Markets Authority.

136

Credit Rating Agencies Regulations 2010, reg 33(5): an official of, or person authorised by, the European Securities and Markets Authority.

137

Wireless Telegraphy Act 2006, s 97(1): either a constable or person authorised by Ofcom or the Secretary of State.

138

Prosecution of Offences Act 1985, s 6(1). The right to bring a private prosecution is long established: its history is summarised in the judgments of Lord Wilson and Lord Mance in R (Gujra) v Crown Prosecution Service [2012] UKSC 52, [2013] 1 AC 484.

139

R v Zinga [2014] EWCA Crim 52, [2014] 1 WLR 2228.

140

Consultation Question 8.

141

NHS Counter Fraud Authority; Professor Richard Stone; Council of Her Majesty’s Circuit Judges; Insolvency Service; Birmingham Law Society; Norfolk and Suffolk joint Cyber, Intelligence and Serious Organised Crime Directorate; Southern Derbyshire Magistrates’ Bench; Justices’ Clerks’ Society; Magistrates Association; Bar Council and the Criminal Bar Association.

142

One member of the public; Kent County Council Trading Standards.

143

Department for Work and Pensions; HM Council of District Judges (Magistrates’ Court); Kent County Council Trading Standards; The Law Society; Dijen Basu QC; National Crime Agency; Metropolitan Police Service; Financial Conduct Authority.

144

Richard Stone; The Council of Her Majesty’s Circuit Judges; Birmingham Law Society.

145

Birmingham Law Society; Justices’ Clerks’ Society; Bar Council and the Criminal Bar Association.

146

  Bar Council and the Criminal Bar Association; Financial Conduct Authority.

147

  HM Council of District Judges (Magistrates’ Court); Law Society.

148

See the NHS Counter Fraud Authority (Establishment, Constitution, and Staff and Other Transfer Provisions) Order 2017 (SI 2017 No 958).

149

See the NHS Counter Fraud Authority (Establishment, Constitution, and Staff and Other Transfer Provisions) Order 2017 (SI 2017 No 958), sch 1, para 2 (the vires for which is NHS Act 2006, s 7(1)).

150

Broadly speaking, excluded material, as defined in the Police and Criminal Evidence Act 1984, s 11, covers confidential personal records, human tissue or tissue fluid and confidential journalistic material. We discuss the treatment of special procedure material in Chapter 12.

151

We discuss the availability under the Police and Criminal Evidence Act 1984 of confidential personal records, which includes medical records, at paras 12.10 to 12.16 below.

152

Department of Health and Social Care, Accessing and using documents to counter fraud in the NHS: Code of Practice (2018).

153

Broadly speaking, special procedure material, as defined in the Police and Criminal Evidence Act 1984, s 14, includes non-confidential journalistic material and confidential information created or held for business or official purposes, other than legally privileged or excluded material. We discuss the treatment of special procedure material in Chapter 13.

154

Department of Health and Social Care, Accessing and using documents to counter fraud in the NHS: Code of

155

Practice (2018) para 6.1.

156

We discuss at para 3.31 below the reasons why relying on powers of arrest may be less desirable to applying for a search warrant.

157

Police and Criminal Evidence Act 1984 (Department of Trade and Industry Investigations) Order 2002 (SI 2002 No 2326); The Secretaries of State for Business, Energy and Industrial Strategy, for International Trade and for Exiting the European Union and the Transfer of Functions (Education and Skills) Order 2016 (SI 2016 No 992), sch 1, para 26.

158

Police and Criminal Evidence Act 1984 (Department of Trade and Industry Investigations) Order 2002 (SI 2002 No 2326), arts 3 and 4(7)(a) and (i).

159

R v Zinga [2012] EWCA Crim 2357 at [32], [2013] Crim LR 226.

160

Oral evidence session, Justice Committee - Private Prosecutions: Safeguards, HC 497 (7 July 2020) Q65, https://committees.parliament.uk/oralevidence/673/pdf/.

161

Jonathan Rogers, “Private prosecutions and safeguards” [2020] Criminal Law Review 769, 771.

162

See https://committees.parliament.uk/work/401/private-prosecutions-safeguards. The Law Commission considered the right to bring a private prosecution as part of its work on consents to prosecution. See, Consents to Prosecution (1998) Law Com No 255.

163

Being arrested may have long-term consequences for an individual, even if they are later de-arrested or it is established that the arrest was wrongful. An arrest will be recorded on the Police National Computer and may be disclosed pursuant to an enhanced Disclosure and Barring Service (DBS) check. Photographs, fingerprints and non-intimate DNA samples may have been taken by force. For healthcare professionals, there may be a requirement to notify their professional body. An individual may also be required to declare any arrests on a visa application.

164

Police and Criminal Evidence Act 1984, sch 1, para 3. Note that the first set of access conditions cannot be used to obtain excluded material: see Police and Criminal Evidence Act 1984, sch 1, para 2(a)(ii).

165

Police and Criminal Evidence Act 1984, sch 1, para 3(b).

166

See National Health Service (Wales) Act 2006, Part 10; National Assembly for Wales, National Health Service Act 1977 Directions to NHS Bodies on Counter Fraud Measures 2005.

167

Police and Criminal Evidence Act 1984 (Department of Trade and Industry Investigations) Order 2002 (SI 2002 No 2326), arts 3 and 4(2), 4(7)(a) and (i).

168

Police and Criminal Evidence Act 1984 (Department of Trade and Industry Investigations) Order 2002 (SI 2002 No 2326), art 3(a).

169

In particular, the confidentiality of some material may be affected by the iniquity exception: see further discussion in Chapter 10 of this report.

170

Immigration Act 1971, s 28FB(3).

171

Consultation Question 28.

172

Department for Work and Pensions; HM Council of District Judges (Magistrates’ Court); Senior District Judge (Chief Magistrate); Kent County Council Trading Standards; Insolvency Service; Birmingham Law Society; Norfolk and Suffolk joint Cyber, Intelligence and Serious Organised Crime Directorate; The Law Society; Magistrates Association; Dijen Basu QC; National Crime Agency; Competition and Markets Authority; Serious Fraud Office; Financial Conduct Authority.

173

Birmingham Law Society.

174

Police and Criminal Evidence Act 1984 (Department of Trade and Industry Investigations) Order 2002 (SI 2002 No 2326), art 3(1)(a).

175

Police and Criminal Evidence Act 1984 (Department of Trade and Industry Investigations) Order 2002 (SI 2002 No 2326), art 4(7)(i).

176

Police and Criminal Evidence Act 1984 s 16(2A) and (2B).

177

For an example of a search warrant provision drafted in this way, see the Animal Welfare Act 2006, s 23(1).

178

Police and Criminal Evidence Act 1984 (Department of Trade and Industry Investigations) Order 2002 (SI 2002 No 2326), art 4(7)(a) and (i).

179

In the context of HMRC, the words “police officer of at least the rank of inspector” have been replaced with “officer of Revenue and Customs of at least the grade of higher officer”: see Police and Criminal Evidence Act 1984 (Application to Revenue and Customs) Order 2015 (SI 2015 No 1783), art 3(2) and (3).

180

The inclusion of the word “crime” would prevent authorisation being given by a senior Insolvency Service officer who oversees the Service’s civil enforcement work.

181

Namely the words “An investigating officer in the Insolvency Service at Grade 7 or above”: see Investigatory Powers (Codes of Practice and Miscellaneous Amendments) Order 2018 (SI 2018 No 905) art 4(5).

182

Police and Criminal Evidence Act 1984 (Application to immigration officers and designated customs officials in England and Wales) Order 2013 (SI 2013 No 1542), sch 1; Proceeds of Crime Act 2002, s 352.

183

Police and Criminal Evidence Act 1984 (Application to Revenue and Customs) Order 2015 (SI 2015 No 1783), sch 1; Proceeds of Crime Act 2002, s 352.

184

  Proceeds of Crime Act 2002, s 352.

185

  Proceeds of Crime Act 2002, s 352.

186

This includes officers of the Competition and Markets Authority; a local weights and measures authority in Great Britain; a district council in England; the Secretary of State; the Gas and Electricity Markets Authority; the Civil Aviation Authority; the British Hallmarking Council; the Office of Communications; and the Information Commissioner (see Consumer Rights Act 2015, sch 5, paras 3 and 4).

187

  Consumer Rights Act 2015, sch 5, para 32(1).

188

  Police and Criminal Evidence Act 1984, ss 19 and 20.

189

  Police and Criminal Evidence Act 1984, ss 21 and 22.

190

  Police and Criminal Evidence Act 1984 (Application to immigration officers and designated customs officials in

England and Wales) Order 2013 (SI 2013 No 1542), sch 1(1), para 1.

191

Police and Criminal Evidence Act 1984 (Application to immigration officers and designated customs officials in England and Wales) Order 2013 (SI 2013 No 1542), sch 2(1), para 1.

192

Police and Criminal Evidence Act 1984 (Application to Revenue and Customs) Order 2015 (SI 2015 No 1783) sch 2(1), para 1.

193

Proceeds of Crime Act 2002, s 352(5): a Financial Conduct Authority officer; a National Crime Agency officer; an officer of Revenue and Customs; a Serious Fraud Office officer; an immigration officer; and an accredited financial investigator.

194

Proceeds of Crime Act 2002 (Application of Police and Criminal Evidence Act 1984) Order 2015 (SI 2015 No 759) arts 4 and 5.

195

See para 3.46 above.

196

Serious Fraud Office; Financial Conduct Authority.

197

Criminal Justice Act 1987, s 2(6A); Financial Services and Markets Act 2000, s 176(5C).

198

We are aware that Serious Fraud Office and Financial Conduct Authority officers are empowered to execute search warrants under the Proceeds of Crime Act 2002 without the assistance of a constable, however, we were not informed specifically why this model under the Proceeds of Crime Act 2002 would be undesirable.

199

See Criminal Justice Act 1987, s 2(6) and (7) and Financial Services and Markets Act 2000, s 176(5B).

200

  See para 2.56 above.

201

  See para 2.98 above.

202

Financial Services and Markets Act 2000, s 177(6).

203

Commissioners for Revenue and Customs Act 2005, s 32; UK Borders Act 2007, ss 22 and 23; Proceeds of Crime Act, s 453A.

204

Proceeds of Crime Act 2002, s 356A(2).

205

Proceeds of Crime Act 2002, s 356A(5)(a) read with s 352(5A).

206

Proceeds of Crime Act 2002, s 453B.

207

Criminal Procedure Rules, r 47.26(2)(a).

208

Police and Criminal Evidence Act 1984, s 8; Police and Criminal Evidence Act 1984, sch 1; Criminal Justice Act 1987, s 2; Terrorism Act 2000, sch 5, para 11; Proceeds of Crime Act 2002, s 352; Crime (International Cooperation) Act 2003, s 16; Criminal Justice (European Investigation Order) Regulations 2017, regs 6, 11 and 15 to 19. In the case of production orders (including explanation orders, information orders, account monitoring orders and other similar procedures) ten provisions have application forms prescribed under the Criminal Procedure Rules.

209

Criminal Procedure Rules, Part 47, https://www.justice.gov.uk/courts/procedure-rules/criminal/docs/forms/iw001-eng.doc.

210

The application form can be found at: https://www.justice.gov.uk/courts/procedure-rules/criminal/docs/crimpr-part6-rule6-32app.pdf.

211

Criminal Practice Directions, Division XI 47A.5 (as amended 2019).

212

Hargreaves v Brecknock and Radnorshire Magistrates’ Court [2015] EWHC 1803 (Admin), (2015) 179 JP 399 at [16].

213

Hargreaves v Brecknock and Radnorshire Magistrates’ Court [2015] EWHC 1803 (Admin), (2015) 179 JP 399 at [32].

214

Search Warrants (2018) Law Commission Consultation Paper No 235, paras 4.29 to 4.35.

215

Consultation Question 9.

216

Criminal Procedure Rule Committee; Professor Richard Stone; HM Council of District Judges (Magistrates’ Court); Crown Prosecution Service; Senior District Judge (Chief Magistrate); Council of Her Majesty’s Circuit Judges; Kent County Council Trading Standards; Birmingham Law Society; West London Magistrates’ Bench; Norfolk and Suffolk joint Cyber, Intelligence and Serious Organised Crime Directorate; The Law Society; Southern Derbyshire Magistrates’ Bench; Independent Office for Police Conduct; Justices’ Clerks’ Society; Magistrates Association; Dijen Basu QC; National Crime Agency; Bar Council and the Criminal Bar Association; Metropolitan Police Service; Serious Fraud Office; Competition and Markets Authority; Members of the Senior Judiciary; Financial Conduct Authority.

217

Council of Her Majesty’s Circuit Judges; Bar Council and the Criminal Bar Association.

218

Professor Richard Stone; HM Council of District Judges (Magistrates’ Court); Crown Prosecution Service; Senior District Judge (Chief Magistrate); Birmingham Law Society; West London Magistrates’ Bench; The Law Society; Magistrates Association; National Crime Agency; Bar Council and the Criminal Bar Association.

219

  HM Council of District Judges (Magistrates’ Court); Birmingham Law Society; The Law Society.

220

  Crown Prosecution Service.

221

  HM Council of District Judges (Magistrates’ Court).

222

  Crown Prosecution Service.

223

  Crown Prosecution Service.

224

  HM Council of District Judges (Magistrates’ Court).

225

National Crime Agency; Metropolitan Police Service; Financial Conduct Authority.

226

Hargreaves v Brecknock and Radnorshire Magistrates’ Court [2015] EWHC 1803 (Admin), (2015) 179 JP 399. See para 4.8 above.

227

See para 4.119 below.

228

Hargreaves v Brecknock and Radnorshire Magistrates’ Court [2015] EWHC 1803 (Admin), (2015) 179 JP 399. See para 4.8 above.

229

See para 32, sch 5.

230

Search Warrants (2018) Law Commission Consultation Paper No 235, para 3.30.

231

R v Lewes Crown Court ex parte Hill (1991) 93 Cr App R 60, 69 by Bingham LJ; R (Energy Financing Team) v Bow Street Magistrates' Court [2005] EWHC 1626 (Admin), [2006] 1 WLR 1316, 1325 by Kennedy LJ; R (Rawlinson and Hunter Trustees) v Central Criminal Court [2012] EWHC 2254 (Admin), [2013] 1 WLR 1634; R (Golfrate Property Management Ltd) v Southwark Crown Court [2014] EWHC 840 (Admin), [2014] 2 Cr App R 12 at [25]; Adam Craggs, “Golfrate Property Management: applicants for search warrants” (2014) 1237 Tax Journal 13.

232

R (Daly) v the Commissioner of Police of the Metropolis [2018] EWHC 438 (Admin), [2018] 1 WLR 2221 at [33] by Sir Brian Leveson P.

233

Fitzgerald v Preston Crown Court [2018] EWHC 804 (Admin) at [20].

234

Consultation Question 12.

235

Sweeney v Westminster Magistrates’ Court [2014] EWHC 2068 (Admin), (2014) 178 JP 336; R (Chatwani) v National Crime Agency [2015] EWHC 1283 (Admin), [2015] ACD 110.

236

Consultation Question 10.

237

Consultation Question 10.

238

Robert Della-Sala JP; Professor Richard Stone; HM Council of District Judges (Magistrates’ Court); Crown Prosecution Service; Senior District Judge (Chief Magistrate); Council of Her Majesty’s Circuit Judges; Kent County Council Trading Standards; Insolvency Service; Birmingham Law Society; West London Magistrates’ Bench; Norfolk and Suffolk joint Cyber, Intelligence and Serious Organised Crime Directorate; The Law Society; Southern Derbyshire Magistrates’ Bench; Justices’ Clerks’ Society; Magistrates Association; Dijen Basu QC; National Crime Agency; Metropolitan Police Service; Financial Conduct Authority.

239

Nigel Shock JP; Crown Prosecution Service; Kent County Council Trading Standards; Insolvency Service; Birmingham Law Society; Southern Derbyshire Magistrates’ Bench; Justices’ Clerks’ Society; Magistrates Association; Dijen Basu QC; Bar Council and the Criminal Bar Association; Metropolitan Police Service; Serious Fraud Office; Competition and Markets Authority; Members of the Senior Judiciary; Privacy International.

240

Professor Richard Stone; Council of Her Majesty’s Circuit Judges; Kent County Council Trading Standards; Insolvency Service; Norfolk and Suffolk joint Cyber, Intelligence and Serious Organised Crime Directorate; The Law Society; Southern Derbyshire Magistrates’ Bench; Independent Office for Police Conduct; Dijen Basu QC; National Crime Agency; Bar Council and the Criminal Bar Association; Metropolitan Police Service; Financial Conduct Authority.

241

Criminal Procedure Rule Committee; HM Council of District Judges (Magistrates’ Court); Crown Prosecution Service; Senior District Judge (Chief Magistrate); Justices’ Clerks’ Society; Magistrates Association; Serious Fraud Office.

242

Competition and Markets Authority.

243

See paras 15.83 to 15.118 below.

244

R (Haralambous) v Crown Court at St Albans [2018] UKSC 1, [2018] AC 236 at [15]. Discussed in R (Hafeez) v Southwark Crown Court [2018] EWHC 954 (Admin), [2018] ACD 46 at [13].

245

See the search warrant forms prescribed under the Criminal Procedure Rules at: http://www.justice.gov.Uk/courts/procedure-rules/criminal/forms#Anchor11.

246

Magistrates Association; Council of Her Majesty’s Circuit Judges.

247

National Crime Agency; The Independent Office for Police Conduct.

248

These comments were made during a roundtable held with the senior judiciary.

249

  Birmingham Law Society.

250

  Justices’ Clerks’ Society; Dijen Basu QC.

251

See JSC BTA Bank v Ablyazov [2018] EWHC 259 (Comm).

252

Such a duty is imposed by virtue of the Criminal Procedure and Investigations Act 1996, s 23. Code B of PACE (2013) para.3.3 also requires an officer to make reasonable inquiries to establish whether the premises has been searched previously and, if so, how recently.

253

R (Superior Import / Export Ltd) v Revenue and Customs Commissioners [2017] EWHC 3172 (Admin), [2018] Lloyd’s Rep FC 115 at [53].

254

R (Brook) v Preston Crown Court [2018] EWHC 2024 (Admin), [2018] ACD 95 at [16].

255

R (Superior Import / Export Ltd) v Revenue and Customs Commissioners [2017] EWHC 3172 (Admin), [2018] Lloyd’s Rep FC 115 at [53].

256

R (Chatwani) v National Crime Agency [2015] EWHC 1283 (Admin), [2015] ACD 110 at [106]: “the duty extends to all known information that may be material to the court’s decision”; Fitzgerald v Williams [1996] QB 657, 667: “In seeking ex parte relief an applicant must disclose to the judge any fact known to him which might affect the judge's decision whether to grant relief or what relief to grant”.

257

National Crime Agency v Baker [2020] EWHC 822 (Admin) at [217] to [218].

258

  Independent Office for Police Conduct; Crown Prosecution Service.

259

  Crown Prosecution Service; Magistrates Association; West London Magistrates’ Bench.

260

  Bar Council and the Criminal Bar Association.

261

  Bar Council and the Criminal Bar Association.

262

  Bar Council and the Criminal Bar Association.

263

  Robert Della-Sala JP.

264

  Insolvency Service.

265

R (Wood) v North Avon Magistrates’ Court [2009] EWHC 3614 (Admin), (2010) 174 JP 157 at [29].

266

These powers allow for material to be seized and sorted through at a later stage because it is not reasonably practicable, during the search, to determine into which category the material falls or to separate the material into what may and may not be seized.

267

  R (Chatwani) v National Crime Agency [2015] EWHC 1283 (Admin) at [129].

268

  R v Zinga [2012] EWCA Crim 2357 at [32], [2013] Crim LR 226.

269

Insolvency Service.

270

Bar Council and the Criminal Bar Association.

271

Police and Criminal Evidence Act 1984, s 10(2).

272

  Consultation Question 12.

273

  National Crime Agency; Metropolitan Police Service.

274

We use the term “protected material” as a general term to cover all those categories of material that may not be the subject of a search warrant under the relevant search warrant provision concerned.

275

National Crime Agency, Warrant Review Closing Report (March 2016).

276

R v Palmer [2016] EWCA Crim 2237.

277

R (Dulai) v Chelmsford Magistrates’ Court [2012] EWHC 1055 (Admin), [2013] 1 WLR 220 at [46] by Stanley Burnton LJ; R (Hart) v Blackfriars Crown Court [2017] EWHC 3091 (Admin), [2018] Lloyd’s Rep FC 98.

278

Some agencies having grading for informants, for example, A = always reliable; B = mostly reliable; C = sometimes reliable, etc.

279

R (Haralambous) v Crown Court at St Albans [2018] UKSC 1, [2018] AC 236 at [27].

280

Also known as claiming “public interest immunity”.

281

Police and Criminal Evidence Act 1984, s 15(4).

282

Code B of PACE (2013) para 3.4.

283

Independent Office for Police Conduct, Operation Kentia: A report concerning matters related to the Metropolitan Police Service’s Operation Midland and Operation Vincente (October 2019), p 26.

284

Magistrates Association; HM Council of District Judges (Magistrates’ Court); Senior District Judge (Chief Magistrate).

285

Consultation Question 13.

286

Professor Richard Stone; HM Council of District Judges (Magistrates’ Court); Crown Prosecution Service; Senior District Judge (Chief Magistrate); Council of Her Majesty’s Circuit Judges; Kent County Council Trading Standards; Birmingham Law Society; Norfolk and Suffolk joint Cyber, Intelligence and Serious Organised Crime Directorate; The Law Society; Southern Derbyshire Magistrates’ Bench; Independent Office for Police Conduct; Justices’ Clerks’ Society; Magistrates Association; Dijen Basu QC; National Crime Agency; Bar Council and the Criminal Bar Association; Metropolitan Police Service; Financial Conduct Authority; Association of Chief Trading Standards Officers.

287

Competition and Markets Authority.

288

Criminal Procedure Rule Committee; Serious Fraud Office.

289

  See https://www.justice.gov.uk/courts/procedure-rules/civil/rules/appforwarrant and

https://www.justice.gov.uk/courts/procedure-rules/civil/rules/appforwarrant comp act2002.

290

  See https://www.justice.gov.uk/courts/procedure-rules/civil/rules/appforwarrant.

291

Search Warrants (2018) Law Commission Consultation Paper No 235, para 4.35.

292

Consultation Question 9.

293

Professor Richard Stone; HM Council of District Judges (Magistrates’ Court); Crown Prosecution Service; Senior District Judge (Chief Magistrate); West London Magistrates’ Bench; Norfolk and Suffolk joint Cyber, Intelligence and Serious Organised Crime Directorate; The Law Society; Southern Derbyshire Magistrates’ Bench; Justices’ Clerks’ Society; Magistrates Association; Dijen Basu QC; National Crime Agency; Bar Council and the Criminal Bar Association; Metropolitan Police Service; Members of the Senior Judiciary; Association of Chief Trading Standards Officers.

294

  Financial Conduct Authority.

295

  Serious Fraud Office.

296

Professor Richard Stone; HM Council of District Judges (Magistrates’ Court); Crown Prosecution Service; Senior District Judge (Chief Magistrate); West London Magistrates’ Bench; Norfolk and Suffolk joint Cyber, Intelligence and Serious Organised Crime Directorate; The Law Society; Southern Derbyshire Magistrates’ Bench; Justices’ Clerks’ Society; Magistrates Association; Dijen Basu QC; National Crime Agency; Bar Council and the Criminal Bar Association; Metropolitan Police Service; Members of the Senior Judiciary.

297

Ministry of Justice, Criminal Justice System Digital Business Model (2014).

298

Criminal Justice Joint Inspection, Delivering Justice in a Digital Age: a Joint Inspection of Digital Case Preparation in the Criminal Justice System (2016) para 5.24.

299

R (Haralambous) v Crown Court at St Albans [2018] UKSC 1, [2018] AC 236 at [15]. Discussed in R (Hafeez) v Southwark Crown Court [2018] EWHC 954 (Admin), [2018] ACD 46 at [13].

300

R v Lewes Crown Court ex parte Hill (1991) 93 Cr App R 60, 69 by Bingham LJ; R (Energy Financing Team) v Bow Street Magistrates' Court [2005] EWHC 1626 (Admin), [2006] 1 WLR 1316, 1325 by Kennedy LJ; R (Rawlinson and Hunter Trustees) v Central Criminal Court [2012] EWHC 2254 (Admin), [2013] 1 WLR 1634; R (Golfrate Property Management Ltd) v Southwark Crown Court [2014] EWHC 840 (Admin), [2014] 2 Cr App R 12 at [25]; Adam Craggs, “Golfrate Property Management: applicants for search warrants” (2014) 1237 Tax Journal 13.

301

Consultation Question 11.

302

Consultation Question 11.

303

(Dulai) v Chelmsford Magistrates’ Court [2012] EWHC 1055 (Admin), [2013] 1 WLR 220 at [45] by Stanley Burnton LJ.

304

Consultation Question 11.

305

Criminal Procedure Rule Committee; Professor Richard Stone; HM Council of District Judges (Magistrates’ Court); Crown Prosecution Service; Senior District Judge (Chief Magistrate); Council of Her Majesty’s Circuit Judges; Kent County Council Trading Standards; Insolvency Service; Birmingham Law Society; Norfolk and Suffolk joint Cyber, Intelligence and Serious Organised Crime Directorate; The Law Society; Southern Derbyshire Magistrates’ Bench;

Independent Office for Police Conduct; Justices’ Clerks’ Society; Magistrates Association; Dijen Basu QC; National Crime Agency; Bar Council and the Criminal Bar Association; Metropolitan Police Service; Serious Fraud Office; Competition and Markets Authority; Members of the Senior Judiciary; Financial Conduct Authority.

306

Criminal Procedure Rule Committee; Professor Richard Stone; HM Council of District Judges (Magistrates’ Court); Crown Prosecution Service; Senior District Judge (Chief Magistrate); Council of Her Majesty’s Circuit Judges; Insolvency Service; Birmingham Law Society; Norfolk and Suffolk joint Cyber, Intelligence and Serious Organised Crime Directorate; The Law Society; Southern Derbyshire Magistrates’ Bench; Independent Office for Police Conduct; Justices’ Clerks’ Society; Magistrates Association; Dijen Basu QC; National Crime Agency; Bar Council and the Criminal Bar Association; Metropolitan Police Service; Serious Fraud Office; Members of the Senior Judiciary; Financial Conduct Authority.

307

Competition and Markets Authority.

308

Crown Prosecution Service; Criminal Procedure Rule Committee; HM Council of District Judges (Magistrates’ Court); Insolvency Service; Birmingham Law Society; The Law Society; Southern Derbyshire Magistrates’ Bench; Justices’ Clerks’ Society; Dijen Basu QC; Serious Fraud Office; Financial Conduct Authority.

309

Crown Prosecution Service; Senior District Judge (Chief Magistrate); Independent Office for Police Conduct; National Crime Agency; Serious Fraud Office.

310

Professor Richard Stone; HM Council of District Judges (Magistrates’ Court); Council of Her Majesty’s Circuit Judges; Norfolk and Suffolk joint Cyber, Intelligence and Serious Organised Crime Directorate; Independent Office for Police Conduct; National Crime Agency; Bar Council and the Criminal Bar Association; Serious Fraud Office.

311

Crown Prosecution Service; Insolvency Service; Birmingham Law Society; Law Society.

312

  Crown Prosecution Service.

313

HM Council of District Judges (Magistrates’ Court).

314

  Birmingham Law Society.

315

  Southern Derbyshire Magistrates’ Bench; Dijen Basu QC.

316

  Law Society.

317

Professor Richard Stone; HM Council of District Judges (Magistrates’ Court); Crown Prosecution Service;

Insolvency Service; Birmingham Law Society; Justices’ Clerks’ Society; Magistrates Association; National Crime Agency; Bar Council and the Criminal Bar Association; Metropolitan Police Service; Financial Conduct Authority.

318

The Competition and Markets Authority.

319

Kent County Council Trading Standards; The Law Society.

320

Reference to material “available to” a constable would make it clear that the duty of candour only extends to facts known to the constable at the time.

321

We discuss the operation of the Police and Criminal Evidence Act 1984, s 15(1) in detail in Chapter 2 above.

322

Lees v Solihull Magistrates’ Court [2013] EWHC 3779 (Admin), [2014] Lloyd’s Rep FC 23 at [43].

323

R (Hicks) v Commissioner of the Metropolis [2012] EWHC 1947 (Admin), [2012] ACD 102 at [247] by Richards LJ.

324

R (Global Cash & Carry Ltd) v Birmingham Magistrates’ Court [2013] EWHC 528 (Admin), [2013] ACD 48 at [20].

325

R (Hart) v Crown Court at Blackfriars [2017] EWHC 3091 (Admin), [2018] Lloyd’s Rep FC 98 at [19].

326

Criminal Practice Directions, Division V 19A.7 (as amended 2019).

327

The Strategy Board is merely advisory to the Home Secretary and cannot itself amend Code B. The Board can consider recommending whether or that Code B should be amended but cannot consider amending Code B.

328

Independent Office for Police Conduct, Operation Kentia: A report concerning matters related to the Metropolitan Police Service’s Operation Midland and Operation Vincente (October 2019), p 26.

329

Police and Criminal Evidence Act 1984, s 15(6)(b); Criminal Procedure Rules, r 47.27(1)(c); PACE Code B (2013) para 3B.

330

We discuss factors that may be relevant to discharging the duty of candour at paragraphs 4.49 to 4.109 above.

331

Consultation Question 14.

332

HM Council of District Judges (Magistrates’ Court); Crown Prosecution Service; Senior District Judge (Chief Magistrate); Council of Her Majesty’s Circuit Judges; Kent County Council Trading Standards; West London Magistrates’ Bench; The Law Society; Southern Derbyshire Magistrates’ Bench; Justices’ Clerks’ Society; Dijen Basu QC; National Crime Agency; Bar Council and the Criminal Bar Association; Metropolitan Police Service; Serious Fraud Office; Competition and Markets Authority; Staffordshire Police; Financial Conduct Authority; DS Parminder Kang, Leicestershire Police.

333

Criminal Justice Joint Inspection, Delivering Justice in a Digital Age: a Joint Inspection of Digital Case Preparation in the Criminal Justice System (2016) para 1.5.

334

We were not informed precisely why a lack of legal oversight reduced the speed of applications.

335

We have no evidence to indicate how many slots would be required to prevent a backlog.

336

Police and Criminal Evidence Act 1984, sch 1 para 17; Drug Trafficking Act 1994, s 56; Terrorism Act 2000, sch 5, para 11; International Criminal Court Act 2001, s 37 and sch 5.

337

Ashbolt v HM Revenue and Customs [2020] EWHC 1588 (Admin) at [72].

338

See paragraph 4.154 above.

339

  HMCPSI and HMICFRS, A joint inspection of search application and production order processes (January 2019).

340

  HMCPSI and HMICFRS, A joint inspection of search application and production order processes (January 2019)

para 2.6.

341

Independent Office for Police Conduct, Operation Kentia: A report concerning matters related to the Metropolitan Police Service’s Operation Midland and Operation Vincente (October 2019).

342

Independent Office for Police Conduct, Operation Kentia: A report concerning matters related to the Metropolitan Police Service’s Operation Midland and Operation Vincente (October 2019) p 23.

343

Independent Office for Police Conduct, Operation Kentia: A report concerning matters related to the Metropolitan Police Service’s Operation Midland and Operation Vincente (October 2019) p 24.

344

Independent Office for Police Conduct, Operation Kentia: A report concerning matters related to the Metropolitan Police Service’s Operation Midland and Operation Vincente (October 2019) p 24.

345

Independent Office for Police Conduct, Operation Kentia: A report concerning matters related to the Metropolitan Police Service’s Operation Midland and Operation Vincente (October 2019) p 26.

346

Consultation Question 15.

347

Robert Della-Sala JP; Department for Work and Pensions; Professor Richard Stone; HM Council of District Judges (Magistrates’ Court); Crown Prosecution Service; Senior District Judge (Chief Magistrate); Council of Her Majesty’s Circuit Judges; Kent County Council Trading Standards; West London Magistrates’ Bench; The Law Society; Southern Derbyshire Magistrates’ Bench; Justices’ Clerks’ Society; Magistrates Association; Dijen Basu QC;

National Crime Agency; Bar Council and the Criminal Bar Association; Metropolitan Police Service; Serious Fraud Office; Competition and Markets Authority; Financial Conduct Authority.

348

Council of Her Majesty’s Circuit Judges, HM Council of District Judges (Magistrates’ Court); West London Magistrates’ Bench; Robert Della-Sala JP.

349

Law Society; Justices’ Clerks’ Society.

350

Professor Richard Stone; HM Council of District Judges (Magistrates’ Court); Crown Prosecution Service; Senior District Judge (Chief Magistrate); The Law Society; Southern Derbyshire Magistrates’ Bench; Magistrates Association; Financial Conduct Authority.

351

Crown Prosecution Service; National Crime Agency; Bar Council and the Criminal Bar Association.

352

Magistrates Association; HM Council of District Judges (Magistrates’ Court); Council of Her Majesty’s Circuit

353

Judges; National Crime Agency.

354

See Search Warrants (2018) Law Commission Consultation Paper No 235 paras 4.100 to 4.110.

355

  See Police and Criminal Evidence Act 1984, ss 18(1), 18(2), 32(2)(b) and 19(6).

356

  R (L) v Chief Constable of Surrey Police [2017] EWHC 129 (Admin), [2017] 1 WLR 2047.

357

  R (L) v Chief Constable of Surrey Police [2017] EWHC 129 (Admin), [2017] 1 WLR 2047 at [66].

358

  R (L) v Chief Constable of Surrey Police [2017] EWHC 129 (Admin), [2017] 1 WLR 2047 at [71].

359

Consultation Question 16.

360

Senior District Judge (Chief Magistrate); Council of Her Majesty’s Circuit Judges; Southern Derbyshire Magistrates’ Bench; Justices’ Clerks’ Society; Metropolitan Police Service; Serious Fraud Office; Financial Conduct Authority.

361

Professor Richard Stone; HM Council of District Judges (Magistrates’ Court); The Law Society; Dijen Basu QC.

362

Crown Prosecution Service; Independent Office for Police Conduct; Magistrates Association; National Crime Agency.

363

For more information about magistrates, see Courts and Tribunals Judiciary, Magistrates, https://www.judiciary.uk/about-the-judiciary/who-are-the-judiciary/judicial-roles/magistrates/.

364

Courts Act 2003, ss 25 and 66.

365

Protocol to support judicial deployment in the Magistrates’ Courts (November 2012),

https://www.judiciary.gov.uk/wp-content/uploads/JCO/Documents/Protocols/support-judicial-deployment-in-magistrates-court.pdf .

366

R (Chatwani) v National Crime Agency [2015] EWHC 1283 (Admin), [2015] ACD 110 at [105].

367

Consultation Question 17.

368

Robert Della-Sala JP; Nigel Shock JP; Sian Jones; HM Council of District Judges (Magistrates’ Court); Senior District Judge (Chief Magistrate); Birmingham Law Society; West London Magistrates’ Bench; Southern Derbyshire Magistrates’ Bench; Independent Office for Police Conduct; Justices’ Clerks’ Society; Magistrates Association; Bar Council and the Criminal Bar Association; Metropolitan Police Service; Serious Fraud Office.

369

Professor Richard Stone; Council of Her Majesty’s Circuit Judges; Kent County Council Trading Standards; The Law Society; National Crime Agency; Competition and Markets Authority; Financial Conduct Authority; Dijen Basu QC.

370

  West London Magistrates’ Bench.

371

  Dijen Basu QC.

372

West London Magistrates’ Bench; Justices’ Clerks’ Society.

373

  Senior District Judge (Chief Magistrate).

374

  Birmingham Law Society.

375

  Independent Office for Police Conduct.

376

  Justices’ Clerks’ Society.

377

  Law Society.

378

  Council of Her Majesty’s Circuit Judges.

379

  Magistrates Association.

380

  HM Council of District Judges (Magistrates’ Court)

381

  Justices’ Clerks’ Society.

382

Financial Conduct Authority. See Windsor v Crown Prosecution Service [2011] EWCA Crim 143, [2011] 1 WLR 1519 at [62].

383

West London Magistrates’ Bench; Southern Derbyshire Magistrates’ Bench.

384

  Law Society.

385

  National Crime Agency; Serious Fraud Office.

386

Metropolitan Police Service; Serious Fraud Office; Kent County Council Trading Standards.

387

Competition and Markets Authority; Serious Fraud Office; Financial Conduct Authority.

388

  Serious Fraud Office.

389

  Kent County Council Trading Standards.

390

R v Customs and Excise Commissioners, ex parte X Ltd [1997] BVC 440.

391

For information on magistrates’ bench chairs, see Courts and Tribunals Judiciary, Bench Chairs,

https://www.judiciary.gov.uk/about-the-judiciary/who-are-the-judiciary/judicial-roles/magistrates/bench-chairmen/.

392

Consultation Question 18.

393

Robert Della-Sala JP; Nigel Shock JP; Sian Jones; Professor Richard Stone; Crown Prosecution Service; Council of Her Majesty’s Circuit Judges; Kent County Council Trading Standards; Birmingham Law Society; West London Magistrates’ Bench; Southern Derbyshire Magistrates’ Bench; Independent Office for Police Conduct; The Law Society; Magistrates Association; Dijen Basu QC; National Crime Agency; Bar Council and the Criminal Bar Association; Metropolitan Police Service; Financial Conduct Authority.

394

Senior District Judge (Chief Magistrate).

395

HM Council of District Judges (Magistrates’ Court); Senior District Judge (Chief Magistrate); West London Magistrates’ Bench; Competition and Markets Authority; Financial Conduct Authority.

396

  West London Magistrates’ Bench.

397

  Robert Della-Sala JP.

398

  Southern Derbyshire Magistrates’ Bench.

399

  Robert Della-Sala JP.

400

  West London Magistrates’ Bench.

401

  West London Magistrates’ Bench; National Crime Agency.

402

  Law Society.

403

HM Council of District Judges (Magistrates’ Court).

404

  West London Magistrates’ Bench.

405

Justices’ Clerks’ Society; Magistrates Association.

406

Robert Della-Sala JP; West London Magistrates’ Bench.

407

Magistrates Association; National Crime Agency.

408

  Criminal Procedure Rules, r 24.15.

409

  Consultation Question 19.

410

Nigel Shock JP; Professor Richard Stone; Crown Prosecution Service; Council of Her Majesty’s Circuit Judges;

411

Birmingham Law Society; West London Magistrates’ Bench; Southern Derbyshire Magistrates’ Bench; Independent

412

Consultation Question 19.

413

Robert Della-Sala JP; Nigel Shock JP; Sian Jones; Professor Richard Stone; HM Council of District Judges

(Magistrates’ Court); Senior District Judge (Chief Magistrate); Council of Her Majesty’s Circuit Judges; West London Magistrates’ Bench; Norfolk and Suffolk joint Cyber, Intelligence and Serious Organised Crime Directorate;

Southern Derbyshire Magistrates’ Bench; The Law Society; Justices’ Clerks’ Society; Magistrates Association; Dijen Basu QC; National Crime Agency; Bar Council and the Criminal Bar Association; Metropolitan Police Service;

Serious Fraud Office.

414

Birmingham Law Society; Financial Conduct Authority.

415

Magistrates Association; HM Council of District Judges (Magistrates’ Court); Senior District Judge (Chief Magistrate); Council of Her Majesty’s Circuit Judges; Robert Della-Sala JP; The Law Society.

416

  Nigel Shock JP.

417

  Magistrates Association.

418

  Metropolitan Police Service.

419

  Robert Della-Sala JP; Nigel Shock JP; Sian Jones; Justices’ Clerks’ Society;

420

  Law Society.

421

  Justices’ Clerks’ Society; Financial Conduct Authority.

422

  Consultation Question 21.

423

  Consultation Question 22.

424

Sian Jones; HM Council of District Judges (Magistrates’ Court); Senior District Judge (Chief Magistrate); Birmingham Law Society; West London Magistrates’ Bench; Southern Derbyshire Magistrates’ Bench; The Law Society; Justices’ Clerks’ Society; Magistrates Association; National Crime Agency.

425

Professor Richard Stone; Senior District Judge (Chief Magistrate); Council of Her Majesty’s Circuit Judges; West London Magistrates’ Bench; Norfolk and Suffolk joint Cyber, Intelligence and Serious Organised Crime Directorate; Southern Derbyshire Magistrates’ Bench; Independent Office for Police Conduct; The Law Society; Justices’ Clerks’ Society; Magistrates Association; Dijen Basu QC; Bar Council and the Criminal Bar Association; Metropolitan Police Service; Financial Conduct Authority.

426

HM Council of District Judges (Magistrates’ Court); National Crime Agency; Birmingham Law Society.

427

Professor Richard Stone; Council of Her Majesty’s Circuit Judges; Dijen Basu QC; Bar Council and the Criminal Bar Association; Metropolitan Police Service; Financial Conduct Authority.

428

Robert Della-Sala JP; Sian Jones; Nigel Shock JP; Criminal Procedure Rule Committee; HM Council of District Judges (Magistrates’ Court); Senior District Judge (Chief Magistrate); Birmingham Law Society; West London Magistrates’ Bench; Southern Derbyshire Magistrates’ Bench; Independent Office for Police Conduct; The Law Society; Justices’ Clerks’ Society; Serious Fraud Office.

429

National Crime Agency; DS Parminder Kang, Leicestershire Police.

430

  West London Magistrates’ Bench.

431

  Magistrates Association.

432

  Senior District Judge (Chief Magistrate).

433

  National Crime Agency.

434

Norfolk and Suffolk joint Cyber, Intelligence and Serious Organised Crime Directorate.

435

  Law Society.

436

  HM Council of District Judges (Magistrates’ Court).

437

  HM Council of District Judges (Magistrates’ Court).

438

  Justices’ Clerks’ Society; Bar Council and the Criminal Bar Association.

439

  Magistrates Association.

440

  Justices’ Clerks’ Society.

441

  Magistrates Association.

442

  Magistrates Association.

443

  Financial Conduct Authority.

444

  Birmingham Law Society.

445

  Bar Council and the Criminal Bar Association.

446

  DS Parminder Kang, Leicestershire Police.

447

  Robert Della-Sala JP.

448

  Criminal Procedure Rule Committee.

449

  Senior District Judge (Chief Magistrate).

450

  Senior District Judge (Chief Magistrate).

451

  Nigel Shock JP.

452

  HM Council of District Judges (Magistrates’ Court); Law Society.

453

  HM Council of District Judges (Magistrates’ Court).

454

  Sian Jones.

455

  HM Council of District Judges (Magistrates’ Court).

456

  West London Magistrates’ Bench.

457

 Sian Jones.

458

 Criminal Procedure Rules, r 47.25(1)(a).

459

 Criminal Procedure Rules, r 47.25(4).

460

Police and Criminal Evidence Act 1984, s 15(4); Criminal Procedure Rules, r 47.25(5)(a).

461

Consultation Question 23.

462

Professor Richard Stone; HM Council of District Judges (Magistrates’ Court); Crown Prosecution Service; Senior District Judge (Chief Magistrate); Council of Her Majesty’s Circuit Judges; Kent County Council Trading Standards; West London Magistrates’ Bench; Norfolk and Suffolk joint Cyber, Intelligence and Serious Organised Crime Directorate; Independent Office for Police Conduct; Justices’ Clerks’ Society; Magistrates Association; Dijen Basu QC; National Crime Agency; Bar Council and the Criminal Bar Association; Metropolitan Police Service; Serious Fraud Office; Financial Conduct Authority.

463

HM Council of District Judges (Magistrates’ Court).

464

Professor Richard Stone; HM Council of District Judges (Magistrates’ Court); Crown Prosecution Service; Senior District Judge (Chief Magistrate); Council of Her Majesty’s Circuit Judges; Kent County Council Trading Standards; Birmingham Law Society; West London Magistrates’ Bench; Norfolk and Suffolk joint Cyber, Intelligence and Serious Organised Crime Directorate; Southern Derbyshire Magistrates’ Bench; Independent Office for Police Conduct; Justices’ Clerks’ Society; Magistrates Association; Dijen Basu QC; National Crime Agency.

465

Metropolitan Police Service.

466

Sian Jones; Kent County Council Trading Standards; Southern Derbyshire Magistrates’ Bench; The Law Society; Competition and Markets Authority; Serious Fraud Office; Members of the Senior Judiciary.

467

Professor Richard Stone; Crown Prosecution Service; Council of Her Majesty’s Circuit Judges; Kent County Council Trading Standards; Norfolk and Suffolk joint Cyber, Intelligence and Serious Organised Crime Directorate; Independent Office for Police Conduct; Bar Council and the Criminal Bar Association.

468

HM Council of District Judges (Magistrates’ Court); Senior District Judge (Chief Magistrate); Birmingham Law Society; Southern Derbyshire Magistrates’ Bench; Justices’ Clerks’ Society; Dijen Basu QC; National Crime Agency; Metropolitan Police Service.

469

The Law Society; Financial Conduct Authority.

470

Professor Richard Stone; HM Council of District Judges (Magistrates’ Court); Crown Prosecution Service; Senior District Judge (Chief Magistrate); Council of Her Majesty’s Circuit Judges; Kent County Council Trading Standards; Birmingham Law Society; Norfolk and Suffolk joint Cyber, Intelligence and Serious Organised Crime Directorate; Southern Derbyshire Magistrates’ Bench; Independent Office for Police Conduct; The Law Society; Justices’ Clerks’ Society; Magistrates Association; Dijen Basu QC; Bar Council and the Criminal Bar Association; Metropolitan Police Service.

471

National Crime Agency.

472

Magistrates Association.

473

Independent Office for Police Conduct; Bar Council and the Criminal Bar Association.

474

National Crime Agency.

475

Norfolk and Suffolk joint Cyber, Intelligence and Serious Organised Crime Directorate.

476

Justices’ Clerks’ Society.

477

 HM Council of District Judges (Magistrates’ Court).

478

 Sian Jones.

479

Metropolitan Police Service.

480

Metropolitan Police Service; Bar Council and the Criminal Bar Association; Competition and Markets Authority.

481

HM Council of District Judges (Magistrates’ Court).

482

Southern Derbyshire Magistrates’ Bench.

483

Professor Richard Stone.

484

HM Council of District Judges (Magistrates’ Court); Birmingham Law Society, Southern Derbyshire Magistrates’ Bench, Justices’ Clerks’ Society; Dijen Basu QC; National Crime Agency.

485

HM Council of District Judges (Magistrates’ Court).

486

Dijen Basu QC.

487

Justices’ Clerks’ Society.

488

Dijen Basu QC.

489

Southern Derbyshire Magistrates’ Bench.

490

Law Society.

491

National Crime Agency.

492

 HM Council of District Judges (Magistrates’ Court).

493

 Magistrates Association.

494

HM Council of District Judges (Magistrates’ Court); Birmingham Law Society.

495

Birmingham Law Society.

496

HM Council of District Judges (Magistrates’ Court).

497

Birmingham Law Society.

498

HM Council of District Judges (Magistrates’ Court).

499

 Law Society.

500

 Law Society.

501

National Crime Agency.

502

 We discuss the position in respect of applications sent to the Crown Court in the next section.

503

 R (Rawlinson and Hunter Trustees) v Central Criminal Court [2012] EWHC 2254 (Admin), [2013] 1 WLR 1634 at

[83]; R (Hart) v Crown Court at Blackfriars [2017] EWHC 3091 (Admin), [2018] Lloyd’s Rep FC 98 at [18].

504

An investigative power requiring the production of, or access being given to, specified material. See Police and Criminal Evidence Act 1984, sch 1.

505

Manuscript signing means that a signatory may use a stylus or finger to inscribe an image approximating to their usual manuscript signature. See Electronic Execution of Documents (2019) Law Com No 386, para A2.3.

506

We were informed by one senior judge that she has been sent several documents from various jurisdiction in order to confirm whether she had in fact signed them, which she had not.

507

Consultation Question 24.

508

Professor Richard Stone; HM Council of District Judges (Magistrates’ Court); Crown Prosecution Service; Senior District Judge (Chief Magistrate); Council of Her Majesty’s Circuit Judges; Kent County Council Trading Standards; Birmingham Law Society; West London Magistrates’ Bench; Norfolk and Suffolk joint Cyber, Intelligence and Serious Organised Crime Directorate; Southern Derbyshire Magistrates’ Bench; Independent Office for Police Conduct; Justices’ Clerks’ Society; Magistrates Association; Competition and Markets Authority.

509

Dijen Basu QC; Bar Council and the Criminal Bar Association; Metropolitan Police Service; Serious Fraud Office; Financial Conduct Authority.

510

The Law Society; National Crime Agency.

511

West London Magistrates’ Bench.

512

Justices’ Clerks’ Society.

513

Serious Fraud Office; Financial Conduct Authority; National Crime Agency.

514

 Serious Fraud Office.

515

 Serious Fraud Office.

516

Financial Conduct Authority.

517

Law Society.

518

Bar Council and the Criminal Bar Association.

519

Criminal Procedure Rules, r 47.25(5)(b).

520

Consultation Question 25.

521

One member of the public; Professor Richard Stone; Council of Her Majesty’s Circuit Judges; Kent County Council Trading Standards; Birmingham Law Society; West London Magistrates’ Bench; Norfolk and Suffolk joint Cyber, Intelligence and Serious Organised Crime Directorate; Magistrates Association; Dijen Basu QC; National Crime Agency; Bar Council and the Criminal Bar Association; Metropolitan Police Service; Competition and Markets Authority; Financial Conduct Authority.

522

HM Council of District Judges (Magistrates’ Court); Crown Prosecution Service; Senior District Judge (Chief Magistrate).

523

Criminal Procedure Rule Committee; Sian Jones; Southern Derbyshire Magistrates’ Bench; Independent Office for Police Conduct; The Law Society; Justices’ Clerks’ Society; Serious Fraud Office.

524

One member of the public; Professor Richard Stone; HM Council of District Judges (Magistrates’ Court); Council of Her Majesty’s Circuit Judges; Kent County Council Trading Standards; Birmingham Law Society; Norfolk and Suffolk joint Cyber, Intelligence and Serious Organised Crime Directorate; Magistrates Association; Dijen Basu QC; Bar Council and the Criminal Bar Association; Metropolitan Police Service.

525

Serious Fraud Office; Financial Conduct Authority.

526

Dijen Basu QC.

527

HM Council of District Judges (Magistrates’ Court); Crown Prosecution Service.

528

 Crown Prosecution Service.

529

HM Council of District Judges (Magistrates’ Court); Crown Prosecution Service.

530

 Senior District Judge (Chief Magistrate).

531

 Crown Prosecution Service.

532

 Crown Prosecution Service.

533

 National Crime Agency.

534

 Criminal Procedure Rule Committee.

535

Bar Council and the Criminal Bar Association.

536

Independent Office for Police Conduct, Operation Kentia: A report concerning matters related to the Metropolitan Police Service’s Operation Midland and Operation Vincente (October 2019), p 25.

537

Independent Office for Police Conduct, Operation Kentia: A report concerning matters related to the Metropolitan Police Service’s Operation Midland and Operation Vincente (October 2019), p 25.

538

Fitzgerald v Preston Crown Court [2018] EWHC 804 (Admin) at [8].

539

R v Southwark Crown Court ex parte Sorsky Defries [1996] COD 117.

540

R (Newcastle United Football Club) v Revenue and Customs Commissioners [2017] EWHC 2402 (Admin), [2017] 4 WLR 187 at [51].

541

R (Newcastle United Football Club) v Revenue and Customs Commissioners [2017] EWHC 2402 (Admin), [2017] 4 WLR 187 at [51].

542

R (Newcastle United Football Club) v Revenue and Customs Commissioners [2017] EWHC 2402 (Admin), [2017] 4 WLR 187 at [56].

543

Consultation Question 26.

544

One member of the public; Professor Richard Stone; HM Council of District Judges (Magistrates’ Court); Crown Prosecution Service; Senior District Judge (Chief Magistrate); Council of Her Majesty’s Circuit Judges; Kent County Council Trading Standards; Birmingham Law Society; Norfolk and Suffolk joint Cyber, Intelligence and Serious Organised Crime Directorate; Southern Derbyshire Magistrates’ Bench; Independent Office for Police Conduct; The Law Society; Justices’ Clerks’ Society; Magistrates Association; National Crime Agency; Bar Council and the Criminal Bar Association; Metropolitan Police Service.

545

Nigel Shock JP; Sian Jones; Criminal Procedure Rule Committee; Crown Prosecution Service; Dijen Basu QC; Serious Fraud Office.

546

Crown Prosecution Service; West London Magistrates’ Bench; Competition and Markets Authority; Financial Conduct Authority.

547

 Criminal Procedure Rule Committee.

548

 Criminal Procedure Rule Committee.

549

 Sian Jones.

550

 Crown Prosecution Service.

551

 Crown Prosecution Service.

552

 K Ewing, Bonfire of the Liberties: New Labour, Human Rights, and the Rule of Law (2010) p 41.

553

 H Snook, Crossing the Threshold: 266 ways the State can enter your home (2007) p 59.

554

Consultation Question 27.

555

Professor Richard Stone; Council of Her Majesty’s Circuit Judges; Guardian News and Media; Birmingham Law

556

Society; West London Magistrates’ Bench; Norfolk and Suffolk joint Cyber, Intelligence and Serious Organised

557

Crime Directorate; Southern Derbyshire Magistrates’ Bench; Justices’ Clerks’ Society; Magistrates Association; Dijen Basu QC; National Crime Agency; Bar Council and the Criminal Bar Association; Metropolitan Police Service; Privacy International; Financial Conduct Authority.

558

Senate Standing Committee for the Scrutiny of Bills, Entry and Search Provisions in Commonwealth Legislation, Fourth Report of 2000, p 80. The Victorian Parliament Law Reform Committee also considered that agencies should report their entry and search activities to Parliament, as a way to ensure that the process is open to public scrutiny. See Victorian Parliament Law Reform Committee, The Powers of Entry, Search, Seizure, Questioning and Detention by Authorised Persons: Discussion Paper (2001) p 25.

559

Law Commission Search and Surveillance Powers (NZLC R97, 2007) paras 15.7 to 15.8.

560

Police and Criminal Evidence Act 1984, s 16(9) and (10).

561

Several deficiencies in the powers granted under search warrants concern the application of search warrants legislation to electronic material. We discuss these issues in detail in Chapters 14, 15, 16, 17 and 18 of this report.

562

Consultation Question 29.

563

Professor Richard Stone; HM Council of District Judges (Magistrates’ Court); Senior District Judge (Chief Magistrate); Council of Her Majesty’s Circuit Judges; Insolvency Service; Birmingham Law Society; Norfolk and Suffolk joint Cyber, Intelligence and Serious Organised Crime Directorate; Southern Derbyshire Magistrates’ Bench; The Law Society; Justices’ Clerks’ Society; Magistrates Association; Dijen Basu QC; National Crime Agency; Bar Council and the Criminal Bar Association; Metropolitan Police Service; Serious Fraud Office.

564

One member of the public.

565

Kent County Council Trading Standards; Competition and Markets Authority; Financial Conduct Authority.

566

HM Council of District Judges (Magistrates’ Court); Senior District Judge (Chief Magistrate); Council of Her Majesty’s Circuit Judges; Birmingham Law Society; Norfolk and Suffolk joint Cyber, Intelligence and Serious Organised Crime Directorate; Southern Derbyshire Magistrates’ Bench; The Law Society; Justices’ Clerks’ Society; Magistrates Association; Dijen Basu QC; National Crime Agency; Bar Council and the Criminal Bar Association; Metropolitan Police Service; Competition and Markets Authority; Serious Fraud Office.

567

Professor Richard Stone.

568

Magistrates Association.

569

Kent County Council Trading Standards.

570

Magistrates Association.

571

HM Council of District Judges (Magistrates’ Court); Dijen Basu QC.

572

See Competition Act 1998, ss 28(2) and 28A(2); Enterprise Act 2002, s 194(2).

573

Practice Direction - Application for a Warrant under the Competition Act 1998, para 4.3(7); Practice Direction -Application for a Warrant under the Enterprise Act 2002, para 4.3(9).

574

  D Bailey and L Norbury, Bennion on Statutory Interpretation (8th ed 2020) paras 27.2 and 27.9.

575

 R (Superior Import / Export Ltd) v Revenue and Customs Commissioners [2017] EWHC 3172 (Admin), [2018]

Lloyd’s Rep FC 115 at [85].

576

As indicated at paragraph 7.30(3) above, the Competition Act 1998 and Enterprise Act 2002 clearly do require the name, rather than the role, of an accompanying person by virtue of the practice directions.

577

Consultation Question 30.

578

Professor Richard Stone; HM Council of District Judges (Magistrates’ Court); Senior District Judge (Chief Magistrate); Council of Her Majesty’s Circuit Judges; Guardian News and Media; Birmingham Law Society; Norfolk and Suffolk joint Cyber, Intelligence and Serious Organised Crime Directorate; Southern Derbyshire Magistrates’ Bench; Independent Office for Police Conduct; The Law Society; Justices’ Clerks’ Society; Magistrates Association; Dijen Basu QC; National Crime Agency; Bar Council and the Criminal Bar Association; Metropolitan Police Service; Competition and Markets Authority; Serious Fraud Office; Financial Conduct Authority.

579

Birmingham Law Society; The Law Society; Independent Office for Police Conduct; The Bar Council and the Criminal Bar Association.

580

National Crime Agency; Dijen Basu QC; Guardian News and Media.

581

HM Council of District Judges (Magistrates’ Court); The Senior District Judge (Chief Magistrate); Council of Her Majesty’s Circuit Judges; Southern Derbyshire Magistrates’ Bench; Justices’ Clerks’ Society.

582

Financial Conduct Authority; Serious Fraud Office; Competition and Markets Authority; Metropolitan Police Service.

583

Professor Richard Stone; Norfolk and Suffolk joint Cyber, Intelligence and Serious Organised Crime Directorate

584

Immigration Act 1971, s 28FB; Sexual Offences Act 2003, s 96B; UK Borders Act 2007, s 45(2); Serious Crime Act 2015, s 52 and sch 2; Psychoactive Substances Act 2016, s 39.

585

Consultation Question 32.

586

HM Council of District Judges (Magistrates’ Court); The Senior District Judge (Chief Magistrate); Guardian News and Media; Birmingham Law Society; Norfolk and Suffolk joint Cyber, Intelligence and Serious Organised Crime Directorate; Justices’ Clerks’ Society; Magistrates Association; National Crime Agency; Bar Council and the Criminal Bar Association; Competition and Markets Authority; Serious Fraud Office; Financial Conduct Authority.

587

The Council of Her Majesty’s Circuit Judges; Southern Derbyshire Magistrates’ Bench; The Law Society; Dijen Basu QC; Metropolitan Police Service.

588

Liberty, Response to the Home Office consultation to the Government proposals in response to the Review of the Police and Criminal Evidence Act 1984 (November 2018) para 9.

589

Camenzind v Switzerland (1997) 28 EHRR 458 (App No 21353/93) at [42] and [45]; Klass v Germany (1978) 2 EHRR 214 (App No 5029/71) at [55]; Amarandei v Romania (2016) App No 1443/10 at [224].

590

The Law Commission are currently undertaking a project in respect of the confiscation regime under part 2 of the Proceeds of Crime Act 2002. See https://www.lawcom.gov.uk/project/confiscation-under-part-2-of-the-proceeds-of-crime-act-2002/.

591

R (KBR) v Director of the Serious Fraud Office [2018] EWHC 2368 (Admin), [2019] QB 675 at [69].

592

Welsh Revenue Authority (Powers to Investigate Criminal Offences) Regulations 2018 (SI 2018 No 400), sch 1, para 1.

593

Police and Criminal Evidence Act 1984 (Application to Revenue and Customs) Order 2015 (SI 2015 No 1783), sch 1.

594

Police and Criminal Evidence Act 1984 (Application to immigration officers and designated customs officials in England and Wales) Order 2013 (SI 2013 No 1542), schs 1 and 2.

595

Police and Criminal Evidence Act 1984 (Department of Trade and Industry Investigations) Order 2002 (SI 2002 No 2326), art 3.

596

Police and Criminal Evidence Act 1984 (Application to Labour Abuse Prevention Officers) Regulations 2017 (SI 2017 No 520), reg 3.

597

Kent Pharmaceuticals v Director of the Serious Fraud Office [2002] EWHC 3023 (QB) at [30] by Lord Woolf CJ.

598

Home Office, Policing: Modernising Police Powers to Meet Community Needs - Summary of Responses (January 2005) p 6.

599

Immigration Act 1971; Terrorism Act 2000; Terrorism Act 2006; UK Borders Act 2007; Armed Forces Act 2011; Serious Crime Act 2015; Immigration Act 2016; Psychoactive Substances Act 2016; Ivory Act 2018.

600

Serious Fraud Office; Financial Conduct Authority.

601

Criminal Justice Act 1987, s 2; Financial Services and Markets Act 2000, s 176; Proceeds of Crime Act 2002, s 352.

602

See paragraphs 5.150 to 5.170 above.

603

Police and Criminal Evidence Act 1984, s 18: a constable may enter and search any premises occupied or controlled by a person who is under arrest.

604

Police and Criminal Evidence Act 1984, s 32; a constable may enter and search any premises in which an arrested person was when arrested or immediately before he was arrested for evidence relating to the offence.

605

Powers of seizure under Part 2 of the Criminal Justice and Police Act 2001 provides the power to seize and sift indeterminable or inseparable material off the premises

606

  Joint Committee on Human Rights, Fourth Report (Session 2004-05) HL 26/HC 224, para 1.90.

607

  Joint Committee on Human Rights, Fourth Report (Session 2004-05) HL 26/HC 224, para 1.91.

608

  Joint Committee on Human Rights, Fourth Report (Session 2004-05) HL 26/HC 224, para 1.96.

609

  Liberty, Serious Organised Crime and Police Bill briefing for the Second Reading in the House of Lords (March

2005) para 23.

610

Camenzind v Switzerland (1997) 28 EHRR 458 (App No 21353/93) at [42] and [45]; Klass v Germany (1978) 2 EHRR 214 (App No 5029/71) at [55]; Amarandei v Romania (2016) App No 1443/10 at [224].

611

See Proceeds of Crime Act 2002, s 378 for definitions of senior officers. See also the Proceeds of Crime Act 2002 (References to Financial Investigators) (England & Wales) Order 2015 (SI 2015 No 1853) (as modified by SI 2018 No 318, Sch 1), Sch 1.

612

For example, Firearms Act 1968, s 47(3); Misuse of Drugs Act 1971, s 23(2); Police and Criminal Evidence Act 1984, s 32; Criminal Justice Act 1988, s 139B(1); Terrorism Act 2000, 43(2); Proceeds of Crime Act 2002, s 289(2); Psychoactive Substances Act 2016, s 36(2); Ivory Act 2018, s 14(2) (not yet in force).

613

Police and Criminal Evidence Act 1984, s 32(2)(a)(ii).

614

Terrorism Act 2000, s 43(2).

615

Explosives Act 1875; Official Secrets Act 1911, s 9(1); Theft Act 1968, s 26; Misuse of Drugs Act 1971, s 23(3); Landmines Act 1998, s 18(4); Terrorism Act 2000, Sch 5, paras 1, 2, 11 and 15; Anti-terrorism, Crime and Security Act 2001, s 52; Cluster Munitions (Prohibitions) Act 2010, s 22(7).

616

Police and Criminal Evidence Act 1984 (Application to Revenue and Customs) Order 2015 (SI 2015 No 1783), art 18.

617

Police and Criminal Evidence Act 1984 (Application to Revenue and Customs) Order 2015 (SI 2015 No 1783), art 18(a).

618

Police and Criminal Evidence Act 1984 (Application to Revenue and Customs) Order 2015 (SI 2015 No 1783), art 18(b).

619

Police and Criminal Evidence Act 1984 (Application to immigration officers and designated customs officials in England and Wales) Order 2013 (SI 2013 No 1542), arts 8(2) and 17(2).

620

Police and Criminal Evidence Act 1984 (Application to immigration officers and designated customs officials in England and Wales) Order 2013 (SI 2013 No 1542), arts 8(3) and 17(3).

621

Police and Criminal Evidence Act 1984 (Application to immigration officers and designated customs officials in England and Wales) Order 2013 (SI 2013 No 1542), arts 8(4) and 17(4).

622

R v Keenan [1990] 2 QB 54.

623

National Crime Agency; Dijen Basu QC; DS Parminder Kang, Leicestershire Police.

624

HM Revenue and Customs, HM Revenue and Customs and the Taxpayer: Modernising Powers, Deterrents and Safeguards: Criminal Investigation Powers: Publication of draft clauses and explanatory notes Responses to the August 2006 consultation document (17 January 2007) para 4.

625

HM Revenue and Customs, HM Revenue and Customs and the Taxpayer: Modernising Powers, Deterrents and Safeguards: Criminal Investigation Powers: Publication of draft clauses and explanatory notes Responses to the August 2006 consultation document (17 January 2007) paras 57 and 58.

626

GOV.UK, HMRC’s criminal investigation powers and safeguards guidance (May 2019)

https://www.gov.uk/govemment/publications/criminal-investigation/criminal-investigation

627

Police and Criminal Evidence Act 1984 (Application to immigration officers and designated customs officials in England and Wales) Order 2013 (SI 2013 No 1542), arts 8(2) and 17(2).

628

Kent Pharmaceuticals v Director of the Serious Fraud Office [2002] EWHC 3023 (QB) at [18] by Lord Woolf CJ.

629

R v Adams [1980] Q.B. 575.

630

H Fenwick on Civil Liberties and Human Rights (5th ed 2017) pp 870 to 871; H Snook, Crossing the Threshold: 266 ways the State can enter your home (2007) p 59.

631

These include the Federal Rules of Criminal Procedure (United States), r 41(e)(2)(A)(ii): the hours during which a search warrant must be executed, unless the judge for good cause expressly authorises execution at another time, are 6am to 10pm) and Canada (Criminal Code RSC, 1985, c C-46, s 488: the hours during which a search warrant must be executed, unless the justice is satisfied that there are reasonable grounds for it to be executed by night, are 6am to 9pm).

632

Consultation Question 32.

633

Council of Her Majesty’s Circuit Judges; Guardian News and Media; Birmingham Law Society; Norfolk and Suffolk joint Cyber, Intelligence and Serious Organised Crime Directorate; Independent Office for Police Conduct; The Law Society; Justices’ Clerks’ Society; Magistrates Association; Bar Council and the Criminal Bar Association; Professor Richard Stone.

634

Senior District Judge (Chief Magistrate); Dijen Basu QC; Southern Derbyshire Magistrates’ Bench; National Crime Agency; Metropolitan Police Service; Serious Fraud Office; Competition and Markets Authority; Financial Conduct Authority.

635

Council of Her Majesty’s Circuit Judges; Birmingham Law Society; Southern Derbyshire Magistrates’ Bench; The Law Society; Justices’ Clerks’ Society; Magistrates Association; Bar Council and the Criminal Bar Association; Serious Fraud Office.

636

  Independent Office for Police Conduct; National Crime Agency; Metropolitan Police Service.

637

  Independent Office for Police Conduct; Law Society.

638

Justices’ Clerks’ Society; Professor Richard Stone.

639

  Senior District Judge (Chief Magistrate).

640

  National Crime Agency.

641

  Dijen Basu QC.

642

  Dijen Basu QC.

643

  Serious Fraud Office.

644

  Serious Fraud Office.

645

Kent Pharmaceuticals v Director of the Serious Fraud Office [2002] EWHC 3023 (QB) at [18] by Lord Woolf CJ.

646

For example, in R v Longman [1988] 1 WLR 619, the occupier, who was storing drugs at the premises, lunged at a police officer with a knife when it was discovered that the officers were in fact police officers and not delivering flowers. It was held that subterfuge could be used to gain entry to the premises before complying with the requirements of the Police and Criminal Evidence Act 1984, s 16(5).

647

Consultation Question 33.

648

Professor Richard Stone; HM Council of District Judges (Magistrates’ Court); Senior District Judge (Chief Magistrate); Council of Her Majesty’s Circuit Judges; Birmingham Law Society; Norfolk and Suffolk joint Cyber, Intelligence and Serious Organised Crime Directorate; Southern Derbyshire Magistrates’ Bench; Independent Office for Police Conduct; The Law Society; Justices’ Clerks’ Society; Magistrates Association; Dijen Basu QC; National Crime Agency; Bar Council and the Criminal Bar Association; Metropolitan Police Service; Financial Conduct Authority.

649

Serious Fraud Office.

650

  Code B of PACE (2013) para 6.7.

651

  Code B of PACE (2013) paras 6.7 and 6.8.

652

H Fenwick on Civil Liberties and Human Rights (5th ed 2017) p 870.

653

 Law Society; Dijen Basu QC.

654

 Dijen Basu QC.

655

R (Haly) v Chief Constable of West Midlands Police [2016] EWHC 2932 (Admin) at [3].

656

We discuss this procedure in more detail at paragraphs 9.11 to 9.14 below.

657

Consultation Question 35.

658

One member of the public; Professor Richard Stone; Senior District Judge (Chief Magistrate); Council of Her Majesty’s Circuit Judges; Kent County Council Trading Standards; Birmingham Law Society; Southern Derbyshire Magistrates’ Bench; The Law Society; Justices’ Clerks’ Society; Magistrates Association; Dijen Basu QC; Bar Council and the Criminal Bar Association; Metropolitan Police Service; Financial Conduct Authority.

659

National Crime Agency; Competition and Markets Authority.

660

HM Council of District Judges (Magistrates’ Court); Kent County Council Trading Standards; Independent Office for Police Conduct; Serious Fraud Office.

661

See paragraph 7.179 above.

662

We discuss public interest immunity in Chapter 9 of this report.

663

Code B of PACE (2013) para 6.11.

664

Consultation Question 36.

665

One member of the public; Professor Richard Stone; Senior District Judge (Chief Magistrate); Council of Her Majesty’s Circuit Judges; Birmingham Law Society; Norfolk and Suffolk joint Cyber, Intelligence and Serious Organised Crime Directorate; Southern Derbyshire Magistrates’ Bench; The Law Society; Justices’ Clerks’ Society; Magistrates Association; Dijen Basu QC; Bar Council and the Criminal Bar Association.

666

Kent County Council Trading Standards; Metropolitan Police Service; Financial Conduct Authority.

667

One member of the public; HM Council of District Judges (Magistrates’ Court); National Crime Agency; Competition and Markets Authority; Serious Fraud Office.

668

Professor Richard Stone; Senior District Judge (Chief Magistrate); Council of Her Majesty’s Circuit Judges; Birmingham Law Society; Norfolk and Suffolk joint Cyber, Intelligence and Serious Organised Crime Directorate; Southern Derbyshire Magistrates’ Bench; Justices’ Clerks’ Society; Magistrates Association; Dijen Basu QC; Bar Council and the Criminal Bar Association; Serious Fraud Office.

669

Kent County Council Trading Standards.

670

Independent Office for Police Conduct; National Crime Agency.

671

Professor Richard Stone; Council of Her Majesty’s Circuit Judges; Birmingham Law Society; Norfolk and Suffolk joint Cyber, Intelligence and Serious Organised Crime Directorate; Southern Derbyshire Magistrates’ Bench; Independent Office for Police Conduct; Justices’ Clerks’ Society; Magistrates Association; Dijen Basu QC; Bar Council and the Criminal Bar Association; Serious Fraud Office.

672

National Crime Agency; Metropolitan Police Service.

673

 Kent County Council Trading Standards.

674

Serious Fraud Office.

675

 Metropolitan Police Services.

676

 Independent Office for Police Conduct.

677

 Financial Conduct Authority.

678

 Independent Office for Police Conduct.

679

 Financial Conduct Authority.

680

 Matthew Hardcastle, Solicitor at Kingsley Napley, during the Red Lion Lecture Series, Challenging Search

Warrants, 25 June 2019.

681

 Financial Conduct Authority.

682

 Serious Fraud Office.

683

 Financial Conduct Authority.

684

 Financial Conduct Authority.

685

Bar Council and the Criminal Bar Association.

686

Note that such consultation is required by statute in most circumstances: before revising a Code of Practice, the Secretary of State must consult a set group of organisations and such other persons as they think fit (see Police and Criminal Evidence Act 1984, s 67(4)).

687

Arnold LJ has recently called for the Law Commission to review the practice on awards of costs against regulatory bodies who are unsuccessful in litigation: see Competition and Markets Authority v Flynn Pharma Ltd [2020] EWCA Civ 617, [2020] Costs LR 695 at [110].

688

Judicial review guides suggest that the overall legal costs for a judicial review case could amount to £30,000 or more. See Public Law Project, An Introduction to Judicial Review (2019) p 13.

689

Criminal Justice and Police Act 2001, sch 1, part 1, paras 35, 56A and 73P.

690

R (Chaudhary) v Bristol Crown Court [2014] EWHC 4096 (Admin), [2015] 1 Cr App R 18 at [61]; and R (Goode) v Nottingham Crown Court [2013] EWHC 1726 (Admin), [2014] ACD 6 at [50] and [51].

691

R (Panesar) v Central Criminal Court [2014] EWHC 2821 (Admin), [2015] 1 WLR 2577 at [44].

692

Consultation Question 37.

693

Consultation Question 38.

694

Professor Richard Stone; Crown Prosecution Service; Kent County Council Trading Standards; Insolvency Service; Birmingham Law Society; Norfolk and Suffolk joint Cyber, Intelligence and Serious Organised Crime Directorate; Southern Derbyshire Magistrates’ Bench; The Law Society; Justices’ Clerks’ Society; Magistrates Association; Bar Council and the Criminal Bar Association.

695

HM Council of District Judges (Magistrates’ Court); Council of Her Majesty’s Circuit Judges; Dijen Basu QC; Metropolitan Police Service; Competition and Markets Authority; Financial Conduct Authority.

696

Senior District Judge (Chief Magistrate); Independent Office for Police Conduct; National Crime Agency; Members of the Senior Judiciary.

697

Insolvency Service.

698

Birmingham Law Society.

699

Bar Council and the Criminal Bar Association.

700

Independent Office for Police Conduct.

701

Financial Conduct Authority; Crown Prosecution Service.

702

  Serious Fraud Office.

703

  Serious Fraud Office.

704

  Kent County Council Trading Standards

705

Law Society; Bar Council and the Criminal Bar Association.

706

  Bar Council and the Criminal Bar Association.

707

Dijen Basu QC; Serious Fraud Office.

708

  Metropolitan Police Service.

709

  Senior District Judge (Chief Magistrate).

710

  Financial Conduct Authority.

711

  Crown Prosecution Service.

712

Council of Her Majesty’s Circuit Judges; Senior District Judge (Chief Magistrate); Financial Conduct Authority; Serious Fraud Office.

713

  Metropolitan Police Service.

714

  Serious Fraud Office.

715

  Metropolitan Police Service.

716

  Dijen Basu QC.

717

  Financial Conduct Authority; Serious Fraud Office.

718

  Financial Conduct Authority.

719

  Serious Fraud Office.

720

  Dijen Basu QC.

721

  Serious Fraud Office.

722

Serious Fraud Office. See R (Chatwani) v National Crime Agency [2015] EWHC 1283 (Admin), [2015] ACD 110 at [101] to [104] in which the Administrative Court found that there was considerable overlap between two broad grounds of this nature.

723

Serious Fraud Office.

724

  Metropolitan Police Service; Serious Fraud Office.

725

  Financial Conduct Authority.

726

  Financial Conduct Authority.

727

  Consultation Question 34: we provisionally proposed that a person executing a search warrant should provide the

occupier with an authoritative guide to search powers, written in plain English for non-lawyers and available in other languages. Consultation Question 35: we provisionally proposed that a search warrant should be required to clearly state that the occupier is entitled to the information sworn in support of the warrant and provide instructions on how to apply for a copy of that information.

728

  Metropolitan Police Service.

729

  Competition and Markets Authority.

730

HM Council of District Judges (Magistrates’ Court).

731

National Crime Agency.

732

R (Goode) v Nottingham Crown Court [2013] EWHC 1726 (Admin), [2014] ACD 6 at [51]. The point was reiterated in R (Chaudhary) v Bristol Crown Court [2014] EWHC 4096 (Admin), [2015] 1 Cr App R 18 at [61].

733

See also Jones v CPS [2019] EWHC 2826 (Admin) at [17].

734

See R (AL) v Serious Fraud Office [2018] EWHC 856 (Admin), [2018] 1 WLR 4557 at [65].

735

R (Panesar) v Central Criminal Court [2014] EWHC 2821 (Admin), [2015] 1 WLR 2577 at [21].

736

Criminal Justice and Police Act 2001, s 59(7).

737

Court Sitting Days Under Review as Backlog of Cases Rises (18 October 2019),

https://www.thetimes.co.uk/article/court-sitting-days-under-review-as-backlog-of-cases-rises-bthg3cdx3.

738

https://www.policeconduct.gov.uk/recommendations/national-recommendations-and-recommendations-made-metropolitan-police-service.

739

Explanatory Notes to the Criminal Justice and Police Act 2001, para 176, http://www.legislation.gov.uk/ukpga/2001/16/notes/division/3/2/1/10.

740

R (Panesar) v Central Criminal Court [2014] EWHC 2821 (Admin), [2015] 4 All ER 754 at [21].

741

Crime (Overseas Production Orders) Bill: Impact Assessment, https://publications.parliament.uk/pa/bills/lbill/2017-2019/0113/18113-impact-assessment.pdf.

742

Glencore Energy UK Limited v Commissioners of HMRC [2017] EWHC 1476 (Admin), [2017] STC 1824.

743

  R (AL) v Serious Fraud Office [2018] EWHC 856 (Admin), [2018] 1 WLR 4557 at [55].

744

  R (Panesar) v Central Criminal Court [2014] EWHC 2821 (Admin), [2014] EWCA Civ 1613, [2015] 1 WLR 2577; R

(Business Energy Solutions Ltd) v Preston Crown Court [2018] EWHC 1534 (Admin), [2018] 1 WLR 4887 at [121].

745

Metropolitan Police Service.

746

The Divisional Court has held that to “return” material includes deleting copies of it: R (Business Energy Solutions Ltd) v Preston Crown Court [2018] EWHC 1534 (Admin), [2018] 1 WLR 4887 at [17].

747

R (Business Energy Solutions Ltd) v Preston Crown Court [2018] EWHC 1534 (Admin), [2018] 1 WLR 4887 at [125].

748

By complaint to the individual police force or the Independent Office for Police Conduct.

749

  By complaint to the National Crime Agency or the Independent Office for Police Conduct.

750

  By complaint to HM Revenue and Customs or the Independent Office for Police Conduct.

751

By complaint to the Serious Fraud Office.

752

By using the complaints scheme set up under the Financial Services Act 2012, Pt 6.

753

By complaint to the chief executive of the person’s local authority.

754

R (Chatwani) v National Crime Agency [2015] EWHC 1283 (Admin), [2015] ACD 110 at [2].

755

Senior Courts Act 1981, s 45(1) and (4).

756

  R (Chaudhary) v Crown Court at Bristol (No 2)

757

  R (Chaudhary) v Crown Court at Bristol (No 2)

758

  Channel 4 v MPS [2019] 1 Costs LR 67 at [85]

759

Consultation Question 40.

760

HM Council of District Judges (Magistrates’ Court); Senior District Judge (Chief Magistrate); Norfolk and Suffolk joint Cyber, Intelligence and Serious Organised Crime Directorate; Justices’ Clerks’ Society; Magistrates Association; Bar Council and the Criminal Bar Association; Metropolitan Police Service; Financial Conduct Authority; Serious Fraud Office.

761

Council of Her Majesty’s Circuit Judges; The Law Society.

762

Crown Prosecution Service; National Crime Agency.

763

Evans v Serious Fraud Office [2015] EWHC 263 (QB), [2015] 1 WLR 3595.

764

Channel 4 v Metropolitan Police Service [2019] 1 Costs LR 67 at [75].

765

  R (Chaudhary) v Crown Court at Bristol (No 2) [2015] EWHC 723 (Admin), [2016] 1 WLR 631 at [36].

766

  Criminal Justice and Police Act 2001, s 59(4), (6) and (9).

767

R (Goode) v Nottingham Crown Court [2013] EWHC 1726 (Admin), [2014] ACD 6 at [49] to [50]; and R (Dulai) v Chelmsford Magistrates’ Court [2012] EWHC 1055 (Admin), [2013] 1 WLR 220 at [38].

768

  Dijen Basu QC; Bar Council and the Criminal Bar Association; Serious Fraud Office.

769

  Dijen Basu QC; Bar Council and the Criminal Bar Association; Serious Fraud Office.

770

R (Haralambous) v Crown Court at St Albans [2018] UKSC 1, [2018] AC 236 at [27].

771

Commissioner of the Metropolis v Bangs [2014] EWHC 546 (Admin), (2014) 178 JP 158.

772

R (Austen) v Chief Constable of Wiltshire Police and South East Wiltshire Magistrates’ Court [2011] EWHC 3386 (Admin) at [49]; Fitzgerald v Preston Crown Court [2018] EWHC 804 (Admin) at [8].

773

See also Competition and Markets Authority v Concordia International RX (UK) Ltd [2018] EWHC 3448 (Ch), [2019] Lloyd’s Rep FC 183; and R (Jordan) v Chief Constable of Merseyside Police [2020] EWHC 2274 (Admin) at [12].

774

EastEnders Cash & Carry v South Western Magistrates Court [2011] EWHC 937 (Admin), [2011] 2 Cr App R 11 at [7].

775

Al Rawi v Security Services [2011] UKSC 34, [2012] 1 AC 531 at [145]; R v Chief Constable of West Midlands Police ex parte Wiley [1995] 1 AC 274, 280 to 281; and R (Jordan) v Chief Constable of Merseyside Police [2020] EWHC 2274 (Admin) at [17].

776

  Commissioner of Police for the Metropolis v Bangs [2014] EWHC 546 (Admin), (2014) 178 JP 158 at [40].

777

  Commissioner of the Metropolis v Bangs [2014] EWHC 546 (Admin), (2014) 178 JP 158 at [50].

778

  R (Jordan) v Chief Constable of Merseyside Police [2020] EWHC 2274 (Admin) at [17(e)].

779

  Conway v Rimmer [1968] AC 910, 952 per Lord Reid; and Commissioner of the Metropolis v Bangs [2014] EWHC

546 (Admin), (2014) 178 JP 158 at [48].

780

Chief Constable of the Greater Manchester Police v McNally [2002] EWCA Civ 14, [2002] 2 Cr App R 37; and Commissioner of the Metropolis v Bangs [2014] EWHC 546 (Admin), (2014) 178 JP 158 at [45].

781

  Commissioner of the Metropolis v Bangs [2014] EWHC 546 (Admin), (2014) 178 JP 158 at [49].

782

  Commissioner of the Metropolis v Bangs [2014] EWHC 546 (Admin), (2014) 178 JP 158 at [49].

783

  R v Chief Constable of West Midlands Police ex parte Wiley [1995] 1 AC 274, 306 to 307; and Commissioner of the

Metropolis v Bangs [2014] EWHC 546 (Admin), (2014) 178 JP 158 at [42].

784

  R (Haralambous) v Crown Court at St Albans [2018] UKSC 1, [2018] AC 236 at [65].

785

  Commissioner of the Metropolis v Bangs [2014] EWHC 546 (Admin), (2014) 178 JP 158 at [43].

786

See for example R (Jordan) v Chief Constable of Merseyside Police [2020] EWHC 2274 (Admin).

787

  R (Jordan) v Chief Constable of Merseyside Police [2020] EWHC 2274 (Admin) at [35].

788

  R (Haralambous) v Crown Court at St Albans [2018] UKSC 1, [2018] AC 236 at [27].

789

Consultation Question 41.

790

Crown Prosecution Service; HM Council of District Judges (Magistrates’ Court); Senior District Judge (Chief Magistrate); Council of Her Majesty’s Circuit Judges; Norfolk and Suffolk joint Cyber, Intelligence and Serious Organised Crime Directorate; Southern Derbyshire Magistrates’ Bench; Independent Office for Police Conduct; The Law Society; Magistrates Association; Dijen Basu QC; Bar Council and the Criminal Bar Association; Metropolitan Police Service; National Crime Agency; Competition and Markets Authority; Serious Fraud Office; Financial Conduct Authority.

791

Crown Prosecution Service; Independent Office for Police Conduct; Metropolitan Police Service; National Crime Agency; Serious Fraud Office.

792

HM Council of District Judges (Magistrates’ Court); Senior District Judge (Chief Magistrate); Council of Her Majesty’s Circuit Judges; Norfolk and Suffolk joint Cyber, Intelligence and Serious Organised Crime Directorate; Southern Derbyshire Magistrates’ Bench; The Law Society; Magistrates Association; Dijen Basu QC; Bar Council and the Criminal Bar Association; Competition and Markets Authority; Financial Conduct Authority.

793

Crown Prosecution Service; National Crime Agency; Metropolitan Police Service; Serious Fraud Office; Financial Conduct Authority.

794

R (Haralambous) v Crown Court at St Albans [2018] UKSC 1, [2018] AC 236 at [27].

795

R (Haralambous) v Crown Court at St Albans [2018] UKSC 1, [2018] AC 236 at [27].

796

For example, “five-page sensitive material document provided”.

797

R (Haralambous) v Crown Court at St Albans [2018] UKSC 1, [2018] AC 236 at [65].

798

Crown Prosecution Service; Metropolitan Police Service; Serious Fraud Office.

799

R (Sustainable Development Capital LLP) V Secretary of State for Business, Energy and Industrial Strategy [2017] EWHC 771 (Admin) at [32].

800

  [2004] UKHL 3, [2004] 2 AC 134 at [36]. The House of Lords held that the court must address a series of questions,

including whether there is a real risk of serious prejudice to an important public interest (and, if so, what) if full disclosure of the material is ordered.

801

The Criminal Practice Directions, which are issued under the authority of the Lord Chief Justice, operate in conjunction with the CrimPD in a supplementary manner, thereby forming an integrated procedural framework for criminal cases.

802

R v Grafton [1993] QB 101.

803

Commissioner of the Metropolis v Bangs [2014] EWHC 546 (Admin), (2014) 178 JP 158.

804

  R (Cronin) v Sheffield Justices [2002] EWHC 2568 (Admin), [2003] 1 WLR 752 at [29].

805

  The definition of “return” was construed in such a fashion by the Divisional Court in Business Energy Solutions Ltd v

Crown Court at Preston [2018] EWHC 1534 (Admin), [2018] 1 WLR 4887 at [83].

806

  See R (Van der Pijl) v Kingston Crown Court [2012] EWHC 3745 (Admin), [2013] 1 WLR 2706 at [88] where Wilkie J

quashed a warrant and ordered the return of property seized under warrant. In doing so, he considered that it would not be just to quash the warrant on terms which would stop the investigator from being able to make an application to the Crown Court under the Criminal Justice and Police Act 2001, s 59. See also R (Panesar) v Central Criminal Court [2014] EWHC 2821 (Admin), [2015] 4 All ER 754.

807

Mouncher v Chief Constable of South Wales [2016] EWHC 1367 (QB) at [452].

808

Police and Criminal Evidence Act 1984, s 10. We discuss the treatment of legally privileged material in Chapter 11.

809

Criminal Justice and Police Act 2001, ss 50(4) and 51(4).

810

Police and Criminal Evidence Act 1984, s 11. We discuss the treatment of excluded material in Chapter 12.

811

Police and Criminal Evidence Act 1984, s 14. We discuss the treatment of special procedure material in Chapter 13.

812

Police and Criminal Evidence Act 1984, s 10(1).

813

Police and Criminal Evidence Act 1984, s 8(1)(d). A similar exception is found in other search warrant provisions.

814

Police and Criminal Evidence Act 1984, s 10(2).

815

See Search Warrants: Consultation Paper (2018) Law Commission CP No 235 para 9.26.

816

R v Norman [2016] EWCA Crim 1564, [2017] 4 WLR 16 at [39].

817

Consultation Question 47.

818

A summary of the legal principles was recently distilled by the High Court in Addlesee v Dentons Europe LPP [2020] EWHC 238 (Ch) at [28] to [35].

819

R v Cox and Railton (1884) 14 QBD 153, 167.

820

R v Cox and Railton (1884) 14 QBD 153, 167.

821

JSC BTA Bank v Ablyazov [2014] EWHC 2788 (Comm), [2014] 2 CLC 263 at [68].

822

Kuwait Airlines Corp v Iraqi Airways Co (No 6) [2005] EWCA Civ 286, [2005] 1 WLR 2734.

823

R v Cox and Railton (1884) 14 QBD 153, 168; Kuwait Airlines Corp v Iraqi Airways Co (No 6) [2005] EWCA Civ 286,

[2005] 1 WLR 2734 at [14].

824

R v Central Criminal Court ex parte Francis & Francis [1989] 1 AC 346, 395H to 397C.

825

Police and Criminal Evidence Act 1984, s 10(1).

826

Police and Criminal Evidence Act 1984, s 10(2).

827

R v Central Criminal Court ex parte Francis & Francis [1989] 1 AC 346, 355.

828

Hansard (HC), 3 May 1983, vol 42, cols 165 to 166.

829

Police and Criminal Evidence Act 1984, s 9(2).

830

Police and Criminal Evidence Act 1984, sch 1, paras 3 and 12.

831

For example, Terrorism Act 2000, sch 5, para 4.

832

Hansard (HC), 3 May 1983, vol 42, col 120.

833

The Leveson Inquiry, “Submission for module 4 on behalf of the Metropolitan Police Service” (10 July 2012), para

3.1.

834

The Leveson Inquiry, vol 4, paras 9.10 to 9.11. Emphasis in original.

835

R v Norman [2016] EWCA Crim 1564, [2017] 4 WLR 16.

836

 R v Norman [2016] EWCA Crim 1564, [2017] 4 WLR 16 at [39].

837

 JSC BTA Bank v Ablyazov [2014] EWHC 2788 (Comm), [2014] 2 CLC 263 at [68].

838

  Williams v Quebrada [1895] 2 Ch 751, 754 to 755.

839

  Unlike previous Acts, the Crime (Overseas Production Orders) Act dispenses with the distinction between

confidential and non-confidential journalistic material. The distinction would be unnecessary as the Act exempts all journalistic material from the scope of an Overseas Production Order.

840

Investigatory Powers Act 2016, s 264(5); Crime (Overseas Production Orders) Act 2019, s 12(6).

841

  Liberty v Home Office [2019] EWHC 2057 (Admin), [2020] 1 WLR 243.

842

  Liberty v Home Office [2019] EWHC 2057 (Admin), [2020] 1 WLR 243 at [352].

843

See also Fitzgerald v Preston Crown Court [2018] EWHC 804 (Admin) at [69], in which one of the challenges made to a search warrant was that there was no jurisdiction to issue a warrant under the Police and Criminal Evidence Act 1984, sch 1 for special procedure material as the investigator was not seeking confidential business records but iniquitous material over which there could be neither confidentiality nor privilege.

844

See para 10.21 above.

845

As we note at paragraph 10.40 above, however, this statutory amendment would go further than codifying the decision in Norman.

846

SC BTA Bank v Ablyazov (No 13) [2014] EWHC 2788.

847

R v Norman [2016] EWCA Crim 1564, [2017] 4 WLR 16 at [39].

848

 R v Norman [2016] EWCA Crim 1564, [2017] 4 WLR 16 at [39].

849

  We note that this case concerns whether prosecution is in the public interest rather than whether the confidentiality

of the journalistic material itself is precluded.

850

Protection of Official Data: A Consultation Paper (2017), Law Commission CP No 320.

851

We have now published our final report in which we recommend that public interest defences be created for public servants and civilians, including journalists, that they can rely upon in court if prosecuted for an offence under the Official Secrets Act 1989. See Protection of Official Data: Report (2020), Law Com No 395 (available at https://www.lawcom.gov.uk/project/protection-of-official-data/).

852

Certain types of behaviour, such as insider dealing and market manipulation, can amount to market abuse. See

https://www.fca.org.uk/markets/market-abuse.

853

HM Council of District Judges (Magistrates’ Courts); Council of Her Majesty’s Circuit Judges; Norfolk and Suffolk joint Cyber, Intelligence and Serious Organised Crime Directorate; Northumbria Law School Centre for Evidence and Criminal Justice Studies; Dijen Basu QC; Bar Council & Criminal Bar Association; Metropolitan Police Service; Financial Conduct Authority; HM Revenue and Customs.

854

Nick Barnard, Senior Associate at Corker Binning, has recently written that the crime-fraud exception may be underutilised or misunderstood. See Nick Barnard, “Crime, fraud and iniquity - how can an allegation of wrongdoing override Legal Professional Privilege?” Corker Binning Blog (5 July 2020) (available at

https://www.corkerbinning.Com/crime-fraud-iniquity-wrongdoing-legal-professional-privilege/# ftn3)

855

The Leveson Inquiry, vol 4, para 9.10. See R (Malik) v Manchester Crown Court [2008] EWHC 1362 (Admin), [2008] 4 All ER 403 at [48] per Dyson LJ.

856

Bar Council, Barristers instructed as “Independent Counsel” to advise upon legal professional privilege in relation to seized material (November 2019), https://www.barcouncilethics.co.uk/wp-content/uploads/2017/10/LPP-Independent-Counsel-in-relation-to-seized-material.pdf.

857

R v Middlesex Guildhall Crown Court ex parte Tamosius & Partners [2000] 1 WLR 453, R (Rawlinson & Hunter Trustees & Others) v Central Criminal Court, the Director of the Serious Fraud Office [2012] EWHC 2254 (Admin), [2013] 1 WLR 1634 and R (McKenzie) v Director of the Serious Fraud Office [2016] EWHC 102 (Admin), [2016] 1 WLR 1308.

858

Bar Council, Barristers instructed as “Independent Counsel” to advise upon legal professional privilege in relation to seized material (November 2019), https://www.barcouncilethics.co.uk/wp-content/uploads/2017/10/LPP-Independent-Counsel-in-relation-to-seized-material.pdf.

859

Attorney General’s Guidelines on Disclosure: Supplementary Guidelines on Digitally Stored Material (2011), https://www.gov.uk/government/uploads/system/uploads/attachment data/file/16239/Attomey General s guideline s on disclosure 2011.pdf.

860

Consultation Question 42.

861

Professor Richard Stone; HM Council of District Judges (Magistrates’ Court); Senior District Judge (Chief Magistrate); Council of Her Majesty’s Circuit Judges; Kent County Council Trading Standards; Guardian News and Media; Birmingham Law Society; Norfolk and Suffolk joint Cyber, Intelligence and Serious Organised Crime Directorate; Southern Derbyshire Magistrates’ Bench; The Law Society; Justices’ Clerks’ Society; Magistrates Association; Bar Council and the Criminal Bar Association.

862

Crown Prosecution Service; Insolvency Service; Dijen Basu QC; National Crime Agency; Competition and Markets Authority; Financial Conduct Authority.

863

Northumbria Law School Centre for Evidence and Criminal Justice Studies; Metropolitan Police Service; Serious Fraud Office.

864

Professor Richard Stone; The Senior District Judge (Chief Magistrate); Southern Derbyshire Magistrates’ Bench;

Council of Her Majesty’s Circuit Judges; Norfolk and Suffolk joint Cyber, Intelligence and Serious Organised Crime Directorate; Guardian News and Media.

865

HM Council of District Judges (Magistrates’ Court).

866

Birmingham Law Society.

867

See paragraph Error! Reference source not found. below.

868

R (Rawlinson and Hunter Trustees) v Central Criminal Court [2012] EWHC 2254 (Admin), [2013] 1 WLR 1634.

869

R (McKenzie) v Director of the Serious Fraud Office [2016] EWHC 102 (Admin), [2016] 1 WLR 1308.

870

Consultation Question 43.

871

Professor Richard Stone; HM Council of District Judges (Magistrates’ Court); Crown Prosecution Service; Senior District Judge (Chief Magistrate); Council of Her Majesty’s Circuit Judges; Guardian News and Media; Insolvency Service; Birmingham Law Society; Norfolk and Suffolk joint Cyber, Intelligence and Serious Organised Crime Directorate; Southern Derbyshire Magistrates’ Bench; Northumbria Law School Centre for Evidence and Criminal Justice Studies; The Law Society; Justices’ Clerks’ Society; Magistrates Association; Dijen Basu QC; Bar Council and the Criminal Bar Association; Metropolitan Police Service; National Crime Agency; Competition and Markets Authority; Serious Fraud Office; Financial Crime Authority.

872

Professor Richard Stone; HM Council of District Judges (Magistrates’ Court); Senior District Judge (Chief Magistrate); Council of Her Majesty’s Circuit Judges; Guardian News and Media; Insolvency Service; Birmingham Law Society; Norfolk and Suffolk joint Cyber, Intelligence and Serious Organised Crime Directorate; Southern Derbyshire Magistrates’ Bench; Justices’ Clerks’ Society; Magistrates Association; Bar Council and the Criminal Bar Association; National Crime Agency; Serious Fraud Office.

873

The Law Society; Dijen Basu QC; Competition and Markets Authority.

874

Crown Prosecution Service; Northumbria Law School Centre for Evidence and Criminal Justice Studies; Metropolitan Police Service.

875

HM Council of District Judges (Magistrates’ Court); Senior District Judge (Chief Magistrate); Norfolk and Suffolk joint Cyber, Intelligence and Serious Organised Crime Directorate; Southern Derbyshire Magistrates’ Bench; Justices’ Clerks’ Society; Magistrates Association.

876

This point was also made by the Metropolitan Police Service and Financial Conduct Authority.

877

  See paragraph 17.101 below.

878

  See paragraph 17.133 below.

879

See paragraph Error! Reference source not found. below.

880

We discuss the treatment of legally privileged material in Chapter 11 of this report.

881

We discuss the treatment of special procedure material in Chapter 13 of this report.

882

Ivory Act 2018, s 24(2)(b); Higher Education and Research Act 2017, sch 5, para 6(5)(b); Psychoactive Substances Act 2016, s 44(2)(b); Armed Forces Act 2006, s 83(4); Extradition Act 2003, s 174(3)(a); Proceeds of Crime Act 2002, s 379; Terrorism Act 2000, sch 5, para 4(a).

883

Police and Criminal Evidence Act 1984, s 11(1).

884

The provisions which are discussed in this section permit the seizure or production of both excluded material and special procedure material. To avoid repetition in the next chapter on special procedure material, we discuss what the position should be in respect of both excluded material and special procedure material.

885

Police and Criminal Evidence Act 1984, s 11(1)(a).

886

Police and Criminal Evidence Act 1984, s 11(2).

887

Police and Criminal Evidence Act 1984, s 9(2).

888

   Police and Criminal Evidence Act 1984, ss 18(2), 19(2) and (3), 20(1) and 32(9).

889

  Police and Criminal Evidence Act 1984, s 9(2). Material in the possession of a person who acquired or created it in

the course of any trade, business, profession or other occupation or for the purpose of any paid or unpaid office and which relates to a matter in relation to which HM Revenue and Customs have functions, is neither excluded material nor special procedure material for the purposes of any enactment such as is mentioned in the Police and Criminal Evidence Act 1984, s 9(2). See Police and Criminal Evidence Act 1984 (Application to Revenue and Customs) Order 2015 (SI 2015 No 1783), art 6.

890

  Police and Criminal Evidence Act 1984, s 8(1)(d).

891

  Police and Criminal Evidence Act 1984, s 8(2).

892

Criminal Justice and Police Act 2001, ss 54 and 55.

893

Special procedure material can be obtained under the “first set of access conditions” under the Police and Criminal Evidence Act 1984, sch 1, para 2, which is discussed in detail in the next chapter.

894

  Police and Criminal Evidence Act 1984, sch 1, para 3.

895

  Police and Criminal Evidence Act 1984, sch 1, para 4.

896

  Police and Criminal Evidence Act 1984, sch 1, para 14.

897

  Police and Criminal Evidence Act 1984, sch 1, para 12.

898

We provide a description of these provisions at paragraph 12.194 below.

899

R v Central Criminal Court ex parte Brown, The Times 7 September 1992.

900

R v Singleton [1995] 1 Cr App R 431, 438.

901

R v Cardiff Crown Court ex parte Kellam, The Times 3 May 1993.

902

Consultation Question 44.

903

City of London Economic Crime Academy; NHS Counter Fraud Authority; Department for Work and Pensions;

Professor Richard Stone; HM Council of District Judges (Magistrates’ Courts); Crown Prosecution Service; Senior District Judge (Chief Magistrate); Council of Her Majesty’s Circuit Judges; Birmingham Law Society; Norfolk and Suffolk joint Cyber, Intelligence and Serious Organised Crime Directorate; Southern Derbyshire Magistrates’ Bench; Northumbria Law School Centre for Evidence and Criminal Justice Studies; The Law Society; Justices’ Clerks’ Society; Magistrates Association; Dijen Basu QC; Bar Council & Criminal Bar Association; Metropolitan Police Service; National Crime Agency; Serious Fraud Office; Financial Conduct Authority.

904

Professor Richard Stone; HM Council of District Judges (Magistrates’ Court); Crown Prosecution Service; Senior District Judge (Chief Magistrate); Council of Her Majesty’s Circuit Judges; Birmingham Law Society; Norfolk and Suffolk joint Cyber, Intelligence and Serious Organised Crime Directorate; Southern Derbyshire Magistrates’ Bench; Northumbria Law School Centre for Evidence and Criminal Justice Studies; The Law Society; Justices’ Clerks’ Society; Magistrates Association; Dijen Basu QC; Bar Council & Criminal Bar Association; Metropolitan Police Service; National Crime Agency.

905

Professor Richard Stone; HM Council of District Judges (Magistrates’ Court); Crown Prosecution Service; Senior District Judge (Chief Magistrate); Council of Her Majesty’s Circuit Judges; Birmingham Law Society; Norfolk and Suffolk joint Cyber, Intelligence and Serious Organised Crime Directorate; Southern Derbyshire Magistrates’ Bench; The Law Society; Justices’ Clerks’ Society; Magistrates Association; Dijen Basu QC; Bar Council & Criminal Bar Association; Metropolitan Police Service.

906

Professor Richard Stone; HM Council of District Judges (Magistrates’ Court); Crown Prosecution Service; Senior District Judge (Chief Magistrate); Council of Her Majesty’s Circuit Judges; Birmingham Law Society; Norfolk and Suffolk joint Cyber, Intelligence and Serious Organised Crime Directorate; Southern Derbyshire Magistrates’ Bench; The Law Society; Justices’ Clerks’ Society; Magistrates Association; Dijen Basu QC; Bar Council & Criminal Bar Association; Metropolitan Police Service.

907

Police and Criminal Evidence Act 1984, sch 1, para 3(b).

908

We have anonymised the name of the police force and the description of the case.

909

General Medical Council, Confidentiality: good practice in handling patient information (25 May 2018), available at https://www.gmc-uk.org/ethical-guidance/ethical-guidance-for-doctors/confidentiality.

910

General Medical Council, Confidentiality: good practice in handling patient information (25 May 2018) at para 93.

911

  General Medical Council, Confidentiality: good practice in handling patient information (25 May 2018) at para 64.

912

  General Medical Council, Confidentiality: good practice in handling patient information (25 May 2018) at para 65.

913

  A Caldicott Guardian is a senior person responsible for protecting the confidentiality of people’s health and care

information and making sure it is used properly. All NHS organisations and local authorities which provide social services must have a Caldicott Guardian.

914

Council of Her Majesty’s Circuit Judges; Birmingham Law Society; Norfolk and Suffolk joint Cyber, Intelligence and Serious Organised Crime Directorate; Southern Derbyshire Magistrates’ Bench; Northumbria Law School Centre for Evidence and Criminal Justice Studies; Bar Council & Criminal Bar Association; National Crime Agency.

915

Professor Richard Stone; Crown Prosecution Service; Council of Her Majesty’s Circuit Judges; Birmingham Law Society; Norfolk and Suffolk joint Cyber, Intelligence and Serious Organised Crime Directorate; Dijen Basu QC; Bar Council & Criminal Bar Association; National Crime Agency.

916

Terrorism Act 2000, sch 5, para 6(2)(a).

917

UK Caldicott Guardian Council meeting (12 February 2020). Meeting minutes can be viewed at https://www.ukcgc.uk/news/2020/02/council-meeting.

918

  Police and Criminal Evidence Act 1984 (Application to Revenue and Customs) Order 2015 (SI 2015 No 1783), art 6.

919

  See paragraphs 12.17 to 12.22 above.

920

  For a discussion of the problem see Alex Davidson, “Production Orders: R (BBC) v Newcastle Crown Court (Case

Comment)” [2020] Criminal Law Review 247, 252.

921

See page 10 of the “Application for a search warrant under PACE schedule 1, paragraph 12, CrimPR 47.30”,

available at http://www.justice.gov.uk/courts/procedure-rules/criminal/forms.

922

Police and Criminal Evidence Act 1984, sch 1, para 3(c).

923

Alex Davidson, “Production Orders: R (BBC) v Newcastle Crown Court (Case Comment)” [2020] Criminal Law Review 247, 252.

924

Police and Criminal Evidence Act 1984, sch 1, para 3(c).

925

Hansard (HC), 3 May 1983, vol 42, col 117.

926

Hansard (HC), 3 May 1983, vol 42, cols 39 to 40 and 101 to 102.

927

Hansard (HC), 3 May 1983, vol 42, col 85.

928

We provide a description of these provisions at paragraph 12.194 below.

929

Available at https://www.ukcgc.Uk/news/2019/5/22/sharing-information-with-the-police-to-help-trace-missing-personstthe-process-considerations-and-egaLbasis.

930

British Medical Association, Access to Health Records (November 2019) p 8.

931

General Medical Council, Confidentiality: good practice in handling patient information (25 May 2018) paras 64 and

65.

932

Coroners and Justice Act 2009, sch 5; Health and Social Care Act 2008, s 64.

933

Health and Social Care Act 2008, ss 62 to 63. Provisions which empower a coroner, when authorised by or on behalf of the Chief Coroner, to enter land, search and seize material have not been brought into force: see Coroners and Justice Act 2009, sch 5, paras 3 to 5.

934

Health and Social Care Act 2008, s 62(1).

935

  R (BBC) v Newcastle Crown Court [2019] EWHC 2756 (Admin), [2020] 1 Cr App R 16 at [28].

936

  Alex Davidson, “Production Orders: R (BBC) v Newcastle Crown Court (Case Comment)” [2020] Criminal Law

Review 247, 251.

937

British Medical Association, Access to Health Records (November 2019) p 8.

938

National Data Guardian Panel meeting (18 December 2019).

939

We set out the first set of access conditions at paragraph 13.11 below.

940

Terrorism Act 2000, sch 5, para 5.

941

Terrorism Act 2000, sch 5, para 6.

942

National Data Guardian Panel meeting (18 December 2019).

943

UK Caldicott Guardian Council meeting (12 February 2020). Meeting minutes can be viewed at https://www.ukcgc.uk/news/2020/02/council-meeting.

944

British Medical Association, Access to Health Records (November 2019) p 8.

945

General Medical Council, Confidentiality: good practice in handling patient information (25 May 2018) paras 64 and

65.

946

R (BBC) v Newcastle Crown Court [2019] EWHC 2756 (Admin), [2020] 1 Cr App R 16 at [54].

947

See, for example, Crime (Overseas Production Orders) Act 2019, s 12; Data Protection Act 2018, s 174(1)(a); Investigatory Powers Act 2016, s 264(2); Tax Collection and Management (Wales) Act 2016, s 98(2); Police Act 1997, s 100. The Crime and Courts Act 2013, s 42(7) defines “news-related material” as (1) news or information about current affairs; (2) opinion about matters relating to the news or current affairs, or (3) gossip about celebrities, other public figures or other persons in the news.

948

Sugar v British Broadcasting Corporation [2012] UKSC 4, [2012] 1 WLR 439. Leveson LJ stated that he saw no reason why the construction of the phrase “for the purposes of journalism” by the Supreme Court ought not be different in the context of the Police and Criminal Evidence Act 1984.

949

  Sugar v British Broadcasting Corporation [2012] UKSC 4, [2012] 1 WLR 439 at [67] by Lord Phillips.

950

  Sugar v British Broadcasting Corporation [2012] UKSC 4, [2012] 1 WLR 439 at [106] by Lord Brown.

951

  Sugar v British Broadcasting Corporation [2010] EWCA Civ 715, [2010] 1 WLR 2278 at [55]. Cited with approval by

Sugar v British Broadcasting Corporation [2012] UKSC 4, [2012] 1 WLR 439 at [84] by Lord Walker.

952

  The Leveson Inquiry, vol 4, para 9.11.

953

  Police and Criminal Evidence Act 1984, s 9(2).

954

  Police and Criminal Evidence Act 1984, s 8(1)(d).

955

  Police and Criminal Evidence Act 1984, s 8(2).

956

We summarise these provisions at paragraph 12.194 below.

957

Ashworth Hospital Authority v MGN Ltd [2002] UKHL 29, by Lord Woolf CJ at [61].

958

Goodwin v United Kingdom (1996) 22 EHRR 123.

959

Roemen and Schmit v Luxembourg (2003) App No 51772/99 at [46]; Saint-Paul Luxembourg SA v Luxembourg (2013) App No 26419/10 at [49].

960

R (Malik) v Manchester Crown Court [2008] EWHC 1362 (Admin), [2008] 4 All ER 403.

961

Crown Prosecution Service; Professor Richard Stone; HM Council of District Judges (Magistrates’ Courts); Senior District Judge (Chief Magistrate); Council of Her Majesty’s Circuit Judges; Guardian News and Media; Birmingham Law Society; Norfolk and Suffolk joint Cyber, Intelligence and Serious Organised Crime Directorate; Southern Derbyshire Magistrates’ Bench; News Media Association; The Law Society; Justices’ Clerks’ Society; Magistrates Association; Dijen Basu QC; Bar Council & Criminal Bar Association; Metropolitan Police Service; National Crime Agency; Serious Fraud Office; Financial Conduct Authority.

962

Professor Richard Stone; HM Council of District Judges (Magistrates’ Courts); Crown Prosecution Service; Senior District Judge (Chief Magistrate); Council of Her Majesty’s Circuit Judges; Guardian News and Media; Birmingham Law Society; Norfolk and Suffolk joint Cyber, Intelligence and Serious Organised Crime Directorate; Southern Derbyshire Magistrates’ Bench; News Media Association; The Law Society; Justices’ Clerks’ Society; Magistrates Association; Dijen Basu QC; Bar Council & Criminal Bar Association; Metropolitan Police Service; National Crime Agency.

963

News Media Association; Guardian News and Media; Professor Richard Stone.

964

Birmingham Law Society; Norfolk and Suffolk joint Cyber, Intelligence and Serious Organised Crime Directorate;

Dijen Basu QC; Bar Council & Criminal Bar Association; Metropolitan Police Service; National Crime Agency; Serious Fraud Office; Financial Conduct Authority.

965

R (Malik) v Manchester Crown Court [2008] EWHC 1362 (Admin), [2008] 4 All ER 403.

966

Professor Richard Stone; HM Council of District Judges (Magistrates’ Court); Crown Prosecution Service; Senior District Judge (Chief Magistrate); Council of Her Majesty’s Circuit Judges; Norfolk and Suffolk joint Cyber, Intelligence and Serious Organised Crime Directorate; Southern Derbyshire Magistrates’ Bench; The Law Society; Magistrates Association; Dijen Basu QC; Metropolitan Police Service; National Crime Agency.

967

Roemen and Schmit v Luxembourg (2003) App No 51772/99 at [46]; Saint-Paul Luxembourg SA v Luxembourg (2013) App No 26419/10 at [49].

968

R (British Sky Broadcasting Ltd) v Central Criminal Court [2011] EWHC 3451 (Admin), [2012] QB 785 at [5].

969

Police and Criminal Evidence Act 1984, ss 18, 19, 20 and 32. We provide a description of these provisions at paragraph 12.194 below.

970

  We summarise these provisions at paragraph 12.194 below.

971

  R (BBC) v Newcastle Crown Court [2019] EWHC 2756 (Admin), [2020] 1 Cr App R 16 at [28].

972

Article 19, The Right to Blog (2013) p 1.

973

R (Malik) v Manchester Crown Court [2008] EWHC 1362 (Admin), [2008] 4 All ER 403 at [45]. See also Re Fine Point Films’ Application for Judicial Review [2020] NICA 35 at [55].

974

Criminal Justice Act 1987, s 2(3) to 2(5).

975

Consultation Question 46.

976

R (British Sky Broadcasting Ltd) v Central Criminal Court [2011] EWHC 3451 (Admin), [2012] QB 785 at [5].

977

Police and Criminal Evidence Act 1984, s 18: a constable may enter and search any premises occupied or controlled by a person who is under arrest.

978

Police and Criminal Evidence Act 1984, s 32: a constable may enter and search any premises in which an arrested person was when arrested or immediately before he was arrested for evidence relating to the offence.

979

Police and Criminal Evidence Act 1984, s 19: general powers of seizure and production of material that either has been obtained in consequence of the commission of an offence or is evidence in relation to an offence can be exercised by a constable whenever lawfully on premises.

980

Police and Criminal Evidence Act 1984, s 20: certain powers of seizure are construed as including a power to require information stored in electronic form and accessible from the premises to be produced in a visible, legible and transportable form.

981

M Colvin and J Cooper, Human Rights in the Investigation and Prosecution of Crime (2009) p 138.

982

Consultation Question 49.

983

Professor Richard Stone; HM Council of District Judges (Magistrates’ Courts); Crown Prosecution Service; Senior District Judge (Chief Magistrate); Council of Her Majesty’s Circuit Judges; Guardian News and Media; Guardian News and Media; Insolvency Service; Birmingham Law Society; Norfolk and Suffolk joint Cyber, Intelligence and Serious Organised Crime Directorate; News Media Association; Independent Office for Police Conduct; The Law Society; Magistrates Association; Dijen Basu QC; Bar Council & Criminal Bar Association; Metropolitan Police Service; National Crime Agency.

984

Professor Richard Stone; Senior District Judge (Chief Magistrate); Council of Her Majesty’s Circuit Judges; Guardian News and Media; Birmingham Law Society; News Media Association}.; The Law Society; Magistrates Association.

985

Insolvency Service; Norfolk and Suffolk joint Cyber, Intelligence and Serious Organised Crime Directorate; Dijen Basu QC; Bar Council & Criminal Bar Association; Metropolitan Police Service; National Crime Agency; Serious Fraud Office.

986

HM Council of District Judges (Magistrates’ Courts); Crown Prosecution Service; Guardian News and Media; Independent Office for Police Conduct.

987

 Criminal Justice and Police Act 2001, s 50(5).

988

 Criminal Justice and Police Act 2001, s 50(1) and (2).

989

Consultation Question 47.

990

Consultation Question 48.

991

Consultation Question 47.

992

City of London Economic Crime Academy; Crown Prosecution Service; HM Council of District Judges (Magistrates’ Courts); Senior District Judge (Chief Magistrate); Council of Her Majesty’s Circuit Judges; Guardian News and Media; Insolvency Service; Norfolk and Suffolk joint Cyber, Intelligence and Serious Organised Crime Directorate; News Media Association; The Law Society; Northumbria Law School Centre for Evidence and Criminal Justice Studies; Magistrates Association; Dijen Basu QC; Bar Council & Criminal Bar Association; Metropolitan Police Service; National Crime Agency; Serious Fraud Office; Financial Conduct Authority.

993

City of London Economic Crime Academy; Crown Prosecution Service; Guardian News and Media; Insolvency Service.

994

For a discussion of this issue see Alex Davidson, “Production Orders: R (BBC) v Newcastle Crown Court (Case Comment)” [2020] Criminal Law Review 247, 250.

995

Consultation Question 48.

996

Professor Richard Stone; HM Council of District Judges (Magistrates’ Courts); Senior District Judge (Chief Magistrate); Council of Her Majesty’s Circuit Judges; Department for Work and Pensions; Kent County Council Trading Standards; Guardian News and Media; Birmingham Law Society; Norfolk and Suffolk joint Cyber, Intelligence and Serious Organised Crime Directorate; Southern Derbyshire Magistrates’ Bench; News Media Association; Northumbria Law School Centre for Evidence and Criminal Justice Studies; The Law Society; Magistrates Association; Dijen Basu QC; Bar Council & Criminal Bar Association; National Crime Agency; Competition and Markets Authority; Serious Fraud Office; Financial Conduct Authority.

997

Police and Criminal Evidence Act 1984 (Application to Revenue and Customs) Order 2015 (SI 2015 No 1783), art 6.

998

See paragraphs 2.27 to 2.30 above.

999

Police and Criminal Evidence Act 1984, sch 1, para 2(a)(ii).

1000

  Fitzgerald v Preston Crown Court [2018] EWHC 804 (Admin) at [69].

1001

  Fitzgerald v Preston Crown Court [2018] EWHC 804 (Admin) at [69].

1002

  Police and Criminal Evidence Act 1984, sch 1, para 12(a)(i).

1003

  Police and Criminal Evidence Act 1984, sch 1, para 4.

1004

Criminal Justice and Police Act 2001, s 53(3)(c).

1005

Data Protection Act 2018, s 3(4).

1006

Data Protection Act 2018, s 3(2); General Data Protection Regulation (EC) No 679/2016, Official Journal L 119 of 4.5.2016 p 1, art 4(1).

1007

Data Protection Act 2018, s 10; General Data Protection Regulation (EC) No 679/2016, Official Journal L 119 of 4.5.2016 p 1, art 9.

1008

Data Protection Act 2018, s 10; General Data Protection Regulation (EC) No 679/2016, Official Journal L 119 of 4.5.2016 p 1, art 10.

1009

DPA 2018, s 31: the prevention, investigation detection or prosecution of criminal offences or the execution of criminal penalties, including the safeguarding against and the prevention of threats to public security.

1010

DPA 2018, s 35(3).

1011

Police and Criminal Evidence Act, s 8(1)(b) and s 8(1)(c).

1012

HMCPSI and HMICFRS, A joint inspection of search application and production order processes (January 2019) para 2.9.

1013

There are a number of different terms used in legislation and literature to refer to electronic devices: digital devices; data storage devices; electronic storage devices; and digital processing systems. In this report we use the term “electronic devices” in a broad sense to refer to all devices that control and direct electric currents.

1014

https://www.pewresearch.org/global/2019/02/05/smartphone-ownership-is-growing-rapidly-around-the-world-but-not-always-equally/pg global-technology-use-2018 2019-02-05 0-01/.

1015

https://www.statista.com/statistics/289191/household-penetration-of-home-computers-in-the-uk/.

1016

We set out a number of electronic devices identified by consultees as potentially being the target of a search warrant at paragraphs 15.9 to 15.10 below.

1017

https://www.gartner.com/en/newsroom/press-releases/2017-02-07-gartner-says-8-billion-connected-things-will-be-in-use-in-2017-up-31-percent-from-2016.

1018

See P Fenwick, Introduction to Computer Data Representation (2014) pp 14 to 15.

1019

Technically speaking, the smallest unit of data measurement is a bit (short for binary digit), of which there are eight in a byte. However, other than measuring internet speed in bits per second, bytes are the conventional unit of measurement used in computing.

1020

https://www.domo.com/solution/data-never-sleeps-6.

1021

https://www.seagate.com/files/www-content/our-story/trends/files/idc-seagate-dataage-whitepaper.pdf at p 6.

1022

  See UK Jurisdiction Taskforce, Legal Statement on Cryptoassets and Smart Contracts (November 2019) para 26.

1023

  Such currencies are used more as investment vehicles than they are for currency. See A Fairpo, “Taxation of

Cryptocurrencies” in D Fox and S Green (eds), Cryptocurrencies in Public and Private Law (OUP, 2019).

1024

  https://www.theguardian.com/technology/2020/jan/21/bank-of-england-to-consider-adopting-cryptocurrency.

1025

The Investigatory Powers Act 2016, s 261(3) to (5) uses the term “communications data”, which comprises “entity data” (data which identifies or describes a person or thing) and “events data” (data which identifies or describes an event).

1026

  https://www.statista.com/statistics/499558/worldwide-personal-cloud-storage-users/.

1027

  https://media.flexera.com/documents/rightscale-2019-state-of-the-cloud-report-from-

flexera.pdf?elqTrackId=372b6798c7294392833def6ec8f62c5c&elqaid=4588&elqat=2& ga=2.75255952.381106268 .1556868633-1445624021.1556868633.

1028

https://www.seagate.com/files/www-content/our-story/trends/files/idc-seagate-dataage-whitepaper.pdf at p 10.

Public remote storage (often referred to as “public clouds”) are owned and operated by third-party service providers. Private remote storage (“private clouds”) are maintained on a private network and used exclusively by a business or organisation, although may be hosted by a third-party service provider.

1029

  See https://asia.nikkei.com/Business/Technology/Google-boosts-Taiwan-data-center-plans-with-850m-investment.

1030

  See https://www.patentlyapple.com/patently-apple/2020/01/microsoft-wins-a-patent-for-an-environmentally-friendly-

ocean-floor-artificial-reef-datacenter.html.

1031

  See https://www.dsm.net/it-solutions-blog/is-the-future-of-data-centers-in-space.

1032

We discuss the arguments for such a power, and its existence as part of the search warrant regimes of other jurisdictions, in Chapter 18. Outside the search warrants context, lawful authority to search for and acquire electronic data may be conferred by a targeted equipment interference warrant under the Investigatory Powers Act 2016, which we discuss at paragraphs 14.57(1) and 14.65 to 14.67 below.

1033

Fitzgerald v Preston Crown Court [2018] EWHC 804 (Admin) at [5].

1034

R (Paul Da Costa) v Thames Magistrates’ Court [2002] EWHC 40 (Admin) at [20], [2002] Crim LR 504; Kent Pharmaceuticals Ltd v Serious Fraud Office [2002] EWHC 3023 (QB) at [27]; R (H) v Inland Revenue Commissioners [2002] EWHC 2164 (Admin), [2002] STC 1354 at [37]; R (Faisaltex Ltd) v Preston Crown Court [2008] EWHC 2832 (Admin), [2009] 1 WLR 1687 at [79]; R (Glenn & Co (Essex) Ltd) v HMRC [2010] EWHC 1469 (Admin), [2011] 1 WLR 1964 at [32]; R (Cabot Global Ltd) v Barkingside Magistrates’ Court [2015] EWHC 1458 (Admin), [2015] 2 Cr App R 26 at [34] and [38]; Hargreaves v Brecknock and Radnorshire Magistrates’ Court [2015] EWHC 1803 (Admin), (2015) 179 JP 399 at [37]; R (A) v Central Criminal Court and another [2017] EWHC 70 (Admin) at [74], [2017] 1 WLR 3567 at [36]; and Business Energy Solutions Ltd v The Crown Court at Preston [2018] EWHC 1534 (Admin), [2019] Crim LR 860 at [75].

1035

Police and Criminal Evidence Act 1984, s 8(1)(c).

1036

R (Cabot Global Ltd) v Barkingside Magistrates’ Court [2015] EWHC 1458 (Admin), [2015] 2 Cr App R 26 at [38].

1037

Police and Criminal Evidence Act 1984, s 8(1)(d).

1038

R (A) v Central Criminal Court and another [2017] EWHC 70 (Admin) at [81], [2017] 1 WLR 3567 at [43].

1039

  R (A) v Central Criminal Court and another [2017] EWHC 70 (Admin) at [81], [2017] 1 WLR 3567 at [43].

1040

  R (A) v Central Criminal Court and another [2017] EWHC 70 (Admin) at [84], [2017] 1 WLR 3567 at [46].

1041

  R (A) v Central Criminal Court and another [2017] EWHC 70 (Admin) at [100], [2017] 1 WLR 3567 at [61].

1042

Police and Criminal Evidence Act 1984, s 16(8).

1043

  We discuss statutory powers to operate electronic devices at paragraphs 15.160 to 15.164 below.

1044

  We discuss statutory powers to require the production of electronic material at paragraphs 18.25 to 18.68 below.

1045

Police and Criminal Evidence Act 1984, s 19(1).

1046

Criminal Justice and Police Act 2001, s 50.

1047

Data Protection Act 2018, sch 15, para 5(1).

1048

  Consumer Rights Act 2015, sch 5, para 24.

1049

  Consumer Rights Act 2015, sch 5, para 31.

1050

Environment Bill 2019-2021, sch 10, para 5(2).

1051

  Police and Criminal Evidence Act 1984, s 19(4).

1052

  Police and Criminal Evidence Act 1984, s 20(1).

1053

Criminal Justice Act 1987, s 2(3); Financial Services and Markets Act 2000, ss 171 and 172; Consumer Rights Act 2015, sch 5, paras 14 and 27; Immigration Act 2016, s 48; Enterprise Act 2002, s 194; Competition Act 1998, ss 28A, 65F, 65G and 65H; Armed Forces (Powers of Stop and Search, Search, Seizure and Retention) Order 2009 (SI 2009 No 2056), art 14.

1054

Police and Criminal Evidence Act 1984, sch 1; Terrorism Act 2000, sch 5; Proceeds of Crime Act 2000, s 345; Proceeds of Crime Act (External Investigations) Order 2014.

1055

  Crime (Overseas Production Orders) Act 2019, s 1(1).

1056

  Overseas Production Orders and Requests for Interception (Designation of Agreement) Regulations 2020 (SI 2020

No 38).

1057

  Regulation of Investigatory Powers Act 2000, s 49.

1058

  Regulation of Investigatory Powers Act 2000, s 56(1).

1059

Terrorism Act 2000, sch 7, para 5(a).

1060

 See Rabbani v DPP [2018] EWHC 1156 (Admin), [2018] 2 Cr App R 28.

1061

 C Nicholls, C Montgomery, J Knowles, A Doobay and M Summers, Nicholls, Montgomery, and Knowles on The Law

of Extradition and Mutual Legal Assistance (3rd ed 2013) para 17.01.

1062

Directive 2014/41/EU of the European Parliament and of the Council of 3rd April 2014 regarding the European Investigation Order in criminal matters (OJ No L 130, 1.5.2014, p.1); The Criminal Justice (European Investigation Order) Regulations 2017 (SI 2017 No 730).

1063

  Law Enforcement and Security (Amendment) (EU Exit) Regulations 2019 (SI 2019 No 742), reg 74.

1064

  Investigatory Powers Act 2016, s 56(1). The contents of a communication and secondary data may be disclosed if

the communication is obtained through some but not all forms of lawful interception: see Investigatory Powers Act 2016, sch 3, para 2.

1065

Depending on the delivery status of the electronic data, conduct undertaken when executing a search warrant may amount to (1) the interception of a communication stored in or by a telecommunication system (ie the interception of a “stored communication”); or (2) the interception of a communication that is being transmitted (ie a “live interception”). The interception of a stored communication is lawful if, amongst other circumstances, it is in exercise of a statutory power or in accordance with a court order such as a search warrant (Investigatory Powers Act 2016, s 6(1)(c)(ii) and (iii)), whereas a live interception can only be authorised by an interception warrant or under a limited set of additional circumstances (Investigatory Powers Act 2016, s 6(1)(a) and (b)).

1066

Defined in Investigatory Powers Act 2016, s 135(1): “communication” includes (a) anything comprising speech, music, sounds, visual images or data of any description, and (b) signals serving either for the impartation of anything between persons, between a person and a thing or between things or for the actuation or control of any apparatus.

1067

  Defined in Investigatory Powers Act 2016, s 4(2).

1068

  Defined in Investigatory Powers Act 2016, s 261(13).

1069

  Defined in Investigatory Powers Act 2016, s 261(6). Read with Investigatory Powers Act 2016, s 263(4),

communications comprise two broad categories of data: (1) “systems data”; and (2) “content”. Systems data, as defined in Investigatory Powers Act 2016, s 263(4), means any data that enables or facilitates, or identifies and describes anything connected with enabling or facilitating, the functioning of any systems or services. This will cover email addresses and user IDs.

1070

Defined in Investigatory Powers Act 2016, s 4(4): “relevant time” means any time while the communication is being transmitted and any time when the communication is stored in or by the system (whether before or after its transmission). The relevant provisions of the Investigatory Powers Act 2016 that apply in a given case, and the circumstances in which a person has lawful authority to carry out an interception, depend on whether the relevant communication is (1) being transmitted; or (2) a stored communication.

1071

Investigatory Powers Act 2016, Part 2, chapter 2 contains several forms of lawful interception (Investigatory Powers Act, ss 44 to 52), only two of which we discuss at paragraphs 14.56(2) (s 44) and 14.56(3) (s 52) below. The other forms of lawful interception, which are not relevant for present purposes, include interception by businesses for monitoring and record-keeping purposes (s 46) and interception by Ofcom in connection with wireless telegraphy (s 48).

1072

Investigatory Powers Act 2016, s 6(1)(a).

1073

Defined in Investigatory Powers Act 2016, ss 16 and 137: “secondary data” comprises “systems data” and “identifying data”. Identifying data as, defined in Investigatory Powers Act 2016, s 263(2) and (3), is data which may

1074

be used to identify, or assist in identifying (a) any person, apparatus, system or service; (b) any event; or (c) the location of any person, event or thing.

1075

Investigatory Powers Act 2016, s 15(5)(c). Defined in Investigatory Powers Act 2016, s 15(6): “related systems data” means systems data relating to a relevant communication or to the sender or recipient, or intended recipient of a relevant communication.

1076

Investigatory Powers Act 2016, s 15(2).

1077

Investigatory Powers Act 2016, s 18(1).

1078

Investigatory Powers Act 2016, s 18(3).

1079

Investigatory Powers Act 2016, ss 19 and 20. Investigatory Powers Act 2016, s 20(2): a targeted interception warrant (or targeted examination warrant) will satisfy the necessity requirement if the Secretary of State considers that the warrant is necessary in the interests of national security; for the purpose of preventing or detecting serious crime; or in the interests of the economic well-being of the UK so far as those interests are also relevant to the interests of national security.

1080

Investigatory Powers Act 2016, s 23.

1081

Investigatory Powers Act 2016, s 24.

1082

Investigatory Powers Act 2016, s 15(4).

Defined in Investigatory Powers Act 2016, s 136(3): “overseas-related communications” are communications sent or received by individuals who are outside the British Islands.

1083

Investigatory Powers Act 2016, s 136(2).

1084

Investigatory Powers Act 2016, s 136(5).

1085

Investigatory Powers Act 2016, s 136(4).

1086

Investigatory Powers Act 2016, s 44(1).

1087

Investigatory Powers Act 2016, s 44(2).

1088

Investigatory Powers Act 2016, s 52. See the Overseas Production Orders and Requests for Interception (Designation of Agreement) Regulations 2020 (SI 2020 No 38).

1089

Investigatory Powers Act 2016, s 6(1)(c).

1090

  Investigatory Powers Act 2016, s 6(1)(c)(i).

1091

  Investigatory Powers Act 2016, s 6(1)(c)(ii).

1092

Home Office, Interception of Communications Code of Practice (March 2018) para 12.14.

1093

  Investigatory Powers Act 2016, s 6(1)(c)(iii).

1094

  Investigatory Powers Act 2016, s 3(1).

1095

DPP v McKeown, DPP v Jones [1997] 2 Cr App R 155, 163.

1096

Computer Misuse Act 1990, s 10(a).

1097

Investigatory Powers Act 2016, ss 135(1) and 198(1): “equipment” means equipment producing electromagnetic, acoustic or other emissions or any device capable of being used in connection with such equipment.

1098

See footnote 54 above.

1099

Defined in Investigatory Powers Act 2016, s 100: “equipment data” means (1) “systems data” (for which see footnote 57); and (2) “identifying data” (for which see footnote 61) which is capable of being logically separated from a communication or other item of information to which it is associated without revealing the meaning of the said communication or information. See also Home Office, Covert Surveillance and Property Interference Code of Practice (August 2018) paras 2.22 to 2.23; Home Office, Equipment Interference Code of Practice (March 2018) paras 3.37 to 3.38.

1100

We discuss the Computer Misuse Act 1990 at paragraphs 14.59 and 14.60 above.

1101

Investigatory Powers Act 2016, s 14.

1102

Home Office, Equipment Interference Code of Practice (March 2018) paras 3.26 to 3.27.

1103

Investigatory Powers Act 2016, s 6(1)(c)(i).

1104

Police Act 1997, s 92.

1105

Home Office, Equipment Interference Code of Practice (March 2018) paras 3.37 to 3.40.

1106

Defined in the Police Act 1997, s 93(5).

1107

Police Act 1997, s 93(1) and (2). The authorising officer must consider whether the end result could reasonably be achieved by other means: see Police Act 1997, s 93(2B).

1108

Police Act 1997, s 94.

1109

Police Act 1997, s 95(1).

1110

Police Act 1997, s 95(2). Intelligence agency authorisations last for six months (Intelligence Agencies Act 1994, s 6(2)).

1111

Police Act 1997, s 96(1).

1112

Police Act 1997, s 97.

1113

Police Act 1997, s 103.

1114

Police Act 1997, s 104.

1115

 Investigatory Powers Act 2016, s 44(1).

1116

 Investigatory Powers Act 2016, s 44(2).

1117

Information Commissioner’s Office, Investigation report: Mobile phone data extraction by police forces in England and Wales (June 2020) pp 53 and 54. Available at https://ico.org.uk/about-the-ico/what-we-do/mobile-phone-data-extraction-by-police-forces-in-england-and-wales/.

1118

 Police and Criminal Evidence Act 1984, s 22.

1119

 Police and Criminal Evidence Act 1984, s 22(2)(a). See also Code B of PACE (2013) para 7.14.

1120

Police and Criminal Evidence Act 1984, s 22(4).

1121

Code B of PACE (2013) para 7.14.

1122

 Financial Services and Markets Act 2000, s 176A; Knives Act 1997, s 5(4).

1123

 Criminal Justice and Police Act 2001, s 50.

1124

 Criminal Justice and Police Act 2001, s 53.

1125

 Criminal Justice and Police Act 2001, s 57.

1126

Police and Criminal Evidence Act 1984, s 21(1).

1127

Business Energy Solutions Ltd v Crown Court at Preston [2018] EWHC 1534 (Admin), [2018] 1 WLR 4887 at [116].

1128

Police and Criminal Evidence Act 1984, s 21(2).

1129

 Police and Criminal Evidence Act 1984, s 21(3) to (4).

1130

 Police and Criminal Evidence Act 1984, s 21(8).

1131

Code B of PACE (2013) para 7.16.

1132

Police and Criminal Evidence Act 1984, s 67(9).

1133

For example, Consumer Rights Act 2015, sch 5, para 28(4)(b).

1134

 Business Energy Solutions Ltd v Crown Court at Preston [2018] EWHC 1534 (Admin), [2018] 1 WLR 4887 at [116].

1135

 R (Dulai) v Chelmsford Magistrates’ Court [2012] EWHC 1055 (Admin), [2013] 1 WLR 220 at [52].

1136

See Criminal Justice and Police Act 2001, sch 1.

1137

Business Energy Solutions Ltd v Crown Court at Preston [2018] EWHC 1534 (Admin), [2018] 1 WLR 4887 at [76].

1138

 Criminal Justice and Police Act 2001, s 53(2)(a), (b) and (d).

1139

 Business Energy Solutions Ltd v Crown Court at Preston [2018] EWHC 1534 (Admin), [2018] 1 WLR 4887 at [83].

1140

 Business Energy Solutions Ltd v Crown Court at Preston [2018] EWHC 1534 (Admin), [2018] 1 WLR 4887 at [75].

1141

Business Energy Solutions Ltd v Crown Court at Preston [2018] EWHC 1534 (Admin), [2018] 1 WLR 4887 at [98].

1142

CPIA Code of Practice, para 5.1.

1143

CPIA Code of Practice, para 2.1.

1144

Attorney General’s Guidelines on Disclosure: Supplementary Guidelines on Digitally Stored Material (2011), para A26. See also Business Energy Solutions Ltd v Crown Court at Preston [2018] EWHC 1534 (Admin), [2018] 1 WLR 4887 at [111].

1145

 CPIA Code of Practice, para 5.7.

1146

 CPIA Code of Practice, para 5.8.

1147

 CPIA Code of Practice, para 5.2.

1148

 CPIA Code of Practice, para 3.5.

1149

 CPIA Code of Practice, para 3.5.

1150

 Data Protection Act 2018, s 30(1).

1151

 Data Protection Act 2018, s 3(4).

1152

Data Protection Act 2018, s 3(2).

1153

 R (Catt) v Association of Chief Police Officers [2015] UKSC 9, [2015] AC 1065 at [8].

1154

 R (Bridges) v Chief Constable of South Wales Police [2019] EWHC 2341 (Admin), [2020] 1 WLR 672 at [85] to [88].

1155

 Data Protection Act 2018, s 35(3).

1156

 Data Protection Act 2018, s 10; General Data Protection Regulation (EC) No 679/2016, Official Journal L 119 of

4.5.2016 p 1, art 9.

1157

Professor Richard Stone; Northumbria Law School Centre for Evidence and Criminal Justice Studies; Serious Fraud Office.

1158

Beghal v DPP [2015] UKSC 49, [2016] AC 88 at [119].

1159

R (Gillan) v Commissioner of Police of the Metropolis [2006] UKHL 12, [2006] 2 AC 307 at [31] and [34]. See also R (Bridges) v Chief Constable of South Wales Police [2019] EWHC 2341 (Admin), [2020] 1 WLR 672 at [80].

1160

Bank Mellat v Her Majesty's Treasury (No 2) [2013] UKSC 39, [2014] AC 700 at [20] and [72].

1161

 S and Marper v United Kingdom (2009) 48 EHRR 50 (App No 30562/04) at [112].

1162

 S and Marper v United Kingdom (2009) 48 EHRR 50 (App No 30562/04) at [103].

1163

Attorney General’s Guidelines on Disclosure: Supplementary Guidelines on Digitally Stored Material (2011). See also, related, the Crown Prosecution Service, Disclosure - Guidelines on Communications Evidence (2018).

1164

ACPO, Good Practice Guide for Digital Evidence (Association of Chief Police Officers (2012).

1165

Forensic Science Regulator, Codes of Practice and Conduct for forensic science providers and practitioners in the Criminal Justice System (2000).

1166

Forensic Science Regulator, Codes of Practice and Conduct for forensic science providers and practitioners in the Criminal Justice System (2000) para 23.

1167

NPCC, Guidance Regarding the Storage, Retention and Destruction of Records and Materials That Have Been Seized for Forensic Examination (2017).

1168

See Dotcom v Attorney-General [2014] NZSC 199, [2015] 1 NZLR 745 at [203] in which the New Zealand Supreme Court observed that it was difficult to see how any other course was practically open to the police during the execution of a search warrant other than to take the suspect’s computers off-site owing to passwords and encryption.

1169

 https://www.thetimes.co.uk/edition/news/police-struggling-to-clear-evidence-backlog-of-12-000-devices-rpmhmfnpt.

1170

 https://www.thetimes.co.uk/article/backlog-of-devices-awaiting-police-analysis-leaves-trials-facing-collapse-

bgb6zft9x.

1171

 HM Inspectorate of Constabulary, Online and on the edge: Real risks in a virtual world (2015), p 6.

1172

 C Gidney and M Ekera, “How to factor 2048 bit RSA integers in 8 hours using 20 million noisy qubits” (2019),

https://arxiv.org/pdf/1905.09749.pdf

1173

See Privacy International, Digital stop and search (March 2018).

1174

See Privacy International, Cloud extraction technology (January 2020).

1175

A token is returned to a user when they authenticate successfully to an app or cloud service, thereby enabling the user to access the service without re-entering a username and password. See L Reiber, Mobile Forensic Investigations, A Guide to Evidence Collection, Analysis, and Presentation (2019) p 73.

1176

The Information Commissioner’s Office recently found a lack of agreement between different police forces on how to interpret and apply the law relating to data extraction devices. See Information Commissioner’s Office, Investigation report: Mobile phone data extraction by police forces in England and Wales (June 2020) p 52.

Available at https://ico.org.uk/about-the-ico/what-we-do/mobile-phone-data-extraction-by-police-forces-in-england-and-wales/.

1177

“IPCO” provides independent oversight and authorisation of the use of investigatory powers by intelligence agencies, police forces and other public authorities.

1178

R (Energy Financing Team Ltd) v Bow Street Magistrates’ Court [2005] EWHC 1626 (Admin), [2006] 1 WLR 1316 at [24(1)].

1179

Dotcom v Attorney-General [2014] NZSC 199, [2015] 1 NZLR 745 at [191].

1180

 R v Vu 2013 SCC 60, [2013] 3 SCR 657 at [40] and [41].

1181

 R v Fearon 2014 SCC 77, [2014] SCR 621 at [51].

1182

 Riley v California (2014) 573 US 373 at 17.

1183

 Business Energy Solutions Ltd v Crown Court at Preston [2018] EWHC 1534 (Admin), [2018] 1 WLR 4887.

1184

Privacy International, Digital stop and search (March 2018). Available at

https://privacyinternational.org/sites/defaylt/files/2018-03/Digital%20Stop%20and%20Search%20Report.pdf. This point was also made by the Supreme Court of the United States in Riley v California, 34 S. Ct. 2473, 2491 (2014).

1185

Big Brother Watch, Digital strip searches: The police’s investigations of victims (Jyly 2019) p 19.

1186

   Police and Criminal Evidence Act 1984, s 8.

1187

Protection of Children Act 1978, s 4.

1188

Criminal Justice Act 1987, s 2(4).

1189

R (Faisaltex Ltd) v Preston Crown Court [2008] EWHC 2832 (Admin), [2009] 1 WLR 1687 at [74]; G v Commissioner of Police for the Metropolis [2011] EWHC 3331 (Admin) at [5]; Kent Pharmaceuticals Ltd v Serious Fraud Office [2002] EWHC 3023 (QB) at [27]; and Hargreaves v Brecknock and Radnorshire Magistrates’ Court [2015] EWHC 1803 (Admin), (2015) 179 JP 399 at [37].

1190

See R v Customs and Excise Commissioners ex parte Bottlestop [1997] EWHC Admin 467 in which Forbes J acknowledged that there was an argument that a keyboard and mouse were not “documents”, however, he made no conclusive finding on the matter and instead regarded them as “part and parcel” of the computer.

1191

Consultation Question 50.

City of London Police Economic Crime Academy; Kent County Council Trading Standards; The Law Society;

1192

Justices’ Clerks’ Society; Magistrates Association; Dijen Basu QC; Bar Council and the Criminal Bar Association; Metropolitan Police Service; National Crime Agency; Competition and Markets Authority; Financial Conduct Authority; Serious Fraud Office.

1193

See paragraph 14.9 above.

1194

In the case of the word “document”, it may cover a computer where the statutory definition includes “information recorded in any form”. See Kent Pharmaceuticals Ltd v Serious Fraud Office [2002] EWHC 3023 (QB) at [27].

1195

  Criminal Justice and Police Act 2001, s 50(1)(a).

1196

  Animal Welfare Act 2006, s 23(1); Anti-terrorism, Crime and Security Act 2001, s 52.

1197

  Banking Act 2009, s 83ZL(2)(b)(ii).

1198

  See paragraph 14.19 above.

1199

  A digital wallet is a software programme that contains a user’s balance and allows the user to make transactions.

1200

  A private key, which is usually depicted as a series of alphanumeric characters, is used to decrypt electronic data

and therefore provide access to cryptocurrency.

1201

For example, Animal Welfare Act 2006, s 19(1), which permits the obtaining of a warrant for the purpose of searching for a protected animal where an inspector or constable reasonably believes that a protected animal is on the premises.

1202

Criminal Justice and Police Act 2001, sch 2, para 13.

1203

  For example, Police and Criminal Evidence Act 1984, s 8(1).

1204

  For example, Police and Criminal Evidence Act 1984, ss 19(4) and 20(1) and Data Protection Act 2018, sch 15,

para 5(1).

1205

Convention on Cybercrime (Budapest, 23 November 2001) ETS No 185. Signed and ratified by the UK and entered into force on 1 September 2011. See https://www.gov.uk/govemment/publications/convention-on-cybercrime--2.

1206

Council of Europe, Explanatory Report to the Convention on Cybercrime, para 137.

1207

Police and Criminal Evidence Act 1984, s 8(1)(c).

1208

R (Cabot Global Ltd) v Barkingside Magistrates’ Court [2015] EWHC 1458 (Admin), [2015] 2 Cr App R 26 at [38].

1209

Police and Criminal Evidence Act 1984, s 8(1)(d).

1210

R (A) v Central Criminal Court and another [2017] EWHC 70 (Admin) at [81], [2017] 1 WLR 3567 at [43].

1211

R (A) v Central Criminal Court and another [2017] EWHC 70 (Admin) at [84], [2017] 1 WLR 3567 at [46].

1212

R (A) v Central Criminal Court and another [2017] EWHC 70 (Admin) at [100], [2017] 1 WLR 3567 at [61].

1213

Law Commission, Search Warrants: Consultation Paper (2018) CP No 235 para 10.169.

1214

Consultation Question 56(1).

1215

Professor Richard Stone; HM Council of District Judges (Magistrates’ Court); Senior District Judge (Chief Magistrate); Council of Her Majesty’s Circuit Judges; Birmingham Law Society; Southern Derbyshire Magistrates’ Bench; Northumbria Law School Centre for Evidence and Criminal Justice Studies; Independent Office for Police Conduct; The Law Society; Magistrates Association; Dijen Basu QC; Competition and Markets Authority.

1216

Serious Fraud Office.

1217

Kent Pharmaceuticals Ltd v Serious Fraud Office [2002] EWHC 3023 (Admin).

1218

R (A) v Central Criminal Court and another [2017] EWHC 70 (Admin) at [85], [2017] 1 WLR 3567 at [47].

1219

Search Warrants (2018) Law Commission Consultation Paper No 235 para 10.168.

1220

  Consultation Question 56.

1221

  Consultation Question 56.

1222

Professor Richard Stone; Senior District Judge (Chief Magistrate); Council of Her Majesty’s Circuit Judges; Birmingham Law Society; Southern Derbyshire Magistrates’ Bench; Northumbria Law School Centre for Evidence and Criminal Justice Studies; Independent Office for Police Conduct; The Law Society; Justices’ Clerks’ Society; Magistrates Association; Privacy International.

1223

Crown Prosecution Service; Metropolitan Police Service; Competition and Markets Authority; Financial Conduct Authority; Serious Fraud Office.

1224

Kent County Council Trading Standards; Bar Council and the Criminal Bar Association.

1225

Professor Richard Stone; Northumbria Law School Centre for Evidence and Criminal Justice Studies; Serious Fraud

Office.

1226

Crown Prosecution Service.

1227

  Serious Fraud Office.

1228

  Crown Prosecution Service.

1229

  Crown Prosecution Service.

1230

  Serious Fraud Office; Kent County Council Trading Standards.

1231

Professor Richard Stone; Council of Her Majesty’s Circuit Judges; Birmingham Law Society; Southern Derbyshire Magistrates’ Bench; Independent Office for Police Conduct; Magistrates Association; Privacy International.

1232

HM Council of District Judges (Magistrates’ Court); Crown Prosecution Service; The Law Society; Metropolitan Police Service; Financial Conduct Authority; Serious Fraud Office.

1233

  R (Haralambous) v Crown Court at St Albans [2018] UKSC 1, [2018] AC 236 at [15].

1234

  Professor Richard Stone; Senior District Judge (Chief Magistrate); Council of Her Majesty’s Circuit Judges;

Birmingham Law Society; Southern Derbyshire Magistrates’ Bench; Northumbria Law School Centre for Evidence and Criminal Justice Studies; Independent Office for Police Conduct; The Law Society; Magistrates Association;

Dijen Basu QC; Bar Council and the Criminal Bar Association; Privacy International.

1235

HM Council of District Judges (Magistrates’ Court); Crown Prosecution Service; Metropolitan Police Service; Competition and Markets Authority; Financial Conduct Authority; Serious Fraud Office; HM Revenue and Customs.

1236

Southern Derbyshire Magistrates’ Bench; Northumbria Law School Centre for Evidence and Criminal Justice Studies.

1237

Southern Derbyshire Magistrates’ Bench; Senior District Judge (Chief Magistrate).

1238

Dijen Basu QC.

1239

Bar Council and the Criminal Bar Association; HM Council of District Judges (Magistrates’ Court).

1240

  Northumbria Law School Centre for Evidence and Criminal Justice Studies.

1241

  In the civil law context, a claimant may apply to the High Court for a search order, previously known as an Anton

Piller order, which is an interim mandatory injunction. The power of the High Court to grant a search order has been placed on statutory footing by the Civil Procedure Act 1997, s 7 and is governed by the Civil Procedure Rules, Part 25 and Practice Direction 25A. See D Bean, I Parry and A Burns, Injunctions (13th ed 2018).

1242

  Serious Fraud Office.

1243

  Serious Fraud Office.

1244

HM Revenue and Customs.

1245

Metropolitan Police Service.

1246

Crown Prosecution Service.

1247

Crown Prosecution Service.

1248

 Attorney General of Jamaica v Williams [1998] AC 351 at 358 by Lord Hoffman.

1249

  R (Haralambous) v Crown Court at St Albans [2018] UKSC 1, [2018] AC 236 at [15].

1250

R (A) v Central Criminal Court and another [2017] EWHC 70 (Admin) at [85], [2017] 1 WLR 3567 at [47].

1251

Reid Day, “Let the Magistrates Revolt: A Review of Search Warrant Applications for Electronic Information Possessed by Online Services” (2015) 64 University of Kansas Law Review 491 at 510 to 511.

1252

New Zealand Law Commission and Ministry of Justice Review of the Search and Surveillance Act 2012 / Ko te Arotake i te Search and Surveillance Act 2012, NZLC R141 (2017) p 202.

1253

Paul Ohm, “Massive Hard Drives, General Warrants, and the Power of Magistrate Judges” (2011) 97 Virginia Law Review 1 at 11-12.

1254

Emily Berman, “Digital Searches, the Fourth Amendment, and the Magistrates’ Revolt” (2018) 68 Emory Law Journal 49 at 55 to 56.

1255

  Orin Kerr, “Ex Ante Regulation of Computer Search and Seizure” (2010) 96 Virginia Law Review 1241 at 1246.

1256

  New Zealand Law Commission and Ministry of Justice Review of the Search and Surveillance Act 2012 / Ko te

Arotake i te Search and Surveillance Act 2012, NZLC R141 (2017) para 12.64.

1257

Fitzgerald v Preston Crown Court [2018] EWHC 804 (Admin) at [34].

1258

Fitzgerald v Preston Crown Court [2018] EWHC 804 (Admin) at [74] and [84].

1259

  R (A) v Central Criminal Court and another [2017]

1260

  R (A) v Central Criminal Court and another [2017]

1261

  R (A) v Central Criminal Court and another [2017]

1262

  R (A) v Central Criminal Court and another [2017]

1263

Law Commission, Search Warrants: Consultation Paper (2018) CP No 235 paras 10.18 to 10.77.

1264

R (A) v Central Criminal Court and another [2017] EWHC 70 (Admin) at [85], [2017] 1 WLR 3567 at [47].

1265

Law Commission, Search Warrants: Consultation Paper (2018) CP No 235 para 10.57.

1266

  Consultation Question 51.

1267

  Consultation Questions 51(1), (2).

1268

City of London Police Economic Crime Academy; HM Council of District Judges (Magistrates’ Court); Crown Prosecution Service; Senior District Judge (Chief Magistrate); Birmingham Law Society; Southern Derbyshire Magistrates’ Bench; Northumbria Law School Centre for Evidence and Criminal Justice Studies; The Law Society; Justices’ Clerks’ Society; Dijen Basu QC; Bar Council and the Criminal Bar Association; National Crime Agency; Competition and Markets Authority; Privacy International; Financial Conduct Authority; Serious Fraud Office; Kent County Council Trading Standards; Magistrates Association; Metropolitan Police Service.

1269

HM Council of District Judges (Magistrates’ Court); Senior District Judge (Chief Magistrate); Bar Council and the Criminal Bar Association; Crown Prosecution Service; Justices’ Clerks’ Society; Metropolitan Police Service; National Crime Agency; Serious Fraud Office; Financial Conduct Authority; Insolvency Service; Competition and Markets Authority; Dijen Basu QC.

1270

City of London Police Economic Crime Academy; Dijen Basu QC; Kent County Council Trading Standards; Privacy International; HM Council of District Judges (Magistrates’ Court); Senior District Judge (Chief Magistrate); Magistrates Association; Birmingham Law Society; Southern Derbyshire Magistrates’ Bench; Northumbria Law School Centre for Evidence and Criminal Justice Studies; Law Society.

1271

Consultation Question 52.

1272

Senior District Judge (Chief Magistrate); Magistrates Association.

1273

HM Council of District Judges (Magistrates’ Court); Senior District Judge (Chief Magistrate); Bar Council and the Criminal Bar Association; Crown Prosecution Service; Justices’ Clerks’ Society; Metropolitan Police Service; National Crime Agency; Serious Fraud Office; Financial Conduct Authority; Insolvency Service; Competition and Markets Authority; Dijen Basu QC.

1274

Crown Prosecution Service; Insolvency Service; Serious Fraud Office; Justices’ Clerks’ Society.

1275

Justices’ Clerks’ Society.

1276

HM Council of District Judges (Magistrates’ Court); Senior District Judge (Chief Magistrate); Bar Council and the Criminal Bar Association; Metropolitan Police Service; Serious Fraud Office.

1277

R (Haralambous) v Crown Court at St Albans [2018] UKSC 1, [2018] AC 236 at [15].

1278

Serious Fraud Office.

1279

City of London Police Economic Crime Academy; Dijen Basu QC; Kent County Council Trading Standards; Privacy International; HM Council of District Judges (Magistrates’ Court); Senior District Judge (Chief Magistrate);

Magistrates Association; Birmingham Law Society; Southern Derbyshire Magistrates’ Bench; Northumbria Law School Centre for Evidence and Criminal Justice Studies; Law Society.

1280

Privacy International.

1281

  Crown Prosecution Service.

1282

Senior District Judge (Chief Magistrate); Financial Conduct Authority.

1283

  Financial Conduct Authority.

1284

  National Crime Agency.

1285

 See paragraphs 9.11 to 9.14 above.

1286

We discuss this in relation to locally stored material at paragraphs 15.174 to 15.194 below and in relation to remotely stored material at paragraph 16.159 below.

1287

We discuss this at paragraph 17.120 below.

1288

Sher and Others v the United Kingdom (2015) App No 5201/11 at [174].

1289

Police and Criminal Evidence Act 1984, s 15(6)(b).

1290

R (Energy Financing Team Ltd) v Bow Street Magistrates' Court (Practice Note) [2005] EWHC 1626, [2006] 1 WLR 1316 at para 24(5); McGrath v Chief Constable of the Royal Ulster Constabulary [2001] UKHL 39, [2001] 2 AC 731 at 738g.

1291

R (A) v Central Criminal Court and another [2017] EWHC 70 (Admin) at [85], [2017] 1 WLR 3567 at [47].

1292

Police and Criminal Evidence Act 1984, s 15(6)(b), 15(7) and 15(8).

1293

R v Chief Constable of Lancashire Constabulary, ex parte Parker [1993] 2 All ER 56.

1294

R (Redknapp) v Commissioner of the City of London Police [2008] EWHC 1177 (Admin), [2009] 1 WLR 2091 at [21]; R (Bhatti) v Croydon Magistrates’ Court [2010] EWHC 522 (Admin), [2011] 1 WLR 948 at [22].

1295

Consultation Question 51.

1296

 Justices’ Clerks’ Society; Metropolitan Police Service.

1297

 Justices’ Clerks’ Society.

1298

Crown Prosecution Service; Competition and Markets Authority; Serious Fraud Office.

1299

Financial Conduct Authority.

1300

City of London Police Economic Crime Academy; Dijen Basu QC; Kent County Council Trading Standards; Privacy International; HM Council of District Judges (Magistrates’ Court); Senior District Judge (Chief Magistrate); Magistrates Association; Birmingham Law Society; Southern Derbyshire Magistrates’ Bench; Northumbria Law School Centre for Evidence and Criminal Justice Studies; Law Society.

1301

Magistrates Association; Southern Derbyshire Magistrates’ Bench; Northumbria Law School Centre for Evidence and Criminal Justice Studies; Law Society; Privacy International.

1302

Law Society; Northumbria Law School Centre for Evidence and Criminal Justice Studies.

1303

Privacy International; Magistrates Association.

1304

 Magistrates Association; Northumbria Law School Centre for Evidence and Criminal Justice Studies.

1305

 Northumbria Law School Centre for Evidence and Criminal Justice Studies.

1306

R v Smith [2011] EWCA Crim 1772, [2012] 1 WLR 1316 at [20].

1307

 R v Parsons [2017] EWCA Crim 2163, [2018] 1 WLR 2409 at [9].

1308

 Northumbria Law School Centre for Evidence and Criminal Justice Studies.

1309

HM Council of District Judges (Magistrates’ Court); Senior District Judge (Chief Magistrate); Magistrates Association; Birmingham Law Society; Privacy International.

1310

Dijen Basu QC.

1311

Law Society; Northumbria Law School Centre for Evidence and Criminal Justice Studies.

1312

 City of London Police Economic Crime Academy; Dijen Basu QC.

1313

 City of London Police Economic Crime Academy.

1314

Federal Rules of Criminal Procedure (United States), r 41(e)(2)(B).

1315

 See paragraph 15.34 above.

1316

 See paragraph 15.62 above.

1317

 See paragraph 15.66 above.

1318

 See R v Bater-James [2020] EWCA Crim 790 at [78] in which Fulford LJ, giving guidance on the approach to

obtaining and examining witness’s electronic devices, stated that investigators need to consider whether it is possible to obtain relevant electronic data by other means. See also R (Energy Financing Team Ltd) v Bow Street Magistrates’ Court [2005] EWHC 1626 (Admin), [2006] 1 WLR 1316 at [24(1)] in which Kennedy LJ stated that, before seeking or issuing a warrant, it is always necessary to consider whether some lesser measure to obtain the material will suffice.

1319

Criminal Justice and Police Act 2001, s 63(1).

1320

Police and Criminal Evidence Act 1984, ss 20(1) and 21(5).

1321

Criminal Justice Act 1987, s 2(5)(b).

1322

R (Quintavalle) v Secretary of State for Health [2003] UKHL 13, [2003] 2 AC 687 at [8].

1323

 D Bailey and L Norbury, Bennion on Statutory Interpretation (8th ed 2020) para 27.9.

1324

 We explain what volatile memory is at paragraphs 14.11 and 14.12 above.

1325

We discuss cloud extraction software at paragraph 14.109 above.

1326

Council of Europe, Explanatory Report to the Convention on Cybercrime, para 137.

1327

Federal Rules of Criminal Procedure (United States), r 41(e)(2)(B).

1328

Search and Surveillance Act 2012 (New Zealand), s 3.

1329

Crimes Act 1914 (Australia), s 3L.

1330

See paragraph 15.147 above.

1331

See paragraph 15.149 above.

1332

See Recommendation 50 (paragraphs 15.193 and 15.194 below).

1333

 Police and Criminal Evidence Act 1984, s 16(8).

1334

 Data Protection Act 2018, sch 15, para 5(1).

1335

 Consumer Rights Act 2015, sch 5, para 24.

1336

 Consumer Rights Act 2015, sch 5, para 31.

1337

See paragraph 18.36 below.

1338

Law Commission, Search Warrants: Consultation Paper (2018) CP No 235 paras 10.68 to 10.72.

1339

Law Society; Whitehall Prosecutors’ Group; National Crime Agency; Northumbria Law School Centre for Evidence and Criminal Justice Studies.

1340

 In response to Consultation Question 54.

1341

 In response to Consultation Question 56.

1342

J Auburn, J Moffett and A Sharland, Judicial Review: Principles and Procedures (2013) para 11.21.

1343

See D Bailey and L Norbury, Bennion on Statutory Interpretation (8th ed 2020) para 27.9; R v Secretary of State for the Home Department ex parte Simms [1999] UKHL 33, [2000] 2 AC 115 at 131 by Lord Hoffman.

1344

United States Department of Justice, Searching and Seizing Computers and Obtaining Electronic Evidence in Criminal Investigations (2009) p 88.

1345

We discuss this at paragraphs 14.65 to 14.66 above.

1346

Big Brother Watch, Digital strip searches: The police’s investigations of victims (July 2019) p 19.

1347

R (Paul Da Costa) v Thames Magistrates’ Court [2002] EWHC 40 (Admin), [2002] Crim LR 504 at [19]; R (Cabot Global Ltd) v Barkingside Magistrates’ Court [2015] EWHC 1458 (Admin), [2015] 2 Cr App R 26 at [41] to [42].

1348

 We discuss these terms at paragraph 14.22 above.

1349

 We discuss this issue at paragraphs 16.147 and 18.40 below.

1350

We discuss forensic capabilities at paragraphs 14.107 and 14.111 above.

1351

See paragraphs 16.223 to 16.238.

1352

For example see Crimes Act 1914 (Australia), s 3L(1).

1353

See paragraph 15.118 above.

1354

See paragraph 17.95 below.

1355

An investigator should not have sight of or access to legally privileged material. See Attorney General’s Guidelines on Disclosure: Supplementary Guidelines on Digitally Stored Material (2011) at [A31]; R (A) v Central Criminal Court and another [2017] EWHC 70 (Admin) at [84], [2017] 1 WLR 3567 at [46].

1356

Consultation Question 50 in our consultation paper invited consultees to share examples of the types of electronic material that investigators seek under a search warrant. Consultees shared with us a wide range of examples of electronic data which may form the target of a search warrant, which we set out at paragraph 15.11 above. In theory, all of the electronic data set out at paragraph 15.11 above be stored remotely, including outside the jurisdiction. Consultees also confirmed that data stored in the cloud may be sought under a search warrant.

1357

We explain what two-factor authentication is at paragraph 14.23(2) above.

1358

The Investigatory Powers Act 2016 and Regulation of Investigatory Powers Act 2000 are not within our terms of reference: see paragraph 1.9 above.

1359

Consultation Question 55.

1360

Consultation Question 54.

1361

We explain what these security features are at paragraph 14.23 above.

1362

Consultation Question 55.

1363

Crown Prosecution Service; Competition and Markets Authority; Whitehall Prosecutors’ Group; Financial Conduct Authority.

1364

D Bailey and L Norbury, Bennion on Statutory Interpretation (8th ed 2020) para 4.8.

1365

  Microsoft v United States 829 F 3d 197 (2d Cir. 2016), pp 39 to 40.

1366

  Microsoft v United States 829 F 3d 197 (2d Cir. 2016), p 15 by Judge Lynch.

1367

In re Warrant, 15 F Supp 3d at 475-76.

1368

United States v. Microsoft Corp., 584 US ___, 138 S Ct 1186 (2018).

1369

  Jennifer Daskal, “The Un-Territoriality of Data” (2015) 125 Yale Law Journal 326.

1370

  R (KBR) v Director of the Serious Fraud Office [2018] EWHC 2368 (Admin), [2019] QB 675.

1371

  R (KBR) v Director of the Serious Fraud Office [2018] EWHC 2368 (Admin), [2019] QB 675 at [64].

1372

See https://www.gov.uk/govemment/publications/convention-on-cybercrime--2.

1373

  Convention on Cybercrime (Budapest, 23 November 2001) ETS No 185, art 19.

1374

  Convention on Cybercrime (Budapest, 23 November 2001) ETS No 185, art 32.

1375

Jonathan Hall, “Restraint orders: R v Teresko (Case Comment)” [2018] Criminal Law Review 81 at 83 to 84.

1376

  Ministere des Armees, International Law Applied to Operations in Cyberspace (October 2019) p 7.

1377

  Jennifer Daskal, “The Un-Territoriality of Data” (2015) 125 Yale Law Journal 326 at 329; B Schafer and S Mason, in

S Mason and D Seng, The Characteristics of Electronic Evidence (4th ed 2017) para 2.10; David Harvey, “Here’s the thing: the cyber search provisions of the Search and Surveillance Act 2012” (2013) 10 Digital Evidence and Electronic Signature Law 39.

1378

Jennifer Daskal, “The Un-Territoriality of Data” (2015) 125 Yale Law Journal 326 at 329.

1379

Search Warrants (2018) Law Commission Consultation Paper 235, para 10.74.

1380

Alex Davidson, “Extraterritoriality and statutory interpretation: the increasing reach of investigative powers” (2020) 1 Public Law 1 at 5.

1381

D Bailey and L Norbury, Bennion on Statutory Interpretation (8th ed 2020) para 4.8.

1382

Masri v Consolidated Contractors Internation (UK) Ltd [2009] UKHL 43, [2010] 1 AC 90 at [10]; Bilta (UK) Ltd v Nazir (No 2) [2015] UKSC 23, [2016] AC 1 at [212].

1383

  R (KBR) v Director of the Serious Fraud Office [2018] EWHC 2368 (Admin), [2019] QB 675 at [29].

1384

  Alex Davidson, “Extraterritoriality and statutory interpretation: the increasing reach of investigative powers” (2020) 1

Public Law 1.

1385

  D Bailey and L Norbury, Bennion on Statutory Interpretation (8th ed 2020) para 4.8.

1386

  D Bailey and L Norbury, Bennion on Statutory Interpretation (8th ed 2020) para 4.8.

1387

Alex Davidson, “Extraterritoriality and statutory interpretation: the increasing reach of investigative powers” (2020) 1 Public Law 1 at 10.

1388

  D Bailey and L Norbury, Bennion on Statutory Interpretation (8th ed 2020) para 4.8.

1389

  Alex Davidson, “Extraterritoriality and statutory interpretation: the increasing reach of investigative powers” (2020) 1

Public Law 1 at 5.

1390

Police and Criminal Evidence Act 1984, ss 19(4) and 20(1).

1391

Higher Education and Research Act 2017, sch 5, para 9(2): references to items found on premises include (a) documents stored on computers or electronic storage devices on the premises; and (b) documents stored elsewhere which can be accessed by computers on the premises.

1392

International comity refers to the respect a state shows to the sovereignty of other states.

1393

D Bailey and L Norbury, Bennion on Statutory Interpretation (8th ed 2020) para 4.6. Maxwell on the Interpretation of Statutes (12th ed 1969) p 183.

1394

  SS Lotus (France v Turkey), [1927] PCIL Reports, Series A No 10 at [45].

1395

  James Crawford, Brownlie’s Principles of Public International Law (2019, 9th ed) p 462.

1396

Cedric Ryngaert, Jurisdiction in International Law (2nd ed 2015) p 81.

1397

We discuss mutual legal assistance at paragraph 14.53 above.

1398

The agreement (“Agreement between the Government of the United Kingdom of Great Britain and Northern Ireland and the Government of the United States of America on Access to Electronic Data for the Purpose of Countering Serious Crime”) was laid before Parliament under section 20(1)(a) of the Constitutional Reform and Governance Act 2010.

1399

The Overseas Production Orders and Requests for Interception (Designation of Agreement) Regulations 2020 (SI 2000 No 38), art 2(a).

1400

Convention on Cybercrime (Budapest, 23 November 2001) ETS No 185, art 32(b); Cedric Ryngaert, Jurisdiction in International Law (2nd ed 2015) p 81.

1401

Convention on Cybercrime (Budapest, 23 November 2001) ETS No 185, art 32(a).

1402

  Federal Rules of Criminal Procedure (United States), r 41(b)(6).

1403

  Federal Rules of Criminal Procedure (United States), r 41(f)(1)(C).

1404

United States Department of Justice “Mythili Raman Letter to Advisory Committee on the Criminal Rules” (18 September 2013) at 5, available at <https://www.justsecurity.org/wp-content/uploads/2014/09/Raman-letter-to-committee-.pdf>.

1405

New Zealand Law Commission and Ministry of Justice Review of the Search and Surveillance Act 2012 / Ko te Arotake i te Search and Surveillance Act 2012, NZLC R141 (2017) paras 12.97 to 12.98.

1406

R (KBR) v Director of the Serious Fraud Office [2018] EWHC 2368 (Admin), [2019] QB 675 at [71].

1407

R (KBR) v Director of the Serious Fraud Office [2018] EWHC 2368 (Admin), [2019] QB 675 at [80] to [81].

1408

Masri v Consolidated Contractors International (UK) Ltd [2009] UKHL 43, [2010] 1 AC 90 at [24].

1409

R (KBR) v Director of the Serious Fraud Office [2018] EWHC 2368 (Admin), [2019] QB 675 at [72]. The same test was utilised by the Court of Appeal in R (on the application of Jimenez) v First Tier Tribunal (Tax Chamber) [2019] EWCA Civ 51, [2019] 1 WLR 2956 at [49].

1410

R (KBR) v Director of the Serious Fraud Office [2018] EWHC 2368 (Admin), [2019] QB 675 at [93].

1411

R (KBR) v Director of the Serious Fraud Office [2018] EWHC 2368 (Admin), [2019] QB 675 at [94].

1412

  Serious Organised Crime Agency v Perry [2012] UKSC 35, [2013] 1 AC 182 at [156].

1413

  Serious Organised Crime Agency v Perry [2012] UKSC 35, [2013] 1 AC 182 at [157].

1414

  Serious Organised Crime Agency v Perry [2012] UKSC 35, [2013] 1 AC 182 at [157]. Proceeds of Crime Act 2002, s

286(3). See also Crime and Courts Act 2013, s 48.

1415

  In re Paramount Airways Ltd [1993] Ch 223, 239 to 240.

1416

  In re Paramount Airways Ltd [1993] Ch 223, 239 to 240.

1417

  R v Smith (No 4) [2004] EWCA Crim 631; [2004] 3 WLR 229 at [55].

1418

 See R v Sheppard [2010] EWCA Crim 65; [2010] 1 WLR 2779; R v Rogers [2014] EWCA Crim 1680; [2015] 1 WLR

1017 at [54]; R v AIL [2016] EWCA Crim 2, [2016] QB 763; and Burns [2017] EWCA Crim 1466.

1419

  Investigatory Powers Act 2016, s 261(10).

1420

  Investigatory Powers Act 2016, ss 41 to 43.

1421

European Commission, Proposal for a Regulation of the European Parliament and of the Council on European Production and Preservation Orders for Electronic Evidence in Criminal Matters, COM (2018) 225.

1422

European Commission, Proposal for a Regulation of the European Parliament and of the Council on European Production and Preservation Orders for Electronic Evidence in Criminal Matters, COM (2018) 225, art 3.

1423

Cedric Ryngaert, “The European Production Order - Tackling the Problem of Enforcement Jurisdiction and

Extraterritoriality in Cyberspace” (18 July 2018) Renforce Blog < http://blog.renforce.eu/index.php/nl/2018/07/18/the-european-production-order-tackling-the-problem-of-enforcement-jurisdiction-and-extraterritoriality-in-cyberspace/>.

1424

Cybercrime Convention Committee, Criminal Justice Access to Electronic Evidence in the Cloud: Recommendations for consideration by the T-CY (September 2016) para 144.

1425

Cybercrime Convention Committee, Criminal Justice Access to Electronic Evidence in the Cloud: Recommendations for consideration by the T-CY (September 2016).

1426

Cybercrime Convention Committee, Criminal Justice Access to Electronic Evidence in the Cloud: Recommendations for consideration by the T-CY (September 2016) para 144.

1427

Anna-Maria Osula and Mark Zoetekouw, “The Notification Requirement in Transborder Remote Search and Seizure: Domestic and International Law Perspectives” (2017) 11(1) Masaryk University Journal of Law and Technology 103 at 108 to 109. See also Council of Europe, Explanatory Report to the Convention on Cybercrime, para 204.

1428

  Convention on Cybercrime (Budapest, 23 November 2001) ETS No 185, art 39(3).

1429

  Cedric Ryngaert, Jurisdiction in International Law (2nd ed 2015) pp 81 to 82. For example, R (KBR) v Director of the

Serious Fraud Office [2018] EWHC 2368 (Admin), [2019] QB 675.

1430

Anna-Maria Osula, “Transborder access and territorial sovereignty” (2015) 31 The Computer Law and Security Report 719 at 725.

1431

See Cybercrime Convention Committee, Criminal Justice Access to Electronic Evidence in the Cloud: Recommendations for consideration by the T-CY (September 2016) at [143].

1432

Cybercrime Convention Committee, Terms of Reference for the Preparation of a Draft 2nd Additional Protocol to the Budapest Convention on Cybercrime (June 2017); and Cybercrime Convention Committee, Preparation of the 2nd Additional Protocol to the Budapest Convention on Cybercrime State of play (June 2019). Only some draft provisions of the second additional protocol have been published, and not those relating to the issues that we have been discussing.

1433

Alex Davidson, “Extraterritoriality and statutory interpretation: the increasing reach of investigative powers” (2020) 1 Public Law 1 at 5.

1434

United States v Microsoft Corporation, Brief of the Government of the United Kingdom of Great Britain and Northern Ireland. Available at:

https://www.supremecourt.goV/DocketPDF/17/17-2/23693/20171213140104710 17-2%20-

%20Government%20of%20the%20United%20Kingdom%20of%20Great%20Britain%20and%20Northern%20Irelan d.pdf

1435

See paragraphs 16.71 to 16.73 above.

1436

  Consultation Question 55.

1437

  Consultation Question 55.

1438

  See paragraph 14.23 above.

1439

National Crime Agency; Metropolitan Police Service; Dijen Basu QC; Financial Conduct Authority; Competition and Markets Authority; Bar Council and the Criminal Bar Association; Whitehall Prosecutors’ Group; Staffordshire Police; Guardian News and Media; HM Revenue and Customs; Professor Richard Stone; Magistrates Association; The Law Society; Serious Fraud Office; Norfolk and Suffolk joint Cyber, Intelligence and Serious Organised Crime Directorate.

1440

National Crime Agency; Metropolitan Police Service; Dijen Basu QC.

1441

  Jonathan Hall QC.

1442

  Dijen Basu QC.

1443

Financial Conduct Authority; Competition and Markets Authority; National Crime Agency; HM Revenue and Customs; Serious Fraud Office; Whitehall Prosecutors’ Group; Staffordshire Police.

1444

Metropolitan Police Service; Financial Conduct Authority; HM Revenue and Customs.

1445

Bar Council and the Criminal Bar Association.

1446

  Metropolitan Police Service.

1447

  Serious Fraud Office.

1448

  Whitehall Prosecutors’ Group.

1449

  Staffordshire Police.

1450

Whitehall Prosecutors’ Group; Financial Conduct Authority.

1451

  See R (KBR) v Director of the Serious Fraud Office [2018] EWHC 2368 (Admin), [2019] QB 675 at [94].

1452

  See the explanatory notes to the Crime (Overseas Production Orders) Act 2019.

1453

The courts have been unimpressed by suggestions that occupiers should print off relevant files in lieu of investigators seizing devices. See R (Paul Da Costa) v Thames Magistrates’ Court [2002] EWHC 40 (Admin), [2002] Crim LR 504 at [19]; R (Cabot Global Ltd) v Barkingside Magistrates’ Court [2015] EWHC 1458 (Admin), [2015] 2 Cr App R 26 at [41] to [42].

1454

For example, see the Crimes Act 1914 (Australia), s 3F(2B).

1455

See Chapter 18 in which we discuss the desirability of clarifying whether, and if so in what circumstances, powers of production apply where data is stored overseas.

1456

A section of a statute, regulation or other legal instrument that explicitly states how something is to be treated or regarded.

1457

Higher Education and Research Act 2017, sch 5, para 9(2).

1458

R (Miranda) v Secretary of State for the Home Department [2016] EWCA Civ 6, [2016] 1 WLR 1505 at [113].

1459

Human Rights Act 1998, s 6(1).

1460

 R (KBR) v Director of the Serious Fraud Office [2018] EWHC 2368 (Admin), [2019] QB 675 at [73].

1461

 R (Rawlinson & Hunter Trustees & Others) v Central Criminal Court, the Director of the Serious Fraud Office [2013]

1 WLR 1634 at [78].

1462

Law Commission Search and Surveillance Powers (NZLC R97, 2007) para 7.116.

1463

New Zealand Law Commission and Ministry of Justice Review of the Search and Surveillance Act 2012 / Ko te Arotake i te Search and Surveillance Act 2012, NZLC R141 (2017) p 220 (Recommendation 45).

1464

New Zealand Law Commission and Ministry of Justice Review of the Search and Surveillance Act 2012 / Ko te Arotake i te Search and Surveillance Act 2012, NZLC R141 (2017) paras 12.19, 12.129, 12.133 and 12.144.

1465

For example, in what state must an electronic device be to be searched? How far should an investigator be permitted to operate an electronic device? To what extent should an investigator be permitted to use their own electronic devices to conduct a search while on premises?

1466

See paragraph 14.23 above.

1467

Regulation of Investigatory Powers Act 2000, s 53(1).

1468

 R v S [2008] EWCA Crim 2177, [2009] 1 WLR 1489 at [24].

1469

 R v S [2008] EWCA Crim 2177, [2009] 1 WLR 1489 at [25].

1470

 Greater Manchester Police v Andrews [2011] EWHC 1966 (Admin), [2011] ACD 18.

1471

 Love v National Crime Agency [2016] Lloyd’s Rep FC 424.

1472

Terrorism Act 2000, sch 7, para 5(a).

1473

See Rabbani v DPP [2018] EWHC 1156 (Admin).

1474

New Zealand Law Commission and Ministry of Justice Review of the Search and Surveillance Act 2012 / Ko te Arotake i te Search and Surveillance Act 2012, NZLC R141 (2017) paras 12.155 to 12.157.

1475

Jonathan Hall QC, “Scanning the Horizon: Technology and Risk” (22 January 2020),

<https://terrorismlegislationreviewer.independent.gov.uk/wp-content/uploads/2020/01/200122-HJS-speech-.pdf>.

1476

 R v Shergill (2019) ONCJ 54.

1477

 R v Shergill (2019) ONCJ 54 at [51]. See also the decision of the Massachusetts Supreme Judicial Court for the

County of Suffolk in Commonwealth v Jones 481 Mass 540, 117 NE 3d 720.

1478

Crimes Act 1914 (Australia), s 3LA; Search and Surveillance Act 2012 (New Zealand), s 130.

1479

Investigatory Powers Commissioner’s Office, Annual Report of the Investigatory Powers Commissioner 2017 (HMSO, 2019), Cm 1780, para 6.7.

1480

 Regulation of Investigatory Powers Act 2000, sch 2, para 1(1).

1481

 Regulation of Investigatory Powers Act 2000, sch 2, para 2(2)(a).

1482

Murder (Abolition of Death Penalty) Act 1965, s 1(1).

1483

See also Rabbani v DPP [2018] EWHC 1156 (Admin) in which the appellant refused to provide the PIN and password for his mobile phone and laptop computer, which led to a conviction for an offence of wilfully obstructing or seeking to frustrate a search or examination contrary to the Terrorism Act 2000, sch 7, para 18(1)(c).

1484

See Higher Education and Research Act 2017, sch 5, para 6(d). See also Crimes Act 1914 (Australia), s 3LA.

1485

DS Clayton Ford, Essex Police; Financial Conduct Authority.

1486

Staffordshire Police.

1487

Whitehall Prosecutors’ Group; Financial Conduct Authority.

1488

ACPO, Good Practice Guide for Digital Evidence (Association of Chief Police Officers (2012) para 2.1.2.

1489

Criminal Justice and Police Act 2001, s 50.

1490

Criminal Justice and Police Act 2001, s 63(2).

1491

Criminal Justice and Police Act 2001, s 63(1)(c).

1492

Search Warrants (2018) Law Commission Consultation Paper No 235 at para 10.100.

1493

Business Energy Solutions Ltd v Crown Court at Preston [2018] EWHC 1534 (Admin), [2018] 1 WLR 4887.

1494

Business Energy Solutions Ltd v Crown Court at Preston [2018] EWHC 1534 (Admin), [2018] 1 WLR 4887 at [83].

1495

Alex Davidson, “Seizure of Electronic Data: Business Energy Solutions Ltd v Preston Crown Court (Case Comment)” [2018] Criminal Law Review 860 at 864.

1496

  Consultation Question 53.

1497

Search Warrants (2018) Law Commission Consultation Paper No 235 at para 10.175.

1498

  Consultation Question 57.

1499

Consultation Question 53. One member of the public; City of London Police Economic Crime Academy; Kent County Council Trading Standards; Birmingham Law Society; Northumbria Law School Centre for Evidence and Criminal Justice Studies; Independent Office for Police Conduct; The Law Society; Justices’ Clerks’ Society; Dijen Basu QC; Bar Council and the Criminal Bar Association; Metropolitan Police Service; National Crime Agency; Competition and Markets Authority; Whitehall Prosecutors’ Group; Financial Conduct Authority; Serious Fraud Office; HM Revenue and Customs.

1500

Consultation Question 57. Professor Richard Stone; Senior District Judge (Chief Magistrate); Council of Her Majesty’s Circuit Judges; Kent County Council Trading Standards; Birmingham Law Society; Northumbria Law School Centre for Evidence and Criminal Justice Studies; Independent Office for Police Conduct; The Law Society; Justices’ Clerks’ Society; Magistrates Association; Dijen Basu QC; Bar Council and the Criminal Bar Association; Metropolitan Police Service; National Crime Agency; Competition and Markets Authority; Financial Conduct Authority; Serious Fraud Office; HM Revenue and Customs.

1501

Professor Richard Stone; Senior District Judge (Chief Magistrate); Council of Her Majesty’s Circuit Judges; Kent County Council Trading Standards; Birmingham Law Society; Northumbria Law School Centre for Evidence and Criminal Justice Studies; Independent Office for Police Conduct; The Law Society; Magistrates Association; Dijen Basu QC; Bar Council and the Criminal Bar Association; Competition and Markets Authority; Metropolitan Police Service.

1502

National Crime Agency; Financial Conduct Authority; The Serious Fraud Office; HM Revenue and Customs.

1503

Kent County Council Trading Standards; Metropolitan Police Service.

1504

Whitehall Prosecutors’ Group; Financial Conduct Authority; Serious Fraud Office; National Crime Agency.

1505

This means electronic data that does not fall within the scope of the search warrant.

1506

Kent County Council Trading Standards; Competition and Markets Authority; Independent Office for Police Conduct.

1507

R (McKenzie) v Director of the Serious Fraud Office [2016] EWHC 102 (Admin), [2016] 1 WLR 1308 at [34].

1508

  Justices’ Clerks’ Society.

1509

  Justices’ Clerks’ Society.

1510

  Senior District Judge (Chief Magistrate).

1511

  Justices’ Clerks’ Society.

1512

  Senior District Judge (Chief Magistrate).

1513

  Justices’ Clerks’ Society.

1514

Northumbria Law School Centre for Evidence and Criminal Justice Studies.

1515

Northumbria Law School Centre for Evidence and Criminal Justice Studies.

1516

Birmingham Law Society; Northumbria Law School Centre for Evidence and Criminal Justice Studies; Law Society.

1517

Metropolitan Police Service.

1518

  Law Society.

1519

  Dijen Basu QC.

1520

  Independent Office for Police Conduct.

1521

  Birmingham Law Society.

1522

  Independent Office for Police Conduct.

1523

  Independent Office for Police Conduct.

1524

  Independent Office for Police Conduct. See https://www.cps.gov.uk/legal-guidance/disclosure-guidelines-

communications-evidence.

1525

  Independent Office for Police Conduct.

1526

  Competition and Markets Authority.

1527

Law Society.

1528

The case was Fisher v Serious Fraud Office. The matter settled at court on the basis that the device would be considered by independent counsel, and no judgment was given.

1529

Dotcom v Attorney-General [2014] NZSC 199, [2015] 1 NZLR 745 at [194].

1530

Home Office, Equipment Interference Code of Practice (March 2018) paras 9.1 to 9.84.

1531

Big Brother Watch, Digital strip searches: The police’s investigations of victims (July 2019) p 14 to 15.

1532

See paragraph 14.75 above.

1533

Criminal Justice and Police Act 2001, s 52(1).

1534

Police and Criminal Evidence Act 1984, s 21(1).

1535

Business Energy Solutions Ltd v Crown Court at Preston [2018] EWHC 1534 (Admin), [2018] 1 WLR 4887.

1536

See paragraph 7.179 above.

1537

Code B, para 6.11.

1538

  ACPO, Good Practice Guide for Digital Evidence (Association of Chief Police Officers (2012) para 2.1.3 and p 31.

1539

  New Zealand Law Commission and Ministry of Justice Review of the Search and Surveillance Act 2012 / Ko te

Arotake i te Search and Surveillance Act 2012, NZLC IP40 (2016) paras 6.42 and 6.43

1540

New Zealand Law Commission and Ministry of Justice Review of the Search and Surveillance Act 2012 / Ko te Arotake i te Search and Surveillance Act 2012, NZLC R141 (2017) paras 12.68 and 12.69.

1541

See paragraph 7.179 above.

1542

See paragraphs 15.67 to 15.82 above.

1543

ACPO, Good Practice Guide for Digital Evidence (Association of Chief Police Officers (2012) p 36.

1544

  See paragraph 7.179 above.

1545

  See R v Bater-James [2020] EWCA Crim 790 at [88] in which Fulford LJ gave guidance on how the review of a

witness’s electronic communications should be conducted, highlighting that a fact-specific approach is required.

1546

See most recently R v Bater-James [2020] EWCA Crim 790 at [78] in which Fulford LJ wrote that “the loss of [an electronic] device for any period of time may itself be an intrusion into [a person’s] private life, even apart from considerations of privacy with respect to the contents.”

1547

Federal Rules of Criminal Procedure (Unites States), r 41 (Committee Notes on Rules—2009 Amendment).

1548

  https://www.thetimes.co.uk/edition/news/police-struggling-to-clear-evidence-backlog-of-12-000-devices-rpmhmfnpt.

1549

Big Brother Watch, Digital strip searches: The police’s investigations of victims (July 2019) p 18.

1550

  https://www.policeprofessional.com/news/forensic-delays-deeply-conceming-as-case-backlog-grows/ and HM

Inspectorate of Constabulary, Online and on the edge: Real risks in a virtual world (2015) p 6.

1551

See Love v National Crime Agency (19 February 2019) (unreported) for a case in which the magistrates’ court was tasked with deciding whether electronic devices seized as part of an ongoing criminal investigation ought to be returned to the owner following an application for the return of property under the Police Property Act 1897, s 1.

1552

See paragraphs 15.193 and 15.194 above.

1553

This means material that does not correspond with the terms of the warrant and so is not authorised to be searched for or seized under the authority of the warrant.

1554

This conclusion has also been influenced by our attendance at a section 59 CJPA hearing at Blackfriars Crown Court, in which there was a dispute regarding what conduct must be undertaken to satisfy the statutory initial sift requirement.

1555

Business Energy Solutions Ltd v Crown Court at Preston [2018] EWHC 1534 (Admin), [2018] 1 WLR 4887 at [83].

1556

Business Energy Solutions Ltd v Crown Court at Preston [2018] EWHC 1534 (Admin), [2018] 1 WLR 4887 at [75].

1557

Business Energy Solutions Ltd v Crown Court at Preston [2018] EWHC 1534 (Admin), [2018] 1 WLR 4887 at [98].

1558

See paragraph 15.118 above.

1559

Business Energy Solutions Ltd v Crown Court at Preston [2018] EWHC 1534 (Admin), [2018] 1 WLR 4887 at [111].

1560

R v R [2015] EWCA 1941 at [38], [50] and [59] by Sir Brian Leveson P. See also R v Bater-James [2020] EWCA Crim 790 at [88] in which Fulford LJ stated, on the question of how the review of the witness’s electronic communications should be conducted, that investigators will need to adopt an incremental approach.

1561

  Criminal Justice and Police Act 2001, s 59(5)(a).

1562

  Criminal Justice and Police Act 2001, s 59(5)(c).

1563

Consultation Question 43.

1564

  Criminal Justice and Police Act 2001, s 59(2); Police (Property) Act 1897, s 1; Magistrates’ Courts Act 1980, s 48.

1565

  The terms used to refer to the acts to be undertaken by law enforcement agencies should be broad enough to

capture the full range of activities which may be performed in respect of electronic material. For example, in the case of cryptocurrencies, the return of a person’s private key has the effect of “releasing” assets to be dealt with. The assets themselves cannot in any sense be seized or returned.

1566

Road Traffic Offenders Act 1988, s 42(4).

1567

Business Energy Solutions Ltd v Crown Court at Preston [2018] EWHC 1534 (Admin), [2018] 1 WLR 4887 at [110].

1568

Code B of PACE (2013) para 6.10.

1569

  R (McKenzie) v Director of the Serious Fraud Office [2016] EWHC 102 (Admin), [2016] 1 WLR 1308 at [22].

1570

 S and Marper v United Kingdom (2009) 48 EHRR 50 (App No 30562/04) at [99] and [103].

1571

Information Commissioner’s Office, Investigation report: Mobile phone data extraction by police forces in England and Wales (June 2020) p 52. Accessible at https://ico.org.uk/about-the-ico/what-we-do/mobile-phone-data-extraction-by-police-forces-in-england-and-wales/.

1572

Big Brother Watch, Digital strip searches: The police’s investigations of victims (July 2019) p 14 to 15.

1573

Information Commissioner’s Office, Investigation report: Mobile phone data extraction by police forces in England and Wales (June 2020) p 52. Accessible at https://ico.org.uk/about-the-ico/what-we-do/mobile-phone-data-extraction-by-police-forces-in-england-and-wales/.

1574

Information Commissioner’s Office, Investigation report: Mobile phone data extraction by police forces in England and Wales (June 2020) p 63. Accessible at https://ico.org.uk/about-the-ico/what-we-do/mobile-phone-data-extraction-by-police-forces-in-england-and-wales/.

1575

Federal Rules of Criminal Procedure (United States), r 41(b)(6).

1576

Crimes Act 1914 (Australia), s 3F(2D) (as amended by the Telecommunications and Other Legislation Amendment (Assistance and Access) Act 2018, sch 3, para 3).

1577

Search and Surveillance Act (New Zealand), ss 103(4)(k) and 111.

1578

New Zealand Law Commission and Ministry of Justice Review of the Search and Surveillance Act 2012 / Ko te Arotake i te Search and Surveillance Act 2012, NZLC R141 (2017) at 12.145 to 12.148.

1579

Search Warrants (2018) Law Commission Consultation Paper No 235 paras 10.103 and following.

1580

Police and Criminal Evidence Act 1984, s 20(2): this section applies to (a) any enactment contained in an Act passed before the Police and Criminal Evidence Act 1984; (b) Police and Criminal Evidence Act 1984, ss 8 and 18; (c) Police and Criminal Evidence Act 1984, sch 1, para 13; and (d) any enactment contained in an Act passed after the Police and Criminal Evidence Act 1984.

1581

Immigration Act 2016, s 48; Enterprise Act 2002, s 194; Competition Act 1998, ss 28A, 65F, 65G and 65H; Armed Forces (Powers of Stop and Search, Search, Seizure and Retention) Order 2009 (SI 2009 No 2056), art 14.

1582

Consultation Question 54.

1583

Crown Prosecution Service; National Crime Agency; Serious Fraud Office; Professor Richard Stone; Kent County Council Trading Standards; Insolvency Service; Law Society; Bar Council and the Criminal Bar Association; Competition and Markets Authority; Whitehall Prosecutors’ Group.

1584

R (Cabot Global Ltd) v Barkingside Magistrates’ Court [2015] EWHC 1458 (Admin), [2015] 2 Cr App R 26 at [41].

1585

Environment Bill 2019-2021, sch 10, para 5(2).

1586

D Bailey and L Norbury, Bennion on Statutory Interpretation (8th ed 2020) paras 27.2 and 27.9.

1587

Serious Fraud Office.

1588

See paragraphs 14.58 to 14.60 above.

1589

See Consumer Rights Act 2015, sch 5, paras 14 and 27, which permit an investigator to require the production of material “to which the trader has access”.

1590

Andrew Smith, “Do search warrants have extraterritorial effect?” Corker Binning Blog (7 February 2018) (available at https://www.corkerbinning.com/do-search-warrants-have-extraterritorial-effect/).

1591

Royal College of Nursing of the United Kingdom v Department of Health and Social Security [1980] UKHL 10, [1981] AC 800 at 822.

1592

Consultation Question 55.

1593

Masri v Consolidated Contractors International (UK) Ltd [2009] UKHL 43, [2010] 1 AC 90 at [24].

1594

  Regulation of Investigatory Powers Act 2000, s 49.

1595

  Terrorism Act 2000, sch 7, para 5(a). See Rabbani v DPP [2018] EWHC 1156 (Admin).

1596

Rabbani v DPP [2018] EWHC 1156 (Admin).

1597

For example, LastPass is a web browser extension that stored encrypted passwords online.

1598

Financial Services and Markets Act 2000, ss 131E and 131L.

1599

Terrorism Act 2000, sch 7, para 18. See Rabbani v DPP [2018] EWHC 1156 (Admin).

1600

Hinchcliffe v Sheldon [1955] 3 All ER 406.

1601

Lunt v DPP [1993] Crim LR 534.

1602

Accessible at: https://thebristolcable.org/2017/01/phone-cracking-tech/.

1603

See Privacy International, Digital stop and search (March 2018) and Privacy International, Cloud extraction technology (January 2020).

1604

Accessible at https://www.parliament.scot/S5 JusticeSubCommitteeOnPolicing/Inquiries/20190312SHRC-CyberKiosks.pdf.

1605

Accessible at https://sp-bpr-en-prod-cdnep.azureedge.net/published/JSP/2019/4/8/Report-on-Police-Scotland-s-proposal-to-introduce-the-use-of-digital-device-triage-systems--cyber-kiosks-/JSPS052019R01 .pdf.

1606

  Accessible at

https://www.parliament.scot/S5 JusticeSubCommitteeOnPolicing/Inquiries/20190430SeniorCounselOpinion.pdf.

1607

  https://www.bbc.co.uk/news/uk-scotland-51110586.

1608

Information Commissioner’s Office, Investigation report: Mobile phone data extraction by police forces in England and Wales (June 2020). Accessible at https://ico.org.uk/about-the-ico/what-we-do/mobile-phone-data-extraction-by-police-forces-in-england-and-wales/.

1609

Information Commissioner’s Office, Investigation report: Mobile phone data extraction by police forces in England and Wales (June 2020). Accessible at https://ico.org.uk/about-the-ico/what-we-do/mobile-phone-data-extraction-by-police-forces-in-england-and-wales/.

1610

Investigatory Powers Act 2016, s 56.

1611

Privacy International, Cloud extraction technology (January 2020).

1612

Accessible at

https://www.parliament.scot/S5 JusticeSubCommitteeOnPolicing/Inquiries/20190430SeniorCounselOpinion.pdf.

1613

  Privacy International, Digital stop and search (March 2018) pp 20 to 21.

1614

  Privacy International, Digital stop and search (March 2018) pp 20 to 21.

1615

Accessible at https://www.parliament.scot/S5 JusticeSubCommitteeOnPolicing/Inquiries/20190312SHRC-CyberKiosks.pdf.

1616

  573 US ___ (2014).

1617

See R v Bater-James [2020] EWCA Crim 790 in which the Court of Appeal provided guidance on obtaining and examining witness’s electronic devices. See also R v McPartland [2019] EWCA Crim 1782, [2019] 4 WLR 153 at [44] for a case in which the Court of Appeal criticised the taking and analysis of a complainant’s mobile phone.

1618

Information Commissioner’s Office, Investigation report: Mobile phone data extraction by police forces in England and Wales (June 2020). Accessible at https://ico.org.uk/about-the-ico/what-we-do/mobile-phone-data-extraction-by-police-forces-in-england-and-wales/.

1619

Information Commissioner’s Office, Investigation report: Mobile phone data extraction by police forces in England and Wales (June 2020) p 62. Accessible at https://ico.org.uk/about-the-ico/what-we-do/mobile-phone-data-extraction-by-police-forces-in-england-and-wales/.

1620

  Investigatory Powers Act 2016, s 44(1).

1621

  Investigatory Powers Act 2016, s 44(2).

1622

We use this term to mean consolidation which would not in itself effect a change in the law.

1623

Consultation Question 58.

1624

DS Clayton Ford; Professor Richard Stone; HM Council of District Judges (Magistrates’ Court); Senior District Judge (Chief Magistrate); Birmingham Law Society; The Law Society; Justices’ Clerks’ Society; Magistrates Association; Dijen Basu QC; Metropolitan Police Service; National Crime Agency; Competition and Markets Authority.

1625

Professor Richard Stone; HM Council of District Judges (Magistrates’ Court); Senior District Judge (Chief Magistrate); Birmingham Law Society; Justices’ Clerks’ Society; Magistrates Association; Metropolitan Police Service.

1626

   Justices’ Clerks’ Society.

1627

   Metropolitan Police Service.

1628

   HM Council of District Judges (Magistrates’ Court); Senior District Judge (Chief Magistrate).

1629

   HM Council of District Judges (Magistrates’ Court); Senior District Judge (Chief Magistrate).

1630

  DS Clayton Ford, Essex Police.

1631

  Law Society; National Crime Agency; Competition and Markets Authority.

1632

  Theft Act 1968, s 26; Misuse of Drugs Act 1971, s 23(3); Protection of Children Act 1978, s 4; Sexual Offences Act

2003, s 96B.

1633

See https://www.gov.uk/govemment/collections/reviews-of-all-powers-of-entry.

1634

See Post-Legislative Scrutiny of the Protection of Freedoms Act 2012 (6 March 2018) p 34,

https://www.gov.uk/government/publications/post-legislative-scrutiny-of-the-protection-of-freedoms-act-2012 .

1635

Theft Act 1968, s 26; Misuse of Drugs Act 1971, s 23(3); Protection of Children Act 1978, s 4; Sexual Offences Act 2003, s 96B.

1636

The Sentencing Code - Volume 1 (2018) Law Com No 382.

1637

Criminal Justice Act 1987, s 17(3).

1638

Consultation Question 59.

1639

Professor Richard Stone; HM Council of District Judges (Magistrates’ Court); Senior District Judge (Chief Magistrate); Kent County Council Trading Standards; Southern Derbyshire Magistrates’ Bench; The Law Society; Independent Office for Police Conduct; Justices’ Clerks’ Society; Magistrates Association; Bar Council and the Criminal Bar Association; Metropolitan Police Service; Competition and Markets Authority; Financial Conduct Authority; Serious Fraud Office; National Crime Agency.

1640

Birmingham Law Society; Dijen Basu QC.

1641

HM Council of District Judges (Magistrates’ Court); Senior District Judge (Chief Magistrate); Southern Derbyshire Magistrates’ Bench; Justices’ Clerks’ Society.

1642

  Magistrates Association.

1643

  Magistrates Association.

1644

  Justices’ Clerks’ Society.

1645

  Magistrates Association.

1646

Kent County Council Trading Standards; Law Society; Serious Fraud Office; Metropolitan Police Service; Competition and Markets Authority; Serious Fraud Office.

1647

  Competition and Markets Authority.

1648

  Birmingham Law Society.

1649

  Dijen Basu QC.

1650

Mental Health Act 1983, s 135.

1651

Animal Welfare Act 2006, s 19.

1652

Sexual Offences Act 2003, s 96B.

1653

Chemical Weapons Act 1996, s 5(2).

1654

R Banks, Banks on Sentencing (8th ed 2013), vol 1, p xii.

1655

Alex Davidson, “Extraterritoriality and Statutory Interpretation: The Increasing Reach of Investigative Powers” (2020) 1 Public Law 1 at 13.

1656

Home Office, Powers of Entry Guidance for Departments (2018), p 5.

1657

National Crime Agency v Simkus [2016] EWHC 255 (Admin), [2016] 1 WLR 3481 at [105].

1658

Firearms Act 1968, s 46(1); Customs and Excise Management Act 1979, s 118C; Copyright Act 1996, 21A; Chemical Weapons Act 1996, s 29; Biological Weapons Act 1974, s 4;

1659

Firearms Act 1968, s 46(1); Misuse of Drugs Act 1971, s 23(3).

1660

Criminal Justice Act 1987, s 2(4); Financial Services and Markets Act 2000, s 176; Proceeds of Crime Act 2002, s 352.

1661

Animal Welfare Act 2006, s 23(1); Conservation of Habitats and Species Regulations 2017 (SI 2010 No 1012), reg 115(3).

1662

Mental Health Act 1983, s 135.

1663

Competition Act 1998, s 28; Financial Services and Markets Act 2000, s 176.

1664

  Consultation Questions 60, 61 and 62.

1665

  Consultation Question 63.

1666

HM Council of District Judges (Magistrates’ Court); Senior District Judge (Chief Magistrate); Council of Her Majesty’s Circuit Judges; West London Magistrates’ Bench; Norfolk and Suffolk joint Cyber, Intelligence and Serious Organised Crime Directorate; Justices’ Clerks’ Society; Magistrates Association; Dijen Basu QC; Metropolitan Police Service.

1667

Bar Council and the Criminal Bar Association; Competition and Markets Authority; Financial Conduct Authority; Serious Fraud Office; Law Society.

1668

Professor Richard Stone; National Crime Agency; Whitehall Prosecutors’ Group.

1669

HM Council of District Judges (Magistrates’ Court); Senior District Judge (Chief Magistrate); Justices’ Clerks’ Society; Magistrates Association; Dijen Basu QC.

1670

Kent County Council Trading Standards; The Law Society; Bar Council and the Criminal Bar Association; Competition and Markets Authority; Financial Conduct Authority.

1671

Senior District Judge (Chief Magistrate); Justices’ Clerks’ Society; Magistrates Association; National Crime Agency}.

1672

The Law Society; Bar Council and the Criminal Bar Association; Competition and Markets Authority; Financial Conduct Authority; Serious Fraud Office.

1673

HM Council of District Judges (Magistrates’ Court); Kent County Council Trading Standards; Dijen Basu QC.

1674

HM Council of District Judges (Magistrates’ Court); The Law Society; Justices’ Clerks’ Society.

1675

  Magistrates Association.

1676

  Metropolitan Police Service.

1677

  West London Magistrates’ Bench.

1678

  Law Society.

1679

  Competition and Markets Authority; Serious Fraud Office.

1680

  Financial Conduct Authority.

1681

  Justices’ Clerks’ Society.

1682

  Professor Richard Stone.

1683

  Whitehall Prosecutors’ Group; National Crime Agency.

1684

  Senior District Judge (Chief Magistrate).

1685

  Dijen Basu QC.

1686

  Kent County Council Trading Standards.

1687

Consultation Question 64.

1688

Professor Richard Stone; Senior District Judge (Chief Magistrate); Birmingham Law Society; Norfolk and Suffolk joint Cyber, Intelligence and Serious Organised Crime Directorate; Southern Derbyshire Magistrates’ Bench;

Independent Office for Police Conduct; The Law Society; Justices’ Clerks’ Society; Magistrates Association; Dijen Basu QC; Metropolitan Police Service; National Crime Agency.

1689

Bar Council and the Criminal Bar Association; Competition and Markets Authority; Financial Conduct Authority;

Serious Fraud Office.

1690

Metropolitan Police Service; Dijen Basu QC.

1691

  Dijen Basu QC.

1692

  Metropolitan Police Service.

1693

  Dijen Basu QC.

1694

  National Crime Agency.

1695

  Bar Council and the Criminal Bar Association.

1696

Competition and Markets Authority; Financial Conduct Authority; Serious Fraud Office.

1697

Anonymity requested owing to the police force’s ongoing criminal investigation.

1698

It is unclear whether District Judges (Magistrates’ Courts) also have jurisdiction, along with Circuit judges, to hear applications for production orders and search warrants under the Police and Criminal Evidence Act 1984, sch 1. For a discussion of this issue see Alex Davidson, “Production Orders: R (BBC) v Newcastle Crown Court (Case Comment)” [2020] Criminal Law Review 247, 250.


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