Written by: Danielle Johnson, PNLD Legal Adviser
Not reviewed after the date of publication - 28th October 2021
The Police and Criminal Evidence Act 1984 (PACE) outlines that in certain circumstances, the police have the power to enter and search premises following the arrest of a person, and to seize evidence. These powers are some of the most intrusive powers afforded to the police; they must only be used if necessary and if objectives cannot be met with other less intrusive means. PNLD regularly receives queries from officers regarding the appropriate use of the powers. In this article, PNLD Legal Adviser Danielle Johnson outlines the relevant legislation and shares responses to queries that are regularly received.
Section 18 of PACE
Section 18(1) of PACE states a constable may enter and search any premises occupied or controlled by a person who is under arrest for an indictable offence (includes either way offences), if he has reasonable grounds for suspecting that there is evidence on the premises, other than items subject to legal privilege, that relates to that offence or some other indictable offence (that is connected with or similar to that offence). The power to search is only available for the purpose of discovering such evidence and an officer may seize and retain anything for which he may search.
In order to use these powers, an authority from an officer the rank of Inspector or above is required in writing, which can be made as a pocket notebook entry or in the search record. It must also be recorded in the custody record if the person is in custody at the time, and as a matter of good practice, it is suggested that this should be done in all instances to safely satisfy the requirements of the legislation. Authority is only not required where the presence of the suspect is necessary for the effective investigation of the offence and they have not been taken to the police station or released under section 30A. Where a search is carried out without authority, the constable must inform an officer of the rank of Inspector or above that he has made the search, as soon as practicable after it.
Section 23 of PACE defines the meaning of the term ‘premises’ for any purpose under that Act -
‘23 In this Act premises includes any place and, in particular, includes -
(a) any vehicle, vessel, aircraft or hovercraft;
(b) any offshore installation;
(ba) any renewable energy installation;
(c) any tent or movable structure;’
Occupied or controlled
The meaning of ‘occupied or controlled’ was not specifically defined in the statute, however case law has gone some way towards providing a definition. ‘Occupied’ in this context refers to premises where the arrested person resides or works and may include occupancy as an owner, tenant or squatter. ‘Controlled’ in this context includes premises in which the arrested person holds some interest (i.e. he owns, rents, leases or has use of the premises).
It is important to note that when an arrested person gives an address, all realistic efforts must be made to confirm that the premises are actually occupied or controlled by them. The legislation gives no margin for errors and if a mistake is made, even in good faith, it is possible that the Force could be successfully sued for unlawfully searching premises, as was the case in Khan v Metropolitan Police Commissioner (2008). The Court of Appeal in that case ruled that premises had to be occupied or controlled by the arrested person if a search was to be lawfully undertaken.
Section 32 of PACE
Section 32 of PACE provides for an arrested person to be searched, where they have been arrested at a place other than a police station. If the offence for which the suspect has been arrested is an indictable offence (includes either way offences), it also allows a constable to enter and search any premises where the person was when arrested or immediately before the arrest, for evidence relating to the offence.
The power to search premises is only available for the purpose of discovering such evidence and a constable must have reasonable grounds for believing that there is evidence on the premises that relates to the offence. The general power to seize property under section 19 of PACE applies to any evidence found during the search of the premises; the seizure powers provided within section 32 only apply to the search of persons.
Where the premises to be searched consists of two or more dwellings, the search is limited to:
- any dwelling in which the arrest took place or in which the person arrested was immediately before his arrest; and
- any parts of the premises which the occupier of any such dwelling uses in common with the occupiers of any other dwellings comprised in the premises.
All searches carried out under section 18 and section 32 must be carried out in compliance with Code of Practice B.
What is the difference between a section 18 search and a section 32 search?
Section 32 provides that a constable may search premises after arrest for evidence relating to that offence, provided the person was in such premises at the time of arrest or immediately before. This power is therefore only available more or less immediately at the time of arrest. Section 18 creates a power to enter and search premises occupied or controlled by a person who is under arrest for an indictable offence, without the need for them to be in the premises at the time of arrest or immediately before. Section 18 does not have the same time constraints as section 32 and is wider in terms of what the officer is searching for, however it normally requires the authority of an Inspector or above. Under section 18, the officer may search for evidence not only relating to the offence the person was arrested for, but also relating to other indictable offences that are connected or similar to that offence.
Can a section 18 search be carried out after a section 32 search has already taken place?
A section 18 search could be requested and authorised where a section 32 search has already been carried out, as long as the provisions of section 18 are satisfied at the time. As outlined previously, section 32 provides an immediate power to be exercised at the time of arrest and entry to premises may only be permitted for the purpose of searching for evidence of the offence for which the arrest has been made. Section 18 provides the power to enter and search if the constable has reasonable grounds for suspecting there is evidence relating to the offence or some other indictable offence (which is connected to or similar to the original offence). As such, there may be circumstances where the wider powers of section 18 are still required following a search under section 32. However, it should be noted that the timing of the request and reasons for carrying out the subsequent search would have a bearing on the authorisation and lawfulness. A request for section 18 authorisation, should the conditions be satisfied in the particular circumstances, could potentially be made at any point during the person’s detention. Should either a section 18 or section 32 be deemed to be unlawful, any evidence seized as a result may be deemed inadmissible, which may be avoided by applying for a section 8 warrant instead. If a section 18 search is authorised, the full reasons should be recorded.
Can a section 18 search be conducted before a person is taken into custody?
A person is only required to be under arrest for an indictable offence for a search to take place; the provisions do not refer to the person being in custody at a police station. Therefore, an Inspector (or above) can authorise a search to the suspect arriving at the police station, if required. A search may also take place without the authority of an Inspector when the presence of the suspect at another place is necessary for the effective investigation and they have not yet been taken to the police station or released under section 30A.
Can a section 18 search be carried out following a person answering bail?
As outlined previously, unlike section 32 of PACE, where the power to enter premises is only available more or less at the time of arrest, section 18 does not have such time restraints. However, the timing (or delay as the case may be) of authorising a search may render it as not meeting the requirements of the section. For example, the more time that passes, the more difficult it may be to establish reasonable grounds to suspect that there is evidence on the premises relating to that offence or other connected indictable offences.
If new grounds arise after a person has answered bail, it is our view that a section 18 search could be authorised, as a person who answers bail is still technically under arrest for an offence. However, it is worth noting the case of R (on the Application of TL) v Chief Constable of Surrey Police 2017. In that case, the suspect was arrested for the purpose of carrying out a search under section 18. That arrest was held unlawful because the delay in arresting indicated there was no necessity to search. It was held that a search warrant should have been obtained. Given the delay before arresting, it could not be said that the matter had been so urgent that a warrant could not reasonably have been obtained. There would need to be a risk of evidence being destroyed during the time that it would take to obtain a warrant, for an arrest to be necessary for the purpose of searching. Although a different set of circumstances, our view would be similar to the above, in circumstances where a section 18 search was delayed until the person answered bail, as the delay indicates that a warrant could have been sought. There would also in our view, need to be a risk of evidence being destroyed during the time that it would take to obtain a warrant, for a section 18 search to be deemed necessary.
Can premises be searched under section 32 if there are grounds to believe the person was in those premises immediately before arrest?
The use of the power to search premises in section 32(2)(b) must only be utilised when the officer has reasonable grounds for believing that there is evidence, for which a search is permitted, on the premises (section 32(6) of PACE). However, there is no reference made in section 32(2)(b) for any reasonable suspicion or belief that the person was inside the premises immediately before arrest. We would interpret this to mean that the officer must know that the person was in the premises immediately before the arrest and not merely have a reasonable suspicion or belief that they were. This appears to be supported by the case of R v Beckford  94 Cr App Rep 43, which refers to premises the suspect was ‘known’ to have been in.
Is a search of premises under section 32 lawful if it is delayed?
Ideally, a premises search under section 32 should be carried out as soon as possible after arrest. There is no specific time limit in the legislation regarding how soon after the arrest the property is required to be searched, however as the power to search premises is grouped together in subsection (2) with the power to search a person, and as the premises it applies to are those that the person was in at the time of arrest or immediately before, it is our view that the intention of the legislation was for the searches to be carried out at the time of arrest, or immediately after. In our opinion, the more time that passes following the arrest, the less likely it is that section 32 will cover the search. Whether a time delay caused a search to be unlawful would ultimately be for the courts to decide, based on the full circumstances. However, please note the following cases which outline a search will not be permitted hours later -
- In the case of Hewitson v Chief Constable of Dorset Police  EWHC 3296 (Admin), a gap of 2 hours 10 minutes was deemed too long.
- In the case of Badham  Crim LR 202, the Crown Court judge decided that the search was only justified upon arrest and did not give an open-ended right to return to the premises. A police officer returned to the premises after a gap of three hours, which was deemed too long.
Sections 18 and 32 of PACE have been established for a number of years, but as already noted, PNLD regularly receives queries relating to these powers. They are commonly used, and an important tool in gathering evidence. It is therefore crucial that officers are knowledgeable about the provisions of these sections and the possible pitfalls, to ensure that the searches carried out are lawful, and that the evidence seized is not deemed to be inadmissible.
From the legislation, queries and caselaw outlined above, the key things that an officer must keep in mind when using these powers, are the suspicion, belief and knowledge required to use them, the timing of the search and the authority required. In all cases, such searches should be carried out expeditiously and without delay.
Further guidance regarding these and other search powers can be found in the College of Policing’s APP content titled Search powers and obtaining and executing search warrants.