Powers of Entry – Crime Related

Powers of Entry – Crime Related

Written by: Ruth Owen, PNLD Legal Adviser

Not reviewed after the date of publication - 25 January 2025

Police constables have powers of entry and search without a warrant under sections 17, 18 and 32 of PACE, common law and a range of other statutes.

PNLD Legal Adviser Ruth Owen provides a brief overview of various powers of entry available to officers, both with and without warrant, where suspicion of a criminal offence is present.

Summary

Powers of entry are intrusive in nature and may engage rights enshrined in the European Convention on Human Rights. Where infringement on a person’s right to respect of their privacy and family life occurs, officers need to ensure they are acting within the confines of the legislative powers afforded to them, justifying any interference with the right for the purpose of the prevention of crime. It is important officers observe the laws governing entry. Otherwise, public trust and confidence is likely to be undermined. Before considering powers of entry, officers must initially determine whether the evidence they are seeking can be obtained initially via less intrusive means. Where that is not possible, only then, can the more intrusive powers to enter, discussed below, be considered.
 

Section 17 of the Police and Criminal Evidence Act 1984 

Section 17 of the Police and Criminal Evidence Act 1984 (PACE) creates powers to enter premises without warrant for the purpose of arrest (within certain constraints), in the following circumstances:

• Executing a warrant of arrest issued in connection with or arising out of criminal proceedings  

This is provided for in section 17(1)(a)(i). An example of this in practice would be entry to arrest for the purpose of executing an FTA warrant issued under section 13 of the Magistrates Court 1980 and section 1 of the Magistrates Court 1980. Such a warrant carries a power of arrest, being for the purposes of bringing the person before the court to commence / proceed with criminal proceedings against them, thereby falling under this provision.

• Executing a warrant of commitment issued under section 76 of the Magistrates' Courts Act 1980

This is provided for in section 17(1)(a)(ii). A warrant of commitment under section 76 of the Magistrates' Courts Act 1980 applies where default is made in paying a sum adjudged to be paid by a conviction or order of a magistrates' court. The court can issue a warrant of distress, or a commitment warrant against the defaulter and the police may enter premises to execute that.

• Arresting a person for an indictable offence

This is provided for in section 17(1)(b) and allows officers to enter premises to arrest a person for an indictable offence. This also covers offences triable either way, as defined in Schedule 1 to the Interpretation Act 1978. PNLD provides information regarding the mode of trial of legislation and offences within each legal and offence document to assist officers in making their determination.

• Arresting a person for certain specified offences 

This is provided for in section 17(1)(c) and the offences listed within this subsection are all summary only offences. Normally, officers would not generally possess powers of entry relating to summary offences but for those listed in this subsection it is clear to see entry to premises for the purpose of executing that arrest may be required, for example, squatting in a residential building contrary to section 144 of the Legal Aid, Sentencing and Punishment of Offenders Act 2012.

• Arresting a person who the constable has reasonable grounds for believing is in breach of a domestic abuse protection notice given under section 22 of the Domestic Abuse Act 2021

This is provided for in section 17(1)(cza) and is one of the newest additions to the section, originally coming into force on the 27th November 2024. Whilst entry would take place using this power for the purpose specified, the arrest power is provided by section 26 of the Domestic Abuse Act 2021 to ensure the individual is brought before the court.

• 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

This is provided for in section 17(1)(ca) and permits officers to enter premises for the arrest of young people who are absent from a place where they have been sent to stay by a court (including youth detention or local authority accommodation). Entry on this basis is to arrest and return the person.
 

• Arresting a person for an offence to which section 61 of the Animal Health Act 1981 applies

This is provided for in section 17(1)(caa) and provides officers with a power to enter for the purpose of an arrest relating to the control of rabies. At the time this provision was added (January 2006) transmission of rabies was at an increased risk worldwide.

• Arresting a person under provisions relating to breach of bail

​​This is provided for in section 17(1)(cab) and covers entry to arrest for breach of both pre and post-charge bail along with breach of bail conditions. For example, arrest under section 46A(1) or (1A) of PACE.

• Recapturing any person who is, or is deemed for any purpose to be, unlawfully at large while liable to be detained in a prison, young offender institution, secure training centre or secure college, or in pursuance of section 92 of the Powers of Criminal Courts (Sentencing) Act 2000 or section 260 of the Sentencing Code (dealing with children and young person’s guilty of grave crimes), in any other place

This is provided for in section 17(1)(cb) and is similar to the ground in section 17(1)(ca) except it applies to children, young persons and adults unlawfully at large after being found guilty of grave crimes listed in the sections. Officers are permitted under this provision to enter and arrest for the purpose of returning to place of detention.

• Recapturing any person whatsoever who is unlawfully at large and whom he is pursuing

This is provided for in section 17(1)(d) and the distinction here in contrast to other powers of entry relating to being unlawfully it large is that the officer must be in pursuit of the person at the time they seek to enter to arrest. As such, this may be considered where for example, a person has made off after an arrest.

• Saving life or limb or preventing serious damage to property

This is provided for in section 17(1)(e). Entry for the purpose of saving life or limb requires belief that an immediate risk of serious or life threatening harm, or serious damage to/threat of damage to property, exists – see the case of Friswell v Chief Constable of Essex Police (2004). In this case, it was held that the nature of the power under section17(1)(e) was one which required circumstances giving rise to an immediate and present threat or danger before the power of entry to private premises could be lawfully exercised.

Essentially, the power exists to enable police officers to enter premises to deal with emergency situations where someone has suffered, or is at risk of suffering, serious injury or loss of life without immediate police intervention, or where serious damage is being done, or is immediately threatened, to the property. In the case of Syed v DPP (2010) it was held that concern for welfare was not a high enough threshold to enter, it stated that serious bodily injury, apprehended knife injuries and gunshot injuries would normally be covered.

PNLD are regularly asked about entry relating to a person threatening harm. In the case of Baker v CPS (2008), it was confirmed that this power could be used to enter premises without consent of the occupier to prevent a person from causing serious harm to him or herself, third parties or to prevent serious damage to property.

In relation to all reasons for entry under section 17 above, once entry is made and it is clear to officers that the person is not present on the premises (for example, due to a search being made), the lawful exercise of powers ends under the section and officers should leave. Otherwise, they risk being unlawfully on the premises.

Grounds for entry under section 17 of PACE 

 

Powers under section 17 may only be utilised (except for the purpose of section 17(1)(e) – saving life and limb of persons or animals) where officers have reasonable grounds for believing that the person they are seeking is on the premises.

Reasonable grounds to believe requires something close to certainty and is a high threshold. Whereas reasonable grounds to suspect a person is on the premises is a much lower standard. The criteria for reasonable grounds to believe or suspect is the legal threshold for the exercise of almost all the coercive powers available under PACE. A police officer may use information or evidence from various sources to justify grounds but ultimately, if challenged, is for a court to review.

Section 18 of PACE 

 

Section 18 of PACE creates the power to enter (and search) any premises occupied or controlled by a person after they have been arrested for an indictable offence. A constable must possess reasonable grounds for suspecting that there is evidence (other than items subject to legal privilege) on the premises relating to that offence or, to some other indictable offence which is connected with, or, similar to that offence.

Officers must be certain that premises are occupied or controlled by the person under arrest before entering. This may be confirmed by interrogating information on police systems as an example. Reasonable suspicion that the premises are occupied or controlled is insufficient and this has been confirmed by the courts in the case Khan v Metropolitan Police Commissioner (2008).

‘Occupied or controlled’ is 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.

Entry under section 18(1) must generally be authorised by an officer of at least Inspector rank (see section 18(4)) however, section 18(5) and (5A) provide an exception to that requirement where the presence of the person at a place other than a police station is necessary for the effective investigation of the offence.

“Necessary for the effective investigation of the offence” means the arrested person must be present and there must be a reason for them to be present at the place at the time, for example, to preserve evidence in a way that could not be done without the presence of the suspect. For example, this may occur when an officer has arrested a suspect for theft of an item of property that is hidden in the property to be searched, and that suspect knows where it is hidden. If the officer believes that if the suspect was taken straight to the police station the stolen property would be removed before they could return to search, they will conduct the search under section 18(5) with the direction of the suspect. Another example could be where the presence of the suspect is needed to by-pass a biometric security system.

Where a search is conducted by virtue of section 18(5), a constable shall inform an officer of the rank of inspector or above that he has made the search as soon as practicable after he has made it.

Section 32 of PACE

 

Section 32 of PACE provides a power to enter premises (and search) upon arrest.

Section 32(2)(b) specifically provides a power to enter and search any premises where the arrested person was at the time of or immediately before arrest, in relation to an indictable offence. The power to enter is only available if the relevant constable has reasonable grounds to believe there is evidence on the premises for which a search is permitted.

The power under section 32(2)(b) is only available at the time the individual is arrested or immediately after. it is not permissible for the police to return to premises to search them several hours after the arrest. Case law has also established that delays of a few hours for a section 32 search are unacceptable. In the case of Badham [1987] Crim LR 202, the decision of a Crown Court judge was that a gap of several hours was too long.

Section 32(7) provides that where the premises consist of two or more dwellings, the powers under this section are confined to the dwelling where the arrest took place, or where the person arrested was immediately before arrest, and to common areas.

Warrants 

Where powers of entry without warrant don’t apply or other case specifics dictate, then it may be necessary to obtain entry to premises under a warrant.
 

Officers may enter a property under the authority of a section 8 PACE warrant where the case involves an indictable offence. The application for such a warrant must be made to the court in the format specified in the Criminal Procedure Rules. Section 3 of PACE Code B also applies and guides on action to take before and upon making an application for such warrants.  PNLD have also produced some helpful documents regarding the application process, see section 8 warrant application and application for warrants.

Under the legislation, to apply for a section 8 warrant, the officer must demonstrate that an indictable offence has been committed, there is material on the premises likely to be of substantial value to the investigation, the material is likely to be relevant evidence, the material doesn’t include excluded or special procedure material nor, material subject to legal privilege.

One of the following additional grounds must also apply:

• that it is not practicable to communicate with any person entitled to grant entry to the premises;
• that it is practicable to communicate with a person entitled to grant entry to the premises but it is not practicable to communicate with any person entitled to grant access to the evidence;
• that entry to the premises will not be granted unless a warrant is produced;
• that the purpose of a search may be frustrated or seriously prejudiced unless a constable arriving at the premises can secure immediate entry to them.

There are two types of section 8 warrants namely, a specific premises and all premises warrant.

• A ‘specific premises’ warrant is one which specifies the premises officers wish to search. All relevant premises must be listed in the application. For example, where one specific address is included in the application, only that address can be entered.
• An ‘all-premises’ warrant allows entry into more than one property. This form of requires that the application to specify as many premises that can be named, identify the person who is in occupation or control of the premises and state why it is necessary to search more premises than can be specified and, why it is not practicable to specify all the premises at the time of the application. In considering the application the judge may authorise the search of some, or all of the premises named in the warrant.

Multiple entries may be granted under either form of warrant where the court is satisfied that is necessary, see sections 8(1C) and (1D). Entry must take place within three months from the date the warrant was granted by the court (section 16(3) of PACE), also complying with the other safeguards in section 16.

Entry to premises under a section 8 warrant must further comply with the safeguards in section 15 of PACE. An example of one key safeguard is that following entry, the person whose premises have been entered and searched must be provided with a copy of a warrant. Note, where this contains sensitive information or intelligence, it is permissible to redact the warrant, where reasonably required.

The majority of civil claims brought against forces relate to a warrant being executed at the incorrect address or a failure to adhere to the safeguards above. The court will not accept an excuse that officers were acting in good faith. Thorough checks should always be conducted with regards to the addresses included on a warrant, the manner in which an application has been drafted and, entry conducted.

Section 23(3) of the Misuse of Drugs Act (MDA 1971) provides that a warrant may be granted to authorise any constable at any time or times within one month from the date of the warrant, to enter the premises named in the warrant (to search the premises and any persons found therein). Such a warrant only covers entry for the purpose of searching for drugs and related documents. The same safeguards and procedures in Code B and sections 15 / 16 of PACE apply to such warrants.

• A warrant under section 8 of PACE must be executed within three months, whereas a warrant under section 23(3) MDA 1971 must be executed within one month.
• A section 8 warrant does not allow search of persons located on the premises.
• A section 8 warrant is not as narrow as a section 23 warrant, in a sense that it is not limited to drugs and documents.

For both forms of warrant, reasonable force can be used in executing entry but only when necessary and proportionate and the person entitled to grant access has refused entry (paragraph 6.6 of Code B). Where force has been used, the property must be secured (paragraph 6.13 of Code B) and details of damage recorded (paragraph 8.1 of Code B). The Code confirms that any inappropriate use of force may render a police force liable to compensate (paragraph 6A).

Occupiers consent to enter

The final matter discussed in this article is entry to premises by consent (for the purpose of a consensual search of the premises), as provided for in paragraphs 5.1 and 2 of PACE Code B. A police constable on premises with consent would be deemed ‘lawfully on premises’.

To enter on the basis of consent, an officer must satisfy themselves that the person who gives consent has power to do so, such as the property owner. It must be made clear to the relevant person (the person in the position to provide consent) that they are not obliged to consent to entry, as outlined in paragraph 5.2 of Code B.

It may be unnecessary for officers to seek consent of a person where it would cause disproportionate inconvenience to the person concerned. Note 5C of the Code explains that may occur in situations where it was reasonable to assume innocent occupiers would agree to, and expect, police to take the proposed action, as for example, if a suspect had fled the scene of a crime or was trying to evade arrest, and it was necessary to check surrounding gardens and readily accessible places to see if the suspect was hiding and this approach was confirmed in R (Wiltshire) v CPS (2014). In this case, it was 3:30am and officers were in pursuit of a suspect and entered a private garden, but the court deemed it was reasonable to assume that a reasonable occupier would allow the police officer to enter in those circumstances.

PACE Code of Practice B

Police powers of entry (along with search and seizure are governed by Code of Practice B. That provides the core framework for police powers and safeguards in relation to entering premises and applies to all powers and warrants discussed in this article. The Code is vast and whilst certain aspects of the Code have been discussed in the context of this article, we would advise that officers ensure they are familiar with all content under the Code.

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