Can a section 18 search be conducted whilst a person is in custody?

04 March 2020

Not reviewed after the date of publication

Question:

Can a section 18(1) PACE search be authorised when a suspect is awaiting being booked into the custody suite? The search would be frustrated by any further delays.

Answer: 

Section 18 creates a power to enter and search certain premises after someone has been arrested for an indictable offence and provides a power to seize relevant items, without the need for them to be in the premises at the time of arrest or immediately before.

'18(1) a constable may enter and search any premises occupied or controlled by a person who is under arrest for an indictable offence, if he has reasonable grounds for suspecting that there is on the premises evidence other than items subject to legal privilege, that relates -

(a) to that offence; or
(b) to some other indictable offence which is connected with or similar to that offence.'

A person is not required to be in police detention for a search to take place, only an arrest for an indictable offence is required.

Section 18(5) and (5A) confirms an inspector's authority is only not required when the presence of the person is necessary for the effective investigation and they have not been taken to the police station or released under section 30A. As the person has been taken to a police station an inspector's authority will be required pursuant to section 18(4). Furthermore, if the person is in police detention at the time of the search, section 18(8) confirms the officer shall record the search as part of the custody record.

All searches should also be carried out in accordance with Code of Practice B and all realistic efforts should be made to ensure the address the arrested person gives is occupied/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, as in the case of Khan v Metropolitan Police Commissioner 2008.

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