Cordons/scene guards and entry to search

16 May 2018

Not reviewed after the date of publication

Question:

What power do the police have/use when they place scene guards on at premises? Also, when a scene guard is on and CSI enter for forensic searches or police enter for evidential searches, what power/authority is this under? Should a Section 18 PACE be authorised or is there a separate authority or power for accessing scene guards for the purposes of searching?

Answer:

It will depend on the individual circumstances of the case as to what power an officer has to retain, search for and seize evidence from a crime scene.

When a person has been arrested for an indictable offence, the power to search for and seize evidence can be found in section 18 of the Police and Criminal Evidence Act 1984 (PACE) if the officer has reasonable grounds for suspecting that evidence will be found on the premises.

Where no arrest has been made, a warrant to enter, search for and seize evidence can be obtained. Depending on the offence this could be done undersection 8 of PACE, which can authorise multiple entries onto the premises if necessary (as per subsections (1C) and (1D)) or under section under section 23 of the Misuse of Drugs Act 1971; this will ensure that any evidence seized will be admissible in court.

There is no general statutory power to set up a cordon at a crime scene, but where a scene should be retained, the powers come mostly from common law. See for example the cases of DPP v Morrison (2003) and Austin v UK (2012). The Court in DPP v Morrison also referred to PACE Code of Practice B (seeparagraph 2.3) which assumes that there are situations where the consent of the owner of premises can be assumed to set up a cordon (the case dealt with a on private land where a public right of way applied).

The only specific statutory power for cordoning an area is for incidents relating to terrorism, please see sections 33 - 36 of the Terrorism Act 2000, this gives the police the power to cordon off an area involved in a terrorist incident or one that they believe may be or become involved in it. It includes police powers and also an offence of failing to comply with police orders in a cordoned area. While it is a wide-ranging power, the benefits of stopping terrorist acts, protecting the public and preventing the loss or contamination of any evidence at the scene must outweigh the inconvenience of the cordon.

Where a cordon is properly set up according to common law powers, a person who fails to comply with police orders might have committed the offence of wilful obstruction of a police officer, section 89(2) of the Police Act 1996. Please see PNLD's document on 'Powers to retain a crime scene' for further information in relation to the powers to retain a crime scene.

In certain circumstances, additional people can enter scenes and assist with searches, particularly under search warrants. Section 16(2A) of PACE states that persons can be authorised to accompany a constable executing a warrant and will have the same powers to execute the warrant and seize under it. In our opinion, this relates to people who have specialist skills over and above that of a constable, such as a crime scene investigator, computer expert or a dog handler. The explanatory notes from the Criminal Justice Act 2003 which amended section 16 of PACE supports our understanding -

 'This Section enhances the powers of persons authorised to accompany constables executing search warrants. Section 16(2) of PACE allows a search warrant to authorise persons to accompany any constable who is executing the warrant.

104. New subsection (2A) provides that any such person has the same powers as the constable whom he is accompanying in relation to executing the warrant and seizing anything to which the warrant relates. Subsection (2B) ensures that the person can only exercise these powers when he is accompanied by a constable and under that constable's supervision.

105. This addition to PACE will ensure that persons who accompany police officers in the execution of warrants can play an effective role in searching and seizure. For example, it will often be necessary for someone who is expert in computing or financial matters to assist a constable in searching premises where particular types of records are likely to be found. This provision enables such experts to take an active role in carrying out searches and in seizing material, rather than being present in a merely advisory or clerical capacity.'

To read more legislation about this subscribe to PNLD.

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