Search of premises records

06 January 2021

Not reviewed after the date of publication

Question: 

With the move towards electronic records, is this compatible with the requirement to leave written records of searches with occupiers etc.?

For example, will emailing a copy of the record to the occupier suffice and does this have to be done before the police leave the premises?

Answer:

In relation to the execution of a search warrant of premises, the provisions of section 16 PACE shall apply. Subsection 16(5) states that a constable shall produce the warrant and shall supply the occupier with a copy of it.

PACE code of Practice B reiterates this at paragraph 6.7 which states that if an officer conducts a search to which this Code applies the officer shall, unless it is impracticable to do so, provide the occupier with a copy of a Notice in a standard format. Paragraph 6.8 states that if the occupier is –

present, copies of the Notice and warrant shall, if practicable, be given to them before the search begins, unless the officer in charge of the search reasonably believes that to do so would frustrate the object of the search or endanger the officers concerned or other people;

not present, copies of the Notice and warrant shall be left in a prominent place on the premises or appropriate part of the premises and endorsed subject to paragraph 2.9 with the name of the officer in charge of the search, the date and time of the search.

The warrant shall be endorsed to show this has been done.

The Codes are silent as to whether the copies that are required to be given to the occupier of premises may be given electronically. The current Criminal Procedure Rules provide rules on service of court process by electronic means. They state that:

'4.6.—(1) This rule applies where -

(a) the person to be served -

(i) has given an electronic address and has not refused to accept service at that address, or
(ii) is given access to an electronic address at which a document may be deposited and has not refused to accept service by the deposit of a document at that address; or

(b) the person to be served is legally represented in the case and the legal representative -

(i) has given an electronic address, or
(ii) is given access to an electronic address at which a document may be deposited.

(2) A document may be served -

(a) by sending it by electronic means to the address which the recipient has given; or
(b) by depositing it at an address to which the recipient has been given access and -

(i) in every case, making it possible for the recipient to read the document, or view or listen to its content, as the case may be,
(ii) unless the court otherwise directs, making it possible for the recipient to make and keep an electronic copy of the document, and
(iii) notifying the recipient of the deposit of the document (which notice may be given by electronic means).

(3) Where a document is served under this rule the person serving it need not provide a paper copy as well.'

However, the documents to which the above applies are court documents, i.e. part of ongoing criminal proceedings which require being 'served'. In our view, search records made by the police would not come under this. However, it may be that individual force policies allow for electronic copies to be sent at the time of the search to be backed up by hard copies on request. Until this is tested by the courts however this would be open to challenge.

We are unable to find a case on the facts you describe specifically but recent case law suggests the use of hard copies as still being the correct method to fulfil the requirements of section 16 of PACE. For example please see Westminster College of Computing Ltd v Commissioner of Police for the Metropolis [2020] EWCA Civ 561 in which a warrant left at a college reception desk rather than given to the lead lecturer concerned was challenged but held to be in accordance with the provisions of PACE.

There was no mention in that case of emailing the copy to the lecturer concerned which may suggest that hard copies (at the investigation stage of a prosecution) are the only and correct method by which to fulfil the requirements of the legislation.

Where electronic search documents are considered by a Force, we are of the opinion that this could only apply where the occupier is present at the premises, as an electronic document cannot otherwise be left 'in a prominent place on the premises' to satisfy the provisions of the legislation.

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