11 January 2021
Not reviewed after the date of publication
Can you search a vehicle under Section 23 of the Misuse of Drugs Act without the owner/driver present?
For example, if a vehicle is recovered for no insurance and information comes from a third party that the owner is a supplier of drugs, or a vehicle is stopped due to smell of cannabis coming from it and the owner runs away.
Misuse of Drugs Act 1971
In relation to unattended vehicles, or vehicles where the occupant has left the scene, our views are as follows -
Under section 23(2)(b) of the Misuse of Drugs Act 1971 an officer must suspect the occupants of the vehicle, not simply that the vehicle itself has been used in connection with a drug offence.
The power under section 23(2)(b) requires reasonable grounds to suspect that a person possesses controlled drugs, in order to search a vehicle in which the drug may be found, effectively linking the person and the vehicle.
This was confirmed in the case of R v Littleford  Crim LR 48 where it was held that an officer must suspect the occupants of the vehicle to be searched, not simply that the vehicle itself has been used in connection with a drug offence. In this case, a police officer reasonably believed that L's car had been involved in drug trafficking. He searched the vehicle and found cannabis resin. It was held that the Misuse of Drugs Act 1971 section 23 gave police power to search any person or vehicle when they had reasonable grounds to suspect that the person was in possession of a controlled drug. Here the vehicle was suspected, not L. Although the evidence obtained was still admitted in this particular case, it was concluded that it was illegally obtained.
Therefore, it is our view that this power should not be used to search an unattended vehicle. If necessary, a warrant would need to be obtained.
Vehicle recovered for no insurance etc.
There are two schools of thought about this issue and ultimately it would have to be tested in a court.
The first is that because the police have custody of the vehicle under the Road Traffic Act 1988 (Retention and Disposal of Seized Motor Vehicles) Regulations 2005 they do not necessarily need a power to search the vehicle. Regulation 3(2) states 'while the vehicle is in the custody of the authorised person, the authorised person shall be under a duty to take such steps as are reasonably necessary for its safe keeping'. Searching the vehicle, under this authority, would allow the police to log the contents in order to avoid allegations of theft, misconduct etc. and to comply with the general health and safety duty before the vehicle is officially passed to the compound. etc.
The second view is that, just because the police have seized a car because it has no insurance or the driver does not have a licence, what right does that give the police to search the vehicle?
As with analogous issues of this kind, it is suggested that a common sense approach is adopted. As long as the police can justify a search on the grounds that it was necessary and proportionate, as balanced against the rights of the individual, then such a search could be regarded as necessary in the particular circumstances.
If a vehicle is searched, it would be advisable that justifiable reasons for carrying out the search are logged in order to defend any possible criticism.
Please also see our FAQ 'Traffic – searching vehicles in possession of police' on PNLD for more information.
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