Section 18 search for a person in custody after answering their bail

29 March 2021

Not reviewed after the date of publication

Question: 

Can a section 18 search be authorised for someone who is in police custody having answered their bail? No new evidence, no further arrest, simply having answered their bail.

Answer:

The provisions of section 18 PACE create 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. Subsection (1) requires that the person whose premises is to be searched be 'under arrest for an indictable offence'. A section 18 search does not require the suspect to be in police custody at the time of the search but depends on the suspect being arrested for an indictable offence and satisfying the other conditions contained within the section.

Unlike section 32 of PACE, under which the police power to enter premises after an arrest is only available more or less at the time of arrest, section 18 does not have such time restraints. However, the timing (or delay as the case may be) of authorising a search may render it not meeting the requirements of the section. For example, the more time that passes, the more difficult it may be to establish reasonable grounds to suspect that there is evidence on the premises relating to that offence or other connected indictable offence.

Although a person who answers bail is still technically under arrest for an offence, it is worth noting the case of R (on the Application of TL) v Chief Constable of Surrey Police 2017. In that case, TL was arrested for the purpose of carrying out a search under section 18. That arrest was held unlawful because the delay in arresting indicated there was no necessity to search. It was held that a search warrant should have been obtained. Given the delay before arresting, it could not be said that the matter had been so urgent that a warrant could not reasonably have been obtained. There would need to be a risk of evidence being destroyed during the time that it would take to obtain a warrant, for an arrest to be necessary for the purpose of searching.

Although a different set of circumstances, our view would be similar to the above in that the delay in authorising a section 18 search until the person has answered bail would indicate that a warrant could have been sought. There would also in our view, need to be a risk of evidence being destroyed during the time that it would take to obtain a warrant, for a section 18 search to be necessary.

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