24 June 2020
Not reviewed after the date of publication
Please can you confirm the power which enables police to designate an area or premises as a scene of crime and what powers of search, seizure or occupation are permitted?
Are we also considered to be lawfully on a premises once designated?
The power to retain a crime scene is not provided for in statute (with the exception of terrorism cases – see section 33 of the Terrorism Act 2000). However, common law, developed over the years, provides for this custom and practice by the police, so that whenever a serious crime occurs in a public place, the police may cordon off the scene in order to prevent the public from using that area whilst they carry out an examination of the crime scene. This examination can be of privately owned items that they find there. Privately owned evidential material found at the scene (or anywhere else), which falls within the Ghani v Jones 1969 criteria, can be seized. If an owner of such items prevents such an examination, he/she may be deemed to obstruct the police in the execution of their duty.
Code of Practice B to the Police and Criminal Evidence Act 1984 regulates the searching of property and the seizure from premises. Paragraph 2.3 states that the Code applies to searches of premises by police for the purposes of an investigation into an alleged offence, with the occupier's consent, other than 'routine scenes of crime searches'.
Regarding routine scene of crime searches, any variation on a routine search of a crime scene will require consent. For example in the case of R v Sanghera 2000, a postmaster made a false claim that he had suffered an armed robbery. He returned with the officers to the shop a day later (as a victim), but the day after that, investigating officers, who had the keys, returned for a detailed search of his shop. They found the money secreted away. A consent form giving the permission of the postmaster for a search had been written out, but not signed by him or his wife. The Court of Appeal determined that by this point in the investigation the search was no longer a routine crime search and that the Code had been breached.
In the case of DPP v Morrison 2003, the Court of Appeal held that where a crime scene needed to be preserved on private property with a public right of way, consent can be assumed in the first instance:
'When seeking to investigate crime, police officers did not have an unencumbered right to restrict movement on private land. However, in the circumstances, the police were entitled to assume consent to cordon off the area. This was very much in accordance with Code of Practice B (the searching of premises). The thinking behind the Code is based on the presumption that neither a search warrant nor actual consent is needed for such a search and that consent could be quite properly assumed. Therefore, in the present case the police were entitled to assume consent and cordon off the area.'
The Court went on to quote from the judgment of Lord Justice Denning in Ghani v Jones 1969, which, whilst addressing other issues, stated:
'The police actions must be reasonable and necessary and there is certainly no automatic right to access and exclusion of others. Any such action would have to be fully justified and it is suggested that the following factors might be considered:
(i) the likelihood of evidence being present and recoverable
(ii) the practicability of obtaining that evidence within a given time,
(iii) the availability of other evidence
(iv) and the seriousness of the crime.'
The question of access becomes more difficult if the premises are completely private. For example, a celebrity who has held a party at which a guest was raped may be reluctant to allow the police to poke around in his/her house. The only way we will comprehensively establish the true position is when a case on the 'need for police access to a crime scene on private premises contrary to the wishes of the owner' is heard in one of the appeal courts and answered comprehensively at that level.
In some respects, Ghani v Jones has been modified by statute. Note that sections 8 and 9 of PACE now allow for search warrants in connection with a wide variety of offences, including murder. Section 19 also allows for the seizure of evidence, provided the police officer is lawfully upon the premises (it does not allow the premises to be cordoned off, but one might now cite the case of Morrison to provide the lawful authority to do so, especially as section 19(5) preserves other powers related to seizure).