Entry, Search and Seizure Flashcards

Question

SEIZURE RULES IN RELATION TO SPECIFIC CATAGORIES OF MATERIAL

Answer 1

* Legally privileged material - 3 categories 1. Communications between either a professional legal advisor and their client and any person representing their client made in connection with giving legal advice to the client 2. Communications between either a professional legal advisor and their client and any person representing their client made in connection with giving legal advice to the client or such advisor or his client or any such representative and any other person made in connection with or in contemplation of legal proceedings and for the purpose of such proceedings 3. Items both enclosed with or referred to in such communication and made either in connection with the giving of legal advice or in contemplation of legal proceeding and for the purpose of such proceedings Will an item which is held by a legal adviser with the intention of furthering a criminal purpose covered by legal privilege? NO Can legally privileged material be searched for and seized? No - if it is in possession of a person who is entitled to possession of such material Yes - if items are held with the intention of furthering a criminal purpose * Excluded material 3 categories of material held in confidence 1. Business documents - personal records which a person has acquired or created in the course of any trade, business, profession, occupation or for the purpose of any paid or unpaid office e.g. records made by priests, medical records 2. Human tissue - or tissue fluid take for the purposed of diagnosis or medical treatment which a person holds in confidence 3. Journalistic material - holds in confidence and consists of documents or records Basis of the obligation to hold material in confidence? Depends on the category of excluded material. Categories 1 and 2 - by virtue of either an express or implied undertaking and obligation imposed by legislation Category 1 - both the journalistic material is held subject to such an undertaking or obligation that it be held in confidence; and it has been continuously held by one or more persons subject to such an undertaking or obligation since it was first acquired or created for the purposes of journalism. Can excluded material be searched for and seized? YES - but only upon a Production Order being granted by a judge under Schedule 1 PACE 1984 * Special procedure material - 2 categories 1. Journalistic material other than excluded material ] 2. Material other than items subject to legal privilege or excluded material which is in the possession of a person who: a) acquired or created it in course of any trade, business, profession, occupation for the purposes of any paid or unpaid offence b) holds it subject to either an express or implied undertaking of confidence or legislative restriction Can special procedure material be searched and seized? YES - but only upon a Production Order being granted by a judge under Schedule 1 PACE 1984 * Journalistic material - S13 Material acquired or created for the purposed of journalism * A personal record - S12 Documentary record or other record concerning individual (whether living or dead) can be identified from them and relating to either: 1. Physical or mental health. 2. Spiritual counselling or assistance either given or to be given to them. 3. Counselling or assistance either given or to be given to them - for the purpose of their person welfare by: voluntary organisation or individual who either by reason of their office or occupation - has responsibilities for their personal welfare or by reason of an order of a court - has responsibilities for their supervision.

Answer 2

* The Time Of Day That A Search Shall Be Conducted * Reasonable hour, unless this might frustrate the purpose of the search. * Communication Prior To Searching * Introductions Prior To Searching When The Premises Are Occupied; * When Force Can Be Used To Carry Out The Search; * The Obligation To Supply The Notice Of Powers And Rights; * To Whom Will The Notice Of Powers And Rights Be Supplied; * The Extent To Which Premises Can Be Searched; * When The Search Must Be Concluded; and * The Need To Be Considerate When Searching.

Answer 3

* The general rule - i.e. that the power should be exercised at a reasonable time of day; and * The exception relating to frustrating the purpose of the search.

Answer 4

Circumstances in which it may be appropriate for the officer in charge of the search to consider using seize and sift powers. * When either the extent or complexity of a search means that it is likely to take a long time - the officer in charge of the search may consider using the seize and sift powers.

Answer 5

Rank of officer who must provide their written authority prior to conducting any subsequent entry and search under the terms of a warrant that authorises multiple entries. Where a s8 PACE 2984 warrant authorises multiple entries on more than one occasion - no premises may be entered or searched on any subsequent occasions - without the prior written authority of an office of the ran of Inspector who is NOT involved in the investigation. Verbal authority not enough.

Answer 6

Rank of officer who must provide their written authority prior to conducting any entry and search of premises which are not specified in an all-premises warrant. * A warrant under S8 or Schedule 1 authorises both entry to and search of all premises occupied or controlled by a specific person * No premises which are not specified in the warrant may be either entered or searched without prior written authority an officer of the rank of Inspector who is not involved in the investigation (independent and not in a position of conflict). * New premises that we didn't know about come about.

Answer 7

* Who will attempt communication - i.e. the officer in charge of the search * Who they will seek to communicate with - i.e. the occupier or person in charge of the premises * The 2 purposes of the communication - i.e. to explain the basis of the lawful authority and to request entry * Explain the authority for search e.g. warrant, s32 and ask the occupier to allow entry unless an exception applies. * The operation of the 3 exceptions which will render communication unnecessary. 1. Premises to be searched are unoccupied. 2. Occupier and any other person entitled grant access are absent. 3. There are reasonable grounds for believing that alerting occupier or any other person entitled to grant access would frustrate the object of the search or endanger officers or other persons.

Answer 8

* The general obligations that the officer in charge of the search shall adhere to when the premises entered and searched is occupied * If the premises are occupied - the officer in charge of the search shall carry out 6 obligations GENERAL RULE 1. Identify themselves 2. Not in uniform - warrant card 3. State the grounds of the search 4. State purpose of the search 5. Identify and introduce persons accompanying them who should produce ID upon request 6. Describe the role of the accompanying persons * The operation of 3 exceptions – if any of which are present – will render it unnecessary to adhere to the aforementioned obligations. 1. There are reasonable grounds for believing that alerting occupier or any other person entitled to grant access would either frustrate the object of the search or endanger officers or other persons 2. The offence is terrorism related. If so - they should use their warrant or identification number and the name of their police station. 3. The searching officer reasonably believes that recording or disclosing their names would place them in danger. If so - they should use their warrant or identification number and the name of their police station.

Answer 9

* The fact that force can only be used where necessary to do so - necessary criteria * The fact that any force used must be both reasonable and proportionate in nature * The operation of the 2 step test that shall be used to determine when the use of force is necessary Step 1: the premises are those either specified in a warrant or relate to a search authority under either s17, 18 or 32 PACE 1984. Step 2: in relation to the occupier and any other person entitled to grant access either: - The premises is unoccupied - They are absent - It is impossible to communicate with them - They have refused entry - There are reasonable grounds for believing that notifying them would either frustrate the object of the search or endanger officers or other persons

Answer 10

* Who supplies a copy of the notice - i.e. the officer conducting the search * When it will be unnecessary to supply the notice - i.e. when it is impracticable to do so * The 5 facts contained within the notice 1. Grounds for the search either by consent, under warrant or under section 17, 18, 32. 2. Extent of the powers of both search and seizure 3. Rights of both the occupier and owner of property seized 4. Both the compensation rights for any damage caused and the address to send a compensation claim to 5. The fact the Code B is available for inspection at a police station

Answer 11

* The occupier is present * General rule: copies of both the notice and the warrant shall if practicable be given to the occupier before the search begins Exception: unless the officer in charge of the search reasonably believes that this would either frustrate the object of the search or endanger officers or other persons. * The occupier is absent * Copies of both the notice and the warrant shall be left in a prominent place on the premises or appropriate part of the premises and shall be endorsed with the name of the officer of the search (unless the searching officer reasonably believe that recording or disclosing their name would place them in danger) and the date and time of the search.

Answer 12

How the search can only be conducted to the extent that is necessary to achieve the objects of the search * Necessity criteria ○ Premises can only be searched to the extent that is necessary to achieve the objects of the search - having regard to both size and nature of whatever is sought

Answer 13

* When a search conducted under a warrant must be concluded and when a search conducted under other lawful authorities must be concluded * Search warrants: Once all of the specified in the search warrant have been found * Searches under any other power (17, 18, 32): once the object of the search has been achieved * All searches: once the officer in charge of the search is satisfied that the thing sought is not on the premises (person included) Can a premises that was previously searched revealing nothing be searched again? Yes - if new information comes to light providing fresh grounds for a warrant or the exercise of other powers.

Answer 14

* The need to be considerate when searching * Obligations: searches must be conducted with both due consideration for property and privacy of the occupier with no more disturbance than is necessary * The need to respect human rights of privacy and property when searching * Extent to which it is permissible to compromise said rights - i.e. only where necessary * The option of utilising seize and sift powers for high volume or complex material * Seize and sift power can be utilised if the search is likely to take a long time due to either its extent and complexity * The rules governing the right of the occupier to nominate a witness to observe the search being conducted * Friend, neighbour or other person requested by the occupier must be allowed to witness the search Exception: unless the officer in charge of the search has reasonable grounds for believing their presence would either seriously hinder the investigation or endanger officers or other persons Effect of waiting for a nominate person? The search must not be unreasonably delayed (distance of witness and waiting time) * The obligation to secure premises following the conclusion of a search if force was used to enter * Before leaving the officer in charge of the search must make sure the premises are secure either by arrange for the occupier or their agent to be present or any other appropriate means.

Answer 15

* The circumstances in which reasonable force can be used * Necessary, proportionate because of the co-operation of the occupier either cannot be obtained or is insufficient for purpose. * The nature and extent of force that is permissible in such circumstances.

Answer 16

* The circumstances in which it is unnecessary to caution prior to asking questions when conducting a search – i.e. questions that are solely necessary for furthering the proper and effective conduct of a search * That it will be necessary to caution prior to asking any questions that go beyond this purpose. * Unnecessary to caution ○ A person is not required to be cautioned prior to being asked question that solely necessary for furthering the proper and effect conduct of a search * Necessary to caution ○ Questioning goes beyond what is necessary - the exchange is likely to constitute an interview and a caution must be administered prior to posing a question

Answer 17

* Section 17 PACE 1984 * Enter and search premises to: ○ Arrest a person ○ Recapture a person unlawfully at large ○ Save life and limb ○ Protect property * Section 18 PACE 1984 * Enter and search premises after arrest for an indictable offence * Section 32 PACE 1984 (indictable in nature) * Enter and search premises either: ○ Where an arrest took place ○ Where the person was immediately before arrest

Answer 18

* Who can exercise the power to enter and search (using force where necessary) - i.e. a constable * The range of purposes (grounds) for exercising the powers * Arrest Purpose 1: Executing an a warrant of arrest (issued in connection with or arising out of criminal proceedings) or a warrant of commitment (issued under section 76 Magistrates Courts Act 1980 * Arrest Purpose 2: ○ Arresting a person for an offence under: * Arrest Purpose 3: Arresting a person for an indictable offence * Arrest Purpose 4: Arresting any child or young person who has been remanded or committed to either local authority accommodation or youth detention accommodation. * Arrest Purpose 5: Arresting a person for an offence to which section 61 Animal Health Act 1981 applies * Arrest Purpose 6: Arresting a person in breach of bail * Recapture Purpose 1: recapturing any person who is, or is deemed for any purpose to be unlawfully at large - whilst liable to be detained in either ○ Prison ○ Remand centre ○ Youth offender instituion ○ Secure training centre ○ In pursuance of section 92 Powers of Criminal Courts (sentencing) Act 2000 ( dealing with children or young person guilt of grave crimes) in any other place * Recapture Purpose 2: recapturing a person whatever who is unlawfully at large and who they are pursuing n.b. it must be 'live' pursuit * Protection Purpose: saving life and limb or preventing serious damage to property * The mental element of the officer - i.e. belief that the person they seek is on the premises - except for life and limb and property protection grounds * Reasonable grounds for believing (NB - not suspecting) that the person that they are seeking is on the premises * The limitations when searching premises of multiple occupancy * When searching premises that consist of 2 or more separate dwellings - the power to enter and search - except for searches conducted for the purposes of both saving life and limb and preventing serious damage to property * Limited to enter and search ○ Any common parts of the premises which the occupiers share and any such dwelling which the constable has reasonable grounds for believing that the person they are seeking is located in. * The permitted extent of the search - i.e. only to the extent that is reasonably required for the purpose for which the power of entry is exercised * How the constable in uniform provisions differ depending on which of the purposes (grounds) is relied upon * Must be in uniform in relation to entry and search powers exercised for the purpose of either ○ Purpose 1: Arrest under s6 to 8 or 10 of the criminal law act 1977 § Land offences relating to entering or remaining on property ○ Purpose 2: Arrest under s76 of the Criminal Justice and Public Order Act 1994 § Failure to comply with an interim possession order ○ Purpose 3: Arrest under s144 Legal Aid, Sentencing & Punishment of Offenders Act 2012 § Squatting in residential building * Need not be in uniform in relation to entry and search powers exercised for the other purposes

Answer 19

* Who can exercise the power to enter and search (using force where necessary) - i.e. a constable * The range of purposes (grounds) for exercising the powers * Arrest Purpose 1: Executing an a warrant of arrest (issued in connection with or arising out of criminal proceedings) or a warrant of commitment (issued under section 76 Magistrates Courts Act 1980 * Arrest Purpose 2: ○ Arresting a person for an offence under: -S1 Public Order Act 1936 (prohibition of uniforms) -S6 to 8 or 10 of the Criminal Law Act 1977 (land offences relating to entering or remaining on property) -S4 Public Order Act 1986 (fear or provocation of violence) -S4 (unfit to drive) or 163 (failure to stop) RTA 1988 -S27 of the Transport and Works Act 1992 -S76 of the Criminal Justice and Public Order Act 1994 (failure to comply with interim possession order) -S4-8 Animal Welfare Act 2006 (offences relating to the prevention of harm to animals) -S144 legal aid, sentencing & punishment of offenders act 2023 (squatting in a residential building) * Arrest Purpose 3: Arresting a person for an indictable offence * Arrest Purpose 4: Arresting any child or young person who has been remanded or committed to either local authority accommodation or youth detention accommodation. * Arrest Purpose 5: Arresting a person for an offence to which section 61 Animal Health Act 1981 applies * Arrest Purpose 6: Arresting a person in breach of bail * Recapture Purpose 1: recapturing any person who is, or is deemed for any purpose to be unlawfully at large - whilst liable to be detained in either ○ Prison ○ Remand centre ○ Youth offender instituion ○ Secure training centre ○ In pursuance of section 92 Powers of Criminal Courts (sentencing) Act 2000 ( dealing with children or young person guilt of grave crimes) in any other place * Recapture Purpose 2: recapturing a person whatever who is unlawfully at large and who they are pursuing n.b. it must be 'live' pursuit * Protection Purpose: saving life and limb or preventing serious damage to property * The mental element of the officer - i.e. belief that the person they seek is on the premises - except for life and limb and property protection grounds * Reasonable grounds for believing (NB - not suspecting) that the person that they are seeking is on the premises * The limitations when searching premises of multiple occupancy * When searching premises that consist of 2 or more separate dwellings - the power to enter and search - except for searches conducted for the purposes of both saving life and limb and preventing serious damage to property * Limited to enter and search ○ Any common parts of the premises which the occupiers share and any such dwelling which the constable has reasonable grounds for believing that the person they are seeking is located in. * The permitted extent of the search - i.e. only to the extent that is reasonably required for the purpose for which the power of entry is exercised * How the constable in uniform provisions differ depending on which of the purposes (grounds) is relied upon * Must be in uniform in relation to entry and search powers exercised for the purpose of either ○ Purpose 1: Arrest under s6 to 8 or 10 of the criminal law act 1977 § Land offences relating to entering or remaining on property ○ Purpose 2: Arrest under s76 of the Criminal Justice and Public Order Act 1994 § Failure to comply with an interim possession order ○ Purpose 3: Arrest under s144 Legal Aid, Sentencing & Punishment of Offenders Act 2012 § Squatting in residential building * Need not be in uniform in relation to entry and search powers exercised for the other purposes

Answer 20

* Who can be searched - i.e. a person arrested * Where they can be searched - i.e. at a place other than a police station * The officer's mental element - i.e. a belief that any of 3 grounds apply 1. The arrested person may present a danger to themselves or others. 2. The arrested person has concealed on them anything which they might use to assist them to escape from lawful custody. 3. The arrested person has concealed on them anything which might be evidence relating to an offence. N.B. this is wider than merely evidence relating to the offence for which they have been arrested. * The location of the search - i.e. only outside a police station; * The permitted extent of a search * Only either remove the persons outer clothing, jacket or gloves * Search the person's mouth * The power of seizure in respect of items found. * Seize and retain anything they find which they believe is linked to the ground - other than items subject to legal privilege

Answer 21

* What premises a constable can enter and search, and the relevance of the location where the person is arrested * Any premises in which the person was in either at the time that they were arrested for an indictable offence or immediately before being arrested for an indictable offence if the constable has reasonable grounds for believing that there is evidence at the premises relating to the offence for which they were arrested * The nature of the offence for which they are arrested - i.e. an indictable offence * The mental element of the searching officer - i.e. belief * It must be a genuine belief based upon reasonable grounds i.e. speculative searches are not permitted * The nature of their belief - i.e. there is evidence at the premises relating to the offence for which they were arrested * What the belief must be based on - i.e. reasonable grounds * What can be searched for - i.e. only evidence relating to the offence for which they were arrested * The permitted extent of the search - i.e. the extent that is reasonably required to discover evidence relating to the offence for which the person was arrested * The test to determine whether the person was at the premises either at the time of arrest of immediately before their arrest * Question of act ○ 2 hours elapsing between leaving a property and the time of arrest - not 'immediately before' ○ Hewitson vs Chief Constable of Dorset Police (2003) * Where can be searched in premises consisting of 2 or more separate dwellings? * May only search 2 areas ○ Area 1: any dwelling in which either the arrest took place or the person arrested was immediately before their arrest ○ Area 2: any part of the premises which the occupier of any such dwelling uses in common with occupiers of any other dwellings comprised in the premises

Answer 22

* Scope of the power ○ A constable who has obtained the authorisation of an Inspector or above may enter and search any premises that are either occupied or controlled by a person who is under arrest for an indictable offence. * Grounds ○ The constable has reasonable grounds for suspecting that there is on the premises evidence, (other than items subject to legal privilege) - that relates to either that indictable offence or some other indictable offence which is either connected with that offence or similar to that offence. * Power of seizure ○ Seize and retain any such evidence found * Mental element in relation to whether there is evidence on the premises ○ Suspicion * Mental element in relation to whether the premises are occupied or controlled by the person arrested for the indictable offence ○ Know for a fact * What extent of search is permitted? ○ Extent that it is reasonably required to discover the evidence searched for * General Rule - Authorisation is required ○ Written authority has been provided by an Inspector or above ○ If possible - the authorising officer should record the authority on the Notice of Powers & Rights and sign * Authorisation is not required ○ s18 can be conducted both § Before the arrested person has been either taken to a police station or released on street bail § Without obtaining written authority to proceed with the search from an inspector or above □ Provided that the arrested person's presence at a place (other than a police station) is (in fact) necessary for the effective investigation * Action to be taken following a search if the exception applies? ○ The constable who conducted the search must inform an inspector or above ASAP after the search has been concluded * Who will carry out the recording obligations? ○ Inspector or above who either authorised the search or was informed of the search ASAP after it was conducted without their authority * Contents of the written record ○ Both the grounds of the search and the nature of the evidence that was sought * Consequences if the person who has been searched under section 18 is re-arrested? ○ If a person is re-arrested whilst in custody then the s18 search power is re-created for each indictable offence

Answer 23

* The nature of the premises searched - i.e. any premises that are either occupied or controlled by a person who is under arrest * The constable's awareness that the premises is occupied or controlled by the arrested person - i.e. knowledge for a fact * The category of the offence for which they have been arrested - i.e. an indictable offence * Who can search the premises - i.e. a constable * The rank of officer from whom authorisation shall as a general rule be sought prior to searching - i.e. an Inspector or above * The operation of the caveat whereby an Inspector's authority need not be obtained prior to searching * The mental element of the searching officer - i.e. the constable has the requisite suspicion * The nature of the constable's suspicion - that they will find evidence on the premises * The offence that the evidence can relate to - i.e. the indictable offence for which they have been arrested for or a similar or connected indictable offence * The permitted extent of the search * The power of seizure * The post search recording obligations

Answer 24

THE OBLIGATION TO EXPLAIN TO THE OCCUPIER THE REASON FOR THE SEARCH The officers conducting the section 18 search must, so far as is possible in the surrounding circumstances – explain the reason for the search to the occupier. A failure to do so will enable the entry to be lawfully resisted – Lineham v DPP [2000] Crim LR 861. FURTHER GUIDANCE ON RECORDING THE GROUNDS FOR THE SEARCH & THE NATURE OF THE EVIDENCE SOUGHT – CODE B PARAGRAPH 4.3 The written record of both: * The grounds of the search; and * The nature of the evidence that was sought …should be made in the custody record if there is one - otherwise in the officer’s pocket book or the search record.

Answer 25

* What can be seized? * An officer who is searching any person or premises either under any statutory power or with the consent of the occupier may seize anything * The grounds for seizing items following the search of a person or premises * Covered by a warrant * Officer has reasonable grounds for believing is either evidence of an offence or has been obtained in consequence of the commission of an offence ○ But only if seizure is necessary to prevent the items being either § Concealed § Lost § Altered § Disposed of § Damaged § Destroyed § Tampered with * Powers in Part 2 Criminal Justice & Power Act 2001 - allowing an officer to seize property from either persons or premises and retain it for either sifting or examination elsewhere i.e. seize and sift powers * The rules governing the seizure of legally privileged material. * General rule: no item may be seized which an officer has reasonable grounds for believing to be subject to legal privilege * Exception: other than Part 2 Criminal Justice & Police Act 2001 - seize and sift powers

Answer 26

Power to copy etc any item that there is the power to seize. If an officer considers that information stored in any electronic form and accessible from the premises could be used in evidence they may require the information to be produced in a form either: - Which can be taken away and in which it is visible and legible or - from which can be readily produced in a visible and legible form

Answer 27

* Officer may arrange to photograph, image or copy any document or other article that they have the power to seize and must have regard to the statutory obligation to retain an original: ○ Document or other article only when a photograph or copy is not sufficient

Answer 28

* The need for an officer to be lawfully on premises before they can exercise seizure powers * Who can exercise the power of seizure? ○ The power of seizure is only exercisable by a constable who is lawfully on premises * Lawfulness and searches exercised with consent * An officer is conducting a search by consent - and does not have in place either ○ A search warrant ○ A statutory power to search § If during the course of the search both □ The consent is withdrawn and they are told to leave then there are 3 consequences 1. They are no longer lawfully on the premises 2. They must leave within a reasonable period 3. They cannot seize any items that they find * The effect of withdrawals of consent (for consent based searches) upon the lawfulness of the search * The lawfulness of searches conducted under an invalid warrant * Unlawful * When can the seizure power be exercised? * A constable who is lawfully on premises may seize anything which is on premises (except for legally privileged material) - if they have reasonable grounds for holding both of 2 beliefs * The 2 beliefs that must be established before the general power of seizure can be exercised - i.e.. evidence and necessity Belief 1 * It is evidence in relation to either ○ An offence which they are investigating or any other offence * It has been obtained in consequence of the commission of an offence Belief 2 * Necessary to seize it in order to prevent it being either concealed, lost altered, damaged and destroyed. * The memory aid of C.L.A.D.D. - relating to the consequences that seizure seeks to prevent * Concealed * Lost * Altered * Damaged * Destroyed * Can the whole premises be searched? Yes * Can legally privileged material be seized? No * The excluded category of material that cannot be seized - i.e. legally privileged material * The 3 actions that shall be taken in relation to innocently acquired evidence of an offence committed by some other person * 2 beliefs ○ When an officer believes both that it is not appropriate to seize property because of an explanation from the person holding it (i.e. they have innocently come by the property lawfully) and the item was obtained in consequence of an offence by some other person * 3 actions in response 1. Identify the property to the holder 2. Inform the holder of their belief 3. Explain that the holder may be liable to civil or criminal proceedings if they dispose of, alter or destroy the property

Answer 29

* The need for an officer to be lawfully on premises before they can exercise the request power * What information the request can relate to - i.e. information which is stored in any electronic form and is accessible from the premises * The nature of the requirement - i.e. to produce the information in a form in which it can be taken away in a visible and legible form * The nature of the 2 beliefs in relation to the electronic material - i.e. that it is evidence and it is necessary to seize * The reason why it is necessary to seize - i.e. to prevent it being concealed, lost or destroyed ADDITIONAL LEARNING POINT - CAN LEGALLY PRIVILEGED MATERIAL BE SEIZED? - SECTION 19(6) PACE 1984 No – a constable has no power to seize an item which they have reasonable grounds for believing to be subject to legal privilege. ADDITIONAL LEARNING POINT - CAN THE SECTION 19 SEIZURE POWER BE CONFERRED UPON A DESIGNATED INVESTIGATION OFFICER? Yes. * A constable lawfully on premises may require any information which is stored in any electronic form and is accessible from the premises to be produced in a form in which both * It can be taken away * Is either visible and legible or in a form which it can readily be produced in a visible and legible form * Belief? * If they have reasonable grounds for believing either: ○ That it is evidence in relation to: § An offence which they are investigating or any other offence ○ It has been obtained in consequence of the commission of an offence * Necessity? * It is necessary to do so in order to prevent it being concealed, lost or destroyed.

Answer 30

Every power of seizure conferred by enactment such as s8 warrant, s18 pace, schedule 1, section 19, on a constable who has entered premises - in the exercise of a power conferred by such enactment ... … shall be construed to also include a power to require any information stored in an electronic form and accessible from the premises … to be produced in a form either - In which it can be taken away and in which it is visible and legible or form which it can be readily produced in a visible and legible form

Answer 31

A constable who seizes anything in exercise of a power conferred by an enactment — shall, if requested, by either: * The occupier of premises on which it was seized; or * The person who had custody or control of it before it was seized provide that person with a record of what they seized — within a reasonable time of the making of the request.

Answer 32

If a request for permission is made to the officer in charge of the investigation — by either: *A person who had custody or control of the thing immediately before it was seized; *Someone acting on behalf of such a person... ...to grant access to anything which both: *Has been seized by a constable; and *Is retained by the police for the purpose of investigating an offence. General Rule ...then the officer shall allow the person who made the request to access it - under the supervision of a constable... Exception ...unless the exception under section 21(8) PACE 1984 applies.

Answer 33

If a request for either: *A photograph; or * A copy .of an item seized - is made to the officer in charge of the investigation. ...by either: *A person who had custody or control of the thing immediately before it was seized; *Someone acting on behalf of such a person... General Rule — Option 1 ...then the officer shall allow the person who made the request to access it — under the supervision of a constable for the purpose of photographing or copying it.. within a reasonable time of the making of the request. General Rule — Option 2 ...or shall photograph or copy it, or cause it to be photographed or copied and supply it to the person who made the request... within a reasonable time of the making of the request. Exception ...unless the exception under section 21(8) PACE 1984 applies.

Answer 34

There is no duty to either: *To grant access to; or *Supply a photograph or copy of ...any seized item. ...if the officer in charge of the investigation — for the purposes of which it was seized, has reasonable grounds for believing ...that to do so would prejudice either: * That investigation, * The investigation of an offence other than the offence for the purposes of investigating WfiiTthe thing was seized; or * Any criminal proceedings which may be brought as a result of either: >The investigation of which they are in charge; or >Such other investigations.

Answer 35

Anything seized by a constable under either: * Section 19 PACE 1984 - General power of seizure; or * Section 20 PACE 1984 - Power of seizure of electronic information may be retained for as long as is necessary in all the circumstances.

Answer 36

Anything seized may be retained in order to establish its lawful owner — where there are reasonable grounds for believing it has been obtained in consequence of the commission of an offence.

Answer 37

General Rule Anything seized for the purposes of a criminal investigation may be retained either: * For use as evidence at trial for an offence; or * For forensic examination or for investigation in connection with an offence.. ...unless either: *A photograph, or . A copy ..of the seized item would be sufficient for that purpose.

Answer 38

Items seized on the grounds that it may be used by an arrested person either: *To cause physical injury to any person; *To damage property; *To interfere with evidence; or *To assist in escape from police detention or lawful custody cannot be retained for those purposes - once the person has been released.

Answer 39

Officers are provided with limited powers to seize property from either: * Premises; or * Persons ..so that they can. * Sift; or * Examine it ...elsewhere because it is not reasonably practicable to sift through it at the scene.

Answer 40

The grounds to utilise seize and sift powers can be found in: Section 50 Criminal Justice & Police Act 2001 Seize and sift of property seized during a premises search Section 51 Criminal Justice & Police Act 2001 Seize and sift of property seized during a search of a person.

Answer 41

Step 1 Where a person who is lawfully on premises — finds anything on those premises that they have reasonable grounds for believing may be or may contain something which they are authorised to search on those premises... step 2 Either: *A power of seizure applies; or *The power conferred by subsection 2, would entitle them, if they found it, to seize whatever it is they have grounds for believing that thing to be or contain. Step 3 In all the circumstances it is not reasonably practicable — for it to be determined, on those premises: * Whether what they have found something that they are entitled to seize; or * The extent to which what they have found contains something that they are entitled to seize... ...they may seize so much of what they have found as it is necessary to remove from the premises to enable that to be determined.

Answer 42

Step 1 Where a person who is lawfully on premises — finds anything on those premises ("the seizable property") that they would be entitled to seize — but for it being comprised in something else that they have no power to seize (e.g. legally privileged material). .. Step 2 A power of seizure applies to the seizable property... Step 3 In all the circumstances it is not reasonably practicable — for the seizable property to be separated, on those premises, from that in which it is comprised — (i.e. the thing that they have no power to seize - e.g. legally privileged material)... ...they may seize the unseparated material — both: Element I - the seizable property Element 2 - that from which it is not reasonably practicable to separate it.

Answer 43

Yes Section 19(6) PACE 1984 — does not apply to the seize and sift separation power under section 50(2) Criminal Justice & Police Act 2001.

Answer 44

Factors that influence whether or not, it will be reasonably practicable to, on the particular premises - either: * Determine whether they have found something that they are entitled to seize * For something to be separated from something else ..include.. Factor 1 How long it would take to carry out the determination or separation on the premises. Factor 2 The number of persons that would be required to carry out the determination or separation on the premises within a reasonable period. Factor 3 Whether the determination or separation would involve damage to property. Factor 4 The apparatus or equipment that it would be necessary or appropriate to use to carry out the determination or separation. Factor 5 Whether any separation at the premises would be likely to prejudice the use of some or all of the separated seizable property.

Answer 45

There are very similar grounds to exercise seize and sift powers in respect of material found on persons who have been lawfully searched: *Ground 1 - Determination ground; and *Ground 2 - Separation ground as well as very similar factors that influence whether or not it is reasonably practicable to sift through the material to conduct the determination or separation at the time and place of the search.

Answer 46

Factors that influence whether it will not be practicable include: * The length of time and personnel required to sift, * Whether damage would be caused to the premises if the sift was conducted at the premises., * Whether specialist apparatus or equipment would be required to conduct the sift; and * Whether separation at the premises would prejudice the use of seizable property.

Answer 47

Limit 1 Officers: * Must only exercise the power when it is essential; and * Must not remove any more material than is necessary. Limit 2 Officers must also consider whether removing copies or images of relevant material or data would be a satisfactory alternative to removing originals. Limit 3 When originals are taken officers must be prepared to facilitate the provision of replacement copies or images for the owner when it is reasonably practicable.

Answer 48

When an officer exercises a power of seizure - the officer shall supply either: * The occupier of the premises; or * The person from whom property was seized with a written notice.

Answer 49

Fact 1 What has been seized. Fact 2 The grounds for seizure. Fact 3 Both: * The grounds for a person with a relevant interest in the seized property to apply for judicial authority for its return; and * The duty of officers to secure property in certain circumstances when an application is made. Fact 4 The name and address of the person to whom: * Notice of an application to a judicial authority for the return of seized property must be given; or *An application may be made to allow attendance at the initial examination of the property.

Answer 50

First Alternative ..but there is someone in charge of the premises present — the notice shall be given to them.. Second Alternative but - if no suitable person is available — the notice should either: *Be left in a prominent place on the premises; or *Attached to the exterior of the premises.

Answer 51

Property seized (under the seize and sift power) must be kept both: * Securely; and * Separately ...from material seized under separate powers

Answer 52

Duties Of The Person In Possession Of The Material Seized Under The Seize & Sift Powers? Section 53 (1)-(2) Criminal Justice & Police Act 2001 After anything has been seized via the powers conferred by either: Section 50 Criminal Justice & Police Act 2001 Seize and sift of property seized during a premises search Section 51 Criminal Justice & Police Act 2001 Seize and sift of property seized during a search of a person... ...it shall be the duty of the person for the time being in possession of the seized property — to secure that there are arrangements in force (subject to section 61) to ensure that the following duties are adhered to. Duty 1 That the initial examination of property is carried out as soon as reasonably practicable after seizure. Duty 2 That the examination is confined to whatever is necessary for determining how much of the property may be retained (as per the list of property that can be retained in subsection 3). Duty 3 That anything that cannot be retained - because it does not fall within the list in subsection 3 — is both: * Separated from the rest of the seized property that can be retained; and * Is returned as soon as reasonably practicable after the examination of all seized property has been completed. Duty 4 That until both: * The initial examination of all property has been completed; and * Anything that cannot be retained (because does not fall within the list in subsection 3) — has been returned .the seized property is kept separate from anything seized under any other power.

Answer 53

The property that can be retained following seizure and subsequent sifting falls into 3 categories... Category 1 Property the retention of which is authorised by section 56. Category 2 Property for which the person seizing it had the power to search when they made the seizure.. ,.but is not property the return of which is required by section 54 (i.e. items subject to legal privilege). Category 3 Something which, in all the circumstances — it will not be reasonably practicable, following the examination, to separate from property falling under categories 1 and 2 (that can be retained).

Answer 54

Property seized can be retained following the sift process - provided..

Answer 55

Property seized can be retained following the sift process - provided.. For Premises Searches It was seized on premises by either: *A constable; or *A person authorised by statute who was accompanied by a constable. who was lawfully on the premises For Person Searches It was seized by a constable carrying out a lawful search of any person. and there are reasonable grounds for believing that either: *It is property obtained in consequence of the commission of an offence; *It is evidence in relation to any offence.. .and it is necessary for it to be retained - in order to prevent it being either: * Concealed; * Lost; *Altered; or * Destroyed

Answer 56

If at any time after a seizure of anything, it appears to a person for the time being having possession of the seized property — that the property both. Step 1 Either: *Is an item subject to legal privilege; or *It has an item subject to legal privilege comprised in it step 2 In the case where an item is comprised in something else which has been lawfully seized — it is not comprised in property falling into subsection 2... ...it shall be the duty of that person to secure that the item is returned as soon as practicable after the seizure.

Answer 57

Legally privileged property that is combined with other property can be retained if... Step 1 The whole or part of the rest of the property is either: * Property the retention of which is authorised under section 56; or * Property for which the person seizing it had a power to search when they made the seizure — but it is not property that they are required to return under this section or section 55 (excluded material and special procedure material) step 2 In all the circumstances, it is not reasonably practicable for that item to be separated from the rest of the property or part of it without prejudicing the use of the rest of the property or part of it for the purpose for which its retention would be lawful.

Answer 58

If at any time after a seizure of anything, it appears to a person for the time being having possession of the seized property — that the property both... Step 1 Either: *Is excluded material or special procedure material; or *It has any excluded material or special procedure material comprised in it. step 2 Its retention is not authorised by section 56. Step 3 In the case where an item is comprised in something else which has been lawfully seized — it is not comprised in property falling into subsections 2 or 3... ...it shall be the duty of that person to secure that the item is returned as soon as practicable after the seizure.

Answer 59

Either: *Excluded material; or *Special procedure material .that is combined with other property - can be retained if.. Step 1 The whole or part of the rest of the property is either: * Property the retention of which is authorised under section 56; or * Property for which the person seizing it had a power to search when they made the seizure — but it is not property that they are required to return under this section or section 54 (legally privileged material). step 2 In all the circumstances, it is not reasonably practicable for that item to be separated from the rest of the property or part of it without prejudicing the use of the rest of the property or part of it for the purpose for which its retention would be lawful.

Answer 60

An examination (of the seized property) to determine which elements may be retained — must be carried out at the earliest practicable time... ..taking into account the desirability of allowing: * The person from whom the property was seized, or * The person with an interest in the property ..the opportunity to be either: * Present; or * Represented at the examination.

Answer 61

All reasonable steps should be taken to accommodate an interested person's request to be present.. Limitation 1 Provided the request is reasonable. Limitation 2 .and subject to the need to prevent either: * Harm to; * Interference with; or * Unreasonable delay .to the investigatory process.

Answer 62

If the examination proceeds in their absence following their request to attend — they must be given a written notice explaining why the process was conducted in their absence.

Answer 63

Grounds To Retain Sifted Property? Property seized can be retained following the sift process provided 3 steps are all satisfied. Step 1 - Premises Searches It was seized on premises by either: * A constable; or * A person authorised by statute who was accompanied by a constable. .who was lawfully on the premises Step 1 - Person Searches It was seized by a constable carrying out a lawful search of any person step 2 There are reasonable grounds for believing that either: * It is property obtained in consequence of the commission of an offence; or * It is evidence in relation to any offence. Step 3 It is necessary for it to be retained in order to prevent it being either: * Concealed; * Lost; *Altered; or * Destroyed.

Answer 64

Material that there is no power to retain - must be both: * Separated from the rest of the seized property; and * Returned ASAP following examination of all seized property and delay is only permitted if there is a very clear and compelling reason — e.g. unavailability of the person to whom the items must be returned etc.

Answer 65

Either: * Legally privileged material; * Excluded material; or * Special procedure material — which cannot be retained... must be returned both: *As soon as reasonably practicable (ASAP); and *Without waiting for the whole examination.

Answer 66

The material must be returned to. ...the person from whom it was seized... .except where it is clear that some other person has a better right to it.

Answer 67

Who Can Apply? * Any person with a relevant interest in seized property will be permitted to lodge an application to the appropriate judicial authority for the return of all or part of the seized property. * Following the application - the property must be secured (not tampered with or examined) pending the decision of the judge

Answer 68

Any person with a relevant interest in the seized property may apply to the appropriate judicial authority — on either: * One; or * More than one .0f four grounds in subsection 3 — for the return of either: * The whole; or * Part of . the seized property.

Answer 69

Ground 1 There was no power to make the seizure. Ground 2 That the seized property either: *Is; or *Contains... .an item subject to legal privilege — that is not comprised in property falling within section 54(2) — i.e. it is not combined material where separation is not reasonably practicable. Ground 3 That the seized property either: *Is; or *Contains... .any: * Excluded material; or * Special procedure material which: Step 1 Has been seized under a power to which section 55 applies. step 2 Is not comprised in property falling within section 55(2)-(3) — i.e. it is not combined material where separation is not reasonably practicable. Step 3 Is not property the retention of which is authorised by section 56. Ground 4 That the seized property either: *Is; or *Contains... ..something seized under either: * Section 50 Criminal Justice & Police Act 2001 - seize and sift of property seized during a premises search; or * Section 51 Criminal Justice & Police Act 2001 - seize and sift of property seized during a search of a person. .which does not fall within section 53(3) — i.e. does not fall within the list of property that can be retained following seizure under the seize and sift powers.

Answer 70

The person for the time being having possession of the seized property — must ensure that the seized property (without being returned) — is not at any time after the giving of the notice of the application... — either. Prohibited Action 1 Examined or copied Prohibited Action 2 Put to any use to which its seizure would (apart from this subsection) allow it to be put. Exceptions ...except either: *With the consent of the applicant; or *In accordance with the directions of the appropriate authority.

Answer 71

When an officer involved in an investigation has reasonable grounds to believe a person with a relevant interest in property seized intends to make an application for the return of any: * Legally privileged material; * Excluded material; or * Special procedure material — which cannot be retained... .then both. *The officer in charge of the investigation should be informed as soon as practicable; and *The material seized should be kept secure.

Answer 72

The officer in charge of the investigation.

Answer 73

Securing involves making sure that that property is not either: * Examined; * Copied; * Imaged; or * Put to any other use... .except either: *At the request, or with the consent, of the applicant; or * In accordance with the directions of the appropriate judicial authority.. and any request, consent or directions be both: * Recorded in writing; and * Signed by both: *The initiator; and — must *The officer in charge of the investigation.

Answer 74

The appropriate judicial authority may give such directions it thinks fit for either: * Examination; * Retention; * Separation; or * Return. .of either: * The whole; or * Any part of .the seized property (or any copies etc. made)

Answer 75

Contempt of court.

Answer 76

How Long Can Seized Property Be Retained? Seized property can be retained for as long as is necessary for any of 4 purposes...

Answer 77

Purpose 1 Use as evidence at trial. Purpose 2 Use in any investigation or proceedings to which it is linked Purpose 3 Forensic examination or investigation in connection with an offence Purpose 4 To establish lawful ownership - if there are reasonable grounds to believe - it has been stolen or obtained via an offence

Answer 78

Caveat - Alternatives unless the purpose can be achieved instead by creating either: . A copy; or * An image.

Answer 79

Any material seized which is either: * Not necessary to retain; * Legal privileged material; * Excluded material; or * Special procedure material must be returned to either: * The person from whom it was seized; * Any other person whom the investigating officer considers has a better claim

Answer 80

Who Has Rights? Where property is retained the person who had either: * Custody; or * Control Of the property immediately before seizure...

Answer 81

Nature Of Right 1? .must on request be provided With either: * A list; or * A description of the property within a reasonable period of time... Nature Of Right 2 .and either: * They; or * Their representative must be allowed supervised access - within a reasonable period of time... to at their own expense either: * Examine; * Photograph; or . Copy .their property... Caveat? unless the officer in charge of the investigation has reasonable grounds to believe that this would either: * Prejudice the investigation of any offence; or * Lead to the commission of an offence by providing access to unlawful material such as pornography

Answer 82

Action If Access Is Refused? The reasons must be recorded.

Answer 83

Who Shall Make A Record Of The Search? — Code B Paragraph 8.1 The officer in charge of the search on arrival at the police station.

Answer 84

Content 1 The address of the premises searched. Content 2 The date, time and duration of the search. Content 3 The authority for the search — this will depend on the source of the search authority Content 4 — General Rule The names of: * The officer(s) in charge of the search * All other officers and authorised persons present... Content 4 — Exception unless either: * The offence is terrorism related; or * The searching officer reasonably believes that recording or disclosing their names would place them in danger. Content 5 The names of any persons on the premises — if known. Content 6 Any grounds for refusing the occupier's request to have a person present — if applicable. Content 7 Either: * A list of articles seized; or * The location of such a list .and the grounds for seizure - (if not covered by a warrant). Content 8 Whether force was used and if so — the reasons for using force. Content 9 Details of any damage caused — and if so the circumstances. Content 10 Any reason why it was not practicable to give the occupier a copy of the Notice of Powers and Rights — if applicable. Content 11 If the occupier was not present — the place where both: * The Notice of Powers and Rights; and * Any search warrant (if applicable) were left on the premises.

Answer 85

Either: * A copy of the written consent shall be appended to the record; or * Record the location of a copy of the written consent.

Answer 86

Either: * A copy of the warrant shall be appended to the record; or * Record the location of a copy of the warrant.

Answer 87

Record which power was relied upon.

Answer 88

When Will The Warrant Be Endorsed? On each occasion when premises are searched — the warrant authorising the search on that occasion shall be endorsed.

Answer 89

Content 1 State both: * If any articles specified in the warrant were found; and * The address where they were found. Content 2 State if any other articles were seized. Content 3 Both: * The date. and . The time .the warrant was executed — and either: * The name Of the occupier — if present: or * The name of the person in charge of the premises — if the occupier was not present. Content 4 — General Rule The names of: * The officer(s) who executed the warrant; and * Any authorised persons present (who accompanied them). .. Content 4 — Exception unless either: * The offence is terrorism related; or * The searching officer reasonably believes that recording or disclosing their names would place them in danger. Content 5 State if a copy of both: * The Notice of Powers and Rights; and * The search warrant was either: * Handed to the occupier — if present; or * If the occupier was not present - endorsed by the officer in charge of the search and left at the premises — specifying the location.

Answer 90

Warrants Issued By A Justice Any warrant shall be returned to the designated officer for the local justice area. Warrants Issued By A Judge Any warrant shall be returned to the appropriate officer of the court.

Answer 91

Time Limit? Within either: * 3 calendar months of the issue of the warrant; or * Sooner on completion of the search(es) authorised by the warrant.

Entry, Search and Seizure Flashcards

(117 cards)