Dealing with a search by Police or Revenue and Customs Officers

The knock at the door at 6am is one of the things that can inspire the most dread in people.  It is rarely, if ever, a good sign.  When the door is eventually opened to a group of people in uniform, one of whom is brandishing pieces of paper marked ‘Search Warrant’ and ‘Notice to Occupier’, it is clear that the morning is likely to go downhill further.

A search of your home address or workplace is highly disruptive.  It affects the whole family and it is extremely intrusive.  It is one of the most draconian powers that the state has.   In the case of Jamaica v Williams [1998] AC 351 the House of Lords said that it was a matter of high constitutional importance that the citizen is protected by independent judicial scrutiny from the excesses of allowing an officer of the Executive to decide for himself whether to enter property and search.

For those reasons, if you are ever confronted with that situation, it is important that you know your rights and that you are aware of what is and what is not permitted.

The starting point is section 15 of the Police and Criminal Evidence Act 1984.  It is helpfully entitled “Search Warrants – Safeguards”.  It states that unless that section is complied with, any resulting search is unlawful; it is as simple as that.

The main requirement is that a search warrant must be specific.  It must identify as far as practicable the articles or persons being searched for.  It is the duty of any officer to set out those matters to the court as far as practicable.  The courts have held that the issuing of a search warrant is never a formality.

The reason for that is that it is vitally important that those conducting searches and those whose premises are being searched, understand what can lawfully be taken and what cannot be.  As Crane J. said in Energy Financing Team Limited and others v The Director of the Serious Fraud Office [2005] EWHC 1626,

the grant and execution of a warrant to search and seize is a serious infringement of the liberty of the subject, which needs to be clearly justified, and before seeking or granting a warrant it is always necessary to consider whether some lesser measure… will suffice…

He went on,

the warrant needs to be drafted with sufficient precision to enable both those who execute it and those whose property is affected by it to know whether any individual document or class of documents falls within it.

The courts have been prepared to quash warrants and find searches unlawful following a breach of that provision.  In Anand [2012] EWHC 2989, which was a Revenue and Customs case, the warrant was expressed to cover,

i. All business records, including sales and purchase invoices, accounting documents and any such material used or relied upon to administer and manage the business including communication devices.

ii. All personal/business bank accounts (UK and/or foreign), cheque books, records of debits, credits, payable orders and transfers and other records relating to accounts with any bank, building society or other financial institutions, that are believed to be linked to the offences under investigation.

iii. Computers, diskettes, other electronic storage media and mobile telephones.

iv. Any other items believed to be of an evidential value.

The court found that this came nowhere near identifying the articles sought as far as practicable.  The search was unlawful.

Unfortunately, following that case, the Revenue and Customs continued to adopt a sloppy approach towards search warrants and, in December 2013, another of its searches was found to be unlawful.  The case was Lees & Ors [2013] EWHC 3779 (Admin) and the court was critical of the approach adopted.

So what action can be taken if the worst happens?

Firstly, scrutinise the search warrant very carefully.  Does it set out precisely what material is being searched for or does it contain catch-all phrases such as “anything believed to be of evidential value” or “the material includes but is not limited to…”.  If so, raise that with the search officers and ensure that your comments are noted.

Secondly, never be afraid to seek legal advice whilst a search is underway.  That is not a means of delaying it but it will help ensure that you are able to protect that which is not covered by the search warrant.  In highly exceptional circumstances, where the warrant is obviously defective, you may even be able to bring the search to a halt by convincing the officers that they are acting unlawfully.

Thirdly, even if the search is completed, it is not too late to have it declared unlawful if there are grounds to do so.  That is done through judicial review proceedings and speed is of the essence.  In the Lees case, two months were allowed to elapse and the court was critical of that.  Again, prompt legal advice is vital.  If successful, there are avenues that can be used to try and secure the return of any property taken.

Hopefully, a search of your premises will never happen.  If it does, however, it is vital to be aware of the above.

Geoff Payne

Chambers of Paul Mendelle QC and George Carter-Stephenson QC

25 Bedford Row