An anonymous commenter has drawn my attention to the police’s letter to the Home Secretary explaining the business about search warrants: here it is, and the letter is also reproduced on the BBC News website.
I’ve got a bit fed up of nonsensical, irrelevant talk about privilege around the blogosphere, suggesting that no warrant could ever lawfully be issued by a Magistrate, and so forth. I think it’s quite clear that the search of Green’s Parliamentary office was perfectly lawful – there was no need for a warrant – and that the police’s procedural approach was absolutely correct. The only possible way to dispute that is to claim that the facts set out in the first full paragraph on page 3 of the letter –
The officers explained the nature of the investigation and the purpose of the search and were satisfied that the Serjeant at Arms understood that police had no power to search in the absence of a warrant and therefore could only do so with her written consent or that of the Speaker.
are untrue. We’ll see if the Serjeant at Arms disputes them.
It’s also right that the Serjeant at Arms could have insisted on their obtaining a warrant, that a Magistrate could have issued one and that the police could have lawfully executed it.
The issue of warrants and the propriety or lawfulness of the searches is a complete red herring. The real issue is the propriety of the arrests.
Head of Legal – as you say, if one accepts this Police letter then it seems that the Police entered the building with permission of (at least) the Serjeant-at-Arms. Entry to the building must be lawful but what about removal of items? Did The Serjeant have any right to consent to the removal of anything in Mr Green’s office? Doubtful, in my view.
The Police must have been of the view that NONE of the “entry/search/seizure” powers in PACE 1984 would enable them to enter. The Police letter states that they had considered applying for a section 8 warrant but ruled that out.
Unlike “anonymous” who has been constantly guessing that section 18 applied, the Police letter does not mention section 18 at all. It seems that, if they considered using it, they must have decided against it. Section 18 is one of those powers which is not entirely clear in relation to some situations.
I think the Speaker said that any entry in future will have to be by warrant. The law may need to be amended if he wants that unless law making by proclamation has been reinstated!
Also, Harman has reportedly said that any warrant will have to be issued by a High Court Judge. Again, if that is what they want they will need to amend the law. Warrants under PACE are issued by either JPs or by Circuit Judges (e.g. legally privileged material etc).
Yes, Peter, they entered lawfully and in accordance with PACE Code B, para. 5. I’ve not looked into the question of seizure, but I’m not going to – my firm view is that some people’s desire to hunt for some unlawfulness here is a complete waste of time. The police have in all probability acted perfectly lawfully (all round) and absolutely properly (in relation to the searches). Focus on searches, seizures etc. is all a diversion from the real issue – the arrests. I think both government and police acted improperly in relation to them.
But to be clear, they didn’t apply for a warrant because that would require persuading a Magistrate that they would not be allowed in by consent. How, if you’ve not asked? So logic and law force them to try asking for consent first, which they did. End of warrant issue. I can’t explain why they didn’t rely on s18, but as I keep saying, it really, really doesn’t matter.
Actually there’s more of an issue about why they did get warrants for searching the homes – presumably they convinced a Magistrate that the Greens wouldn’t let them in, or weren’t there, or something. I don’t know, and again – it really doesn’t matter.
No, I don’t think the law needs to be changed: if the S-at-A had refused consent, then the conditions for applying for a warrant would have been fulfilled. So all the Speaker is saying is that they won’t in future give consent; the result will force (and allow) the police to apply for a warrant.
As for Harriet Harman, she’s said she’d like application to be to a judge – that would require a change in the law, yes. As PACE stands the application would be to a Magistrate, as you rightly say (unless they’re searching for special procedure material etc.).
I hope soon to be able to stop writing about warrants, and start writing about the real issues!
I suspect that some other Act modifies PACE when it comes to dealing with search warrants pertaining to certain parties, which includes journalists, but not MPs, and the modification makes it necessary for a High Court Judge to sign off any such warrant. IMHO the Speaker is proposing to have this amended so that in future it does include MPs.
The police letter only says that the officers thought that the S at A understood – so surely there’s no need to consider whether that statement is untrue, only whether they wer mistaken in thinking that.
I take the point about the police entering the Palace of Westminster with consent – though I am horrified that it seems so easy: and does the same apply to other Royal palaces? Maybe Mr Green’s office is not actually in the palace. I do however find it incredible that the S at A’s consent extends to searches of Memebers’ private offices. That surely must be a matter for the consent of the member concerned. It’s not as if they are employees of a large corporation … is it? Oh, dear …
@Anonymous – you are guessing, yet again. PACE warrants are issued by either magistrates or, in some cases, by circuit judges. That is it. In any event, you can now forget about warrants and PACE since it appears that the Police entered by consent of the Serjeant-at-Arms.
The estimable Joshua Rozenberg has asked an interesting question about these searches. I think he has a point:
http://www.telegraph.co.uk/news/newstopics/lawreports/joshuarozenberg/3568866/Police-get-the-law-wrong.html
Peter Hargreaves (as always) is correct in his assertions. However did anyone notice the legal mistakes in ACC Quick’s letter? Very few police officers under stand the law today unless they are “old school”. Section 18 PACE searches are only done on the authority of an Inspector (not connected with the investigation) and only relate to premises that are occupied or controlled by the suspect – I doubt they would be able to justify the PW as such. You are, however, correct in stating that once the S @ A had acquiesced they could search. However, I doubt this authority would allow removal of any item not government property.
@ Anonymous – the major legal error in Mr Quick’s letter is the statement that section 8 of PACE requires the Police to first seek permission to enter. That is definitely not the case. Have a look at Joshua Rozenberg’s article – link is above.
Section 18 of PACE did not enter into the situation at all.