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New guidelines on search powers, disclosure and seizure of property published by College of Policing.

Date - 6th March 2020
By - Gary Mason

National changes to the application and checking of search warrants, as well as significant changes to policy and practices in relation to use of search powers within the MPS have been made as a result of the botched Operation Midland inquiry according to the IOPC.

It has also recommended that in future all warrant application hearings are recorded.

The IOPC’s Operation Kentia investigated police conduct around applications for search warrants made by the MPS as part of Operation Midland. The investigation found no evidence that police officers had deliberately misled a district court judge, but found gaps in processes and systems.

Director General Michael Lockwood said: “These will make tangible differences, with police officers now being better trained and having a better understanding of search powers and warrants, particularly around issues such as duty of disclosure, seizure of property, who attends the search and improved guidance."

The IOPC has also recommended the Ministry of Justice consider the costs and benefits of implementing audio recording of search warrant application hearings and whether this should form part of the hearing process.

The current process for applying for search warrants involves an officer completing an application form which includes providing information under the following headings: the offence under investigation, the investigation material sought, premises to be searched which can be specified, premises to be searched which cannot be specified, search on more than one occasion, search with additional persons, duty of disclosure, declaration and authorisation.

The decision by the Magistrate or District Judge as to whether to grant the application is recorded at the end of the application form. In this section of the form there is space for the court clerk or Magistrate/District Judge to record whether the applicant gave additional oral information and a summary of what that was.

Most applications for search warrants are not carried out in public court rooms, but in Magistrate Court Buildings' retiring rooms (i.e. court offices). Applications out of hours can also be made at Magistrates' home addresses.

Although the space on the form to record additional information provided during the oral application provides some evidence of anything said in the hearing, it does not provide a complete record, in the way an audio recording of the making of the application would do.

Section 9 of the Contempt of Court Act 1981 and Part 6.9 of the Criminal Procedure Rules 2015 (commencing October 2015), make provisions which would permit the recording of applications. However, this is not routine.

HM Courts and Tribunal Service are moving towards all search warrant applications being made by telephone.

Making applications exclusively by telephone may allow for making audio recordings easier compared with the current system of face-to-face applications, the IOPC says.

However, with 30,000 applications for search warrants being made a year, recording them all would be expensive.

But the IOPC says recording of the search warrant application process would increase public confidence by improving transparency and providing a clear audit trail.

Other changes on search warrants which have or are being implemented include:

• Two pieces of national policing policy have been updated by the College of Policing (CoP). One has been published and the other should be published shortly

• The CoP has updated professional investigator training to explicitly include outcomes relating to search powers and search warrants

• The MPS has carried out a range of activity to review guidance, provide refresher training, communicate with staff and update training materials

• The MPS is reviewing its process to improve communication with suspects who voluntarily attend for interview

• The Criminal Procedure Rules Committee has agreed to amend guidance notes in relation to applications for search warrants

• The CoP has developed clearer guidance to support chief officers in communicating the national position about the ‘culture of belief’ within their forces

• The CoP has worked closely with the NPCC and MPS to develop clearer communications on the position of policing on ‘belief’. Final discussions are taking place to ensure that the materials to go to forces give the clearest information possible

On 4 October the IOPC issued 16 learning recommendations in relation to the Metropolitan Police’s Operation Midland investigation. Of the 16 recommendations made, 13 were accepted, two were not accepted and one was identified as needing to be redirected.

The action taken so far in response to our recommendations is available on the IOPC website https://www.policeconduct.gov.uk/recommendations/national-recommendations-and-recommendations-made-metropolitan-police-service

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The COP announcement that references the IPOC, MPS, MOJ, HMCTS, CPRC and NPCC gets photobombed by the NCA.

On a serious note, this has been mooted for ages and is long over due.