An Introduction to Search Warrants

From time to time Justices of Peace and District Judges are called upon to consider search warrant applications made by various law enforcement agencies.

In this article we give a brief general outline of the search warrant application process. This is a very broad subject, so we cannot possibly cover every aspect. That said, we hope to cover the most pertinent points. We should also mention that everything written here is freely available in the public domain, so we're not giving away any trade secrets.

To avoid repetition of "Justice of the Peace" and "District Judge", we shall simply use the term "Justice". We should also mention that Circuit Judges and High Court Judges can assume the role of Justices in the granting of these warrants, although the overwhelming majority are dealt with by lay Justices.

Every application requires very careful consideration by the Justice concerned. If the information provided is deficient in any way, or there is any doubt about the legitimacy of the application, then the warrant must be refused. In the words of Lord Justice Latham: "The obtaining of a search warrant is never to be treated as a formality. It authorises the invasion of a person's home."

There are several pieces of legislation that allow the grant of search warrants in various circumstances. Warrants granted under section 8 of the Police and Criminal Evidence Act 1984 and those granted under section 23 of the Misuse of Drugs Act 1971 are probably the most common. We shall discuss the specifics of these warrants in future articles.

The person applying for the warrant is known as the applicant. In most circumstances this will be a police officer. The applicant should be asked for their warrant card or photographic identification to prove who they are.

The application usually takes place at court during working hours, where a legal advisor is close at hand to check the paperwork. Out of hours applications, where a Justice is asked to consider the application at their home or place of work, are exceptionally rare. In the event of an out of hours application, the duty legal advisor will always contact the Justice beforehand to let them know that the applicant will be heading in their direction.

Every application is accompanied by a written information, which explains in detail the reason the warrant is being sought. The information may run the several pages. The information must be confirmed on oath or by affirmation. The Justice normally reads through the information carefully and then asks the applicant to explain, in their own words, the reasons for the application.

The application must include the following:

• The name, rank and job description of the applicant;
• The statutory provision (e.g. section and Act) under which the warrant would be issued;
• Details of the premises to be entered and searched - e.g. the address or location. Premises includes vehicles, vessels, aircraft, temporary or movable structures;
• As far as possible, the articles or persons sought;
• The grounds on which the application is made.

The applicant must be full and frank in their disclosure, so that a decision can be made on the fullest possible information. In particular, the applicant is obliged to provide any information that might undermine the basis of their application. The applicant needs to satisfy the Justice that the material sought is not exempt from search for any reason. The Justice may well have questions for the applicant, the gist of which should be recorded along with the answers provided.

If the Justice is content to grant the warrant they will sign, date and time the application and sign and date each of the warrants. If the warrant is refused the reasons must be carefully documented on the application.

The warrant must include the following:

• The name of the applicant;
• The date on which it is issued (but not the time);
• The statutory provision (e.g. section and Act) under which it was issued;
• The address and postcode (if available) or location to be entered and searched;
• As far as possible, the articles or persons sought.

As the application may have been typed at a thousand miles an hour, it is a good idea for the Justice to check that the details shown on the application match those on the warrant.

A copy of the application and warrant are retained by the court. The other copies of the warrant are handed to the applicant for them to go away and attempt to execute. The warrant must be executed within strict statutory time limits.