Beth Handley, a solicitor at Hickman and Rose who specialises in police actions has written this detailed and informative piece on warrants issued under Schedule 5 of the Terrorism Act 2000. This may be useful to legal teams who want more information on warrants and instances in which they may need to be challenged. For more information, please see the basic ‘Know your rights: Raids’ article.
Counter terrorism powers have become an increasingly prominent feature in UK domestic law since the introduction of the Terrorism Act 2000 (TACT). Amid the raft of powers contained in TACT, Schedule 5 empowers magistrates to authorise police to enter and search specified premises and to confiscate personal property. It is important to be aware of how the issue and execution of search warrants under Schedule 5 TACT may exceed legal limits and unlawfully interfere with individual rights.
Fear fostered through the threat of a ‘terrorist attack’ can embolden police officers to seek wide ranging authorisations from the court and may limit the extent to which magistrates question the factual basis for the breadth of a warrant sought. In such a climate, safeguards protecting irrelevant personal information, legally privileged material, personal records associated with a trade or business and journalistic material are at risk of being swept aside. The risk of this occurring is particularly pronounced in cases where authorities seize items such as mobile phones and computers that contain a mixture of material that is potentially relevant to an investigation along with personal material of no value to investigators.
The courts recognise that the issue and execution of a search warrant is a substantial invasion of the fundamental right of privacy. Where safeguards designed to mitigate such an invasion are ignored, courts have been prepared to quash search warrants and order the return of property seized in reliance upon them. This can be a powerful remedy for a victim of an unlawful exercise of Schedule 5(1) TACT powers.
An unduly broad or vague TACT search warrant may be susceptible to a legal challenge.
The power granted by Schedule 5(1) of TACT only allows authorities to seize “relevant material”, which is likely to be of substantial value to a terrorist investigation. Police are required to give ‘full and frank’ disclosure to the court when applying for a warrant and to identify, so far as practicable, the articles or persons sought.
That means clearly setting out the evidential basis for a reasonable suspicion that identified items are likely to be found on the premises and are likely to be of substantial value to a terrorist investigation. Both the police and the magistrate can be obliged to disclose to the occupier a copy of the information laid before the magistrate leading to the grant of the warrant. Requesting disclosure of the application for the warrant can be an important mechanism for checking that the police and the magistrate have adhered to the necessary legal requirements.
Another important safeguard exists in relation to ‘mixed material’ which includes information stored on electronic devices such as smart phones, computer hard drives or data sticks. It is recognised that such devices are likely to contain irrelevant material such as personal emails or photographs that cannot be seized under the warrant even if they do also contain some material that is likely to be of substantial value to a terrorist investigation.
Where it is not possible to separate the relevant material from the irrelevant material at the scene, the Criminal Justice and Police Act 2001 (CJPA) establishes an important procedure to ensure the sifting, separation, protection and return of irrelevant material to the owner as soon as possible.
Where ‘mixed material’ is seized, police are obliged to serve a notice under section 52 of the CJPA on the person from whom property has been seized. The service of the notice triggers a ‘sifting’ process designed to identify, separate out and return irrelevant material as soon as practicable. Section 53 of CJPA confirms an entitlement on the owner of the property or their legal representative to be present while the sifting exercise takes place in order to safeguard their private interests. A failure to follow this process amounts to a breach of the CJPA and the right to privacy, enshrined in Article 8 of the European Convention on Human Rights and the common law.
The importance courts place on upholding privacy rights in connection with the issue and execution of search warrants is evidenced by the robust remedies available where CJPA safeguards are ignored. Courts have been willing to quash search warrants and order the return of computer hard drives, smart phones and data sticks where warrants have failed to properly identify the relevant material sought.
Warrants referring only to ‘any computer hard drive or other information storage device’, ‘mobile phones’ or ‘laptop computer’ have been found to have been unlawfully issued in the cases of R (F, J and K) v. Blackfriars Crown Court & The Commissioner of Police of the Metropolis and R (S) v. Chief Constable of the British Transport Police & Southwark Crown Court . In each case material seized under the warrant was ordered to be returned where no notice under s52 of the CJPA had been served on the owner.
Challenging an unlawful warrant
TACT search warrants that appear to be unreasonably broad or vague may be challengeable through judicial review. This mechanism can also be used if electronic items containing ‘mixed material’ have been seized without a section 52 CJPA notice being served. However legal advice should be sought urgently as judicial review applications must be issued promptly or in any event within three months of the decision under challenge.
Depending on the circumstances, a judicial review may result in a court order quashing the warrant, together with a declaration that any ensuing search and seizure was unlawful and an order that any property seized in the search should be returned to the claimant. These remedies are vital in holding the state to account and ensuring state agents comply with statutory limitations and human rights obligations, a fundamental component of the rule of law in a democratic society.
(NOTE: CAGE represents cases of individuals based on the remit of our work. Supporting a case does not mean we agree with the views or actions of the individual. Content published on CAGE may not reflect the official position of our organisation.)