Serious Organised Crime and Police Bill

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The Chairman: With this it will be convenient to discuss amendment No. 147, in clause 104, page 70, line 11, after 'premises', insert 'reasonably believed to be'.

Mr. Mitchell: Amendment No. 287 would require a specific-premises warrant and an all-premises search warrant to be issued by a High Court judge or a circuit judge, as opposed to a justice of the peace. Amendment No. 147 deals with the danger of searches being unlawful unless the amendment is included in the Bill.

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At present, ordinary search warrants under PACE are granted by a justice of the peace, but if the material is impressed with any particular degree of confidence, the warrant has to be issued by a High Court judge or a circuit judge. That is because a greater degree of intrusion into the individual's privacy will take place when the warrant is executed. Accordingly, applications for access to this type of material must be scrutinised with particular care. Although materials sought in a specific-premises warrant or all-premises warrant may not be impressed with any particular confidentiality, the new species of warrant envisages a greater degree of intrusion into the individual's privacy, if only because a specific-premises warrant may extend to cover more than one set of premises and, more significantly, an all-premises warrant may cover premises not identified in the application.

It has been a principle of English common law for hundreds of years that an individual's privacy in his premises can be invaded only where a warrant to enter and search has been judicially sanctioned. For that reason, the warrant must be crystal clear about the extent of the invasion that is permitted to take place. The all-premises warrant, in particular, represents a significant erosion of that principle, because the identity of the premises to be searched will be not be specified.

At present, it is not uncommon for the police to enter and search premises belonging to a target and to discover from material found there that the target occupies or controls other residential or commercial premises where further valuable material could be stored. Typically in that situation, they return to court and obtain a warrant to enable them to enter and search the new premises. The need to obtain a new warrant creates further paperwork and delays the investigation, affording the target the opportunity of removing material from the new premises before an additional search warrant has been granted. The ability to obtain an all-premises warrant would obviate the need for the police to return to a justice of the peace in such circumstances. However, because of the enhanced invasion of privacy involved in an all-premises warrant, it should, at the very least, be scrutinised most carefully by a senior judge, such as a High Court judge or a circuit judge, before it is granted. That is the key purpose of the amendment, which operates by inserting a new clause into PACE. The Government's proposal to amend the existing section 8 will work only if justices of the peace are to grant the new species of warrant.

With our probing amendment we wish to ensure the correct safeguards for the privacy of our constituents. We are wary of a Government who have allowed a number of intrusive powers, particularly in Companies (Audit, Investigations and Community Enterprise) Act 2004, which we considered in towards the end of the last Session. We want the Minister to reassure us that our fears are unwarranted.
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Mr. Djanogly: By its very nature, the all-premises warrant will be open to interpretation, to the extent that the certainty that attaches to a single-premises warrant will be lacking. Subsection (14), which would become new section 8A(2) under the amendment, says that the judge may not issue such an all-premises warrant unless he is satisfied that

    ''that there are reasonable grounds for believing that it is necessary to search premises''.

What does ''reasonable'' mean in that context? There may be a difference between what a judge finds reasonable when a warrant is issued in the courtroom and what the police think is reasonable when an incident takes place and they feel that a premises needs to be searched; that disparity could lead to court cases. We are talking about a new type of order, so the potential for disputes about what is considered reasonable in those different circumstances is accentuated. Do the Government intend to issue guidance on such matters?

Ms Blears: I shall deal with amendment No. 147 before amendment No. 287. The exercise of the power of entry on to premises is, like the power of arrest, a serious power that the police exercise. The exercise of that power is an intrusion into people's rights, so it is important that hon. Members have raised such issues. It is appropriate that there should be proper safeguards in the exercise and granting of such powers.

Amendment No. 147 proposes that when an all-premises warrant has been issued, a constable can apply to an officer of the rank of inspector or above to enter premises that he reasonably believes are occupied or controlled by the person specified in the application. Amendment No. 147, tabled by the hon. Member for Sutton Coldfield, would lower the threshold for the safeguard, because the premises would only have to be ''reasonably believed'' to be occupied or controlled by the person specified in that application.

In the way in which we framed the legislation, we are saying that the magistrate must be satisfied that there are reasonable grounds for believing that material that is likely to be of substantial value to the investigation of an indictable offence is on the premises occupied or controlled by the specified person. Under the safeguards in the Bill, if the premises are not specified in the warrant, because it was not possible to do so when it is issued, the prior written authority of an officer of the rank of inspector or above is needed when the warrant is used. The constable must satisfy the inspector that the premises that he wants to enter and search are occupied or controlled. Amendment No. 147 would lower that high threshold, so that the constable would only have to reasonably believe that the premises were occupied and controlled by the person specified, rather than satisfy the inspector that the premises were in fact occupied and controlled by that person. I ask the hon. Gentleman to consider that important issue.

Amendment No. 287, on the other hand, seeks to limit multi-premises and all-premises warrants to an application to the High Court or a circuit judge. Granting warrants has always been a matter for
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magistrates and justices of the peace. We need appropriate safeguards, but I do not accept that in such circumstances the matter should be for the High Court or a circuit judge only to decide. Magistrates are perfectly capable of exercising their power in a proper way, being fully cognisant of the rights of other parties.

3.30 pm

Subsection (7), which would insert new subsection (2A) into section 15 of PACE, deals with an issue that was of concern to me. I did not want the police simply to apply for warrants in a completely open fashion, saying that they needed different premises included automatically. Under proposed new subsection (2A)(b) officers must still, even when multi-premises warrants are applied for, specify as many sets of premises as is reasonably practicable. We are bearing down on them and telling them that they cannot simply go on a fishing expedition for a set of multi-premises warrants, on the basis of a vague idea that there might be some goods worth having a look at in those premises. We are saying that where they can they must specify the premises, and that they must seek multi-premises warrants only if it is not possible to specify the premises at that time.

I think that the safeguards in the Bill are appropriate, and I see no reason why a magistrate should be considered unsuitable to authorise a multi-premises warrant when, in fact, the magistrate would simply authorise one warrant for four premises rather than have to authorise the searching of each set of premises separately. Such a view is not necessarily casting aspersions on magistrates—I am sure that the hon. Member for Sutton Coldfield does not mean to do that—but I do not think that it is necessary for someone of the calibre of a High Court or circuit judge to conduct the process.

The process is about going on a fishing expedition looking for warrants. The police need to specify premises wherever possible, but sometimes modern criminals move their goods around from place to place and in those circumstances, if the police are to be effective and efficient, they need warrants that extend to more than one premises at once. It is on those grounds that I ask the Committee to reject the amendment. I do not think that the provisions extend the powers of the police to the point of infringing people's proper right to occupy their premises peacefully, and they are effective and proportionate powers to enable the police to fight the kind of criminal activity that goes on too often.

Mr. Mitchell: On amendment No. 147 the Minister has made a very reasonable case, and I am happy not to press it.

As for amendment No. 287, the Committee is right to ask questions, because the power is more important. If we are to strive, as ever, for the proper balance between the power of the state and the power of our constituents as individuals, the permitting of the extra warrant and its associated additional powers gives rise to a need for adequate safeguards. That is why Her Majesty's Opposition decided to test the issue by suggesting that a higher level of warrant should be
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dealt with by a higher level of court. The Minister has, however, beguiled me with her very reasonable response, and we shall consider the point that she so reasonably made, and return to it, if necessary, on Report. I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 104 ordered to stand part of the Bill.

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