(3) POWERS OF ENTRY AND SEARCH
1.20 The Bill extends the power of a judge advocate
to authorise the entry and search of residential premises by the
service police.[15] The
amended power will allow the issue of an "all premises warrant",
which authorises the service police to enter and search "any
relevant residential premises occupied or controlled by a person
specified in the application", whether or not the premises
are specifically identified in the application.[16]
It will also allow the issue of a "multiple entry warrant",
which authorises entry to and search of premises on more than
one occasion if, on the application for the warrant, the judge
advocate is satisfied that it is necessary to authorise multiple
entries in order to achieve the purpose for which the warrant
is issued.[17] If the
warrant authorises multiple entries, "the number of entries
authorised may be unlimited".[18]
1.21 The purpose of the amendment is to bring the
power to authorise entry and search by the service police in the
Armed Forces Act into line with the extended power to authorise
entry and search by the civilian police in the Police and Criminal
Evidence Act 1984[19]
following its amendment by the Serious Organised Crime and Police
Act 2005.
1.22 The Explanatory Notes to the Bill acknowledge
that this provision engages the right to respect for private and
family life and home, under Article 8 of the ECHR, and the right
to peaceful enjoyment of possessions under Article 1 Protocol
1 ECHR.[20] However,
the Government considers it to be necessary for the purposes of
the detection and prevention of crime, and proportionate to that
aim, for two reasons. First, the power is limited to residential
premises of persons who are subject to service jurisdiction and,
second, "the clause mirrors section 8 of the Police and Criminal
Evidence Act 1984."
1.23 When s. 8 of the Police and Criminal Evidence
Act 1984 was amended by the Serious Organised Crime and Police
Act 2005, the JCHR reported that the extended powers to issue
all premises warrants and multiple entry warrants raised significant
human rights concerns, both under the common law and Article 8
ECHR.[21] It said the
provisions "give justices of the peace authority to issue
a general warrant of a kind that has been anathema to the common
law for centuries on account of the very wide discretion it confers
on public officials, and the lack of effective prior judicial
control over the decision to enter (if need be, by force) private
premises including dwellings."[22]
It also concluded that the extended powers gave rise to a significant
risk of incompatibility with the right to respect for private
life and home in Article 8 ECHR, because there was no means for
ensuring judicial control over subsequent exercises of the authorisation
to enter and search, even though the circumstances affecting the
continued necessity and proportionality of the entry and search
might have changed considerably.[23]
1.24 We share the concerns of our predecessor Committee
about the compatibility of all premises and multiple entry warrants
with rights recognised both by the common law and in the UK's
international human rights obligations. We therefore asked the
Government a number of questions about the necessity of amending
the power of a judge advocate to authorise a service policeman
to enter and search residential premises so as to allow the issue
of "all premises warrants" and "multiple entry
warrants".
1.25 The Government response says that statistical
evidence about the use of existing powers of entry is not readily
available, and, in the absence of such statistics, it relies on
examples of the sorts of circumstances in which the wider power
is needed. The Government relies on two reasons in particular:
first, it says that it is now not uncommon for Service personnel
to have more than one place of residence and, second, it says
that there is evidence that some Service personnel are now committing
more crimes "involving difficult questions of evidence",
such as weapons and drug smuggling, making indecent images of
children and child grooming offences. Moreover, these changes
in the pattern of the accommodation of Service personnel and the
range of offences committed by them are said to have happened
since the enactment of the Armed Forces Act in 2006, so that it
is now clear that extending the general entry and search power
to Service police is justified.
1.26 We have
considered carefully the justification provided by the Government
for extending the Service police's power to enter and search residential
premises but we are not persuaded that the Government's case is
borne out by the evidence or that the justification relied on
is sufficiently weighty to justify such a drastic departure from
the procedures which protect against the arbitrary interference
with the right to respect for people's homes.
The Government refers to one example which it says demonstrates
the necessity for the extended power, a recent case in which seven
soldiers were allegedly involved in the theft and supply of a
substantial quantity of military firearms and explosives and several
of the suspects had more than one place of residence. It says
it is possible that the items were being moved from one location
to another, possibly between residences of the suspects, and applications
had to be made for separate search warrants in relation to each
individual sets of premises. The Government argues that had a
search of one set of premises indicated that the stolen items
might be at other premises, it would have been necessary to apply
for a new warrant, which might have frustrated or seriously prejudiced
the purpose of the search.
1.27 We cannot see how this example demonstrates
the necessity for a power to authorise entry and search of any
residential premises occupied or controlled by a person subject
to service jurisdiction, even if not specified in the warrant.
A warrant authorising entry and search can specify more than one
set of premises,[24]
and that would have been sufficient in the example given by the
Government. We do not accept that the changing pattern of service
accommodation makes it necessary for the service police to have
the power to obtain a general warrant authorising entry and search
of any residential premises occupied or controlled by a particular
service member. Indeed, the Government acknowledges that there
is no known case to date that has been lost because of the lack
of the powers which are sought in the Bill, but argues that there
is a greater risk of that happening if the wider powers are not
available to the service police. Nor are we persuaded that the
restriction of the power in the Bill to "relevant residential
premises" is a significant limitation on the scope of the
power: it merely reflects the fact that the Service police only
have powers in relation to persons subject to service jurisdiction,
and the general power to enter and search residential premises,
including those not specified in the warrant, can only extend
to the residential premises of such persons. This does not affect
the central mischief in the extended power of entry and search,
which is its availability in relation to residential premises
not specified in the warrant and which may be entered and searched
an unlimited number of times.
1.28 We also asked the Government what post-legislative
scrutiny it has carried out of the operation of the power to issue
all premises and multiple entry warrants since it was introduced
in 2005, and how the proposed extension of entry and search powers
in the Bill is compatible with the Government's commitment in
the Coalition's Programme for Government to bring forward measures
limiting powers of entry. In response the Government acknowledges
that the recent review of the Police and Criminal Evidence Act,
published in March 2010, highlighted the need to raise police
accountability in relation to search warrants generally and also
recommended that certain procedures be put in place in relation
to all premises and multiple premises warrants. However, the
Government states that these matters will be taken into consideration
when detailed procedures for the application for and execution
of these warrants, including safeguards, are made in the relevant
statutory instrument governing the exercise of the powers.[25]
As far as the Government's commitment to limiting powers of entry
is concerned, the Government restates that commitment but argues
that the extended powers of entry and search are necessary in
order to ensure that those responsible for investigating crime
have sufficient powers to do so effectively, subject to appropriate
safeguards which, in the Government's view, the legislation contains.
1.29 In our
view, the strength of the concerns about the human rights compatibility
of all premises warrants and multiple entry warrants makes their
repeal a candidate for inclusion in the Government's Protection
of Freedoms Bill which contains some provisions limiting powers
of entry. Instead, they are being extended by the provisions
in this Bill. We recommend that the power to authorise all premises
and multiple entry warrants to enter and search residential premises
be deleted from the Bill. The following amendment is designed
to give effect to this recommendation:
Page 4, line 30, clause 7, leave out sub-para
(1)(b).
Page 5, line 49, clause 7, leave out sub-clauses
(5) and (6).
15 Clause 7, substituting a new s. 83 of the Armed
Forces Act 2006 (power of judge advocate to authorise entry and
search). Back
16
News s. 83(1)(b) Armed Forces Act 2006. Back
17
New s. 83(5) Armed Forces Act 2006. Back
18
New s. 83(6) Armed Forces Act 2006. Back
19
Section 8 Police and Criminal Evidence Act 1984 (power of justice
of the peace to authorise entry and search of premises), as amended
by s. 113 of the Serious Organised Crime and Police Act 2005. Back
20
EN para. 180. Back
21
Fourth Report of 2004-05, Scrutiny: First Progress Report,
HL Paper 26, HC 224. Back
22
Ibid. at para. 1.91. Back
23
Ibid at paras 1.95-1.96 and Eighth Report of 2004-05, Scrutiny:
Fourth Progress Report, HL Paper 60, HC 388, paras 2.29-2.38. Back
24
New s. 83(1)(a) Armed Forces Act 2006. Back
25
Currently the Armed Forces (Powers of Stop and Search, Search,
Seizure and Retention) Order 2009, SI 2009/2056. Back
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