The Gazette 1972

Seizure of Documents by Police

by MICHAEL ZANDER

When Special Branch Officers, investigating the Alder-

shot bombing case, descended on some sixty homes at

6 a.m. on Wednesday morning, their knocks at the door

set up considerable reverberations.

Already MPs have taken up the case, and the Home

Secretary will have to consider whether to make a state-

ment which no doubt will simply justify the action of

officers acting on the authority of search warrants

issued under the Explosives Act.

More interesting would be a court action by any of

those affected—for damages, for trespass, for papers

illegally seized and held and for their return. The extent

of police powers of search and seizure is curiously vague.

Where, as here, the police are acting under a search

Warrant, they have to swear on oath before a magis-

trate that they have information wbich supports reason-

able suspicion to justify the search. Almost invariably

the magistrate grants the request, which is made in

private and, therefore, lacks the safeguards of a hearing

in open court.

In 1765, the great case of

Entick v Carrington

estab-

lished that magistrates

cannot

issue general warrants

^hich do not specify the person or property to be

^arched. The warrant must be reasonably precise and

may not be drawn up in a way to allow police to ran-

sack a man's papers and effects, looking for evidence

jn relation to unspecified offences. But the courts have

increasingly exonerated the police for exceeding the

terms of specific warrants.

No damages can be claimed for searches

These cases establish that the police are not liable

tor damages where they seize goods they reasonably

fhink are covered by the terms of the warrant, even if,

in the event, it proves they are mistaken. Similarly they

may seize goods which identify people mentioned in the

^arrant, or which are reasonably believed to show the

guilt of the person named in the warrant and for the

rime specified.

So in 1867, the House of Lords held that police with

warrant searching a house for fuse wire used in an

xplosion were entitled to seize letters which tended to

bow that the occupier had been involved in causing

toe explosion.

What remains obscure is the limit of the power to

arch and seize property which does not relate directly,

0 r

even indirectly to the offence for which the search is

fieing conducted.

In 1970, Lord Denning in

Ghani v Jones

in the Court

Appeal said that if in the course of a search police

mne upon any other goods which showed the occupier

be implicated in some other crime, they could take

them—provided they acted reasonably and detained

toem no longer than was necessary.

The court said nothing to explain what would consti-

tute reasonable conduct in this context. Would it, for

^stance, he legitimate for the police to seize letters

reasonably believed to show guilt of an offence quite

unconnected with the crime for which the warrant

was issued. If so, the warrant procedure provides virtu-

ally no protection against precisely the kind of police

"fishing expedition" traditionally regarded as illegal

since

Entick v Carrington.

Moreover, in the same case Lord Denning said that

if the police were acting without a warrant they were

entitled to seize goods wanted in the investigation of a

serious crime which were reasonably thought to be

either the fruit of the crime (stolen goods) or the instru-

ment of the crimc (the murderer's axe) or material

evidence of the crime. And the property could be seized

not only from someone implicated in the crime, but

equally from an innocent person, provided that his

refusal to hand it over was "quite unreasonable".

Citizens must assist police

At a time of an unprecedented crime wave, honest

citizens, the court thought, had to assist the police and,

if necessary, be prepared to hand over their own prop-

erty if it would help a police investigation. If they

refused, the police would be entitled simply to seize the

property.

It is true that Lord Denning specifically upheld the

continuing validity of the principle that the police may

not ransack someone's house to see whether he has

committed some crime or another. But the effect of the

decision could in practice be to undermine the principle

simply in order to make effective the sweeping power of

seizure granted by the case.

That these fears are realistic is shown by the case last

September in wbich members of the Prescott and Purdie

Defence Group failed to get returned property taken

during a search under a warrant issued, again, under

the Explosives Act. Nothing was found which related

to explosives, but Mr. Justice Ackner said that the

police had made out their case that posters, leaflets,

and Agitprop pamphlets seized were taken on reason-

able suspicion of some connection with the bombing

at the home of Mr. Robert Carr.

On the facts, the judge said, tbere were reasonable

grounds for suspecting some link between Agitprop and

the Angry Brigade wbich claimed responsibility for the

bombing. But he also said that the seizure could be

justified on the ground that the material seized might

relate to the quite different offences of conspiracy to

pervert the course of justice or to commit contempt of

court.

In the present case it appears that tbe officers took

away papers, photographs, letters, passports, diaries,

notes, address lists, hills, and receipts. It seems improb-

able that all these seizures could, if challenged, be

justified under the existing law. But the present trend

m the courts is such that a challenge might well result

in >>ven further extension of the already considerable

police powers.

The Guardian

(17th March 1972)

121