113 / 250
g a z e t t e
april
1982
England very recently by Lord Denning to justify even
greater inroads on the liberty of the citizen and the
inviolability of his dwelling.
It is to those decisions that we must now finally turn in
considering the last aspect of police powers — the power
to search under warrant. But in considering this I would
submit that the rules just outlined, and normal searches
and warrant powers, are correct in law and that no
departure from them is warranted. It is dangerous to leave
to the police a discretion to exercise vast powers of search
upon arrest. The concepts of search and of arrest are
entirely separate and should remain so. While it is
reasonable that the police should seize property
immediately possessed by an arrested person, it is not so
reasonable that either the extent of their search shall
extend to his house if he is arrested there; or, as in
Jeffrey
v.
Black,
109
where he is arrested elsewhere, that they should
be allowed to return to their prisoner's dwelling to search
it. It is enough that on a reasonable suspicion existing a
man should be made subject to charge and arrested. If,
however, the suspicion of the police also extends to the
existence of evidence in a private place, then that power
can and should be exercised independently and even
before an arrest. The traditional view of the law is that if
State necessity justifies an action then legislation should
be the child of that need and the proper course should be an
Act that would provide for search warrant powers. Thus a
magistrate can independently assess the need for the
invasion of a citizen's rights; but a judicial invention,
which gives unlimited search powers, presents the police
with a temptation too great for them to resist. If it is to be
the case that a policeman, upon arrest, can also, without
supervision, search as he wills then the object of arrest will
become, I fear, not the initiation of a criminal process but
an invidious form of inquisition.
Search warrant powers and judicial developments:
The search warrant is the only correct procedure known
to our system for the exploration of premises for the
purpose of finding evidence. The 4th Amendment to the
United States Constitution provides that warrants must
specify the property to be searched and the nature of the
goods to be sought and have to be issued under the hand of
a magistrate.
110
Our system is not under this limitation.
Thus under Section 16 of the Crimes Act 1871 a chief
officer of police may issue a warrant to search for stolen
goods where the occupier of the premises has been
convicted of dishonesty. All other search warrants are
however issuable under authority of a magistrate. The
statutes giving search warrant powers invariably require
an information on oath before the Justice that the
appropriate evidence is reasonably suspected to be found
in a certain place and thereupon the warrant will issue.
111
A justice will not be within his jurisdiction unless such
evidence is given and the warrant could be quashed by
certiorari.
112
The extent of the powers of warrant and its duration are
a matter of construction of the statute.
113
As a general rule
it is not difficult to get a search warrant and they are a vital
investigative aid to the police. The common law rules
concerning the power of the police under them were clear.
The police could search only premises specified in the
warrant and no other. Persons found on the premises could
only be searched if the statute authorising search
contained that power and the face of the warrant specified
its exercise by the holder.
114
An actionable trespass is
committed if a policeman in searching seizes goods which
are not specified in the warrant or are outside that class of
goods.
115
The only development in those strictures which
the common law had contemplated was that goods not
specified in a warrant could be seized along with the goods
so specified, if those had been likely to furnish evidence of
the identity of the goods stolen.
116
Those rules went to the
wall in
Ghani
v.
Jones
117
where in a case involving the
police seizing the passports of a Pakistani family during a
warrantless search Lord Denning said:-
"I would start by considering the law where a police
officer enters a man's house by virtue of a warrant, or
arrests a man lawfully, with or without a warrant, for
a serious offence. I take it to be settled law without
citing any cases, that the officers are entitled to take
any goods which they find in his possession or in his
house which they reasonably believe to be material
evidence in relation to the crime for which he is
arrested or for which they enter. If in the course of a
search they come upon any other goods which show
him to be implicated in some other crime, they may
take them provided they act reasonably and detain
them no longer than necessary."
I must dispute this statement. Firstly, because his
Lordship declines to cite cases; secondly, because he
apparently declines to follow pre-existing law; thirdly,
because he fails to see any distinction between arrests and
searches and equates a right to search a house with the
right to arrest; fourthly, because he fails to distinguish
between a right of entry or search under a warrant and the
right to seize; and, lastly, because the taking of goods is not
justified by a legal rule, but by a subsequent judicial
analysis of the correctness of police behaviour.
The rest of the judgment uses specific instances to
justify the creation of a new legal rule:
117
. . . the great train robbers . . . . used a saucer
belonging to the farmer to give the cat its milk. When
seeking for the gang, before they were caught, the
police officer took the saucer so as to examine it for
fingerprints. Could the farmer have said to them 'No,
it is mine, you shall not have it'. Clearly not. His
conduct might well lead them to think he was trying
to shield the gang. At any rate it would have been
quite unreasonable."
On this basis, Lord Denning then went on to decide that
the police had power to seize anything from anyone if they
have reasonable grounds for believing a serious offence
has been committed, and similarly believe an article either
to be the fruit of a crime or to be material evidence and the
person in possession could not reasonably refuse to hand it
over, they can take it for as long as is necessary. This
decision led, in
Garflnkle
v.
Metropolitan
Police
Commissioner
118
to the sanctioning of the seizure,
pursuant to a search on warrant, of goods relevant to
another crime altogether.
119
In
Frank Truman Export
v.
Metropolitan Police Commissioner
120
the police were
held entitled to seize documents specified in a forgery
warrant together with anything which could assist their
104