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 c rime specified. So in 1867, the House of Lords held that police with a warrant searching a house for fuse wire used in an e xplosion were entitled to seize letters which tended to s bow that the occupier had been involved in causing toe explosion. What remains obscure is the limit of the power to Se 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 c mne upon any other goods which showed the occupier to 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