The Gazette 1982

g a z e t t e

april

1982

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

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

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