Search and Surveillance

The Movement from Evidence to Information

Sybil Sharpe

• Publisher: Routledge
• Year: 2018
• Print ISBN:
  9781138738737
• eBook ISBN:
  9781351731546
• Topic: Law
• Subtopic: Law Theory & Practice
• Index: Law

This title was first published in 2000: The development of 'search and surveillance' powers are amongst the most controversial issues to confront modern policing and studies of criminal law and criminal justice. This book is the first to challenge the orthodox concept of 'search' in the context of police investigation. Drawing upon extensive international case studies, it provides a fundamental new 'definition' of the highly charged debate surrounding the powers of law enforcers to gather evidence and information for use in criminal proceedings. The book also evaluates the compatibility of these powers of investigation with constitutional and human rights, set in the context of the changing objectives of investigators. Its balance of practical evaluation and in-depth analysis will make it a key text for academics and practitioners alike.

1

Introduction

The subject matter of this text is a discussion of the powers granted to law enforcement agents to conduct searches and to gather information in support of the investigation and suppression of crime. This discussion will examine the extent and efficacy of those powers in the light of constraints imposed by human rights law, exclusionary rules of evidence and the common law concept of ‘due process’. A pervasive theme is the question of whether an appropriate balance can ever be achieved between the inherently conflicting interests of the public in crime control and of the citizen in protecting personal privacy and autonomy. However, before any detailed analysis can be made, it is necessary to consider what is meant by the concept of a ‘search’. The concept has developed pragmatically in common law jurisdictions. It has been moulded by many factors, including expediency, political contest, changes in the investigation and trial process and, most recently, by the introduction of electronic technologies. In order to appreciate the many faceted nature of ‘search’ in the context of criminal investigation, it is necessary to understand the historical evolution of the process and the widening objectives of investigators. What commenced in Anglo-Saxon times as a right to look for stolen goods, has now expanded into a general right to seek incriminatory real evidence and to seek, through electronic recording and telephone interception, evidence of self-incriminatory statements or actions made by a suspect. The distinction between evidence obtained by means of search and evidence obtained by means of interrogation has become increasingly blurred and there is no longer a firm distinction to be made between admissions and real evidence. In essence, this movement is characterised by a shift in the purpose of the search activity. That purpose is no longer confined to the discovery of tangible evidence of crime, but extends to the discovery of information about a suspect, gleaned from what a suspect says and does in his private domain. Buttressing the need for such information is the move toward targeted policing and the creation of databases of knowledge as tools of crime control.¹ The summary of the development of search powers that follows is not purely a matter of historical interest. It is a brief account of how common law jurisdictions have arrived at the concept of a search as it exists today.

The Development of Search Powers

The earliest recognised common law power of search was that of a citizen to pursue a suspected cattle thief. If the suspect had been apprehended while still driving animals, he could be taken lawfully as a ‘hand-having thief (Pollock and Maitland, 1968). This echoes the early Roman law distinction between a manifest and a non-manifest offender (Feldman, 1986). Even if the cattle had reached the marauder's land, the trail leading to the land could establish theft. The element of chase was a critical part of the process and recovery of the goods was a more usual outcome than the conviction of the thief (Pollock and Maitland, 1968). The concept of hot pursuit applied, in due course, to thieves of chattels of all kinds and was extended, by the latter part of the fifteenth century, to encompass a search of the private premises of a suspected felon. Entry by force and without consent was trespass. However, if no force was used, for instance if an outer door was open, even a non-consensual search of premises could be conducted. The concept of trespass was viewed in entirely physical terms. The issue was whether there had been a need to ‘break open the door’,² not whether there had been an intrusion into personal privacy. The only extent to which this intangible encroachment was recognised was in the distinction made between forcible entry into a dwelling house, which was trespass, and forcible entry of a non-dwelling, which was not.³ Some acknowledgement was made, therefore, that a particular protection attached to domestic life.

In a further development, forcible entry into domestic premises, for the purpose of a search, could be made under statute or under common law by judicial authorisation. Such authorisation was called a warrant. The warrant was a contentious instrument and the arguments surrounding the legitimacy of the warrant procedure have significantly shaped the constitutional history of England and Wales and of the United States. There were two main objections to the issuance of warrants. The first related to the scope of the warrant and the second to the identity of the issuer. The development of the printing press, and therefore of mass communication, had led to the enactment of statutes empowering agents to enter and seize documents in a bid to establish censorship through a system of licensing (Polyviou, 1982). These powers were increased incrementally by the Star Chamber in order to repress both political and religious dissent. At their apotheosis, search powers existed to seek out sedition and ‘unlicensed’ books at any time of day or night. These wide powers did not, in fact, entirely disappear with the demise of the Star Chamber and it was not until after the Revolution of 1688 that recognition grew of the oppressive nature of general warrants (Polyviou, 1982). The seminal case that established the need for specificity in respect of suspicion and of the items sought was Wilkes v Wood⁴ where, reviewing a non-statutory authorisation, the Lord Chief Justice accepted that ‘the law never admits of a general search warrant’. The second objection to search warrants was that they could be issued by the executive under prerogative power and thus used as a tool of political oppression. Entick v Carrington⁵ held that such a practice, even if exercised ‘since the Revolution’, was illegal and that if it was to be upheld ‘it would destroy all the comforts of society’.⁶

Thus, unless specifically authorised by statute, no search warrant was valid if it did not conform to the strict limits of the common law. These limits imposed a requirement of judicial control, of particularity and of reasonable belief. It will be seen that these elemental requirements remain today in respect of warrants granted in common law jurisdictions. Even so, it was a concession to crime control that, under the common law, any forcible intrusion into private property was allowed. A justice could only grant a warrant if the applicant swore on oath that a felony had been committed and that he had ‘probable cause to suspect’ that stolen property was in the ‘house or place’ to be searched. The applicant had also to show his ‘reasons for such suspicion’.⁷ Sir Matthew Hale viewed the warrant procedure as a coercive measure that was necessary and expedient ‘in these times where felonies and robberies are so frequent’.⁸ The limited power of justices to issue warrants to search for stolen goods was recognised in Entick v Carrington⁹ and gained acceptance through long usage, even though Lord Coke denied that such a power existed.¹⁰

Adverse reaction to general warrants and to prerogative authority was equally evident in revolutionary America. The constitution of the newly independent United States was formed in the context of revolt against executive powers contained in ‘writs of assistance’. Such writs had no real judicial origin but allowed enforcement of the Act of Frauds 1662 by conferring virtually unfettered powers of search on customs officials. The Law Reform Commission of Canada¹¹ went so far as to state that ‘resistance to the writ, and to the customs regime that it supported, was a vital part in the sequence of events that culminated in the American Revolution’. It has also been pointed out that, even after 1688, the so-called ‘judicial’ magistrates sitting in America lacked the independence from the Crown that the English judiciary had achieved. ‘Even when a judge issued a warrant, revolutionary America greeted the event with foreboding’ (Akhil Reed Amar, 1994:773). It is not surprising then that express restrictions on the issue of warrants and upon powers of search appear in the Constitution of the United States. In its final form, the Fourth Amendment provides

The right of people to be secure in their persons, houses, papers and effects against unreasonable searches and seizure shall not be violated and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

The orthodox interpretation given to this provision¹² overturns the previously held belief that warrants were a coercive instrument of government intrusion and treats warrants as a device protective of the suspect. Criteria essential for the granting of a valid warrant are seen as safeguarding a citizen's interests. These criteria are, of course, the fundamental requirements of reasonableness, particularity, probable cause and of judicial control.¹³ This interpretation has led the Supreme Court to declare in Coolidge v New Hampshire¹⁴ that

searches conducted outside the judicial process, without prior approval by a judge or magistrate are per se unreasonable under the Fourth Amendment-subject only to a few specifically established and well-delineated exceptions.

However, in England and Wales, the dislike of the warrant procedure, that formed an inherent part of the political struggle to establish the supremacy of the common law, resulted in a reluctance to develop any concept of a general power to grant warrants as instruments of criminal investigation. A piecemeal collection of statutes gave authority to the police to enter premises to search for prohibited items, but no coherent scheme of search and seizure powers existed prior to 1985.¹⁵ It was not until the Police and Criminal Evidence Act 1984 (hereinafter PACE) came into force that a statutory structure existed setting out the powers of and constraints on government agents seeking tangible evidence of crime.

In order to fully understand the structure of the PACE search provisions, it is necessary to appreciate the context in which they were drafted. The Royal Commission on Criminal Procedure¹⁶ that preceded the PACE Bills¹⁷ was concerned to effect a ‘fundamental balance’ between the interests of society in bringing offenders to justice and the ‘rights and liberties of persons suspected or accused of crime’.¹⁸ There was a perceived need for clear and certain rules within which police officers should operate¹⁹ and the openness and certainty of these rules was to be the protection of officers and suspects alike. Whilst not every proposal of the Royal Commission was adopted by the government, PACE as finally enacted, substantially replicates many of the recommendations contained therein. The major innovation effected by PACE is the creation of powers of search and seizure that are not offence specific. Instead t...

Table of contents

• Cover
• Half Title
• Title Page
• Copyright Page
• Table of Contents
• Table of Cases
• Preface
• 1 Introduction
• 2 Warrantless Searches for Real Evidence
• 3 Searches of Premises by Warrant
• 4 Particular Searches under PACE
• 5 Surveillance as Electronic Search
• 6 Search, Surveillance and Fair Trials
• 7 From Evidence to Information
• Select Bibliography
• Index