Many cases of internet crime begin with or involve a search of a suspect’s house, office or property. Often, the first a person knows that there is even an allegation is when the police come through the door with a warrant from a court to search a property.
The grant of that warrant and the subsequent search is often a point of concern and contention. Police will typically arrive with all the appearance of total authority and proceed to go through belongings and rooms at their leisure. It may feel like a ransacking, an invasion, and a search is often conducted by a dozen or more officers.
The law relating to searches, warrants and the power of the police to enter and seize is complex and wide. This is a summary of the likely issues and processes, but this is a topic on which specific legal advice by a specialist is likely to be required.
- Police Powers
The police have the power to search premises without a warrant in a wide range of circumstances, either from a constable’s own powers or under those permitted by a more senior officer. They don’t necessarily need a warrant by any means. However, in Internet Crime cases, search under a warrant issued by either a Judge or Magistrate is common. The police can make an application to either a Judge in the Crown Court or a Magistrate to enter and search a particular premises. That application is made without notice to the suspect for obvious reasons. The police are meant to provide all of the relevant information about why a warrant should be issued and any reasons against issuing a warrant. The court can grant a warrant, generally, when it is suspected that an indictable offence has been committed, there is relevant evidence on the premises that is likely to be of substantial value to the investigation and it will not be practicable to get the evidence unless the warrant is granted.
- Unlawful Searches
Given that the first one knows of a search warrant is once it has been executed, it is rarely possibly to challenge the decision to grant the warrant in the first place. However, it is possible to seek a declaration from a court that the search warrant was unlawful or should never have been given, and to recover damages. Some people will seek that declaration even if damages are nominal, in order to preserve their reputation, for example, or as a matter of principle against a police force acting unlawfully. That process can be used to discredit a police officer who has some other role in an investigation. It might be that the police have gone beyond their powers under the warrant, and this is not an uncommon occurrence. Sometimes the police will tell a person that they have no right to search, for example, an outhouse or second office but will instead ask permission. It can be difficult to say no to the police when half a dozen of them are stood in front of you about to slap on the handcuffs. Generally, however, the vast majority of search warrants granted in internet crime cases are straight forward and unremarkable.
Importantly, evidence that has been found during a search will still generally be admissible in court even if it was obtained as part of an unlawful search. So even if, for example, the police overstate the intelligence they have to justify a search warrant, or fail to tell the court reasons why the warrant should not be issued, but the police go ahead and seize a computer that contains illegal images of children, it is likely that this computer will still be evidence in a criminal trial. Although it is possible to argue that it would be unfair to admit unlawfully seized evidence, such applications are very restricted and limited.
Understanding the legal basis for a warrant being issued is usually straightforward, although a person has no right as such to be told the evidential basis upon which the application was made. A person must be given a copy of the warrant authority and search record, as well as a record of anything seized. That record can be very useful for identifying what the police have taken.