Search Warrants: What Happens When They Are Obtained Unlawfully?

What is a search warrant, and when do police need one?

A search warrant is a court order authorising police to enter and search specified premises for evidence. Police need one when no other power of entry applies and the owner or occupier does not consent. It exists so that an intrusive power is subject to independent judicial scrutiny before it is used.

What is PACE 1984?

The Police and Criminal Evidence Act 1984 (PACE) is the main statute governing police powers in England and Wales to stop, search, arrest, detain and question people, and to enter premises and seize evidence. Codes of Practice made under it, including Code B on searching premises, set out how those powers must be used.

Can the police enter your house without a warrant?

Yes, in limited circumstances. Sections 17, 18 and 32 of PACE are some of the most commonly used. Police may also enter with consent, which you are not obliged to give.

What is a section 8 warrant?

A section 8 warrant is the standard search warrant under PACE, used to search premises for evidence of an indictable offence. Before issuing one, the court must be satisfied there are reasonable grounds for believing that:

• an indictable offence has been committed;
• the premises hold material likely to be of substantial value to the investigation and likely to be relevant evidence;
• the material does not include items subject to legal privilege, excluded material or special procedure material; and
• an access condition applies, such as entry being refused without a warrant, or the search being frustrated unless officers can enter immediately.

Applications are made without notice to the occupier and must comply with the safeguards set out in sections 15 and 16 PACE.

What is a section 9 warrant, and how does it differ?

Section 9 and Schedule 1 of PACE set the route by which police can seek access to special procedure material and excluded material.

How can you challenge a search warrant?

An unlawful warrant can be challenged by way of a judicial review, alongside other remedies, following which the warrant could be set aside or quashed. A claim must be brought promptly and in any event.

In my experience, if you are present during a search, you should keep any communication with the police limited only to questions until you have received legal advice. You should not attempt to block or interfere with the police carrying out the warrant, as this could risk you being arrested for separate criminal offences. You should use the opportunity as an information collecting exercise only. You should also be mindful that searches are often recorded on police Body Worn Video Footage cameras, therefore any comments made by an individual during a search could later potentially be used as evidence against them. Questions my clients have asked, which I have found beneficial are:

• What power are you relying on for entry and search of my premises?
• May I see the warrant or written authority? (if applicable).
• Who is the officer in charge of the search?
• What items are you searching for?
• What are your reasonable grounds for believing that there is evidence in my premises, which is likely to be of substantial value to the investigation of an offence?
• Are you certain that the material you are seizing does not contain legally privileged material, excluded material or special material?
• Have you considered taking a copy of the material in question, rather than removing and retaining it?
• Why was it not practicable to obtain my consent for the search of my premises?
• What property has been seized?
• Can I have a copy of the search record?
• Can you provide me with written confirmation of any damage to my property which has occurred during the search and provide me with the details of who I should contact for compensation?

How can you get your property back from the police? The person whose property was seized can apply for its return, and police can ask the court to let them keep it. A formal application can be made to the court under section 59 of the Criminal Justice and Police Act 2001.

• An application is not always required, where the police are reminded of the limitations of the right to seize material indefinitely. Section 22 stipulates that material should only be retained by the police where it is to be used as evidence at trial for an offence; or
• For forensic examination; or
• For investigation in connection with an offence.
• To establish its lawful owner, where there are reasonable grounds for believing that it has been obtained in consequence of the commission of an offence.

Where none of the above continue to be met, the police should then return the property. Most importantly, Section 22 stipulates that nothing can be retained if a photograph or copy would be sufficient for that purpose. This argument can be applied to phones, diaries or other paper documents and electronic devices.

What does section 78 PACE say about unlawfully obtained evidence?

Section 78 does not make unlawfully obtained evidence automatically inadmissible. A court may exclude prosecution evidence only if, having regard to all the circumstances, admitting it would have such an adverse effect on the fairness of the proceedings that it ought not to be admitted. The threshold for this is high.

Unlawfulness is an important factor but not decisive. Section 78 applications rarely succeed solely because evidence was unlawfully obtained, particularly where the material is highly probative. Abuse of process may be an alternative remedy; however these arguments face a high threshold too.

Return of the material is not guaranteed either. Under section 59, a court can let police keep property seized under an unlawful warrant if they could lawfully seize it again under another power. In the October case that application will be heard in private, and the judge has said it will not be ready until 2027.

Why does early legal advice matter?

A criminal defence solicitor in our Defence and Investigations team can assess whether an arrest, search, seizure or interview was lawful, and act quickly to protect your position. Early advice can help preserve a challenge to a warrant within the three-month window, protect privileged material from examination, and ensure concerns about legality are raised at the earliest opportunity. If police arrive with a warrant, ask to see it, check it names your premises, ask for a record of anything taken, and contact a solicitor straight away.

In my experience early, specialist legal advice is critical. Such advice not only ensures that the police or other authorities stay within their legal powers but also ensures that confidential or privileged material is protected. Where necessary the legality of search warrants can be challenged through the courts. Early, expert advice can dictate the future of any investigation. As experts in managing high-pressure situations and interactions with the police and others, we ensure that our clients are protected from the outset.