In Entick v Carrington (1765), a case which concerned entry to and searching of premises, the court ruled:

“…if this is law it would be found in our books, but no such law ever existed in this country; our law holds the property of every man so sacred, that no man can set his foot upon his neighbour’s close without his leave.”

Entick v Carrington is likely the first case law on the law of search and seizure, which is now referred to as a court’s “nuclear option” (R (Mercury Tax Group) v HMRC [2008] EWHC 2721). But it is far from the last word, and a growing body of case law has emerged in recent years to ensure that this most powerful state intrusion into the lives of individuals and businesses is carried out properly and proportionately. What difference does it make?

First and foremost, key constitutional rights are at issue; the state’s power to enter private property (sometimes in the middle of the night and with the family present) should not be taken lightly, especially during the early phases of a criminal investigation.

(R (Mills) v Sussex Police and Southwark Crown Court [2014] EWHC 2523 (Admin)) Warrants should only be sought as a “last option” and should not be used “when other less draconian powers can achieve the relevant purpose.”

When employees and clients become aware of the theft of documents, files, computer servers, and systems, it can have a significant negative influence on the company’s reputation. The inability to conduct ‘business as usual’ might jeopardise a company’s viability and take an unacceptable toll on the employees involved.

Can I challenge a search warrant?

The powers of search and seizure are dispersed among numerous statutory laws, and the main lesson is to get legal assistance as soon as you suspect something is about to happen or has already happened.

What is evident is that warrants are frequently issued on erroneous grounds, with little respect for the applicable legal norms.

Drawing a warrant too widely is a common issue (see: R (F, J and K) v Blackfriars Crown Court and Commissioner of Police of the Metropolis [2014] EWHC 1541 (Admin)).

While warrants are issued through a legal process, the Judge will be limited to what the investigator discloses in private.

Police officers have a legal obligation to present the court with full and fair disclosure, flagging any information that could be used against the application. This includes a responsibility not to deceive the court in any way. The judge must next conduct a thorough critical study of the application to determine if the evidence presented justifies the warrant’s issuance and provide reasons for their judgement.

In Redknapp v Commissioner of Police of the Metropolis [2008] EWHC 1177 (Admin) the court ruled:

“The obtaining of a search warrant is never to be treated as a formality. It authorizes the invasion of a person’s home. All the material necessary to justify the grant of a warrant should be contained in the information provided on the form. If the magistrate or Judge in the case of an application under s.9, does require any further information in order to satisfy himself that the warrant is justified, a note should be made of the additional information so that there is a proper record of the full basis upon which the warrant has been granted.”

There are other legal options available, including judicial review. Early involvement may result in the restitution of papers and property, as well as the possibility of a damages claim in some cases.