HERE is the legal ruling on whether or not the police needed a warrant. It seems they didn't because Commons officials acquiesced so readily to police requests:
Searches conducted on a consensual basis do not require a warrant - Pace Code B sets out the procedure for such a search:
5.1 Subject to paragraph 5.4, if it is proposed to search premises with the consent of a person entitled to grant entry the consent must, if practicable, be given in writing on the Notice of Powers and Rights before the search. The officer must make any necessary enquiries to be satisfied the person is in a position to give such consent.
5.2 Before seeking consent the officer in charge of the search shall state the purpose of the proposed search and its extent. This information must be as specific as possible, particularly regarding the articles or persons being sought and the parts of the premises to be searched. The person concerned must be clearly informed they are not obliged to consent and anything seized may be produced in evidence. If at the time the person is not suspected of an offence, the officer shall say this when stating the purpose of the search.
5.3 An officer cannot enter and search or continue to search premises under paragraph 5.1 if consent is given under duress or withdrawn before the search is completed.
5.4 It is unnecessary to seek consent under paragraphs 5.1 and 5.2 if this would cause disproportionate inconvenience to the person concerned.
Members’ offices within the Parliamentary Estate are not their own. The search of such offices would be undertaken by the police under the authority of the Serjeant at Arms. In the circumstances of a criminal investigation, the Serjeant at Arms would consult the Speaker before a search occurs. In Mr Green’s case the Serjeant at Arms consented to the search of his Westminster office and no warrant was therefore required.
If no consent had been provided, the police would have either had to rely on their search powers under section 18 of the Police and Criminal Evidence Act 1984 (PACE) or apply for a search warrant under section 8 of PACE.
Search without warrant under section 18
Under section 18 of the Police and Criminal Evidence Act 1984 (PACE) police have the power to enter and search any premises occupied or controlled by a person who has been arrested for an indictable offence (which covers aiding/abetting misconduct in a public office) and to seize relevant items. No warrant is required. The following procedural requirements apply:
· The search can only be conducted upon or following the arrest of an individual for an indictable offence. From information in the public domain we understand that Mr Green was arrested prior to the search of his Westminster office being carried out, therefore this condition would appear to have been satisfied.
· The search power is available where the police have reasonable grounds for believing that there is evidence on the premises that relates to the offence for which the person has been arrested, or any other indictable offence connected with or similar to that offence (for example the primary offence of misconduct in a public office for which Christopher Galley was arrested).
· An officer of the rank of inspector or above must authorise a section 18 search in writing.
· The authorising officer must make a written record of the grounds for the search and the nature of the evidence sought. If, at the time the record is made, the person who was in occupation or control of the premises at the time of the search is in police detention, the record should be made on that person’s custody record.
· The premises searched must be occupied or controlled by the arrested person. According to Blackstone’s Police Operational Handbook:
Occupied
This is not defined, but refers to premises where the arrested person resides or works and may include occupancy as an owner, tenant, or ‘squatter’.
Controlled
This is not defined, but includes premises in which the arrested person holds some interest, such as owning, renting, leasing, or has use of the premises.
One possible technicality around the use of section 18 in relation to offices on the Parliamentary Estate may be whether a Member is considered to “occupy” or “control” their office given that Members’ offices within the Parliamentary Estate are not deemed to be their own. The definitions above would appear to catch a Member’s office within the Parliamentary Estate in the same way as the office of an ordinary company employee, although there may be scope for legal debate on this point.
Search with a warrant under section 8
If it is not possible to obtain consent or to use the section 18 power to search without a warrant (for example if it is proposed to conduct a search before anyone has been arrested), the police would have to obtain a warrant prior to conducting a search. Media reports suggest that this approach was taken in relation to Mr Green’s constituency office and residential premises.
A search warrant may be issued to a constable who applies to a justice of the peace, following the procedure set out in section 15 of PACE, provided the following conditions are satisfied:
· The justice must be satisfied that there are reasonable grounds for believing that:
1. an indictable offence has been committed (this would cover aiding/abetting misconduct in a public office);
2. there is material on the specified premises which is likely to be of substantial value to the investigation of the offence;
3. the material is likely to be relevant evidence;
4. the material does not consist of items subject to legal privilege, or excluded or special procedure material; and
5. any one or more of the following further conditions applies:
(i) that it is not practicable to communicate with any person entitled to grant entry to the premises;
(ii) that it is practicable to communicate with such a person, but not practicable as regards the person entitled to grant access to the evidence;
(iii) that entry to the premises will not be granted unless a warrant is produced;
(iv) that the purpose of a search may be frustrated or seriously prejudiced unless a constable arriving at the premises can secure immediate entry to them.
General matters regarding searches
Searches of premises (whether with consent, under section 18 of PACE or under warrant) must be conducted in accordance with PACE Code B.
We are not aware of any exceptions or special rules regarding the need for warrants in royal palaces – section 23 of PACE defines “premises” as including “any place” and does not make any particular provision for royal palaces