20:00, October 06 51 0 theguardian.com

2020-10-06 20:00:08
Far-reaching changes proposed for UK search warrant rules

Far-reaching changes to the scope of search warrants – including how to obtain medical records, remotely stored digital data and possibly even journalists’ materials – have been recommended in a new report by the Law Commission.

The 573-page report, which was initiated by the Home Office and published on Wednesday, also proposes improving privacy safeguards to balance new, proposed investigatory powers.

“Search warrants are a vital tool for the effective investigation of all forms of crime – including murder, terrorism, fraud, rape and child sexual abuse – and the protection of the public from harm,” the study notes.

“At the same time, search warrants are one of the most intrusive powers of the state, the execution of which not only amounts to an interference with an individual’s privacy rights, but may significantly adversely impact on an individual’s life and lead to the collection of large volumes of personal material.”

The recommendations, which will be laid before parliament on Wednesday, follow a consultation published in 2018.

About 40,000 search warrants are issued in England and Wales every year and the laws governing them are “unnecessarily complex, inconsistent, outdated and inefficient”, the report says.

The suggested reforms will strengthen law enforcement powers by extending the availability of warrants that allow a property to be entered multiple times, and for all properties controlled by an individual to be searched.

According to an investigation by the National Crime Agency in 2016, almost four in five search warrants were found to have serious deficiencies – including six related to the Metropolitan police’s Operation Midland that had been “obtained following false allegations made relating to historic child sexual abuse”.

Often warrants take three weeks to secure and the report suggests that only those magistrates who had undergone specialist training should have the power to issue a search warrant.

Medical records should become easier to access, the Law Commission says. “NHS Counter Fraud Authority … [should] be given powers to apply for a search warrant where there has been non-compliance … Such powers should include searching for medical records and other related material” that might previously have been deemed “excluded material”.

In relation to data stored remotely, the report says: “Law enforcement agencies do not have effective powers to obtain electronic evidence, such as indecent images of children, which might be stored on remote servers in an unknowable jurisdiction. Being able to obtain this material is vital for the successful investigation and prosecution of serious criminal offences.”

The Law Commission says there should be greater protections for individuals who have electronic data seized. There should also be a statutory requirement for law enforcement agencies executing search warrants to “provide an occupier with a notice of powers and their rights”.

The report says the commission is “less convinced that change should be made to the availability of confidential journalistic material given the lack of evidence that we have seen that there is a problem in practice”.

However, it adds: “There is an arguable case that the law governing access to confidential journalistic material under Pace [the Police and Criminal Evidence Act 1984] does not strike the right balance between the prevention and investigation of serious crime and the protection of journalistic sources … We recommend that the government considers whether the law ought to be reformed.”

The Society of Editors responded by warning that laws allowing police to seize evidence from journalists were in urgent need of toughening up – not “watering down”.

Ian Murray, the executive director of the Society of Editors, said that it was an established custom of Pace that special protection was afforded to journalistic material, and that an exemption for confidential journalistic material remained essential to protect the public’s right to know.

“The Law Commission’s recommendation that the government should review access to journalistic material under Pace is extremely worrying if it leads to weakened protections for journalistic material and sources.”

Prof Penney Lewis, the criminal law commissioner, said: “Search warrants are vital for investigating crime and it’s important that the law is effective and able to meet modern challenges such as access to electronic evidence, which is often stored in the cloud.

“The law is not currently working as well as it should. Our recommendations would simplify the law and modernise the powers needed by law enforcement, while crucially also extending safeguards to ensure any search is limited to what is necessary and proportionate.”

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