Creating powers of search, surveillance and seizure
This is a single section from Chapter 21. Read the full chapter here.
What procedure should apply to the exercise of the search power?
New search powers should apply the rules and procedures set out in Part 4 of the Search and Surveillance Act 2012.
The starting point is that legislation that creates new search powers should contain a specific statutory provision that applies Part 4 of the Search and Surveillance Act 2012.
Part 4 sets out a comprehensive set of rules concerning the conduct of searches by consent; the application for, and issuing and execution of, search warrants; the conduct of warrantless searches; how to treat legally privileged and confidential material; and the application of other legal privileges. Part 4 also addresses what happens to seized material following the end of proceedings or an investigation, and what immunities apply to those people who issue and execute orders and search warrants under the Act.
The rules and procedures in Part 4 should be specifically assessed for their relevance and applicability to the new search powers. Legal advice should be sought for this assessment. In many cases, Part 4 will need to be applied with modifications to suit the particular circumstances of the new powers. However, applying the rules in Part 4, with or without modifications, should be preferred over creating new bespoke provisions. Good reasons are required for not applying or for modifying the procedures in Part 4. Those reasons might include the need for a more specialised or technically complex set of rules and procedures (see, for example, the Animal Welfare Act 1999).