This week’s blog post comes from my colleague and fellow actions against the police solicitor, John Hagan.
There is a reason why the phrase “An Englishman’s home is his castle” is such a resonant one; it sums up a principle which underpins the liberal and democratic traditions of British society and we infringe upon it at our peril.
I therefore feel compelled to add my voice to the chorus of those who have expressed concern about section 93 of the Crime and Policing Bill, which is currently at committee stage at the House of Commons, and which provides as follows –
93 Electronically tracked stolen goods: search without warrant
(1) In the Theft Act 1968, in the heading of section 26 after “goods” insert “with warrant”.
(2) In the Theft Act 1968, after section 26 insert—
“26A Electronically tracked stolen goods: search without warrant
(1) A constable whose rank is at least that of inspector (a “senior officer”) may authorise a constable to—
(a) enter specified premises, and
(b) search the specified premises for specified items.
(2) A senior officer may give an authorisation under subsection (1) only if satisfied that—
(a) there are reasonable grounds to believe that—
(i) the specified items are stolen goods,
(ii) the specified items are on the specified premises, and
(iii) it is not reasonably practicable to obtain a warrant for the entry and search (under section 26 or another enactment) without frustrating or seriously prejudicing its purpose, and
(b) there is electronic tracking data indicating that the specified items (or any of them) are, or have at some time since they are believed to have been stolen been, on the specified premises.
(3) An authorisation may be given orally or in writing.
This clause, if enacted as currently drafted into law, would grant the Police yet further powers to intrude into the ‘inner sanctum’ of our private lives, without the prior oversight of the Court i.e. a new power of entry into a person’s home, without the need for Court approval in the form of a warrant. Also note the vague definition of “electronic tracking data” – any “information as to the location, determined by electronic means, of an item.”
Rob Warner has produced an excellent recent video surveying this problem which I would recommend everyone to watch, on his Crimebodge YouTube channel below:
And for those of you who haven’t read his equally excellent “Copper Stopper” handbook, read about it here.
Not every change is for the best, and sometimes politically expedient amendments to the law risk fixing a system that isn’t broken – or that already has the necessary tools to deal with the problem, provided they are used properly – and risk fuelling authoritarian ‘mission creep’ amongst the agents of the state, infringing fundamental personal liberties and enabling new forms of abuse and exploitation of Policing power.
The best laws are not those which are apparently designed for ‘headline grabbing’ – especially when the problem they purport to address could be fixed without changing the law, and instead by better management and application of existing resources. Section 93 of the new Bill appears to have been drafted to address news reports about Police being unwilling to act upon tracking data showing the location of people’s stolen mobile phones or other easily moveable computing devices; but we should be careful about throwing away our personal freedoms just for the sake of our personal phones – and, in reality, the power which already exists for the Police to apply for a Court warrant to search premises is what should, more efficiently and pro-actively, be utilised in appropriate cases of reported theft. That way, the Court oversight – the guardrails around State intrusion into our family homes which our forebears erected, would be maintained – rather than being further dismantled. Bear in mind that the Police already have wide powers under the Police & Criminal Evidence Act 1984 (PACE) to force entry into premises without Court permission –
- Under Section 17 of PACE – to arrest wanted persons for serious offences, or if there is an immediate threat to the life or threat of serious injury of an occupant of the premises (“saving life or limb”).
- Under Section 18 of PACE – to search premises at which an already arrested person resides.
I personally do not think that we should allow those powers – those gaps in the guardrails – to get any wider.
When I look at the proposed legislation I think of all the ways it could be abused by reckless, authoritarian or negligent Police Officers and the deep harm such abuse of power could cause, not only to the personal lives of those individuals whose homes are violated by a Police intrusion under this law, but also its wider implications in further diluting the principal of the sanctity of our ‘castles’ and injuring society as a whole; wearing down people’s expectations of privacy beneath the tramping feet of Police trespassers as the Police gain evermore ‘rights of way’ over the threshold of our homes. The more wedged the Police Officer’s boot becomes in the door, the more society may, in the long term, come to forget that we ever had a right to close it in their face.
Contemplating these themes, reflect on the following –
- The rapidity with which the ill- thought-out emergency legislation brought in to address the Coronavirus pandemic was exploited by Police Officers, some of whom seemed gleeful to have their inner authoritarian enabled, as if they were living in the ‘papers please’ curfew- state of their dreams
- The existing exploitation of Police powers of entry into the home – particularly under Section 17 of PACE – the supposed power of entry to “save life or limb” which is, very often, invoked by Officers when in fact nobody’s life or limb is in danger, but the Officer just has a twitchy nose
- The many innocent families who have already suffered from mistaken address raids and misinterpretation of electronic data, including IP addresses and vehicle numberplates
- Big Brother does not have all the answers, and I caution that we should be very wary about giving his foot-soldiers another excuse to come into our homes, especially one which is going to be based on notoriously imprecise location data, in a country whose cities have a very high population density, often sharing terraced streets or apartment blocks.
Not all change is for the best and the strongest wisdom often has age-old roots. Let us hope that modern day legislators take a proper look before they leap, and come to the same realisation which led to the abolition of the “Smoke Money” Act during the reign of King William and Queen Mary (1688 – 94), which had previously imposed a tax payable to the Monarch on the basis of how many hearths, or fire-places, a house possessed. The preamble to the Act repealing this imposition decried it as contrary to the institutions of English justice, in the following strident terms, which I am tempted to adopt for our present purpose –
“Not only a great oppression to the poorer sort, but a badge of slavery upon the whole people, exposing every man’s house to be entered into and searched at pleasure by persons unknown to him.”
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