Commentary on Sections Searches of controlled persons Section 56: Persons subject to control order: powers of search and seizure
242.In July 2009, the Court of Appeal in the case of Secretary of State for the Home Department v GG [2009] EWCA Civ 786 held that the Prevention of Terrorism Act 2005 as drafted is insufficient to authorise the imposition by a control order of an obligation to submit to a personal search. In November 2009, the High Court in the case of BH v Secretary of State for the Home Department [2009] EWHC 2938 (Admin) found that a requirement for a controlled person to submit to a personal search prior to being escorted by the police outside the controlled person’s boundary as a condition of the temporary relaxation of the controlled individual’s boundary, had no statutory authority and was unenforceable.
243.The Government’s memorandum to the Home Affairs Committee on post-legislative scrutiny of the Prevention of Terrorism Act 2005 (Cm 7797), laid before Parliament on 1 February 2010, consequently signalled the Government’s intention to legislate for powers to search controlled persons when Parliamentary time allowed. The independent reviewer of terrorism legislation, Lord Carlile of Berriew QC, recommended in his fifth annual report on the operation of the 2005 Act, also laid before Parliament on 1 February 2010, that ‘A power of personal search of controlees by a constable should be added to the legislation as soon as possible.’
244.Section 56 amends the 2005 Act to insert new powers allowing a constable, for specified purposes, to conduct a search of a person subject to a control order and to seize and retain articles found.
245.Subsection (1) inserts new sections 7D and 7E into the 2005 Act. New section 7D provides the new powers of search and seizure.
246.New section 7D(1) states that a constable may search a controlled person in any location, and detain a person in order to search him. New section 7D(2) specifies the purposes for which a person may be searched. These are (a) in relation to police escorts of a controlled person, to check the controlled person is not carrying anything that could be used to threaten or harm anyone; and (b) in any case, to check whether the obligations imposed by the control order have been, are being or are about to be breached.
247.New section 7D(3) provides, for the avoidance of doubt, that the search power can be exercised at any time, including if the constable has entered the controlled person’s premises under the entry and search powers contained in sections 7A to 7C of the 2005 Act, which were inserted into the 2005 Act by section 78 of the Counter-Terrorism Act 2008.
248.New section 7D(4) allows the constable to seize anything found during a search for the purposes specified in the subsection.
249.New Section 7D(5) confirms that a constable may use reasonable force in exercising these powers.
250.New section 7E deals with the retention and use of things seized under new section 7D.
251.New section 7E(1)(a) specifies that things seized may be subject to tests. There may be a requirement to test an item to check whether it breaches the control order – for example to check whether a mobile phone can connect to the internet. New section 7E(1)(b) confirms that things seized can be retained for as long as is necessary (this is in line with section 22(1) of PACE, which governs the retention of material seized by the police).
252.New section 7E(2) makes more specific provision relating to the retention of items seized. If the constable has reasonable grounds for believing that the thing seized is or contains evidence of an offence, it may be retained for use as evidence in a trial or for forensic examination or investigation. New section 7E(3) provides that such retention is not allowed if a photograph or copy of the item would suffice. New section 7E(2) also specifies that if the constable believes that the seized item has been stolen, it may be retained in order to establish its lawful owner. The provisions in 7E(2) and 7E(3) are again in line with the general provisions on retention in section 22 of PACE.
253.New section 7E(4), again in line with PACE, confirms that the powers in this section do not affect a power of the court to make an order under section 1 of the Police (Property) Act 1897. Section 1 of the 1897 Act allows a court to make an order for the return of property that the police have seized to the person who the court thinks is the rightful owner of that property. The police or a claimant to the property can apply to the court for such an order.
254.Subsection (2) of section 56 amends section 1 of the 2005 Act. Section 1(4)(l) of the 2005 Act provides for the removal of items from a controlled person’s premises. An item can be removed by the police to ensure the controlled individual complies with the terms of his control order – for example, if the terms of the control order prohibit the use of computers, computers on the premises could be removed. Subsection (2) provides powers of seizure and retention for use as evidence in a trial or for forensic examination of items that have been removed from a controlled person’s premises under section 1(4)(l) of the 2005 Act if the police subsequently have reasonable grounds to believe is or contains evidence in relation to an offence. The provisions mirror new section 7E(2) and 7E(3).
255.Subsection (3) amends section 1(1)(e) of the Counter-Terrorism Act 2008. Part 1 of that Act introduces a power for the police to remove documents in the course of a terrorist-related search for the purpose of ascertaining whether they may be seized, and makes related provision. This power might be used, for example, to remove documents in a foreign language for translation. Section 1 of the 2008 Act lists the situations in which the power may be used – it already includes the powers of entry and search under sections 7A to 7C of the 2005 Act. Subsection (3) adds the new search power under section 7D to that list.