Commentary on Sections Section 8: Power to make provision about access to excluded material etc
34.Under PACE and under AFA 2006 certain material is subject to special safeguards in relation to the grant of search warrants. That material may be “items subject to legal privilege”, “excluded material” or “special procedure material”. These expressions are defined in PACE and have essentially the same meanings in AFA 2006. Section 83 of AFA 2006 does not permit the issue of a warrant to search for items subject to legal privilege, excluded material or special procedure material, and this is equally true of the new section 83 substituted by section 7. However, section 86 of AFA 2006 empowers the Secretary of State to make provision equivalent to that of Schedule 1 to PACE, enabling a service policeman to obtain access to excluded material or special procedure material on relevant residential premises by making an application to a judge advocate. (For the meaning of “relevant residential premises”, see paragraph 33 above). Provision to this effect is made by Schedule 1 to the Armed Forces (Powers of Stop and Search, Search, Seizure and Retention) Order 2009 (S.I. 2009/2056). The primary means by which a judge advocate can grant access is by making a “production order”, requiring the person apparently in possession of the material to produce it to be taken away by a service policeman, or give a service policeman access to it. In limited circumstances, a judge advocate may issue a warrant authorising a service policeman to enter and search the premises.
35.Neither section 83 nor section 86 of AFA 2006 allows access to material held on premises other than relevant residential premises. This makes Schedule 1 to the 2009 Order largely ineffective because relevant material which qualifies as excluded material or special procedure material (such as bank records or social workers’ files) is, by its nature, unlikely to be held on relevant residential premises. This section amends section 86. In addition to provision enabling a service policeman to obtain access to excluded material or special procedure material on relevant residential premises, the Secretary of State will also be able to make provision enabling a service policeman to obtain access to material (other than legally privileged material) on premises which cannot be searched under section 83 because they are not relevant residential premises. In both cases, section 86 as amended permits provision enabling a judge advocate to grant access to the material by making a production order. The difference is that, in the case of material not on relevant residential premises, section 86 as amended does not permit provision enabling a judge advocate to issue a search warrant.
36.As amended by this section, section 86(2)(c) also permits provision to be made enabling a failure to comply with a production order to be treated as contempt of court.