Between 2010 and 2018 there were over 50 judicial reviews brought in respect of search warrants. This has been attributed to the perception that applications for warrants are seen as “…in essence matters of routine, in effect requiring no more than a rubber stamp of approval from the courts”. The spate of cases shows no sign of abating. High-profile cases have captured the attention of the media. The 2014 search of Sir Cliff Richard’s house resulted in a very public admission of liability and payment of £400,000 in damages by South Yorkshire Police, in addition to subsequent litigation in which the BBC was found liable for breach of privacy. The first case considered by the UK Supreme Court in 2018 addressed the issue of what evidence in support of a search warrant may be relied upon by a court when it cannot be disclosed to the person on grounds of public interest immunity (“PII”).
In June 2018 the Law Commission launched a public consultation into the need for a thorough overhaul of the law relating to search warrants.It remains to be seen whether a government pre-occupied by the process of Brexit will have sufficient energy and inclination to take steps to enact the recommendations of the Law Commission.In July 2018, the Information Commissioner’s Office (“ICO”) used the opportunity, after imposing a £500,000 fine on Facebook in respect of data breaches arising from the Cambridge Analytica scandal, to call for sweeping new powers of entry, which were duly granted under Schedule 15 of the Data Protection Act 2018.It seems likely that issues relating to search warrants are likely to continue to vex the courts for the foreseeable future. This paper aims to provide some assistance to practitioners seeking to navigate these uncertain waters.