Police searches without warrants would be ‘like Soviet Russia’

A top QC has described a call by police for the power to search people’s homes without a warrant as “the kind of thing you’d have expected in Soviet Russia”.

Stephen Daisley |

Brian McConnachie QC made the comments after the Association of Scottish Police Superintendents (Asps) said entry and search powers should be made “an operational matter for police” under the Scottish Government’s proposals to reform criminal law and practice.

The Scottish Government said ministers were “happy to listen to views on how to improve and modernise the criminal justice system”.

Chief Superintendent David O’Connor, president of Asps, said: “It is time that police in Scotland were trusted to make such operational decisions and be given the power to do so.

“We do not propose that police be permitted to embark on fishing trips for evidence. We propose that such powers can only be exercised where it is necessary.”

Police can only enter a private property in relation to a crime either with consent or under the authority of a warrant, other than in extreme circumstances. The warrant must be signed off by the procurator fiscal and approved under oath by a sheriff or justice of the peace.

Mr O’Connor said: “Police may need to arrest a person for a serious crime such as a violent assault, have reasonable grounds for suspecting that the person is inside the premises but currently powerless with a warrant to force entry and make that arrest.”

However, leading Scottish lawyers said the proposal was a threat to privacy and judicial oversight.

Mr McConnachie, vice-chair of the Faculty of Advocates Criminal Bar Association, said it was “more like the kind of thing you’d have expected in Soviet Russia than in Scotland”.

He told STV News: “We would all, I suspect, be of the view that it’s not so much a question of trust as one of judgment. We have the sheriff there to be the buffer between the overzealous police officer and the granting of unnecessary warrants.

“I suspect there are not that many instances when police go to a sheriff with reliable information and are refused a warrant.

“They already have powers under the Regulation of Investigatory Powers Act which allow them to certify the use of surveillance on someone. They already have powers to search in an emergency.

“When it’s a search based on information, it’s the right to privacy that’s being engaged in these circumstances. The fear everybody has is that police could interfere with that at will. That’s why the European courts say you can only interfere with that right by a proper legislative scheme.”

Mr McConnachie, who specialises in criminal law and human rights, insisted that the question was not one of trust in the integrity of the police but a matter of safeguarding judicial oversight.

He added: “As I say, it’s not an issue of not trusting the police; it’s one of there already being powers there and the need to have judicial oversight. If you give the police carte blanche in effect to grant their own warrants who knows where it will lead.”

According to Chief Superintendent O’Connor, the warrant “introduces a delay” during which criminals could dispose of stolen goods, guns, drugs or other incriminating evidence, he said.

He added: “This cannot be in the best interests of victims of crime or the law-abiding majority of the public. We believe that sufficient safeguards can be designed in by placing the authority for approving use of such powers at the minimum level of inspector who will ensure that the use of such powers is justifiable in terms of proportionality, necessity and legality.

“These powers have been available to police in England and Wales since 1984.”

Warrant procedure is “outdated and an unnecessary obstacle for operational policing”, he added.

But Niall McCluskey, a human rights advocate at Connarty, also piled criticism on the proposals, saying that, if implemented, they would facilitate “a serious breach of people’s rights and privacy”.

Mr McCluskey, who has experience in the area of judicial oversight, told STV News: “I’m quite alarmed at the proposals. The police already have powers, if there’s an urgency, to search a property without a warrant.

“They seem to be asking to circumvent judicial oversight to make things easier for them and I think we really have to question their motives. This move would acquire more powers for police and make things operationally easier for them.

“However, it is not appropriate for police to have these powers. The whole point of the warrant system is that it acts as a check and balance on the police. That’s why the warrant process has to be overseen by a Justice of the Peace or a Sheriff.

“Judicial oversight is there so police don’t have carte blanche to do as they please and that’s important for citizens’ rights.”

A Scottish Government spokeswoman said: “The Scottish Government is keen to consider what further changes could be made to make the process for warrants simpler and more efficient. We are always happy to listen to views on how to improve and modernise the criminal justice system.

“That’s why we have met with Asps and welcome their contribution to the public consultation on the implementation of the Carloway Review. We will consider it alongside the other responses.”