An Englishman's Home is His Castle but ..... Protection of Freedoms Bill No. 3

The tide keeps 'em out !

In Semayne’s case (1604) 5 Co Rep at 91b – it was stated that “The house of everyone is to him as his castle and fortress.” In 1767, William Pitt stated that - “The poorest man may in his cottage bid defiance to all the forces of the Crown.”   Every entry by the Police or officials to someone's property (whether home or business) must be carried out in accordance with the law but there are hundreds of statutory powers of entry.  In relation to warrants to enter and search premises, constables have to comply with the Police and Criminal Evidence Act 1984 ss.15 and 16 and, if they do not, the entry or search would be unlawful.

The Protection of Freedoms Bill - Part 3 - is headed "Protection of property from disproportionate enforcement action."  The key word there is "disproportionate."  This Bill will not make property immune from enforcement action but is aimed at putting in place better regulation of powers of entry as well as abolishing some obsolete powers - for instance, a power under the Distribution of German Property (No.1) Order 1950 will be abolished.  [It allows the Police to enter with a warrant to search for and seize German enemy property]!

In June 2006, Henry Porter writing in the Guardian had this to say – How the Englishman’s home ceased to be his castle . Porter began by reminding us of the 250 officers used in a raid on the home of two Muslim brothers in Forest Gate, London.  He also drew attention to the massive extension of powers of entry and search which Parliament has placed on the statute book and he highlighted the very subtle ways in which this has been done so as to avoid any real debate in Parliament.   There have been other high profile examples of property searches.
 

In 2008 the home of football manager Harry Redknapp was searched at 6am with the Press in attendance.   The Police acted under the authority of a warrant which turned out to be unlawful – see Redknapp v City of London Police .   Mr Redknapp was subsequently awarded £1000 in damages.  Then there was the arrest in 2009 of  Mr Damian Green MP in connection with a Police investigation into leaks from within the Home Office.  His office was searched.   The political row which ensued proved embarrassing for the Metropolitan Police and the Home Secretary of the day (Jacqui Smith MP).

Part 3 of the Bill  (Chapter 1) enables the "appropriate national authority" to repeal any power of entry which it considers to be "unnecessary or inappropriate"  (Clause 39).  Also, Schedule 2 will repeal some powers.  The "appropriate national authority" may enact safeguards to be applied when powers of entry are being exercised and examples of possible safeguards are set out in Clause 40(2).  The "appropriate national authority" may also "rewrite" (with or without modifications) powers of entry - see Clause 41.   Under Clause 42, Cabinet Ministers are placed under a duty to review - (within 2 years) - powers of entry for which they are responsible with a view to deciding whether to exercise the new powers to repeal.  Ministers have to report their review to Parliament but, significantly, a failure to review a power will not affect its validity.

There will be a Powers of Entry Code of Practice (Clause 47) to be prepared by the Secretary of State and approved (in draft) by Parliament.   The Code itself has to be kept under review.  Under Clause 51 "a relevant person" must have regard to the Code when exercising any functions to which the code relates but a failure to act in accordance with the code does not of itself make that person liable to criminal or civil proceedings.   Nevertheless, in any such proceedings, the Code will be admissible in evidence and the court or tribunal may take it into account in deciding the case.

These powers of entry clauses will probably be generally welcomed but it has to be said that they lack a sharpness of focus.  For instance, when will a power be regarded by the holder of it as "unnecessary or inappropriate."  Officialdom tends to cling to its powers even if only on "just in case we need it" basis.  It will also be over 2 years before the required reviews are completed and any action is taken.  Indeed, the review outcome might be "no action."  Some will also question the "soft law" approach of a Code of Practice.  Those with entry powers are merely required to "have regard to" the Code and any failure to have regard to it may be taken into account in legal proceedings.  This will undoubtedly lead to costly litigation for those able to afford to mount such challenges.  Legal aid cuts will make it very much more difficult for the ordinary citizen to mount any such challenges.

Chapter 2 of Part 3 is concerned with the thorny topics of vehicle immobilisation; extending powers to remove vehicles from land and recovery of unpaid parking charges.  That needs a post to "itself."

Picture:  Bamburgh Castle, Northumberland.  Probably one of England's finest dating back to well before the Norman Conquest.