Search and seizure orders – The supervising solicitor’s perspective
A search and seizure order allows one party in a dispute to enter another party’s premise (the respondent) to search for, copy, and retain evidence.
Search orders are typically granted without the respondent having any prior notice of its existence to prevent the hiding or destruction of evidence before the order takes effect. Given this position, search orders are not easy to obtain and the court requires various safeguards in respect of the order.
One key safeguard is the court’s appointment of an independent supervising solicitor. The supervising solicitor will initially advise the respondent about the existence of the order and their rights. The supervising solicitor will also ensure compliance with the order and report to the court. Five important aspects of search orders arising from our experience as acting as supervising solicitors are shared below.
- Access denied – Understandably people are not always happy to see supervising solicitors and learn that a search order has been made against them. As supervising solicitors we have experienced attempts to shut doors and close the shutters on our arrival. We have also been met with unoccupied and closed premises. A search and seizure order does not permit forced entry to a premises. However, importantly the search order places a personal responsibility upon the respondent comply with the order. If the premises are shut but the respondent is subsequently located, the order requires them to permit access to the premises. A failure to do so means they are at risk of non-compliance with the order which may amount to contempt of court. Once in the premises, the respondent is required to give access to locked areas and electronic devices (and passwords) consistent with the terms of the order.
- Who is the respondent? – Special consideration should be given to the identity of the respondent and any additional considerations which arise as a result. Where the supervising solicitor is a man and the respondent is likely to be an unaccompanied woman, at least one other person named in the order must be a woman and must accompany the supervising solicitor (paragraph 7.4(5) of CPR Practice Direction 25A). As a result of COVID-19, special consideration should also be given to the medical and travel history of the respondent and those likely to be in their presence.
- Knowledge is power – A key aspect of the supervising solicitor’s role is advising the respondent in respect of the terms and effect of the search and seizure order including any rights they have pursuant to it. A leading case in this area is C Plc v P (Secretary of State for the Home Office and another intervening)  EWCA Civ 493 in which Alex Megaw, Consultant at Clarke Willmott, acted for the respondent claiming a right against self-incrimination.
- Holding the ring – Search orders are often prepared at short notice and cannot reasonably be expected to cover every eventuality which arises on the day of the search. Disputes can arise between parties on the day of the search in respect of the scope and effect of the order which cannot be resolved save with a determination from the court. In such a scenario, supervising solicitors may refer such issues to the court for resolution taking any items which form the basis of the dispute into safekeeping in the absence of an agreement between the parties.
- The devil is in the detail – The supervising solicitor has a vital role in accurately recording events on the day of the search by way of a report filed at court shortly after the search. Such a job is largely administrative but its importance should not be belittled. The supervising a solicitor’s report sets out compliance with his/her duties but can also be a crucial document for either party following the search should a dispute arise in respect of compliance with the order. Supervising solicitors must also ensure compliance with their other technical duties such as compiling a list of materials removed from the premises and allowing the respondent to check and have a copy of the same.