Search warrants - question

[enquirer]

Opinions please ...

X obtains a search warrant to enter premises occupied by Y.

Y knows at the time of execution that X has obtained the warrant fraudulently.

Is Y still obliged to co-operate? Is a warrant obtained by means of a criminal offence actually valid?

Should Y refuse to co-operate and then say 'so charge me with obstruction/contempt and then we'll see'?

If the warrant is valid (in that it is issued by the court in good faith), I wonder of the equitable principle that 'the law may not be used to break the law' applies here (Y must co-operate, but if X actually uses it, then he will be acting unlawfully).

Could it be argued that if Y knows the warrant to be obtained by virtue of a criminal offence (perjury, for instance), then Y cannot be compelled to participate in what he knows to be an unlawful act?

[IanM]

Re: Search warrants - question

In my opinion they can execute the warrant but any evidence they find during the search will be thrown out of court.

[enquirer]

Re: Search warrants - question

In my opinion they can execute the warrant but any evidence they find during the search will be thrown out of court.

Hmm. It certainly ought to be, but the doctrine that 'the fruit of the poisoned tree cannot be eaten' doesn't apply this side of the pond. I know of a case in which evidence procured through burglary (which was admitted in court!) was allowed.

[bluebottle]

Re: Search warrants - question

A couple of questions -

1. Who obtained the search warrant?
2. What were they allegedly searching for?

You have made a very serious allegation in your initial post which, if true, will find the person who lay the Information before the court to obtain the warrant in very serious trouble indeed.

[des8]

Re: Search warrants - question

Regarding the use of improperly obtained evidence, this quote from http://www.inbrief.co.uk/court-proce...d-evidence.htm seems apposite:

In criminal proceedings, all relevant evidence presented by the parties is prima facie admissible as the UK courts have adopted an inclusionary approach towards evidence in order to favour the victim and ensure a fair trial. In a case in 1861 it was confirmed evidence is admissible even if it were stolen. The rationale for this approach is that the court considers the primary aim of the justice system to be the discovery of the truth and the unearthing of guilt. This is prioritised above the protection of the accused’s right to private life. Nevertheless the courts have discretion under s.78 Police and Criminal Evidence Act 1984 to exclude evidence which lacks relevance and which might, by its admission, endanger trial fairness. This contrasts with the exclusionary approach of the courts of the USA to illegally obtained evidence, which prioritises the need to deter the police from unconstitutional behaviour. Although the UK courts do not wish to encourage illegally methods to obtaining evidence on the part of the police, discovering guilt is prioritised.

Further, as you're talking about a search warrant, I assume you wonder if you have to cooperate with the police when they execute it. In fact it won;t matter if you cooperate or not as the police can & will use force to execute it. I don't believe "x", if not plod, will be granted a search warrant.

Unless for tvl,& HMRC when police accompany to prevent a breach of peace

[charitynjw]

Re: Search warrants - question

Is it a search warrant, or a warrant of entry?

[bluebottle]

Re: Search warrants - question

Regarding the use of improperly obtained evidence, this quote from http://www.inbrief.co.uk/court-proce...d-evidence.htm seems apposite:

In criminal proceedings, all relevant evidence presented by the parties is prima facie admissible as the UK courts have adopted an inclusionary approach towards evidence in order to favour the victim and ensure a fair trial. In a case in 1861 it was confirmed evidence is admissible even if it were stolen. The rationale for this approach is that the court considers the primary aim of the justice system to be the discovery of the truth and the unearthing of guilt. This is prioritised above the protection of the accused’s right to private life. Nevertheless the courts have discretion under s.78 Police and Criminal Evidence Act 1984 to exclude evidence which lacks relevance and which might, by its admission, endanger trial fairness. This contrasts with the exclusionary approach of the courts of the USA to illegally obtained evidence, which prioritises the need to deter the police from unconstitutional behaviour. Although the UK courts do not wish to encourage illegally methods to obtaining evidence on the part of the police, discovering guilt is prioritised.

Further, as you're talking about a search warrant, I assume you wonder if you have to cooperate with the police when they execute it. In fact it won;t matter if you cooperate or not as the police can & will use force to execute it. I don't believe "x", if not plod, will be granted a search warrant.

Unless for tvl,& HMRC when police accompany to prevent a breach of peace

If a search warrant is obtained using an Information which contains evidence and/or statements that are subsequently found to false or perjured, any evidence obtained as a result is inadmissible. This is because of the element of doubt as to the reliability of such evidence and veracity of any statements pertaining thereto. The reality is that the view taken in such circumstances is, "If they've lied in the Information, what else have they lied about?" As for a search conducted using a search warrant obtained on false or perjured evidence and/or statements, it is likely that such a search would amount to trespass.

[wales01man]

Re: Search warrants - question

How would Y prove it was obtained fraudulently?
If it was a Police warrant would they produce the evidence?
If obtained by a Bailiff would the Bailiff tell the truth to Anyone?

[CleverClogs]

Re: Search warrants - question

If obtained by a Bailiff would the Bailiff tell the truth to Anyone?

Probably not, even if he might materially gain from being truthful.

[enquirer]

Re: Search warrants - question

1. Who obtained the search warrant? 2. What were they allegedly searching for?

Although it is a hypothetical question, it is posed in anticipation of a situation likely to arise in the near future. The applicant is not the Police.

You have made a very serious allegation in your initial post which, if true, will find the person who lay the Information before the court to obtain the warrant in very serious trouble indeed.

True, but what I'm looking at here is what Y can do about it at the time, and why.

[enquirer]

Re: Search warrants - question

Regarding the use of improperly obtained evidence, this quote ...

Thanks, interesting.

However, I'm not looking at improperly obtained evidence, but at how - on the day - Y can react to a warrant that he knows to be fraudulently obtained. What may be found when the warrant is executed is another matter (as it happens, I already know that it would be nothing).

[enquirer]

Re: Search warrants - question

How would Y prove it was obtained fraudulently?

Y already knows what the supposed grounds would be. Y knows that they are (1) literally impossible, and (2) that honest mistake can be precluded entirely.

The warrant will, as a matter of absolute certainty, be obtained fraudulently.

[enquirer]

Re: Search warrants - question

If a search warrant is obtained using an Information which contains evidence and/or statements that are subsequently found to false or perjured, any evidence obtained as a result is inadmissible.

Perhaps both things are true.

I would submit that evidence obtained by means of a bent warrant would probably be admitted, but that when the obtaining of the warrant is looked at in court, the veracity of the witness will then be called into question.

[enquirer]

Re: Search warrants - question

Is it a search warrant, or a warrant of entry?

Search warrant. Not a warrant of entry or a Search Order.

[des8]

Re: Search warrants - question

IMO any warrant issued by a magistrate is valid, even if issued on the basis of false information, as it would have been issued in good faith by lawful authority. After the event you seek redress.

Any person giving false info under oath would, on discovery be in hot water because of the practical ramifications illustrated by BB post 7

As the warrant would be valid, if it was for a police search, you would be well advised to cooperate because 1) if you don't you could be guilty of the offence of obstructing or resisting the police in the execution of their duties, and
2) they will use "reasonable" force anyway.
3) any claim for redress will be more favourably considered if you can show cooperation in a situation you knew to be wrong.