CRIMINAL LAW WEEK

The following article is written for Police Professional by the editors of Criminal Law Week. Criminal Law Week is used by criminal justice professionals – including police officers, the CPS, judges and lawyers – to stay up to date with changes in the criminal law. Published weekly, each issue contains a comprehensive and concise roundup of new developments regarding offences, police powers, and the rules of procedure and evidence. It also contains commentary placing key developments in context. Criminal Law Week is published both online and in hardcopy. The online service (which includes a fully searchable database and access to updated and annotated key criminal legislation) is available free of charge to all police officers as part of a PNLD subscription at www.pnld.co.uk. For more information about Criminal Law Week or a sample hard copy issue please visit www.criminal-law.co.uk or call 01483 414040.

Does lack of consideration as to whether a search may uncover privileged material render a search warrant invalid?
“Yes”, said the Divisional Court in Bates v Chief Constable of Avon and Somerset Police and Bristol Magistrates’ Court (CLW/09/25/3).
The claimant held himself out as an expert in the forensic examination and analysis of computer-based material. He had given evidence on many occasions as an expert witness in civil and criminal cases involving such material.
In March 2008, he was convicted of four counts of making a false statement and one count of perjury, the charges relating to untrue statements that he had made over a number of years as to his
qualifications.
In September 2008, Avon and Somerset Constabulary, in the exercise of a search warrant issued by Bristol Magistrates’ Court, searched the claimant’s premises for ‘computers’ in relation to an allegation that the claimant had conspired to possess indecent images of children. The claimant challenged the legality of that search warrant, and thus the search conducted in pursuance of it.
The court held that it was clear that neither the police (who had knowledge of the claimant’s role as an expert witness over many years) nor the justice who issued the warrant had addressed the question of whether there were reasonable grounds for believing that the claimant’s computers would not contain material subject to legal privilege or special procedure material in accordance with Section 8(1)(d) of the Police and Criminal Evidence Act 1984. It said that, had they done so, they would have come to the conclusion that the computers might have contained such material. Accordingly, there was no jurisdiction to issue the warrant in the form in which it was sought and issued, and the search had been illegal.

When a person is entitled to have a specimen of breath replaced by a specimen of blood or urine, must an officer advise him as to the desirability of doing so?
“No”, said the Divisional Court in McClean v Director of Public Prosecutions (CLW/09/24/11).
The defendant, who was driving while unnecessarily displaying fog lights, was stopped by two police officers on mobile patrol. On speaking to the defendant, one of the officers could smell alcohol on his breath and administered a roadside breath test. The defendant failed this test and was arrested and taken to a police station, where he provided two specimens of breath, the lower reading being 45 microgrammes of alcohol in 100 millilitres of breath.
He was given the opportunity to have the breath specimen replaced by a specimen of blood or urine, but he declined and was charged with driving with excess alcohol. He was duly convicted of that offence, and appealed against his conviction.
The issue on appeal concerned exactly what had happened at the police station after the defendant had provided two specimens of breath.
The police officer who had conducted the procedure gave the defendant the option of replacing the lower specimen of breath with a