Defence arguments have a habit of resurrecting themselves as one generation of lawyers takes up the baton from the previous generation. In this article, Dan Jacklin explores a recent spate in defendants raising the issue of noncompliance with PACE Code B when subject to various local authority powers of entry, search, inspection and seizure, is a case in point.
Local authority enforcement powers are wide ranging and cover topics such as food safety, consumer safety, housing safety and comfort, health and safety, and environmental protection.
Tucked away at section 67(9) of PACE 1984 is the following provision:
“(9) Persons other than police officers who are charged with the duty of investigating offences or charging offenders shall in the discharge of that duty have regard to any relevant provision of…a code”
The definition of a code is given at section 67(1). Section 60 and 60A both only apply at police stations, which for the most part, affects a minority of local authority enforcement actions. However, section 66 is far more wide ranging, applying to the performance of searches, seizing of property, and identifying and questioning persons.
No further definition is given for “persons other than police officers” so one has to consider it is likely to have broad enough application to include local authorities and their officers.
Turning to Code B, one has to read all references to “police officers” within the spirit of section 67(9) as applying to “persons other than police officers”. However, problems as to its application soon arise.
The Secretary of State has no powers under section 66 to issue codes of practice pertaining to powers of entry, which leaves the application of such provisions to “persons other than police officers” in somewhat dubious waters.
The position is similar with powers of inspection, which also arguably fall outside section 66, but which at least it can be argued that powers of inspection may be akin to powers of search, as so fall within the provision by that mechanism.
Then there is paragraph 2.5, which states:
“2.5. This Code does not apply to the exercise of a statutory power to enter premises or to inspect goods, equipment or procedures if the exercise of that power is not dependent on the existence of grounds for suspecting that an offence may have been or is about to be committed and the person exercising the power has no reasonable grounds for such suspicion.”
The Food Safety Act 1990, the Housing Act 2004, the Environment Act 1995 and the Health and Safety at Work etc. Act 1974 all have examples of statutory powers of entry and inspection which are not dependent on the existence of grounds such as those set out in paragraph 2.5.
There is a much finer line between the application or exclusion of PACE Code B to powers of search, inspection and seizure. Provided search and seizure powers are lawfully exercised under the governing statutory regime, Code B will typically not apply by virtue of paragraph 2.6:
“2.6 This Code does not affect any directions or requirements of a search warrant, order or other power to search and seize lawfully exercised in England or Wales that any item or evidence seized under that warrant, order or power be handed over to a police force, court, tribunal, or other authority outside England or Wales.”
Problems arise when enforcement officers overreach their statutory powers of search, inspection or seizure. In those circumstances, the effect of paragraph 2.6 will likely fall away leaving the authority having to justify not only the statutory breach but also potential breaches of PACE Code B, which before the breach they were entitled to think did not apply to their powers of search, inspection or seizure. An effect rightly perceived as double punishment for overreaching.
The case of Dudley Metropolitan Borough Council v Debenhams plc (1995) 159 JP 18 is a case in point. A trading standards officer (‘TSO’) exercised lawful powers of entry under section 29 of the Consumer Protection Act 1987 to one of Debenhams’ premises.
The TSO required a manager to provide a computer printout of products the TSO sought to inspect. The court considered this request a search. Problems arose because TSOs do not have a power of search under that provision without the occupant’s consent, which was not sought. The situation met paragraphs 2.3(a) and (d) and PACE Code B duly applied, which the TSO had not complied with.
One such noncompliance was with the TSO’s failure to provide the occupier with a copy of a Notice of Powers and Rights under paragraph 6.7, which only applies to searches which fall under the provisions of this Code.
This position was reaffirmed in Walkers Snack Foods Ltd v Coventry City Council [1998] 3 All ER 163 at [46], where a food authority officer was confirmed as having acted in accordance with her powers thereby excluding, in that case, the application of Code C under a similar provision.
In practice, provided local authorities and their officers stay within their statutory powers, PACE Code B is unlikely to apply to their powers of entry, search, inspection, or seizure. But, where there is overreach, these battle lines are likely to emerge.
Whilst every effort has been taken to ensure that the law in this article is correct, it is intended to give a general overview of the law for educational and/or informational purposes. It is not intended to be a substitute for specific legal advice and should not be relied upon for this purpose.
This article represents the opinion of the author and does not necessarily reflect the view of any other member of St Philips Chambers.
