|Dominic Littlewood, a presenter on Fake Britain|
I'm taking a break from my usual diet of drink driving law to talk about search warrants and the presence of TV cameras when they are executed.
Last night I watched Fake Britain, a TV show on the BBC that follows trading standards officers as they investigate various fake products – all sorts of things seem to be caught up in this definition from “fake” houses (where the house is supposed to have a Passivhaus rating but doesn’t) to substandard fairy lights, knock-off DVDs and fake designer jewellery.
On this episode the film crew attended a family home looking for a woman who they suspected was selling fake Pandora jewellery. The trading standards officer had a warrant to search and was accompanied by police officers. Nobody was home but a window had been left open so the police officers entered through the window then unlocked the front door allowing the trading standards officers and, it seemed the camera crew to enter. This sort of thing isn’t unique to Fake Britain, there are a whole array of fly on the wall documentary style shows that follow officers from police, immigration and trading standards. You often see footage filmed inside the home of the person being searched. Occasionally, you’ll see the dramatic scenes of police knocking a door down then storming the building swiftly followed by the camera crew who are on hand to capture everything.
Is this legal is a question I find myself asking quite a lot. These things interest me (because I’m very dull, don’t worry I know it).
Obviously, if the home owner gives permission for the camera crew to be there then all is well and good but, in this episode of Fake Britain, the cameras seem to have entered before the suspect came home – in fact they were in her living room when she walked through the front door to be confronted by a house full of police and trading standards officers. She clearly cannot have given permission for the cameras to enter before she was aware they were there – so what right do they have to enter her home?
In the show I watched, the police and trading standards clearly had the right to enter. Trading standards had a warrant, presumably issued by a magistrates’ court under reg. 22 of The Consumer Protection from Unfair Trading Regulations 2008, to enter, search and seize evidence. The police were there to assist trading standards - reg. 22(8) permits trading standards to take anybody necessary to assist with the search. But, what was the purpose of the film crew? They are not there to assist with the search, nor to gather evidence and they are not involved in the investigation in anyway – they are merely observers there to produce a commercial product (although Fake Britain is shown on the BBC it is made by a private, for profit, production company called ScreenChannel Television).
Back in 1972, the then Lord Chief Justice, Lord Widgery described search warrants as “a very serious interference with the liberty of the subject” in the case of Williams v Summerfield. Lord Bingham repeated this observation in 1991 when giving judgment in R v Crown Court at Lewis, ex parte Hill.
Since those cases were considered, Parliament has enacted the Human Rights Act 1998, which gives affect in English and Welsh law to the European Convention on Human Rights. Article 8 grants a right to respect for private and family life. It directs that there must be no interference by a public authority with the exercise of a person’s right to a private life, except by law and when it is necessary to interfere with the right to prevent crime, among other things that aren’t relevant here.
So, we have a situation where two of the nation’s most senior judges have described searches as a serious interference with liberty and law invoked by Parliament that prevents a public authority interfering with citizen’s private and family life sans good cause.
I don’t think anybody will seriously disagree that entering another person’s home while they are not there and proceeding to go through all their property is anything other than an interference with the right to a private and family life, especially when some of the things could belong to other members of the family.
So, next we need to ask ourselves whether the various actions are a) lawful; b) necessary for the prevention of crime.
Is it lawful? In applying for the warrant the officer making the application must inform the magistrates about the nature of the investigation, why they think an offence has occurred and what, or who, they expect to find on the premises. They must also disclose anything capable of undermining the grounds of the application. So we can say that a warrant is issued for a particular, defined purpose, namely to search for and discover people or items in connexion with an investigation. We cannot, I would submit, conclude that the warrant allows entry to premises for any purpose the police or trading standards like. In other words, the warrant does not appear to authorise the entry onto the premises of a film crew there to make a documentary about the investigation.
Let’s take a look at whether admitting the film crew is necessary within either the meaning of regulation 22(8) or Article 8.
First, reg. 22(8) permits the trading standards officer to take any person or equipment he deems necessary to conduct the search. I would submit that this means directly necessary to enable the search to take place, e.g. a police officer to force entry, a locksmith to deal with difficult locks, etc. The question to ask is, could the search be conducted properly without that person present? In the case of a documentary making film crew the answer must be “yes”, because the search can and would go ahead whether they were present or not. So, regulation 22(8) does not appear to legitimise the TV company’s presence at the scene.
Looking at Article 8, the first thing to say is that the film crew is not a public authority; however, their presence is only possible because agents of the state allow them to be there, so I would argue that Article 8 is applicable. We must therefore ask whether allowing the TV crew to attend is done for the prevention of crime. You could make an argument that filming searches sends a message to criminals that law enforcement will take action against them, but I would submit that is a weak argument. Whether the search is filmed or not makes no difference to the investigation, the same evidence and people will be found whether the cameras are inside the property or not. Therefore, I cannot see how having a TV crew present meets the requirements of Article 8.
In conclusion, having looked at various points we must conclude that search warrants are issued for a particular purpose, which does not include the production of television programmes. Enforcement officers are permitted to take anybody they believe is necessary to the search, but that cannot provide carte blanche to treat the warrant as if it allowed anybody to attend – contrast for example an enforcement officer who brings his kids to the search, they are no more nor less necessary to the search than the film crew. Finally, by permitting TV crews access to private dwellings without the permission of the owner the police, trading standards or whoever is conducting the search are in breach of Article 8 of the Human Rights Act.
One day, I expect the police (or whoever) and a TV production company will face legal action in tort for trespass and breach of Article 8 – they may well lose, especially if the search reveals no wrongdoing. I also suspect, the day cannot be far off when a determined defendant seeks to exclude evidence because of the presence of people not connected to the investigation, who knows they might succeed.