History of a Dog’s Dinner
Keith Ewing and Conor Gearty on the Police Bill
The rule of law means different things to different people, but at its core it means that government must be conducted in accordance with the law, and must have legal authority for its actions. The principle was established as long ago as 1765, in Entick v. Carrington, a seminal case in which the King’s Secretary issued a warrant authorising two messengers to enter the home of John Entick and search for seditious papers. There was neither common law nor statutory authority for this action, which Entick successfully challenged in the courts, recovering damages from the hapless messengers (said to be ‘as much responsible as their superiors’) for the trespass to his property.
In giving one of the great judgments in the history of English jurisprudence, Lord Camden expressed alarm at the idea that ‘the secret cabinets and bureaus of every subject in this kingdom’ could be ‘thrown open to the search and inspection of a messenger, whenever the Secretary of State shall think fit to charge, or even to suspect, a person to be the author, printer or publisher of a seditious libel’. Under the authority of the warrant issued in this case, Lord Camden reflected, Entick’s house could be searched, and ‘the lock and doors of every room, box or trunk ... broken open’.
In upholding Entick’s claim for damages, the court not only made it clear that the State must have legal authority before it violates the legal rights of citizens, but pointed to the need for such authority before anyone’s person or property could be violated or subjected to search and seizure. ‘By the laws of England,’ Lord Camden said, ‘every invasion of private property, be it ever so minute, is a trespass. No man can set his foot upon my ground without my licence, but he is liable to an action, though the damage be nothing.’ Anyone who so much as ‘bruises the grass’ or ‘treads upon the soil’ of another ‘is bound to shew by way of justification, that some positive law has empowered or excused him’. That the power was ‘essential to government, and the only means of quieting clamours and sedition’ was no justification for conduct which could be sustained only by ‘the text of the statute law, or by the principles of the common law’.
Why should the ‘rifling’ of someone’s house and the removal of his ‘most valuable secrets’ be a matter of such concern? The reasons given by Lord Camden are as relevant now as they were in 1765. First, the power in Entick v. Carrington was exercised merely on suspicion, before anything had been established against the citizen who was subjected to the treatment. The intrusion into his property was ‘executed against the party, before he [was] heard or even summoned; and the information as well as the informers [were] unknown’. Second, Lord Camden drew attention to the vagueness of the procedures accompanying the execution of the power, with the search taking place ‘in the presence or the absence of the party, as the messengers shall think fit, and without a witness to testify what passes at the time of the transaction’. Third, Camden was concerned that the innocent person was ‘as destitute of remedy as the guilty: and the whole transaction ... so guarded against discovery that if the officer should be disposed to carry off a bank-bill, he may do it with impunity, since there is no man cap able of proving either the taker or the thing taken.’
None of these is an argument against surveillance by the police or any other State agency, and they were not intended as such in Entick v. Carrington. They are, however, compelling arguments in favour of limited powers, restrained in the manner of their exercise and capable of being deployed only after the most testing form of authorisation. State powers of surveillance are exercisable against the innocent as well as the guilty and are inevitably employed in great secrecy and without the knowledge of the target. They also constitute the most serious violation, not only of property rights recognised by the common law, but also of fundamental freedoms recognised by the European Convention on Human Rights. Even if judged to be necessary, such powers should be subjected to the most searching, safeguards, limiting their exercise and protecting the citizen from their over-enthusiastic use.
The principle of English law that reached its highest expression in Entick v. Carrington demands that a judicial warrant be required before a person’s liberty is violated by the State. This applies both when an individual is arrested and detained and when it is proposed to enter and search his or her property. Both these situations are governed by the Police and Criminal Evidence Act of 1984. In recent years, however, legislation has been passed that enables the Home Secretary to issue warrants both to the security services and to the police to interfere with the personal privacy of individuals. Although the dilution of the role of the judiciary at this stage in the process is to be deprecated, and would have been savaged by such a judge as Lord Camden, it is crucially important that the power to interfere with someone’s privacy which these laws give to state agencies be authorised by someone other than the security services or the police themselves.
As a general rule, an arrest must be authorised by a magistrate’s warrant, though in many cases this formality may be dispensed with. But, except in cases where the so-called ‘general arrest conditions’ are met, the power to arrest without a warrant applies only to ‘arrestable offences’ – defined by the 1984 Act as offences for which someone could expect to be sentenced to five years for a first conviction. After arrest, a person may be detained by the police for only 24 hours, except in the case of a ‘serious arrestable offence’, when a detention for a further 12 hours may be authorised by a senior police officer. Any detention beyond 36 hours requires a magistrate’s warrant, and may be granted only in the case of a serious arrestable offence, for further periods of 36 hours up to a maximum of 96 hours. Thereafter, the person must be charged or released.
So far as entry and search are concerned, a judicial warrant is again required, and, again under the 1984 Act, a warrant may be granted only where there is reason to believe that a ‘serious arrestable offence’ has been committed and there is material on the premises which is likely to be of substantial help in the investigation of an offence. The warrant will normally be granted by a magistrate, but in some cases the consent of a circuit court judge is needed, and in others the material in question may not be recovered by the police at all. The former category applies to ‘excluded’ and ‘special procedure material’ including personal records, journalists’ files and business records. The latter applies particularly to ‘items subject to legal privilege’ – to communications between lawyer and client.