Legality of Search warrant should be questioned
I am sure that everyone was shocked to learn about an allegation against Sir Cliff Richard and the search of a property owned by him in the UK. However in my professional judgement more troubling is the fact that the search was televised live resulting in it becoming media headlines and the subject of social media gossip and speculation worldwide. Whatever happens from here Sir Cliff’s reputation has been seriously damaged.
Sir Cliff is a very high profile figure now facing extraordinarily sensitive allegations, and even before being interviewed the police have allowed the search of his home to become a media event. Reportedly to compound matters he only learned about this after it appeared on television! Remember, no one has been arrested or charged by the police in connection with this investigation, let alone tried and convicted. Unless he is convicted, he must be presumed innocent.
In accordance with the provisions of Section B of the Police and Criminal Evidence Act 1984, (PACE) “The right to privacy and respect for personal property are key principles of the Human Rights Act. Powers of entry, search and seizure should be fully and clearly justified before use because they may significantly interfere with the occupier’s privacy. Officers should consider if the necessary objectives can be met by less intrusive means”. It goes on that the “Powers to search and seize must be used fairly, responsibly, with respect for people who occupy premises being searched”
To my mind there are serious questions for the police to answer as to whether some of these conditions were in fact followed. Clearly “privacy” is a key issue and we now understand, that despite earlier denials by the Police, it appears that the media were in fact tipped of as a BBC producer is reported to have heard that the raid was going to happen, and phoned South Yorkshire Police, who confirmed the information was correct; the reasoning for disclosure being that they considered it “protected the integrity of the investigation”. This confirmation enabled the BBC to arrange for a news crew to be at the property in readiness for the police arriving. The BBC was also able to run an interview with a uniformed South Yorkshire officer, standing outside the force’s Sheffield headquarters, within moments of the raid starting.
In the granting of a search warrant by the courts, any information that might undermine any of the grounds of the application must be included in the application for the search, or the court’s authority for the search may be ineffective. In my opinion if the police were aware of the BBC’s knowledge of the investigation at this stage, this should have been stated. If however the police disclosure to the media about the search took place after the search warrant was approved by the court, it begs the question as to whether the court was subsequently informed of this of this development. If the court was unaware of this the legality of the search warrant could be in question.
If a claim is brought against the police for the way in which a warrant was obtained or executed, the consequence can be long, drawn out and costly litigation. Police forces risk paying out compensation for trespass to property, breach of Article 8 (PACE) and malicious procurement of a search warrant.
From my 30 years police experience and having conducted numerous investigations and search operations under the provisions of PACE, the accepted practice of the police is not to identify those who have been arrested, let alone those who are merely fall within the scope of what the police have described in this case “as being at a very early stage of investigation”. This is also the guideline published by the Association of Chief Police Officers (ACPO).
The Leveson Report, covering the relationship between press and the police recently stated:
“I think that it should be made abundantly clear that save in exceptional and clearly identified circumstances (for example, where there may be an immediate risk to the public), the names or identifying details of those who are arrested or suspected of a crime should not be released to the press nor the public”.
South Yorkshire Police, who are conducting the investigation into the allegations involving Cliff Richard, may have the added task of explaining to Cliff and his lawyers why he was afforded no such privacy. Unless they have a good explanation, there may be serious consequences not least in the civil courts. Because while Cliff Richard is innocent in the eyes of the law, the verdict in the eyes of the baying public is being pronounced every second; just view social media and Twitter and you will see what I mean.
It is hard to see how the advance disclosure could “protect the integrity of the investigation” as claimed by the police, unless as has been reported they were being pressured by the BBC in that the corporation was about to publish details of the investigation. If this had been done ahead of the search, the operation could have been compromised. The police decision to disclose details however has far broader implications, has certainly damaged the integrity of the investigation and possibly violated Sir Cliff’s human rights.
I have written a letter to the Chairman of the House of Commons Home Affairs Select Committee as clearly there are some very important questions to answer. Amongst these is whether there was breach of guidelines in the release of the information; whether pressure was placed on the police by the BBC for them to televise the search; whether such pressure had any influence on the timing of the search itself and the nature and full extent of the collaboration between the Police and BBC concerning the investigation. These are very serious matters. A copy of this letter can be found here.
It is a criminal offence under the Penal code to disclose details on an ongoing police investigation.
David Thomas
Former Assistant Commissioner
Hong Kong Police
