Searches by Power or Consent.
The application of PACE Code B. First published in the Justice of the Peace (1995) 159 JPN 76.
The power to search
Most of the legislation enforceable by Trading Standards Officers provides them with express powers to require a person employed in connection with a business to produce records relating to the business where there are reasonable grounds for suspecting a contravention of the relevant statute. The power to seize and detain goods or records is generally also provided. These powers in various forms can be found, for example, in s 29 of the Consumer Protection Act 1987 (“the Act”), s 28 of the Trade Descriptions Act 1968, s 32 of the Food Safety Act 1990 and s 39 of the Weights and Measures Act 1985.
Search by consent - PACE Code B
In the absence of any express power to require the production of records, Trading Standards Officers are forced to rely on the goodwill and hence the consent of the potential offender. Code B of the Codes of Practice made under the Police and Criminal Evidence Act 1984 (“PACE”) is entitled “Code of Practice for the Searching of Premises by Police Officers and the Seizure of Property found by Police Officers on Persons or Premises”. Section 67(9) of PACE provides that “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 such code.” Arguably, therefore, non-police officers are not as strictly bound by the Code as are the police in that the requirement is to “have regard” to it rather than, as the police must (see s67(10)(a)) “comply” with it. The distinction between police and other officers is highlighted by s 67(8) which renders a police officer (but not other officers) liable to disciplinary proceedings for failure to comply.
The ambit of Code B is clearly set out in paragraph 1.3 thereof where it says that:
“This code applies to the following searches of premises:
(a) searches of premises undertaken for the purposes of an investigation into alleged offence, with the occupier’s consent, other than routine scenes of crime searches and searches following the activation of fire or burglar alarms or bomb threat calls;
(b) searches of premises under powers conferred by sections 17, 18 and 32 of [PACE];
(c) searches of premises undertaken in pursuance of a search warrant issued in accordance with section 15 of, or Schedule 1 to, [PACE] or Schedule 7 to the Prevention of Terrorism (Temporary Provisions) Act 1989.”
It can be seen therefore that, on the face of it, Code B does not apply to consensual searches where inter alia there is no “search” or where there is no “investigation into an alleged offence”.
Dudley v Debenhams
The application of Code B was considered by the High Court in Dudley Metropolitan Borough Council v Debenhams plc (1995) 159 JP 18. A Trading Standards Officer had conducted a search by asking a Debenhams’ store manager to obtain certain price histories from the store’s computer. The magistrates refused to admit the evidence thereby obtained in support of Dudley’s allegations that Debenhams had exhibited misleading prices under s 20 of the Act. The High Court upheld the magistrates’ decision.
The Trading Standards Officer did not have reasonable grounds for suspecting that there had been a contravention of the Act and he had not, therefore, been able to exercise the power under s 29 (5) of the Act to require the manager to produce any records. The records were however produced by consent and so the question arose as to whether Code B applied. It was common ground that, if the Code did apply, the Officer had not had regard to it.
Meaning of “search”
Dudley’s main contention was that the Officer concerned had not conducted a “search” but had merely carried out a routine inspection. Such an argument was really doomed to fail, as it is difficult to see how the obtaining of selected computer records could be anything other than a search. Mrs Justice Smith said:
“It seems to me that the nature of an official visit by a Trading Standards Officer is an inspection to see inter alia whether any offences have been committed. He has a duty to enforce compliance with the ... Act, and he has in mind the intention to consider a prosecution if evidence is discovered. For my part, I cannot accept the submission that such an activity does not amount to a search ... entry and looking about amounts to a search”.
These latter words in particular may be considered to be obiter dicta since the activity in this case was not the looking about but the delving into computer records.
Meaning of “alleged offence”
One of Dudley’s secondary arguments for saying that Code B did not apply had real merit and it is submitted here that it should have succeeded. The argument was that paragraph 1.3 of Code B should be construed as exhaustive of the circumstances in which that Code applied. If the list of applications set out in paragraph 1.3 was not intended to be exhaustive one wonders what the purpose of the list is. Furthermore if not intended to be exhaustive why has the list not been expressed in terms of what types of search the Code “includes”? If the list is exhaustive, as it appears to be, then the Code did not apply in the instant case because the Officer was not investigating an “alleged offence” when he asked to see the computer records. Smith J, however, concluded that paragraph 1.3 was not exhaustive. She did so by applying the rather curious logic that although it was expressed in terms of “police powers” it extended to other persons charged with a duty of investigating offences. This is true but it is only so because it is expressly provided for in s 67(9) of PACE. There is no express (or even implied) provision in PACE to suggest that in any other respect the Code should be interpreted otherwise than literally.
Macpherson J agreed with Smith J that Code B applied. He did so, however, not by suggesting that paragraph 1.3 was not exhaustive but by holding that “a wide interpretation of the words ‘alleged offence’ ... is legitimate and within the spirit of the operation of the codes in these modern days”. With respect to Macpherson J, his reasoning for finding that Code B applied in this case is no more convincing than that of his sister judge. What he has effectively done is to rewrite paragraph 1.3 (a). Had he suggested that for “alleged offence” one could read “suspected offence” it would have been extraordinary but he has gone even further by, in effect, saying that “alleged offence” can mean “a possible offence whether or not there is any reason to suspect that any offence has been committed”. It is trite law that “if there is nothing to modify, alter or qualify the language which a statute contains, the words and sentences must be construed in their ordinary and natural meaning”. (Halsbury’s Laws of England, 4th edn. vol 44 para 863). The codes of practice made under s 67 of PACE are of course not statutes but codes. Nonetheless, unless the same consistent approach is given to their interpretation as applies to statutes then it will leave the judicial process in confused turmoil. The codes were made by the laying of them before both Houses of Parliament and were brought into operation by statutory instrument. “Unless the contrary intention appears, expressions used in subordinate legislation made since 1889 under a power contained in any statute, whenever passed, if used in the statute also, have the same meaning in the instrument as in the statute. Subject to this principle, subordinate legislation is to be construed in accordance with the same general rules as those which govern the interpretation of statutes”. (Halsbury’s para 1002). Referring to a certain rule of court Lord Esher MR said in Gebruder Naf v Ploton (1890) 25 QBD 13, that the rule “must be construed according to the ordinary meaning of the English language unless there is something in the context which shows that it ought not to be so construed. The words have no idiomatic meaning, and they must therefore be construed according to their grammatical meaning. ... It is no answer to this construction of the rule to say that it may produce an extraordinary or harsh result in a particular case”. Furthermore, in Danford v McAnulty (1883) 8 App Cas 456, Lord O’ Hagan, sitting in the House of Lords, said “we cannot act upon intention, either in the case of a statute or in the case of a rule ... we can only say, either in the case of the judges or in the case of the Legislature, what [they] have actually done”. Returning to Macpherson J’s judgment, it is rather strange that in seeking to give effect to what he saw as “the spirit” of the codes he sought to do so in the context of “these modern days” when Code B had been revised just three years earlier.
It is interesting that Smith J, in her judgment, made a point of saying that the Trading Standards Officer could not rely on powers under s 29(5) of the Act because he did not have any grounds for “suspecting” that an offence had been committed. She was in that respect, therefore, attributing to the legislation its ordinary meaning. When seen in contrast, Macpherson J’s “wide interpretation” of “alleged offence” in Code B becomes even more inexplicable.
The implications
Although the view is expressed here that Code B should only apply in the circumstances set out in paragraph 1.3 thereof as construed in ordinary English, the magistrates’ courts and Crown Courts, at least, will be bound by the decision in Dudley v Debenhams unless and until it is overturned or Code B is amended to (re)-emphasise its true intent. Lobbying is understood to be in progress to achieve this.
In finding the Trading Standards Officer was not in the circumstances able to rely on his s 29 powers under the Act, Smith J concluded that he was therefore “wholly dependent” upon the store manager’s consent. It follows that she must have accepted that if the Officer had been able to exercise his powers under the Act then Code B would not have been applicable. Before seeking a consent to a search (even if just a looking about) Officers should first consider whether they have any statutory powers to conduct a search otherwise than by consent. It would be sensible to make it clear at the time which statutory powers are being used and for a record to be made of this. Only if there are no such powers which can be properly exercised should the Officer then seek to search by consent. If a consensual search is sought then Code B must be complied with whether or not an offence has been alleged or is suspected. This means that the consents under paragraphs 4.1 and 4.2 must be obtained unless (see paragraph 4.4) it “would cause disproportionate inconvenience to the person concerned” e.g. it would involve waking someone in the night merely to make a brief search of their front garden. Paragraph 4.1 says that the “consent must, if practicable, be given in writing on the Notice of Powers and Rights [i.e. on a notice in standard format giving the information set out in paragraph 5.7] before the search takes place. The officer must make enquiries to satisfy himself that the person is in a position to give such consent”. Paragraph 4.2 says that “before seeking consent the officer in charge of the search shall state the purpose of the proposed search and inform the person concerned that he is not obliged to consent and that anything seized may be produced in evidence. If at the time the person is not suspected of an offence, the officer shall tell him so when stating the purpose of the search”.
The real impact of Dudley v Debenhams may be that Trading Standards Officers will be hampered in making spot checks to see if the legislation they are responsible for enforcing is being complied with. Smith J considered that this would not be a difficulty because Trading Standards Officers could visit premises with the appropriate Notice of Powers and Rights and administer the appropriate caution as they arrived. What she did not apparently address her mind to was what happens if consent to search is not given. If the officers cannot look around then must they turn a blind eye to what they may have inadvertently seen whilst issuing the caution? The answer in most cases is likely to be that the refusal to give consent gives the officers reasonable grounds for suspecting that an offence has been committed and hence may give them a statutory power to “search”!
VICTOR SMITH
Related case digests
- Dudley Metropolitan Borough Council v Debenhams plc (1995) 159 JP 18 - S 29(5) CPA, ss 69, 78 and Code B of PACE.
1) meaning of "search". 2) meaning of "alleged offence".