HM (R on the application of) v SECRETARY OF STATE FOR THE HOME DEPARTMENT

Statutory powers to search or seize property must be exercised within their express limits. A power to seize items found on premises does not, without clear words, authorise a personal search or seizure from a person. The principle of legality reinforces that conclusion where fundamental rights are engaged.

A blanket policy of searching and seizing mobile telephones is unlawful where officers do not consider the statutory conditions in each case. A mobile telephone may itself be evidence of an offence and may therefore be seized for forensic examination where the statutory conditions are met. Intelligence-gathering and evidence-gathering are not mutually exclusive, but an intelligence purpose alone is insufficient.

The claims concerned the search and seizure of mobile telephones from migrants who arrived in the United Kingdom by small boats from France. The Secretary of State conceded that a blanket and unpublished policy operated at Dover Western Docks Tug Haven, and that the seizure, retention and subsequent extraction of data were unlawful in the circumstances of the individual claims.

The Divisional Court nevertheless determined the remaining vires issues because they concerned the scope of existing statutory powers. The principal questions were whether paragraph 25B of Schedule 2 to the Immigration Act 1971 authorised the searches, whether section 48 of the Immigration Act 2016 authorised seizure from a person, and whether section 48 authorised seizure of a mobile telephone for later examination to determine whether it contained evidence.

1. Outcome. The claims succeeded to the extent identified by the court. A further hearing was directed to determine relief and the consequences of the Secretary of State’s apparent breach of the duty of candour. The remaining data protection issues were not determined because they were academic and subject to investigation by the Information Commissioner.
2. Paragraph 25B searches. Paragraph 25B(2) permits a search where the officer has reasonable grounds for believing that the arrested person may present a danger to himself or others. Paragraph 25B(3)(a) permits a search for something which might assist escape from lawful custody. Both powers are conditional. The court found that the claimants were not in fact searched for mobile telephones under those provisions. The searches formed part of the blanket policy and the Secretary of State’s justification was ex post facto. The power remains available in an appropriate case, and the words concerning reasonable grounds set a low threshold, but the circumstances must be considered by the officer.
3. Section 48 and personal searches. Section 48 of the Immigration Act 2016 is closely modelled on section 19 of the Police and Criminal Evidence Act 1984. The reference in section 48(1) to an officer being lawfully on premises, read with the statutory definition of premises, indicates a power of seizure from premises rather than a power arising from a personal search. The provision is at least ambiguous. Applying the principle of legality, a power to seize from premises cannot be inferred to authorise a non-consensual search or seizure from a person. The Explanatory Notes and Parliamentary materials supported that construction.
4. Seizure for examination. A mobile telephone is capable of being a single item and may itself be evidence in relation to an offence. Section 48(3) may therefore authorise seizure where the statutory reasonable-ground and necessity conditions are met, even though the device contains irrelevant material and must be examined elsewhere. Sections 50 and 51 of the Criminal Justice and Police Act 2001 do not exhaust the lawful means of seizing such a device.
5. Evidence and intelligence. Section 48(3) requires reasonable grounds for believing that the item is evidence in relation to an offence and that seizure is necessary to prevent loss, concealment, alteration or destruction. Intelligence material may also be evidence. Describing material as intelligence does not prevent it from being evidence, but intelligence-gathering alone does not satisfy the statutory test.
6. Article 8. The concessions and findings established that the blanket policy, the failure to apply paragraph 25B, the inability to rely on section 48 for seizure from persons, and the unlawful PIN demands constituted interferences not in accordance with law.