One Saturday morning in April, Mrs Smith got a knock at the door, it was 0630 and Sgt Smith was asleep upstairs. It was the Royal Military Police, they wanted to come in and search the house. If you are living with a service person or a civilian subject to service discipline and they are suspected of committing a crime, then you could find yourself in Mrs Smith’s slippers.
Can the Service Police come in and search? What are your rights?
Searches of the person and vehicles
Just like the civilian police, the service police have powers of search. Commanding officers also have the power to authorise service persons to carry out searches. For example, the service police or a service person authorised by a commanding officer can search someone subject to service discipline or their vehicle when they are arrested. There is also the power to stop and search someone in a public place (including service property), in the same manner as civilian police. This power can be exercised where there is reasonable suspicion that the person is subject to service discipline and that the search will reveal stolen property, prohibited items (e.g. a lock knife) or illicit drugs. However, someone in the garden or yard of a residence or in Service Living Accommodation cannot be searched unless there is reasonable suspicion they do not live there. A civilian cannot be searched.
Can a private home be searched?
A private home is treated differently, unless you invite them in, service police can only search when they have permission from a judge advocate or exceptionally, when a judge advocate is unavailable, with the permission of the commanding officer. As a judge advocate is on duty 24 hours a day and can issue a warrant granting permission to search via telephone or video link it is highly unlikely that a judge advocate will not be available, particularly in the UK, so be very suspicious if the Service Police do not have a warrant. If the service police are unavailable and the matter is urgent then in very limited circumstances the commanding officer may order service personnel to search. Again, it is highly unlikely that this will be the case in the UK.
It is an offence for service personnel to obstruct the service police but that does not mean you cannot ask questions before you let them in. The service police must show you some identification and give you a copy of the warrant. It is not valid unless a judge advocate has signed it within 3 months of the date they ask to search and lists the property or the name of the person subject to service discipline it related to. Check the details; if they are incorrect the warrant is not valid. If they do not have a warrant the commanding officer’s authorisation should be in writing and you should be given a copy.
If you decide to invite the service police in without a warrant or authorisation you must sign a form to confirm you have invited them in. It is your choice and they cannot make you invite them in.
What will happen and can they take my property?
The service police may seize items belonging to service personnel which they reasonably suspect relates to the allegations against them. They cannot seize legally privileged material i.e. correspondence between you and your lawyers and legal papers. The type of items that the service police can search for and seize will be listed on the warrant. They must make a record of what they find, where they find it, and what they take. You must be given a copy of this list when they leave.
If you believe the service police have taken property that they are not allowed to take you can apply to a judge advocate to have the property returned. You can make this application by writing to the Military Court Service, asking for the matter to be put before judge advocate. You should consult a lawyer before making such an application. Unfortunately, if you are not subject to service discipline then you must fund the application yourself.
The exception to the rules
There is one other way in which a private residence may be searched. Service police may enter a property to arrest someone subject to service discipline. With the authority of an Authorising Service Policeman (usually a Lieutenant (RN), Captain or Flight Lieutenant) the private home the person was arrested in (or which had recently been left) can be searched.
The service police must show you their authorisation which will include what type of items they can search for, they must make a list in the same way, and they must give you copies. If you believe property has been wrongly taken you can apply to a judge advocate for its return.
Service Living Accommodation
There are similar rules when it comes to searching Service Living Accommodation (including tents and vehicles) or a locker, although the commanding officer has more powers. If you think your Service Living Accommodation or your locker might be searched, then seek legal advice.
Three Things to Remember
The three most important things to remember if the police do want to search:
- Permission: No one can search your home without permission. If you do not give permission, then the permission of a judge advocate will be needed in all most all cases.
- Check: Check their papers, see if they are valid. Was the warrant signed in the last three months? Does it cover you, or your partner or your house? Does it list the items they are taking?
- Advice: If you think the search is not lawful or something has been taken that should not have been taken then seek legal advice at once.
This article is commentary and not legal advice. If you have a query relating to a case (or anything else) and require independent advice, you ought to speak to a specialist solicitor or public access barrister.