We believe this will be a useful guide to assist you and your clients in the event that you come across a government agency seeking to exercise a power of entry.
The guidance provides an overview of the Code of Practice which any person conducting a search on behalf of a government agency must have regard to. This Code of Practice does not apply to the police or the SFO, however it does apply to agencies such as local authorities, the health and safety executive or the environment agency.
There are currently over 1000 separate powers of entry contained within UK legislation, and as such, businesses across a wide range of sectors should be aware of the Code and its contents.
There is a Code of Practice (the Code) concerning powers of entry which applies to any relevant person exercising a power of entry, unless that power of entry is subject to a separate code of practice such as the Police and Criminal Evidence Act 1984 (PACE). Any person conducting a search on behalf of government agencies will be classified as a relevant person and so they must have regard to the Code.
Those bound by the Code must give consideration to its contents before any power of entry (or associated power such as search and seizure) is exercised.
What is a power of entry?
A power of entry is a statutory right for an authorised person (usually a state official such as a police officer or local authorities) to legally enter premises. Powers of entry are used for purposes such as undertaking an inspection, dealing with an emergency situation and/or searching for evidence during an investigation.
Why do we need a Code of Practice?
The aim of the Code is to achieve the right balance between the need to enforce the law and ensure public protection, and the need to safe guard the rights of individuals. The Code gives guidance and sets out considerations that apply before, during and after powers of entry are exercised. It identifies relevant considerations that must be taken into account before any statutory power is exercised.
What are the powers of entry?
There are many powers of entry that we come across in sectors such as construction, property development, financial services, retail and the food industry.
Some examples of legislation containing powers of entry are:
- Public Health Act 1936 – issues such as sanitation
- Building Act 1984 – building regulations
- Town and Country Planning Act 1990 – planning controls
- The Safety of Sports Grounds Act 1975 – sports stadium safety
- The Environment Act 1995 – pollution
- Health and Safety at Work Act 1974 – health and safety
- The Food Safety Act 1990 – food safety
- Consumer Protection from Unfair Trading Regulations 2008 – trade description
- The Money Laundering Regulations 2007 – financial conduct
What does the Code say?
Authorisation and approval – The exercise of powers of entry should be provided for by the relevant legislation, such as those set out above.
Provide notice of rights to occupiers – The Code states that when an authorised person is looking to exercise their power of entry they should generally provide a Notice of Powers and Rights in a standard format to the occupier. The Code specifies that in appropriate cases compensation may also be payable for damage caused by the entry and search of the premises.
Notice – The Code states that where it is appropriate and practicable to do so, reasonable notice should be provided to the occupier before exercising a power of entry. It states that reasonable notice should usually not be less than 48 hours, or as specified in relevant legislation.
Entry without consent or warrant – If an authorised person proposes to enter a premises without consent and without a warrant they should consider whether the object of entry might be achieved by less intrusive alternative means, and they should make reasonable attempts to make contact with the occupier of the premises.
Entry under warrant – All procedures set out in legislation providing powers of entry under warrant must be followed.
Timing of exercise of powers – The exercise of powers of entry by a relevant person should only be undertaken at reasonable hours, such as between 8am and 6pm.
The Code sets out many other relevant factors which should be considered when a power of entry has been exercised including issues relating to the seizure of property, retention of property, the conduct of the authorised persons, keeping a register, dealing with conflicts of interest and complaints.
How can Howard Kennedy help?
The above are just some of the key provisions of the Code and some of the powers of entry available in the UK. Anyone who encounters an enforcement agency trying to gain entry to their premises should consult the Code in full or seek expert legal advice. Howard Kennedy's business crime and regulatory team can provide expert advice and assistance to anyone who is, or has been, subject to a power of entry.