ABSTRACT

The subject matter of this text is a discussion of the powers granted to law enforcement agents to conduct searches and to gather information in support of the investigation and suppression of crime. This discussion will examine the extent and efficacy of those powers in the light of constraints imposed by human rights law, exclusionary rules of evidence and the common law concept of 'due process'. A pervasive theme is the question of whether an appropriate balance can ever be achieved between the inherently conflicting interests of the public in crime control and of the citizen in protecting personal privacy and autonomy. However, before any detailed analysis can be made, it is necessary to consider what is meant by the concept of a 'search'. The concept has developed pragmatically in common law jurisdictions. It has been moulded by many factors, including expediency, political contest, changes in the investigation and trial process and, most recently, by the introduction of electronic technologies. In order to appreciate the many faceted nature of 'search' in the context of criminal investigation, it is necessary to understand the historical evolution of the process and the widening objectives of investigators. What commenced in Anglo-Saxon times as a right to look for stolen goods, has now expanded into a general right to seek incriminatory real evidence and to seek, through electronic recording and telephone interception, evidence of self-incriminatory statements or actions made by a suspect. The distinction between evidence obtained by means of search and evidence obtained by means of interrogation has become increasingly blurred and there is no longer a firm distinction to be made between admissions and real evidence. In essence, this movement is characterised by a shift in the purpose of the search activity. That purpose is no longer confined to the discovery of tangible evidence of crime, but extends to the discovery of information about a suspect, gleaned from what a suspect says and does in his private domain. Buttressing the need for such information is the move toward targeted policing and the creation of databases of knowledge as tools of crime control.1 The summary of the development of search powers that follows is not purely a matter of historical interest. It is a brief account of how common law jurisdictions have arrived at the concept of a search as it exists today.