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The Legal Services Act 2007 (Warrant) Regulations 2010

Draft. This instrument was laid in draft and may differ from the one made. Look for the made version under its title.

Draft 2010, ISBN 9780111492451

Original text. legislation.gov.uk does not revise statutory instruments, so later amendments are not shown here. Changes made to it are listed under each provision when known.

Draft Regulations laid before Parliament under section 206(4) and (5) of the Legal Services Act 2007 (c. 29) for approval by resolution of each House of Parliament.

Legal Services, England And Wales

Made ***

Coming into force in accordance with regulation 1(1)

The Lord Chancellor makes the following Regulations in exercise of the powers conferred by sections 42(6) and (7), 48(6) and (7) and 204 of the Legal Services Act 2007f1.

The Lord Chancellor has consulted the Legal Services Board about the making of these Regulations in accordance with sections 42(8)(b) and 48(8)(b) of the Legal Services Act 2007.

A draft of these Regulations has been approved by a resolution of each House of Parliament pursuant to section 206(5) of the Legal Services Act 2007.

Annotations to the whole text

Footnotes

f1

2007 c. 29.

Contents

  1. 1Citation, commencement and interpretation
  2. 2Application (information needed by a judicial officer)
  3. 3Issue of warrants
  4. 4Form of warrants (necessary for proper execution)
  5. 5Execution of the warrant
  6. 6Notice and return of records seized
  7. 7Copying of records
  8. 8Notice to be given of records copied
  9. 9Retention of copies
  10. Signature
  11. Explanatory note

1Citation, commencement and interpretation

(1)

These Regulations may be cited as the Legal Services Act 2007 (Warrant) Regulations 2010 and come into force on the day after the day on which they are made.

(2)

In these Regulations—

  • “2007 Act” means the Legal Services Act 2007;

  • “items subject to legal privilege” has the meaning given in section 10 of the Police and Criminal Evidence Act 1984f1;

  • “judicial officer” means—

    1. (a)

      a judge of the High Court;

    2. (b)

      a Circuit judge; or

    3. (c)

      a justice of the peace;

  • “officer or agent” means a person appointed by a specified person to act on its behalf as permitted by section 42(3) or 48(3) of the 2007 Act; and

  • “specified person” has the meaning given in section 42(9) of the 2007 Act.

2Application (information needed by a judicial officer)

(1)

An application may be made without notice and must be supported by—

(a)

in the case of an application made under section 42(3) of the 2007 Act, a copy of the intervention direction given under section 41 of that Act; or

(b)

in the case of an application made under section 48(3) of the 2007 Act, a copy of the order made under section 45 of that Act.

(2)

The application must set out—

(a)

the address of each set of premises to be entered and searched;

(b)

so far as practicable, the records sought;

(c)

the number of entries sought;

(d)

the identity of the applicant (including the name of the officer or agent who may execute the warrant);

(e)

which of the conditions set out in regulation 3(1)(a) apply in relation to each set of premises; and

(f)

whether the warrant is being sought under section 42(3) or 48(3), as the case may be.

(3)

An application for a warrant made under section 42(3) or 48(3) must include a declaration that no judicial officer has refused to issue a warrant based on another application that is in substance the same.

3Issue of warrants

(1)

A judicial officer may issue a warrant under section 42(3) or 48(3) of the 2007 Act only if satisfied that—

(a)

one of the following conditions has been met—

(i)

reasonable attempts have been made to obtain the relevant records by other means; or

(ii)

if reasonable attempts to obtain the relevant records have not been made, that such attempts would likely result in the relevant records being removed, hidden, tampered with or destroyed;

(b)

the officer or agent who may execute the warrant has been authorised in writing by a specified person under regulation 5(1); and

(c)

no judicial officer has refused to issue a warrant based on another application that is in substance the same.

(2)

A judicial officer may not issue a warrant under section 42(3) or 48(3) of the 2007 Act in relation to records which consist of items subject to legal privilege where the approved regulator is the client with the benefit of the legal privilege.

4Form of warrants (necessary for proper execution)

(1)

A warrant must state—

(a)

the address of each set of premises to be searched;

(b)

so far as practicable, the records sought;

(c)

how many entries it permits;

(d)

the name of each officer or agent who may execute it;

(e)

the date on which it was issued; and

(f)

that it was issued under section 42(3) or 48(3) of the 2007 Act as the case may be.

(2)

The appropriate number of clearly certified copies of the warrant must be made and, for these purposes, the appropriate number of copies is—

(a)

in the case of a warrant that specifies only one set of premises, two; and

(b)

in the case of a warrant that specifies two or more sets of premises, one more than the number of sets of premises specified.

5Execution of the warrant

(1)

An officer or agent of a specified person may execute a warrant to enter and search premises only if the specified person—

(a)

has considered the officer or agent’s training and experience;

(b)

is satisfied that the officer or agent is a fit and proper person to exercise such a power; and

(c)

has authorised the officer or agent in writing to execute search warrants.

(2)

Entry and search under a warrant must be within one month from the date of its issue.

(3)

Entry and search under a warrant must be at a reasonable hour unless it appears to the person executing it that the purpose of entry may be frustrated by entry at a reasonable hour.

(4)

A warrant authorises a search of premises only to the extent required for the purpose for which the warrant was issued.

(5)

If the occupier of the premises is present when the officer or agent of the specified person seeks to execute a warrant to enter and search them, the officer or agent must—

(a)

identify himself to the occupier and show the occupier documentary evidence of identity;

(b)

show the warrant to the occupier; and

(c)

give the occupier a certified copy of the warrant.

(6)

If the occupier of the premises to be entered and searched is not present when an officer or agent seeks to execute a warrant, but a person who appears to be in charge of the premises is present, paragraph (5) has effect as if each reference to the occupier were a reference to that other person.

(7)

If there is no person present at the premises who appears to be in charge of them, the officer or agent must, before departure, leave a certified copy of the warrant in a prominent place on the premises.

(8)

The officer or agent who executes a warrant must make an endorsement on it stating—

(a)

whether any of the records sought were found;

(b)

whether any written or electronic records have been copied; and

(c)

whether possession has been taken of—

(i)

any written or electronic records; and

(ii)

any items subject to legal privilege (without prejudice to the prohibition in regulation 3(2)).

(9)

In the case of a warrant that authorises entry to and search of two or more sets of premises, the officer or agent executing the warrant—

(a)

must make a separate endorsement in accordance with paragraph (8) for each set of premises entered and searched; and

(b)

must specify in each endorsement the premises to which it relates.

6Notice and return of records seized

An officer or agent who takes possession of any written or electronic record in accordance with these Regulations must—

(a)

provide a list of those records to a person within the meaning of regulation 8 within a reasonable time;

(b)

take copies of those records as soon as possible;

(c)

return the records to a person within the meaning of regulation 8—

(i)

once they have been copied;

(ii)

within 7 days of receipt of a request by that person for records required to discharge a regulatory function; or

(iii)

before the intervention direction is revoked under section 44 of the 2007 Act,

whichever is earliest, unless a person within the meaning of regulation 8 agrees otherwise in writing.

7Copying of records

(1)

An officer or agent who executes a warrant may take a copy of any written or electronic record for which the warrant authorises a search.

(2)

The officer or agent may require any record that is stored in electronic form and is accessible from the premises to be produced in a form—

(a)

in which it can be copied; and

(b)

in which it is visible and legible or from which it can readily be produced in a visible and legible form,

if he has reasonable grounds for believing that it is a record for which the warrant authorises a search.

(3)

Where an officer or agent has taken possession of electronic records, he may produce records from it in a form that —

(a)

can be copied; and

(b)

is visible and legible,

if he has reasonable grounds for believing that those records are records for which the warrant authorises a search.

(4)

Nothing in these regulations authorises an officer or agent to take a copy of any records that the officer or agent has reasonable grounds for believing to be items subject to legal privilege where the approved regulator is the client with the benefit of the legal privilege.

8Notice to be given of records copied

An officer or agent who copies any written or electronic record must, if so requested by a person showing himself —

(a)

to have been the occupier of the searched premises at the time of the search; or

(b)

to have had custody or control of those premises at the time of the search,

provide that person with a list of what was copied within a reasonable time.

9Retention of copies

A copy made of written or electronic records for which a search was authorised by a warrant may be retained for as long as necessary in all the circumstances.

Signature

Signed by authority of the Lord Chancellor

Name

Parliamentary Under Secretary of State

Ministry of Justice

Date

Explanatory note

(This note is not part of the Regulations)

These Regulations are made under sections 42(6) and (7) and 48(6) and (7) of the Legal Services Act 2007 (“the 2007 Act”). Sections 42 and 48 of that Act permit the Legal Services Board (“the Board”), or a person nominated by it as provided in section 41(2), to apply in certain circumstances for a warrant authorising the Board or such a person to enter and search the premises of the approved regulator and take possession of any written or electronic records found on the premises. Those circumstances may be where the Board has given an approved regulator (within the meaning of the 2007 Act) an intervention direction under section 41 of the 2007 Act or where an order of the Lord Chancellor under section 45 has cancelled a body’s designation as an approved regulator. The application for a warrant must be made to a judge of the High Court, Circuit Judge or justice of the peace.

Regulations 2 and 3 specify the information which must be provided as part of the application for a warrant and the conditions and matters of which a judge of the High Court, Circuit judge or justice of the peace must be satisfied before issuing a warrant.

Regulation 4 specifies the form of a warrant which must be complied with when exercising the power so conferred. Regulation 5 regulates the exercise of a power conferred by a warrant.

Regulations 6 to 9 make provision as to the circumstances in which written or electronic records may be copied or must be returned.

An impact assessment has been prepared for these Regulations and is available on the Ministry of Justice website www.justice.gov.uk or may be obtained from Legal Services Reform Team, Ministry of Justice, 102 Petty France, London SW1H 9AJ.