Judgment Approved by the court for handing down.
Privacy International v Investigatory Powers Tribunal
Lord Mansfield was here saying that the officer who executed a warrant could not
lawfully exercise a discretion as to who was to be apprehended: a general warrant which
did not specify its target was void.
44.
Similarly, in Wilkes v Wood (1763) Lofft 1, Lord Camden CJCP held that a general
warrant enabling the King’s messengers to exercise their own discretion in interfering
with property was a breach of the right to liberty:
“The defendants claimed a right, under precedents, to force
persons houses, break open escrutores, seize their papers, &c.
upon a general warrant, where no inventory is made of the things
thus taken away, and where no offenders names are specified in
the warrant, and therefore a discretionary power given to
messengers to search wherever their suspicions may chance to
fall. If such a power is truly invested in a Secretary of State, and
he can delegate this power, it certainly may affect the person and
property of every man in this kingdom, and is totally subversive
of the liberty of the subject.”
45.
We take from Blackstone, Hale and the general warrant cases that it is a fundamental
right of an individual under the common law that he or she should not be apprehended,
or have property seized and searched, save by decision of the person legally charged
with issuing the warrant. Expressed in modern legal language, a general warrant is one
which requires the exercise of judgment or discretion by the official executing the
warrant as to which individuals or which property should be targeted. It follows that a
general warrant gives rise to an unlawful delegation of authority by the legally entrusted
decision-maker to the executing official.
This unlawful delegation breaches a
fundamental right.
46.
We appreciate that the Secretary of State in the general warrant cases was exercising
common law or prerogative powers not authorised by statute, and that two of those
cases involved - at least partly - the physical liberty of the subject. Nevertheless, Mr
Jaffey was correct to say that the right not to have property searched other than by the
authority of the law has always been treated as a fundamental right. The great case of
Entick v Carrington (1765) 19 State Tr 1029 held that the Secretary of State could not
order searches of private property without authority conferred by an Act of Parliament
or the common law. In doing so, the court emphasised the connection between property
and privacy: a person’s papers (containing private information) are their owner’s
“dearest property” whose secret nature cannot be the subject of intrusion without legal
authority.
47.
Entick v Carrington and the other general warrant cases of the 1760s are not a mere
historical footnote, nor, as Sir James put it, of only “marginal relevance”. Some of the
language used by Lord Camden, comparing general search warrants to the practices of
the Spanish Inquisition, seems overblown to modern eyes; and no one today would be
awarded exemplary damages at the rate of £10,000 per hour for six hours’ wrongful
detention. But the fundamental message remains good law. Indeed, the common law’s
insistence that the Government cannot search private premises without lawful authority
has been recently confirmed by a unanimous Supreme Court as having the status of a
constitutional principle (R (Miller) v Prime Minister; Cherry v Advocate General for
Scotland [2019] UKSC 41, [2020] AC 373, para 40).