Section 8 of PACE allows a justice of the peace or a judge to issue a warrant to enter and search premises if there are reasonable grounds for believing that an indictable offense has been committed, and that there is material on the premises which is likely to be of substantial value to the investigation. However, Section 8 warrants are generally restricted to standard materials and cannot be used to obtain "special procedure material" or "excluded material," which receive much higher levels of legal protection under the law.
In contrast, Section 9 and Schedule 1 of the Police and Criminal Evidence Act 1984 govern the acquisition of "special procedure material." This category of evidence includes confidential business records, personal records, or other sensitive documents that are held in the course of a trade, business, profession, or office. Because of the sensitive nature of such files, the law mandates a much stricter process. Instead of a standard search warrant, police must typically apply for a production order, which requires a hearing where the holder of the material has the opportunity to argue against its release. A search warrant under Section 9 is only granted under exceptional circumstances where a production order would be ineffective or compromised.
During the initial application hearing on February 18, the Central Criminal Court determined that only Section 8 search warrants were required for the operation, and subsequently granted them on that basis. Thames Valley Police officers acted upon these authorizations the following day, executing the raids on Mountbatten-Windsor’s homes in Norfolk and Berkshire. However, the subsequent legal challenge brought by Mountbatten-Windsor’s lawyers successfully established that the Central Criminal Court had erred in its determination. The legal challenge proved that the materials the police sought to seize fell under the legal definition of "special procedure material," meaning the court should have evaluated the application under the more stringent criteria of Section 9 rather than Section 8.
As a consequence of this legal miscategorization, the search warrants used to access the properties were deemed unlawful. The admission by Thames Valley Police that the initial court’s decision was incorrect underscores the complexity of applying procedural law in high-profile investigations where vast quantities of personal and professional documents are targeted.
Despite the admission that the entry and search of the homes were conducted under unlawful warrants, the physical items and digital data taken by officers during the raids will remain in the custody of Thames Valley Police for the time being. The court was informed that during the February 19 raids, police took possession of a significant volume of documents and electronic devices from both the Norfolk and Berkshire properties. The fate of these seized items remains unresolved, as Mountbatten-Windsor’s legal challenge over the retention and potential examination of this material continues through the judicial review process.
