Cet article, rédigé par l’ex-juge Vinod Boolell  a paru dans la rubrique Your English rendez-vous de l’édition de l’express de ce 1^er septembre, sous le titre original : « Execution of Search Warrants »

Since  the search at the premises of Akil Bissessur, where allegedly prohibited drugs were found, many questions are being discussed in the public on the methods used by the police to gain access to the premises and the destruction of the cameras found on the premises, as well as the prohibition of the suspect to film the search. Questions are also being asked about why the warrant was apparently signed by a police officer and not by a magistrate and the detention of Akil Bissessur incommunicado for several hours. The main question is why he was provisionally charged with drug trafficking when only about 52 grammes were allegedly found on the premises where he was. Did the police seek legal advice on the meaning of trafficking before levelling that charge? Are the police aware or made aware of the meaning of trafficking in drugs as explained by the Supreme Court in a number of judgments?

The law provides for the search of the premises of a suspect where an offence is reasonably suspected of having been committed. A search warrant is a written authorisation that allows the police or some other investigator to enter premises to search for materials or individuals. Search warrants are usually issued by a magistrate following an application by a police officer or other investigator. The magistrate must make sure that there is enough evidence to justify the issue of a warrant. Most search warrants authorise the police to seize and retain relevant materials found during the search and to arrest any individual found on the premises if there is reasonable suspicion of his/her involvement in an offence.

“A suspect may have the right to tell the police officers he does not consent to a search of his digital materials. The police do not have the right to confiscate such materials without a warrant.''

Though the general rule is that a search warrant must be issued by a magistrate, under the Police Act, in a case of urgency and where communication with a magistrate would cause delay that would defeat the ends of justice, a police officer, not below the rank of Assistant Superintendent, may, if it is suspected that a person has unlawfully in his possession any dangerous drug, any property obtained by means of an offence, or any article used or likely to be used in the commission of an offence, issue a warrant to search for the dangerous drug, property or article.

A police officer who issues the warrant must report to the police commissioner the circumstances in which he issued the search warrant, or asked for the medical examination of an alleged offender, and the result of the search or examination. In addition, the police officer must forward to the appropriate District Court within the shortest possible delay the warrant endorsed with the result of the search.

When the police are in possession of a warrant, they proceed to the premises indicated on the warrant. Once there, they would make their presence known and allow the occupier a very short time to respond. This is known as the knock-and-announce rule in some jurisdictions. Generally, the police would wait for a few seconds, unless they have reasonable fear or suspicion that evidence will be destroyed thereby compromising the investigation. The other situation is refusal to allow access after the police have exhibited the warrant and inform the occupier of the purpose of the entry. In such a situation, it is provided by the District and Intermediate (Criminal Jurisdiction) Act that the police may open any door or window of a dwelling house in order to execute such warrant.

The use of force to gain entry to premises on refusal of the occupier must be reasonable in the sense that no more force than is required should be used. The European Court of Human Rights has in a few decisions ruled that a search should not be carried out in a manner that is intimidating, involve the use of excessive force or fail to take account of the presence of other persons on the premises or go beyond what is necessary. The European Court of Human Rights takes a wide range of considerations into account when determining whether the conduct of a search in a particular case was actually proportionate to the aim being pursued.

“Did the police have the right to confiscate or destroy photographs or video recordings without a warrant relating to the recording or photographs?''
 

In some instances, damage to property may be inevitable during a search. However, police officers should not destroy property unless a request made to the occupier meets with a refusal. The basic rule is that police should act in a reasonable manner and not abuse their authority. An aggrieved individual might have a claim for civil liability against the State and the police for certain unreasonable actions taken during the search on the basis of invasion of privacy, trespass or property damage.

Apparently, Akil Bissessur was kept incommunicado. Section 5 of the constitution on personal liberty was amended by the addition of a subsection 7 to allow incommunicado detentions. By virtue of that constitutional provision, a police officer not below the rank of superintendent of police has the power to direct that any person arrested upon reasonable suspicion of having committed any offence related to terrorism or any drug dealing offence be detained in police custody for a period not exceeding 36 hours from his arrest without having access to any person other than a police officer not below the rank of inspector or a government medical officer.

Whether such a provision is compatible with section 1 of the constitution that proclaims that Mauritius is a democracy remains to be seen. A few years back, both the Supreme Court and the Privy Council held that an amendment to section 5 of the constitution on personal liberty to prevent a person suspected of dealing with dangerous drugs to be released on bail was unconstitutional as this amounted to interference by the legislature into functions which are intrinsically within the domain of the judiciary that should deal with the liberty of a citizen. There is no doubt that a serious provisional charge of drug dealing was levelled against Akil Bissessur in order to keep him in detention incommunicado. The European Court of Human Rights has ruled in a few cases that detention in complete isolation without any communication with a lawyer would impact the fairness of a trial. 

Allegedly, the police would have destroyed the camera that was filming police action at the premises. This raises the question whether a suspect or some other person on the premises may film the whole police process. When gathering evidence at the scene of a crime, the police will make drawings, take photographs and even film the whole operation. Such evidence may be used against the suspect if he faces a trial. What prevents the suspect or any other person to film the police operation? Why can’t a suspect gather evidence in the same manner as the police for use at an eventual trial.

In the case of Akil Bissessur, the search warrant was related to drugs. Did the police have the right to confiscate or destroy photographs or video recordings without a warrant relating to the recording or photographs? A suspect may have the right to tell the police officers he does not consent to a search of his digital materials. The police do not have the right to confiscate such materials without a warrant. History is replete with examples of how men and women have struggled in the quest of true justice and the struggle goes on.

History also teaches us that whenever the need arises to deal with those who make an abuse of their power, the judiciary must stand as a bulwark against such abuse.