40.—(1) A judicial officer may, on application by the Regulator, issue a warrant authorising an officer of the Regulator to enter and search premises (being one or more sets of premises specified in the application) if the judicial officer is satisfied—
(a)that a ground specified in regulation 34 or 37, as the case requires, for application for the issue of a warrant has been made out;
(b)that the material to be sought does not consist of or include—
(i)items subject to legal privilege;
(ii)excluded material; or
(iii)special procedure material; and
(c)that at least one of the conditions set out in paragraph (2) applies in relation to each set of premises.
(2) The conditions referred to in paragraph (1)(c) are—
(a)that it is not practicable to communicate with any person entitled to grant entry to the premises;
(b)that it is practicable to communicate with a person entitled to grant entry to the premises, but it is not practicable to communicate with any person entitled to grant access to the material;
(c)that entry to the premises will not be granted unless a warrant is produced;
(d)that the purpose of a search may be frustrated or seriously prejudiced unless an officer of the Regulator arriving at the premises can secure immediate entry to them.
(3) A judicial officer must not issue a warrant in response to an application unless he is satisfied that no judicial officer has refused to issue a warrant based on another application that is in substance the same.