The obtaining and execution of search warrants remains an area of operational risk for the police. The margin for error is often narrow. In two cases in the last year the courts have provided useful and important clarification of issues concerning search warrants that had not previously been definitively determined. Further guidance has also been given on how search warrant applications should be drafted, and the impact that disclosure obligations have on the process. Judicial guidance can sometimes (understandably) be overlooked by officers, but will be relied upon in any subsequent challenge. This article highlights the guidance given in recent cases which has important practical implications.
The information and public interest immunity
Generally speaking, the fuller and more detailed the Information document in support of the search warrant, the better it is. When a court decides that the Information document contains sufficient material to satisfy it that a search warrant should be issued, the court is not required to record its reasons for granting the warrant: the reasons for the decision are those in the Information. By signing the Information the Justice is accepting the prima facie truth of the matters contained within the Information, verified on oath. If no details beyond that contained in the Information are required, the procedures before, during and after the application are all simplified. All the material placed before the Court is clearly set out and explained in advance of the hearing. The Court will have fewer questions and is more likely to be satisfied a warrant should be issued. An accurate record of the information and material that was before the court is, prima facie, disclosable to the occupier.
Since the proceedings take place in the absence of the party whose liberties and rights are to be infringed, it is incumbent on the Police and the Court to identify the basis for the grant of the warrant. This will enable the basis to be explained to the occupier, subject to any matters of public interest immunity (PII). The occupier should be entitled to be able to assess whether an Information contains the material which justifies the issue of a warrant (R (Cronin) v Sheffield Justices [2002] EWHC 2568 (Admin)).
The recent case of Commissioner of Police for the Metropolis v Dawn B [2014] EWHC 546 (Admin) concerned a section 23 Misuse of Drugs Act 1971 search warrant, which authorized the search of Ms B’s home for materials relating to the suspected supply of heroin. The basis for the warrant, and hence content of the Information, was extensively PII material. Despite requests, the details of the material in the Information were not disclosed to Ms B or her legal representatives. The legal representatives applied to the Magistrates Court for full disclosure of the Information, or an adequate, properly particularlised “gist” of it. The District Judge heard the application, including a PII application by the Commissioner and ordered full disclosure of the Information. The Commissioner appealed by way of case stated under section 111 of the Magistrates Court Act 1980.
The Commissioner argued that there was doubt as to whether or not the Magistrates’ Court in fact has jurisdiction to hear the application and to order that the Information and the notes taken by the legal adviser be disclosed, and that clarification was needed.
The Administrative Court clarified beyond peradventure that an application for Judicial Review is not required in order to obtain a copy of the Information (redacted or otherwise). In giving its judgment the Court confirmed that “the starting point is that the Claimant is entitled to see the Information unless the public interest demands that some or all of the material relied upon should not be disclosed”. Part 5 of the Criminal Procedure Rules (CrPR 5.7) sets out the procedure to be followed where a party applies for the supply of information or documents from court records or case materials.
Where the occupier makes an application for a copy of the Information and the police object on the grounds of PII, the question whether or not to accept the PII claim is an issue for the Magistrates’ Court to consider.
While there is no statutory code regulating an application for disclosure of an Information before a Magistrates’ Court (where no criminal proceedings are instituted), the court observed that Part 22 of the CrPR provides useful guidance to what procedure should be adopted when considering an objection to disclosure of an Information on PII grounds.
CrPR 22.3(7) states that the general rule is that the court must consider representations first by the party seeking PII, then by the defendant, in open court, and then further representations by the prosecutor in the defendant’s absence. Where appropriate, this practice should be adopted by the Courts when considering matters of PII relating to search warrant Information documents, even where no criminal proceedings are instituted.
Where the entire Information will not be disclosed on the grounds of PII, a redacted copy of the Information should be provided to the Claimant in the way envisaged by CrPR 22.3(3)(b) – that being an adequate, properly particularised “gist” document. It is important that a “gist” document must not mislead and should accurately reflect that part of the material in the document which it is possible to disclose.
If disclosing: (a) what the evidence was; (b) how reliable the evidence was; or (c) what information confirmed that evidence, would pose a real risk of substantial or serious harm to an important public interest and nondisclosure is necessary for the proper functioning of that public interest, it need not be disclosed in a “gist” document.
In every case the Magistrates will be required to consider whether there is a real risk of the harm identified occurring, not whether disclosure would result in the harm identified.
In any PII application, appropriate weight must always be given to the evidence of the officer and the view of the Chief Constable (as advanced by the individual making the application). The Court must also recognize the expertise of the officer and the context in assessing whether there is a real risk of disclosure compromising the public interest. Because the Court will defer (at least to a degree) to the expertise of the officer, the duty on all officers seeking a warrant to make a full, complete and frank disclosure to the magistrates is a serious one. A breach of the duty is likely to invalidate the warrant.
In Dawn B it was held that in rejecting the public interest immunity claim the magistrates’ court had failed to properly balance the public interest in the administration of justice and in the withholding information that would be compromised by ordering disclosure, against the suspect’s interest in ascertaining why the warrant had been granted.
Practical guidance
It must always be borne in mind at the time of preparing a warrant application that, subject to any legitimate claim of PII, the occupier will be entitled to obtain a full copy of the Information from the Court. Therefore, officers should not rely on sensitive intelligence within the Information unless it is absolutely necessary to obtain the warrant. If intelligence must be disclosed to the Court, material potentially subject to PII should be provided in a separate Schedule or Annex. This will substantially simplify the preparation of a “gist” document.
The Court should be asked either to return any sensitive schedule, or to store it securely and not disclose any part of it without consulting the Chief Constable, pointing out that CrPR 5.7(6) provides that where a party requests information about a warrant the court must not permit the information to be supplied unless the person who applied for the warrant has had at least 14 days to make representations.
Retention of wrongfully seized material
In R (Panesar and others) v The Central London Criminal Court and The Commissioner for Her Majesty’s Revenue and Customs [2014] EWHC 2821 (Admin) HMRC had been investigating what appeared to be a “diversion fraud” relating to alcoholic drink and evasion of excise duty and VAT. Section 8 PACE warrants were obtained and executed. Some of the warrants were subsequently challenged and quashed by the Court of Appeal. HMRC conceded that the remainder of the warrants should be quashed. Thereafter HMRC issued an application under section 59 of the Criminal Justice and Police Act 2001. HMRC accepted that all original material seized should be returned to the Claimants but invited the Court to suspend the operation of that obligation pending the outcome of the section 59 CJPA application. The Judge ruled that there was jurisdiction to entertain the application. The Claimants challenged that ruling in the Divisional Court.
The Divisional Court considered the extent to which an investigating authority may retain copies of material obtained pursuant to search warrants quashed following execution of the same. Foskett J observed that the important, pure jurisdictional, issue that fell to be determined was a question that could have been raised directly in a number of cases in recent years, but had not been.
It was held that the Crown Court had jurisdiction under section 59 of the CJPA to consider an application by the investigating authority to retain material seized pursuant to a warrant either acknowledged to be invalid or quashed by the Court. The Court recognised that any requirement to return seized materials gave rise to a real risk that those suspected would be in a position to destroy the materials before a fresh warrant could be executed. It was regarded by the Court as “highly undesirable” that documents that might yield evidence of serious criminality should be returned to those with a clear interest in their destruction before the investigating authority had a chance to obtain a non-defective warrant; any construction of section 59 to that effect would confer a very serious advantage on those suspected of crime. Very importantly therefore, it was held that seized materials do not have to be returned before a fresh, valid, warrant is issued.
Conclusion
Whilst the emphasis must always be on obtaining and executing a valid, non-defective warrant, where a warrant is found to be invalid it should be remembered that the police will not necessarily be required to return the seized material if they are in a position to obtain a fresh, valid warrant. The decision in Panesar may subject to a further appeal in due course.
This article was first published in Police Professional.