Case No.CO/7085/2010
Royal Courts of Justice
Strand
London WC2A 2LL
B e f o r e:
LORD JUSTICE SULLIVAN
MR JUSTICE OWEN
Between:
EASTENDERS CASH AND CARRY PLC
Claimant
v
SOUTH WESTERN MAGISTRATES' COURT
Defendant
Computer-Aided Transcript of the Stenograph Notes of
WordWave International Limited
A Merrill Communications Company
165 Fleet Street London EC4A 2DY
Tel No: 020 7404 1400 Fax No: 020 7404 1424
(Official Shorthand Writers to the Court)
MR M GLOVER and MS S HAJ-JABBARI appeared on behalf of the Claimant
The Defendant was unrepresented
J U D G M E N T
LORD JUSTICE SULLIVAN:
Introduction
In this claim for judicial review the claimant challenges the lawfulness of two decisions by the defendant (a) to grant a search warrant to the interested party in respect of the claimant's premises; and (b) to refuse, at least initially, to disclose the information that was laid before the defendant by the interested party in order to obtain that warrant.
Fcatual background
The information was laid before the defendant on 23 February 2010 by Detective Constable Evans. A search warrant was sought in respect of the claimant's premises in Barking. The information described the alleged offences as:
"Possession of a firearm, contrary to section 46 of Firearms Act 1968".
The information given on oath was:
"Recent source intelligence suggests that males working as security guards at the above premises are armed with firearms. These firearms are either kept about their person or within the premises. Application is therefore made for a warrant to enter, search and seize any firearms, component parts, and ammunition".
A manuscript note was added to the information to this effect:
"Unregistered source but information corroberated by other officers".
The warrant was executed on 26 February 2010. In the event, no firearms were found and no arrests were made.
When the claimant requested a copy of the information laid before the defendant, the defendant initially refused the application. However, after a hearing on 26 April 2010, at which the defendant heard representations from the interested party but not the claimant, the defendant ordered disclosure of the information, which was eventually received by the claimant on 2 June 2010. The defendant's ruling that the information should be disclosed had been received by the claimant on 6 May 2010.
The claim form seeking judicial review of the two decisions referred to above was filed on 25 June 2010. Since the information sought by the claimant had, by that time, been provided, it is difficult to see what useful purpose could possibly have been served by the claim for judicial review in respect of the second decision. An application for judicial review might possibly have been justified if the initial refusal was evidence of some general misapprehension on the part of the defendant as to the entitlement of persons in the position of the claimant in the present case to be given copies of informations on which decisions to issue search warrants in respect of their premises had been based. However, it was plain from the ruling that this was not the case.
The interested party had objected to the disclosure of the information on PII grounds. The defendant arranged a hearing to enable the interested party to make representations so that she could decide whether the interested party's PII grounds were made out. In her ruling, dated 26 April 2010, the defendant said:
"I have considered the case law with which I have been provided and noted the representations made by the police in respect of the disclosure of the information in full. I take as a starting point the position that the complainant in this case, Eastenders Barking Limited, is entitled to have sight of the information that persuaded me to issue the warrant in the first place. I carried out the appropriate balancing exercise and considered whether the public interest demands that I withhold the information or any part of it. I am not persuaded that there is anything in the information which I received that would lead to the source of the information being identified, and thus put at risk. The company in question is a large organisation, which means there must be a large pool of potential sources of information relating to the company. The information presented makes only general reference to the source of the intelligence used by police. My view is that the information should be disclosed in full".
Thus, it can be seen that the defendant adopted the correct starting point. That is to say that the claimant was entitled to see the information unless the public interest demanded that some or all of the material relied upon should not be disclosed. The defendant then proceeded to resolve the issue in the claimant's favour.
In these circumstances it is difficult to see what possible complaint can now be made. There was clearly some confusion as to the purpose of the hearing and whether or not the claimant was required to attend. Having heard Mr Glover's submissions, it seems to me that the complaint now boils down to a complaint that the claimant was in attendance at the court but was not called on on 26 April 2010. Had the defendant's ruling been adverse to the claimant on that date, there would clearly have been considerable force in that complaint but, since the ruling was not adverse to the claimant and the defendant was able to rule effectively in the claimant's favour without calling for any representations from the claimant, the challenge to the second decision is, in my judgment, wholly academic. That position was, or should have been, clear to the claimant as from 6 May 2010, well before the claim was filed.
For my part, therefore, I would reject so much of the claim as relates to the second decision on the basis that the complaint advanced is wholly academic.
Turning to the first decision, that is to say the decision to issue the search warrant, section 46(1) of the Firearms Act 1968 provides:
"If a justice of the peace ... is satisfied by information on oath that there is reasonable grounds for suspecting (a) that an offence relevant for the purposes of this section has been, is being, or is about to be committed; or (b) that in connection with a firearm or ammunition there is a danger to the public safety or to the peace, he may grant a warrant for any of the purposes mentioned in subsection (2) below".
Those purposes include authorisation of a constable to enter premises.
In response to the contention in the claim form that there was no basis on which the defendant could have been satisfied that there was a reasonable ground for suspicion, the defendant filed an acknowledgement of service which referred to the terms of the information and said:
"The information stated that the source of the intelligence was unregistered but that the information had been corroberated by other officers. DC Evans confirmed the contents of the information under oath. The district judge asked DC Evans under oath to confirm that he was satisfied with the source of the information and, as is always her practice, she queried whether the information came from a combination of intelligence and observation. The officer replied in the affirmative. The district judge did not seek any further details, as she was satisfied on the basis of the officer's evidence that an offence relevant for the purposes of section 46 of the Firearms Act 1968 had been or was about to be committed and, by the very nature of the allegation, there existed a danger to public safety. The district judge asked the officer to confirm that the premises were commercial in nature and that requisite enquiries had been made to establish that there were no vulnerable persons likely to be adversely affected by the execution of such a warrant. The officer indicated that it was unlikely that any member of the public would be present, as access to the premises was controlled. Brief notes were made by the legal advisor of this additional information. The district judge granted the application and a search warrant was duly issued".
The legal advisor's notes are very brief. They read:
"DC J Evans (sworn). Firearms Act. Satisfied with source of information. Search of commercial trade premises. No members of public can access without card."
In his most recent skeleton argument, Mr Glover raised a new point. He submitted that whether the statutory test is "reasonable grounds for suspecting" (as in the present case) or "reasonable grounds for believing" (as in, for example, applications for search warrants under section 8 of the Police and Criminal Evidence Act 1984), there is no difference in the evidential threshold to be applied by the district judge when considering whether or not to grant a search warrant. For my part, I do not accept that submission. It is plain that a belief is more than a suspicion and that the need to have reasonable grounds for a belief imposes a higher threshold than the need to have reasonable grounds for a suspicion. See, for example, the emphasis on the need for reasonable grounds for a belief in Bright v Central Criminal Court [2001] 1 WLR 662 per Judge LJ, as he then was, at page 677H and, more recently, Windsor and others v CPS [2011] EWCA Crim 143 per Hooper LJ at paragraphs 51 to 53 and 81 to 93. The latter paragraphs emphasise the distinction between evidence which may be sufficient to support a suspicion and evidence which is sufficient to support a belief.
I readily accept, however, Mr Glover's submission that there is a two-fold test; both subjective and objective. Was the district judge satisfied that there was a reasonable ground for suspecting that an offence under the 1968 Act was being committed? And secondly, if she was, was there material before her on which she was entitled to be so satisfied?
So far as the former is concerned, I see no reason to doubt the acknowledgement of service when it says in terms that:
"The district judge did not seek any further details, as she was satisfied on the basis of the officer's evidence that an offence relevant for the purposes of section 46 of the Firearms Act 1968 had been or was about to be committed ...".
I turn, therefore, to the objective test. The information laid before the district judge is fairly described as somewhat thin. The question is: was it sufficient to enable her to be satisfied that there were reasonable grounds for suspecting that an offence for the purposes of section 46 was being committed? On the face of it, if the intelligence from the unregistered source was reliable, there were reasonable grounds for such a suspicion. The security guards at the premises were said to be armed. According to the acknowledgement of service, the district judge asked Detective Constable Evans if he was satisfied with the source of the information. I reject the claimant's submission that this shows that the district judge was not forming her own view. It is important to read the acknowledgement of service as a whole and, when that is done, it is plain that the district judge did form her own view and that satisfying herself that Detective Constable Evans was satisfied with the source of intelligence was simply a necessary pre-condition for her to be satisfied for herself. It was not, of itself, sufficient. Hence, the district judge's further question as to where the information came from. Was it a combination of intelligence and observation? A question to which Detective Constable Evans gave an affirmative answer.
Mr Glover submits that this question and the answer to it were not recorded in the notes taken by the legal adviser, but the notes are very brief, they do not purport to be a verbatim record, and I see no reason to doubt that which is said in the acknowledgement of service. That is to say, not simply that the district judge usually asked the question whether the information came from a combination of intelligence and observation, but that, as was always her practice, she queried that matter in this particular case.
Against this background, it seems to me that the district judge was entitled to be satisfied that there was a reasonable suspicion upon the basis of this, admittedly limited, information.
Mr Glover submitted that the district judge could and should have made further enquiries to ascertain the quality and extent of both the intelligence and the observation. Of course, particularly with the benefit of hindsight, knowing that when the search was executed no firearms were found and no arrests were made, one can think of more questions which could have been asked. But the threshold for reasonable suspicion is a relatively low one and, in my judgment, there was sufficient material on which the district judge could properly be satisfied that there were reasonable grounds for suspecting that an offence under the Firearms Act was being committed at the premises. The fact that more information might have been elicited by further questions does not mean that there was insufficient material before the district judge on which she could have been satisfied that the reasonable ground for suspicion threshold had been crossed.
For these reasons, I, for my part, would dismiss this application for judicial review.
MR JUSTICE OWEN: I agree, and I too would dismiss this application.
MR GLOVER: I am grateful.
LORD JUSTICE SULLIVAN: No further matters arise, I think?
MR GLOVER: No further matters arise, my Lord. I am grateful to the court for the full judgment.
My Lord, to the extent, if I can use the colloquial expression, that the tape recorders are off, I know I am going to be questioned by those in chambers who have some interest as to what view the court took on the point as to what Parliament intended when it was looking at suspicion and belief, and why there might be the difference. Because, do as I may, I have been unable to discern why policy might have differed between the Acts. I appreciate it is not a matter that is entertained in the judgment, that is why I say it is really limited to being discussion between the Bench and the Bar now.
LORD JUSTICE SULLIVAN: Yes. Well, I speak for myself entirely, but I think it would be evident from my judgment, at least for my part, I did not think it necessary or appropriate to try to ascertain what Parliament's intention may or may not have been. We simply go by the words of the Act, and a suspicion is not a belief.
MR GLOVER: It was simply a scratching of the heads and wondering whether we had misunderstood something, or there was something more special about a --
LORD JUSTICE SULLIVAN: No, no, I do not think it is for us to try to explain the vagueries of the Parliamentary draftsmen's intention in this court.
Thank you very much.