S & Ors, R (on the application of) v British Transport Police & Anor (Rev 1)

This is the judgment of the court, to which both of us have contributed.

S is a practising solicitor and a partner in the claimant solicitors’ firm F. The claimant L is another firm of solicitors. All three claimants seek to quash search warrants issued in respect of their home (in the case of S) or professional premises (in the cases of F and L) by circuit judges sitting at Southwark Crown Court (“the Court”) at the request of the Chief Constable of the British Transport Police (“the First Defendant” and “BTP”) on, respectively, 15 May 2012 and 1 June 2012. The case raises serious issues about the proper procedure to be used when the police wish to search the premises or homes of solicitors for documents or other materials when the solicitors are acting for those who are the subject of police investigations. The present case concerns the procedures set out in section 9 and following and Schedule 1 of the Police and Criminal Evidence Act 1984 (“PACE”), which deal with applications for investigating authorities to search for and seize “excluded material” and “special procedure material”, as defined in PACE.

Blake J gave permission to the claimant L to pursue its claim for judicial review, but he refused to grant permission to S and to F to proceed. Parts of those applications were renewed before us and we granted permission. In relation to the first of the three warrants issued, (“the first warrant”), that in respect of S’s home, Mr Stephen Morley, counsel for the First Defendant made a number of concessions at the outset of the hearing before us on 21 May 2013, which resulted in him accepting that this first warrant had to be quashed. We accept those concessions and will explain below why, in our view, Mr Morley was correct to make them. The contest before us on 21 May 2013 therefore concentrated on the warrants issued in respect of the professional premises of F and L. Anonymity orders have been made in favour of each of the claimants and they remain in force. The case is therefore to be reported using initials only.

From March 2012, S and his firm F acted for MS in relation to a criminal investigation being carried out by the BTP concerning the theft of stolen rail lines from various locations. MS was a director of a company which carried on business as scrap metal merchants. During the investigation, MS had originally been regarded as a prosecution witness. However, following a further conversation between the BTP and MS resulting in amendments to his draft witness statement which had been prepared by officers of the BTP, the BTP indicated that he was to be treated as a suspect and they proposed to interview him as such.

MS agreed to attend Ebury Bridge Road police station to be interviewed on 27 March 2012. MS arrived there at 8.40 am on 27 March 2012 and met DC Collins. MS was accompanied by his solicitor, the First Claimant, S. At 10.06 am, MS was arrested by DC Collins on suspicion of conspiring to steal rail track during the period 1 January 2011 to 9 April 2011. MS was cautioned but made no reply. Thereafter MS was interviewed at 11.20 am (with S in attendance) and he gave “no comment” answers.

Prior to that interview, officers of the BTP had provided MS and S with certain disclosure. This disclosure and the questions during the interview (which referred to downloads of other suspects’ seized mobile phones, text messages, photographs from phones, media texts, call data, cell site analysis and documentary evidence) made it clear that the investigating officers regarded evidence from mobile telephones as important to their investigations. This fact is also apparent from the Information which was the basis on which the search warrant of S’s house was sought and obtained. The Information seeking the search warrant for S’s house states that, at this point of events on 27 March at the police station, “…in view of the significance of telecommunications evidence gathered [in the police investigation] a decision was made to enquire as to the presence of the phone [MS] was using when he returned to the custody desk”.

After the interview at 12.33, MS and S had a further consultation in private until 13.02. MS and S then returned to the custody desk area whereupon DC Collins asked MS if he had his mobile phone on him to which MS replied in the negative. DC Collins then informed MS that he would search him to confirm that this was the case as MS had not previously been searched.

While putting on a pair of search gloves, DC Collins had the following exchange with S:

At the end of the conversation, S handed DC Collins a mobile phone from his briefcase.

On 15 May 2012, DC Collins attended at Southwark Crown Court and applied for a warrant to search S’s home address. The warrant was sought pursuant to the procedure set out in section 9 and Schedule 1 (particularly paragraph 2 and 12(a)) of PACE. These provisions relate to applications for search warrants to obtain access to “excluded material” and “special procedure material” as defined in sections 11 and 14 of PACE. The Information sworn by DC Collins and provided to HHJ Pegden explained that the property for which the warrant was sought was “Laptops, Mobile Phones and SIM cards” and that they were wanted in connection with offences of “Attempting to pervert the course of justice” and “Concealing criminal property”. The Information explained that the application was made because S had been in possession of MS’s mobile phone at the police station on 27 March 2012, that he had retained it in his own briefcase and that he did not present it to the police whilst MS was in custody having been arrested by appointment.

We will analyse the contents of the Information further after we have explained the relevant provisions of PACE as this will make it easier to understand the significance of what was and what was not in the Information.

The warrant was issued by Judge Pegden. We were told that this was done after less than five minutes of hearing and consideration. The warrant identified the “material likely to be relevant evidence” as being “a mobile phone and a laptop computer”. At around 7am on 17 May 2012 the First Defendant’s officers attended S’s home address to execute the warrant issued by Judge Pegden. A search started at 7.13 am and it concluded at 7.20 am. During the search, S’s mobile telephone and a laptop computer were seized.

Before the search had been completed, S was arrested on suspicion of having been a party to a conspiracy to pervert the course of justice. After the search, S was taken to West Ham police station where he was interviewed and then bailed. During his interview, S said that he made an error of judgment in holding MS’s mobile telephone for him at the police station on 27 March 2012. S was asked about his “in custody notes” and he stated that he sometimes took pages out of his notebook and placed them in the client’s file.

Subsequently MS engaged the services of a different law firm, called L, to represent him. On 1 June 2012, the First Defendant’s officers applied at Southwark Crown Court for warrants to search the premises of the two solicitors’ firms F and L. The Information in support of the applications was again provided by DC Collins. The material sought was, in each case:

“[S’s] ‘in custody’ notebook/solicitors pad and any directly associated documentation relating to [MS]”.

In each case the Information stated that the property and material sought under the proposed warrant related to the offences of “attempting to pervert the course of justice” and “concealing criminal property”. The format of the Information in each case was the same and it explained that it originated from S being in possession of MS’ mobile phone at the Ebury Bridge police station on 27 March 2012 and retaining it in his own brief case. Each Information pointed out that the warrant in respect of S’s house had been executed on 17 May and that a laptop and mobile phone had been seized on that occasion. The Informations did not state what had been found in either the laptop or the mobile phone. Each Information then gave an outline of the original investigation into the theft of rail track and MS’s alleged part in that conspiracy. They set out the chronology of events on 27 March 2012 at the police station and summarised a prepared statement made by S when interviewed under caution after his arrest on 24 May 2012.. Each Information stated, at paragraph 39, that if the warrants were granted, the police would visit the premises of F first and “only if F declare that they do not have the material for which this warrant applies and a search does not locate it will [the premises of L] be visited”.

Each Information then stated that:

“Due to the nature of this investigation and the suspected/alleged involvement of the suspects concerned it is believed that the search for this property will reveal evidence pertaining to this crime. (Footnote: ¹) Police will specifically be looking for [S’] “in custody” note book/solicitor’s pad and any directly associated documentation relating to [MS]”.

Each Information then set out in turn each of the two statutory “access conditions”, without going into any detail of the facts, save to assert that there was reasonable ground to believe that the indictable offences of perverting the course of justice and entering into an arrangement (the last contrary to section 328 of POCA) had been committed.

We have read the transcript of the hearing before Judge Lorraine-Smith, which lasted 21 minutes. The judge immediately recognised the serious nature of the applications because a solicitor’s notes were being sought. The hearing proceeded by the judge asking questions of DC Collins about the background investigation (ie. that into the rail track thefts) and the events of 27 March 2012 at the police station. The judge said that he appreciated that there might be serious problems with Legal Professional Privilege (“LPP”), but DC Collins confirmed to the judge, during questioning, that it was proposed that there be a member of the Solicitors’ Regulatory Authority (“SRA”) present and also Independent Counsel when the search was carried out, who would look at the material before handing it over “to either party”: transcript page 10H. DC Collins stated that Independent Counsel would review the material given to him on the premises and ascertain whether it is “…the correct material that we are after. They are in the custody notes or the solicitor’s pad”. DC Collins stated that if Independent Counsel concluded that there was material in the documents sought that was evidence of a “criminal act” which was not subject to LPP then the matter would have to be decided by a judge. (The officer was obviously thinking of the definition of “subject to legal privilege” in section 10(1) and (2) of PACE, as to which see below).

Judge Lorraine-Smith then shortly went through the statutory requirements set out in the Information and said that he was satisfied that: (a) there were reasonable grounds for believing that the identified indictable offences had been committed; (b) there was material which consisted of “special material” and (c) it was likely to be of substantial value and that this was likely to be relevant evidence. He also said “…and for the life of me I cannot see how else you could get hold of this material”: (page 12H-13A of the transcript). He ruled that he would grant the warrants. DC Collins explained why the warrants were worded “custody notebook or solicitor’s pad and any directly associated documentation relating to [MS]” because S had said, when arrested, that he sometimes ripped pages out of his notebook to put in the file. DC Collins said that it was intended to execute the warrants that day and that a member of the SRA should be waiting at the police station so as to be in attendance during the search. Each warrant that was issued thus noted (in accordance with section 16(2) of PACE) that “the Constable may be accompanied by members of the [SRA] and an Independent Counsel”.

Later the officers noticed that an error had been made in relation to the address of the firm F. The application in respect of that warrant was renewed that afternoon, but by then Judge Lorraine-Smith was unavailable. The matter was dealt with by Judge Leonard who was provided with the same Information as the basis for the application (save for the address of the firm). We do not have a transcript of that hearing. The warrant was again granted in the same terms, including the reference to the presence of a member of the SRA and Independent Counsel. It permitted the First Defendant’s officers to search for:

“[S]’s ‘in custody’ notebook-solicitors pad and any directly associated documentation relating to [MS]”.

When each of the warrants granted by Judges Lorraine-Smith and Leonard was actually executed it was also accompanied by a further document headed “Details of Request for [F] or [L] Solicitors 14 June 2012”. Apart from the name of the firm the wording of each is identical. In the body of the document it stated that:

“We seek the in custody note book and/or solicitors pad that [S] used on the 27 March 2012 whilst he was acting as the legal representative for [MS]. If the pages are or have been removed from that book/pad then we seek those pages. We would also ask for the case file and associated documents relating to your client [MS].

As you can see we have Independent Counsel here in our presence, the items sought will be viewed in private by him in respect of any material that may fall within material subject to Legal Privilege. If any material is found of interest/relevance to our investigation then those items will be passed to us by Counsel. We the police will not be viewing any material that is subject to LPP (sic).”

A draft of this document was not shown to either Judge Lorraine-Smith or Judge Leonard at the time the applications were made to them. Nor, at the time of the applications, was there any oral suggestion that there might be a wider search beyond the items set out in the Informations. It shows that, at some stage, the officers of the First Defendant had decided to extend the ambit of the search of the premises of both F and L, but did not, apparently, tell the authorising judge of this or the reason for it.

At about 9.30 on 14 June 2012, the First Defendant’s officers attended the offices of F in order to execute the warrant granted by Judge Leonard. They were accompanied by an independent counsel, Mr Aldred, to deal with LPP issues. But there was no representative of the SRA present because the relevant person could not keep an appointment at that time. The officers and Mr Aldred were first met by S who handed them a file of papers regarding MS. The file was sealed in double sealed evidence bags and then taken away from the building for examination by Mr Aldred. He stated that because he was concerned that the file contained material subject to LPP he wanted an opportunity to consider the file carefully and felt he could not do so at the premises.

Mr Aldred subsequently examined the material, and those documents that he considered to be subject to LPP were resealed and returned to F at a later date. None of that material was viewed by police officers. It is accepted by the First Defendant that, on 14 June 2012, the First Defendant’s officers did not use the “seize and sift powers” available under sections 50 (premises) and 51 (persons) of the Criminal Justice and Police Act 2001. Those provisions are set out in Appendix 2 to this judgment.

On completion of the search record, the officers and Mr Aldred left F’s offices and went to L’s offices in Ilford, which they attended in order to execute the warrant issued by Judge Lorraine-Smith. A member of the firm L explained that he did not have the material sought. He allowed Mr Aldred to look at an electronic document, following which Mr Aldred advised the police officers that there was nothing to seize. No documentation was seized or viewed by police officers and they left the premises.

The criminal investigation into S and MS continues and on 24 October 2012 both were charged with conspiracy to pervert the course of public justice.

Part II of PACE deals with “Powers of Entry, Search and Seizure”. Section 8 grants the power to Justices of the Peace (“JP”) to authorise the entry and search of premises, but subject to various limitations. One of those, which is set out in section 8(1)(d), is that the JP must be satisfied that there are reasonable grounds for believing that the material sought upon the search “…does not consist of or include items subject to legal privilege, excluded material or special procedure material”. The phrases “subject to legal privilege”, “excluded material” and “special procedure material” all have statutory definitions, which are set out in sections 10, 11 and 14 of PACE. Part of the definition of “excluded material” refers to “personal records” which is defined in section 12. Those provisions are set out in Appendix 1 to this judgment.

By section 9(1) of PACE, if a constable wishes to obtain access to “excluded material” or “special procedure material…for the purposes of a criminal investigation” he must make an application under Schedule 1 of PACE “..and in accordance with that Schedule”. The full terms of section 9(1) are set out in the Appendix to this judgment.

It is important to note here the definition of “special procedure material” that is set out in section 14 of PACE. The relevant part of the definition, for present purposes, is that in section 14(1)(a), 14(2)(a) and 14(b)(i). The effect of those provisions is that “special procedure material” is “material, other than items subject to legal privilege and excluded material (Footnote: ²), in the possession of a person who (a) acquired it in the course of any trade, business or profession or other occupation or for the purpose of any paid or unpaid office”, and who holds that material subject “(i) to an express or implied undertaking to hold it in confidence”. Thus, it is clear that if an item is subject to legal privilege (as defined in section 10 of PACE) or is “excluded material” (as defined in section 11 of PACE), even if it is material in the possession of a person who acquired it in the course of a profession (such as that of a solicitor) and that person holds that item which is subject to an express or implied undertaking to hold it in confidence, then such an item cannot be “special procedure material” for the purposes of section 9 of PACE.

In the context of this case, the definition of “excluded material” is also relevant. For present purposes it includes “personal records which a person has acquired or created in the course of any…profession…and which he holds in confidence”: section 11(1)(a) of PACE.

Although the definition of “legal privilege” given in section 10(1) is very important on the facts of this case, it is unnecessary to set it out here: (see the Appendix for the statutory wording). However, it should be noted that section 10(2) provides that “items held with the intention of furthering a criminal purpose are not items subject to legal privilege”.

Section 15 of PACE has the marginal note “Search Warrants – safeguards”. Broadly, it stipulates that (i) the issue of a warrant under any enactment (including those passed after PACE) to search and enter premises and (ii) an entry or search of premises under a warrant ‘…is unlawful unless it complies with this section and section 16 below”. For the purposes of the present claims, the relevant provisions are section 15(1), (2), (3), (4), (5) and (6), which are set out in the Appendix to this judgment. Section 15(2)(a) states that it is the duty of the constable applying for a warrant (including one under section 9 and Schedule 1 of PACE) to state the grounds of his application. Section 15(2)(c) stipulates that it is the constable’s duty, when applying for a warrant, to identify, as far as is practicable, the articles or persons to be sought. Likewise, by section 15(6)(b), the warrant itself “shall” identify, so far as is practicable, the articles or persons to be sought. The need for precision within the terms of the warrant itself has been emphasised in a number of cases, most recently in PCJ Van der Pijl v The Crown Court at Kingston and others [2012] EWHC 3745 (Admin) at paragraphs 53, 61 and 65 in the judgment of Wilkie J. Section 16(2) states that a warrant may authorise persons to accompany any constable who is executing it. Section 16(8) stipulates that a search under a warrant may only be a search to the extent required for the purposes for which the warrant was issued.

The relevant provisions in Schedule 1 to PACE are paragraphs 1, 2, 4, 11, 12 (a) and (b), 13 and 14. These are set out in Appendix 1 to this judgment. Broadly speaking, the effect of those paragraphs is that an application to a circuit judge for a “Special Procedures” warrant will only be granted if the judge is satisfied that one or other of the two sets of “access conditions” are fulfilled: paragraph 1. It is important to note that, even then, the judge is not obliged to grant a warrant. Paragraph 1 states that if the judge is satisfied that one or other of the “access conditions” is fulfilled, he “may” grant an order under paragraph 4 of Schedule 1. The first set of these “access conditions” is set out in paragraph 2. It is the judge, not the constable, who has to be satisfied that the “access condition” relied on by the applicant is fulfilled.

There are three particular requirements which make up the first set of “access conditions”. The first requirement consists of four sub-requirements and each of those stipulates that there be “reasonable grounds for believing” that a particular matter is the case. This must mean that the judge (who is the person that has to be satisfied that the “access condition” relied on has been fulfilled) must be satisfied that the constable had “reasonable grounds for believing” that each of the four matters set out in this first requirement is the case. These matters are, broadly, first, that an indictable offence has been committed. That is self-explanatory. The second is that there is material in the premises specified which consists of or includes “special procedure material” and does not also (Footnote: ³) include “excluded material” (as defined in sections 14 and 11 of PACE respectively). As already explained above, given the definition of “special procedure material” set out in section 14(2) of PACE, this must mean that the “special procedure material” sought must be material “other than items subject to legal privilege”. The third sub-requirement is that such material is likely to be of “substantial value (whether by itself or together with other material) to the investigation in connection with which the application is made”. The fourth sub-requirement is that the material is likely to be “relevant evidence”.

The second requirement to the first “access condition” is that other methods of obtaining the material either have been tried without success; or have not been tried because “it appeared that they were bound to fail”. As to the second part of that requirement, this must mean that the judge has to be satisfied of two things: first, that other methods of obtaining the material have not, in fact, been tried. Secondly, that the reason for not trying to obtain the material by other means was that it appeared to the constable making the application for the warrant that such other means “were bound to fail”.

The third requirement of which the judge must be satisfied is that “it is in the public interest” that the material sought should be produced or that access to it should be given. In making that assessment, the judge has to have regard to two matters in particular. These are: the benefit likely to accrue to the investigation if the material is obtained; and the circumstances under which the person in possession of the material holds it.

Paragraph 12(a) of Schedule 1 provides that if a judge is satisfied that either set of “access conditions” (as set out in paragraphs 2 and 3 of the Schedule) is fulfilled and that any one (or more) of the four further conditions set out in paragraph 14 is also fulfilled (in relation to each set of premises specified in the application) then the judge may issue a warrant authorising the constable to enter and search the premises. For our purposes in this case the relevant condition in paragraph 14 is the fourth one, i.e. that “service of notice of an application for an order under paragraph 4 above may seriously prejudice the investigation”. The effect of this condition is that the judge has to be satisfied, before he can make an order for the issue of a warrant and search of premises that it is the case that service of a notice of application for an order under paragraph 4 of Schedule 1 of PACE “may” (not “would”) seriously prejudice the investigation.

As can be seen from this brief survey of the provisions of PACE relevant to the present claims, the Act seeks to reconcile two very important and obviously contrasting public interests. Bingham LJ characterised them in R v Crown Court at Lewes ex parte Hill [1991] 93 Cr App R 60, 66:

“There is, first of all, a public interest in the effective investigation and prosecution of crime. Secondly, there is a public interest in protecting the personal and property rights of citizens against infringement and invasion. There is an obvious tension between these two public interests because crime could be most effectively investigated and prosecuted if the personal and property rights of citizens could be freely overridden and total protection of the personal and property rights of citizens would make investigation and prosecution of many crimes impossible or virtually so.”

Courts have always had a vital role in ensuring that any necessary invasion in the privacy of citizens is properly controlled. The power of the judiciary to scrutinize independently the requests of officers of the executive to enter a person’s premises, search his belongings and seize his goods is a vital part of this role. Thus Lord Hoffmann explained in A-G for Jamaica v Williams [1998] AC 351 at 358 that:

“The purpose of the requirement that a warrant be issued by a Justice is to interpose the protection of a judicial decision between the citizen and the power of the State. If the legislature has decided in the public interest that in particular circumstances it is right to authorise a policeman or other executive officer of the State to enter upon a person's premises, search his belongings and seize his goods, the function of the Justice is to satisfy himself that the prescribed circumstances exist. This is a duty of high constitutional importance. The law relies upon the independent scrutiny of the judiciary (Footnote: ⁴) to protect the citizen against the excesses which would inevitably flow from allowing an executive officer to decide for himself whether the conditions under which he is permitted to enter upon private property have been met”.

PACE provides special procedures to enable searches to be carried out whilst providing the means to ensure that the rights of citizens are protected. Thus Lloyd LJ stated in Maidstone Crown Court ex p Waitt [1988] Crim LR 384 that the search powers in PACE constitute:

“…a serious inroad upon the liberty of the subject. The responsibility for ensuring the procedure is not abused lies with circuit judges. It is of cardinal importance that circuit judges should be scrupulous in discharging that responsibility”.

This echoed the approach of Lord Widgery CJ in Williams v Somerfield [1972] 2 QB 512, at 519 who observed that:

“…generations of justices have, or I would hope have, been brought up to recognise that the issue of a search warrant is a very serious interference with the liberty of the subject, and a step which would only be taken after the most mature careful consideration of the facts of the case”.

It is clear that the grant of a search warrant is in many ways a more serious step than the grant of an order for a search order (formerly an “Anton Pillar” order) by the civil courts pursuant to CPR 25.1(1)(d). First, the request of the issue of a search warrant is instigated by an agent of the state, namely the police. Secondly, unlike a search order, there is no provision by which a party subject to a search warrant can, prior to its execution, apply to have it stayed or to challenge it in any way. The fact that limited procedures are available for challenging a search warrant speedily was noted in R v Chesterfield Justices ex parte Bramley [2000] QB 576, 588. Kennedy LJ stated that, in his view, disputes on whether a particular item fell within the terms of the warrant or was subject to LPP could only be dealt with by an action for trespass to goods or proceedings for judicial review. But:

“…either course may tend to slow up a criminal investigation which should be proceeding as quickly as possible. So there would seem to be a need for a special inter parties procedure to bring the matter speedily before a circuit judge”.

No such procedure has been instituted and in the present case the challenge to the search warrants only came before us, in relation to the 15 May 2012 warrant, a year after it was granted and enforced.

A further difference with a civil search order is the fact that, unlike applications for such orders, the only document that will normally go before the circuit judge when a search warrant is sought under section 9 and Schedule 1 of PACE is the Information. The Information must therefore be drafted with scrupulous care to ensure that it contains all relevant matters, because although the Circuit Judge who must consider it will have to do so carefully and in detail, he will be relying on it to make his decision on whether to grant the warrant.

All this show that there has to be a very rigorous procedure both in preparing an Information for the application for a search warrant and also when a judge is considering it. A number of recent cases such as R (on the application of Tchenguiz) v Director of Serious Fraud Office [2012] EWHC 2254 (Admin) and R (on the application of Pijl and De Greef v Crown Court at Kingston [2012] EWHC 3745(Admin) are examples of failures to comply with the proper procedures, especially where, amongst the material sought, there might be some covered by LPP.

In relation to the Information itself, which as we say, is the sole basis upon which, ultimately, the judge will grant the search warrant, it is clear from the statutory provisions of PACE to which we have drawn attention above that it must deal with the following:

We would also re-emphasise two further points. First, as a matter of practice all hearings for a search warrant, whether for a warrant under section 8 of PACE or of the “special procedure” type, must be recorded so that there can be no dispute about what was or was not said to and by the judge. Secondly, the circuit judge making the decision leading to the issue of the search warrant must give reasons for either granting or refusing the warrant. (Sir John Thomas PQBD made the same point recently in the PCJ Van der Pijl case). The rationale for this requirement was explained by Watkins LJ in R v Southampton Crown Court ex p J [1993] Crim LR 962 quoted by Kennedy LJ in R v Crown Court at Lewes, Ex p Nigel Weller & Co (unreported) 12 May 1999:

“The [1984] Act does not require a circuit judge to give reasons when making an order inter partes or issuing a warrant ex parte for access to special procedure material… However, challenges to decisions of circuit judges which have come before this Court demonstrate, in my opinion especially as to ex parte applications, the need for this to be done. Reasons need not be elaborate, but they should be recorded and be sufficient to identify the substance of any relevant information or representation put before the judge in addition to the written information. They should set out what inferences he has drawn from the material relevant to the statutory conditions governing the content and form of the order. Where he has considered the question of legal privilege he should explain why, if he does, he has included in the order or warrant material which is prima facie privileged, or why he has excluded material as subject to privilege.”

It is readily appreciated that hard-pressed circuit judges will often have no more assistance than can be provided by a police officer, often very junior, who comes on his own before the judge to make the application. But, in the words of Kennedy LJ in the Lewes Crown Court case (page 7 of the transcript):

“The reality is that (i) the person or persons against whom an order has been made are entitled to know why it is made; (ii) the requirement to give reasons should help to ensure that a judge does, as he must, address each of the statutory requirements before making the order; and (iii) if it is necessary to review an order in [the Divisional Court], reasons will be of great importance as we will know why the judge decided as he did.”

The Information states that this was an application to search properties relating to S and MS and it stated that S was a solicitor and partner in F and MS’s appointed solicitor. It states that the application originated from the fact of S being in possession of MS’ mobile phone at the police station on 27 March 2012. It refers to the original investigation into the theft of rail track and then set out the chronology of events on 27 March 2012. At paragraph 29 it asserts that the police allege that S and MS “…entered into an agreement to prevent police from obtaining S’s phone. At best this was to limit inconvenience to S; at worst to conceal evidence, retain criminal property and pervert the course of justice”.

The Information continues by alleging that S would have been aware that the police were likely to search MS and seize his phone upon being booked into custody; that it was clear during MS’ arrest and interview that telecommunications data was one of the grounds for it and that S had signed a disclosure document which also cited the presence of phone downloads and telecommunications data as being a ground for interviewing MS. Then the Information states:

“Due to the nature of this investigation and the suspected/alleged involvement of the suspects concerned it is believed that the search of this property will reveal evidence pertaining to this crime. Police will specifically be looking for evidence of communication of this conspiracy”.

Neither “this crime” nor “this conspiracy” are identified, nor does the Information state whether “this conspiracy” is intended to refer to the alleged conspiracy to steal rail track mentioned in the body of the Information or some other conspiracy.

The Information then asserts that the warrant is necessary and proportionate and gives some reasons. Next it purports to set out the requirements of the first “access condition” set out in paragraph 2 of Schedule 1 of PACE. In relation to the first condition it states that: (i) there are reasonable grounds for believing that the indictable offences of perverting the course of justice and entering into an arrangement (the latter contrary to section 328 of POCA) have been committed. Note it does not allege that there was a conspiracy to pervert the course of justice. (ii) It states “…that there is material which consists of special procedure material or includes special procedure material and does not also include excluded material on the premises specified in this application”. (iii) This material will be likely to be of substantial value “to the investigation in connection with which the application is made”. (iv) “…the material is likely to be relevant evidence”.

The Information did not give any basis of fact for any of these assertions. It does not elaborate on any point at all. It continued by setting out verbatim the terms of paragraph 2(b) and (c) of Schedule 1 of PACE without any statement of the facts or matters on which the assertions were said to be made. The Information then said “OR” and then set out, again verbatim, the terms of paragraph 3 of Schedule 1 without any further elaboration of supporting facts or matters. The Information then continued “AND” and thereafter set out verbatim the terms of paragraph 14(a), (b), (c) and (d) of Schedule 1 of PACE, without indicating which part of that paragraph was relied on or what fact was relied on in relation to each assertion made.

The Information then ends with the statement:

“The material which this application relates to is mobile phones and laptops which are suspected to contain evidence of communication of this conspiracy. The reason being that [MS’s] phone shows communication between [MS] and [S] immediately before arriving at Ebury Bridge Police Station. Police allege this was done purposely (sic) to frustrate the police investigation and thereby pervert the course of justice”.

Again, “the conspiracy” is not identified.

Not surprisingly Mr Rupert Bowers and Ms Abigail Bright, counsel for all the Claimants, emphasised that the written material presented to the judge in the Information sets out both sets of “access conditions” under Schedule 1 of PACE without differentiating them. In other words, it was not a focused application dealing with the actual facts of the case which could enable the judge to be satisfied that the requirements at paragraph 2(a)(ii) of Schedule 1 were fulfilled.

In a witness statement, the officer involved in this case, Police Constable Collins, explained that he did not strike out any of the “access conditions” that were irrelevant because of his inexperience and because he had previously only made two special procedure applications. He stated that he himself had drafted the Information which was then read and approved by an Inspector who then signed it. That may be so, but the Information as drafted shows a total disregard for the statutory requirements, as explained by the cases to which we have referred above, that must be adhered to strictly before an Information is laid before a circuit judge on an application for a warrant under section 9 and Schedule 1 of PACE.

The grounds of challenge. These are that :

At the outset of the hearing, Mr Stephen Morley, counsel for the First Defendant, made a number of concessions which led him to accept that the warrant issued on 15 May 2012 had to be quashed. He accepted that the first set of “access conditions” were the only relevant conditions. He further accepted that those conditions could not have been satisfied because, first, there were no reasonable grounds for believing that there was “material which consists of special procedure material and does not include excluded material on [the premises]”; and, second, that the warrant should have been more tightly drafted because it was too wide and, thirdly, that the powers under section 50 of the Criminal Justice and Police Act 2001 (“the 2001 Act”) should have been used instead.

In our view, these concessions were correctly made. The items of which disclosure was being sought were a mobile phone and a laptop computer belonging to a solicitor. The officers of the First Defendant were not interested in those items of themselves. They were interested in the material to be found stored within them, that is emails, documents and text messages. Amongst that material would have been records in the form of emails, documents, and text messages that would have been acquired in the course of S’s occupation as a solicitor. Any such material would plainly have been held in confidence. Accordingly, such material would fall within the definition of “special procedure material” but could possibly comprise “excluded material”. If so, the first set of access conditions set out in paragraph 2 of Schedule 1 of PACE could not be used to obtain a warrant to search and seize such material.

Further, it must be highly likely that the material stored on the mobile phone and laptop computer of a solicitor will include items which are within the definition of being “items subject to legal privilege” as set out in section 10 of PACE. Accordingly, all such items would fall outside the definition of “special procedure materials” set out in section 14(2) of PACE. Accordingly, the first access conditions set out in paragraph 2 of Schedule 1 of PACE could not be used to obtain a warrant to search for and gain access to such material, because “special procedure material” as defined excludes items subject to legal privilege. There was never any suggestion that the relevant “items”, that is S’s mobile phone and work laptop computer were themselves “held with the intention of furthering a criminal process” and so outside the definition of “items subject to legal privilege”: see section10(2) of PACE.

If, as Mr Morley conceded, the application had to be on the basis of the first set of “access conditions” set out in paragraph 2 of Schedule 1, then, under paragraph 2(a)(ii), Judge Pegden had to be satisfied that there were reasonable grounds for believing not only that the material sought consisted of or included “special procedure material”, but also that it did not include “excluded material”.

In a witness statement of DC Collins prepared for the judicial review proceedings, he stated (at paragraph 11) that there were reasonable grounds for believing that the laptop and mobile phone might contain “relevant special procedure material ie. material which had been acquired or created in the course of S’s work as a solicitor which was held in confidence”. The officer said (in paragraph 12) that some of it was “likely to be of substantial value to the investigation and likely to be relevant evidence admissible in court”. This approach in both the Information and the witness statement discloses a number of serious errors.

First, it demonstrates a complete failure to appreciate that “excluded material” was being sought and that the “items” sought were bound to contain material subject to LPP. Second, the Information has to show in the words of paragraph 2 (a) that “there are reasonable grounds for believing… (iv) “that the material is likely to be relevant evidence”. However, as already noted, the last page of the Information merely states (with emphasis added) that “the material to which this application relates to (sic) is mobile phones and laptops which are suspected to contain evidence of communication of the conspiracy”. Suspicion falls a long way short of the requirement of “reasonable grounds to believe”. As Sullivan LJ explained in Eastenders Cash & Carry PLC v South Western Magistrates Court [2011] 2 Cr App R 11[13]:

“…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”.

Third, the Information does not deal with the requirement in paragraph 2 (b) of Schedule 1 of PACE that “other methods of obtaining the material have been (i) tried without success; or (ii) having been tried because they were bound to fail”. The Information merely recites the statutory obligation and asserts, without giving any reasons, that that there are reasonable grounds for believing that both requirements have been satisfied. In his witness statement, Police Constable Collins stated that other methods of obtaining the material had not been tried:

“since evidence might be destroyed or concealed and S was put on notice of our intention. The offence involved allegations of corruption by a solicitor”.

This is a surprising assertion. When a request was made on 27 March 2012 for the phone to be handed over, this request was complied with after a pause. S is a practising solicitor against whom no allegation of dishonesty had previously been made and who would in the ordinary course of events be expected to comply with a request from the police to hand over a document or at least not to destroy material.

In any event if there was to be an assertion that the police contemplated that if the search warrant was not issued, then the material sought might have been destroyed or concealed, it should have been included in the Information. In addition, that assessment should have been drawn to the attention of the judge dealing with the application as, in the words of Hughes LJ quoted above, the person making the application for the search warrant had to “ask himself what, if he was representing the defendant or a third party with the relevant interest, he would be saying to the judge, and, having answered that question that is precisely what he must tell”. As there was no reference in the Information to any basis on which the assertion was made, Judge Pegden could not possibly have satisfied himself of the requirement.

Fourth, the Information did not comply with the requirements in paragraph 2 (c), ie. that of considering whether:

“…it is in the public interest, having regard –(i) to the benefit likely to accrue to the investigation if the material is obtained; and (ii) to the circumstances under which the person in possession of the material holds it, that the material should be produced or that access should be given”.

This provision requires a balancing exercise to be carried out which appraises, on the one hand, the benefit to the investigation of obtaining the information against, on the other hand, the seizure of a computer with the possibility that it would contain in it a mass of “excluded material” and/or material subject to LPP, which was not concerned with the investigation and the seizure of which might well cause considerable professional disruption. The Judge’s attention should have been drawn to this point with an explanation as to why this balancing exercise should be resolved in favour of the police. Instead the Information merely set out the statutory wording without any such explanation or elaboration.

Fifth, in consequence, as we have explained above, there was a duty on the applicant police officer to ensure that full, complete and frank disclosure was made so that the judge had the fullest possible information in determining whether the statutory criteria were satisfied. This included drawing to the judge’s attention “…anything which militates against the issue of a warrant” (See, for example, R(Austen and others) v Chief Constable of Wiltshire Police and others [2011] EWHC 3385 (Admin) [26] per Ouseley J, referring back to R(Energy Financing Team) v Bow Street Magistrates Court and Director of Serious Fraud Office [2006] 1 WLR 1316). In the present case, that disclosure should have explained first, that what was being sought could include “excluded material” and was almost bound to contain material subject to LPP; second, that there was no assertion that there were reasonable grounds in respect of the material being sought “that the material is likely to be relevant evidence”, third, that there was no evidence put forward to show that “other methods of obtaining the material have been (i) tried without success; or (ii) having been tried because they were bound to fail”; and finally, that nothing was put forward to justify a conclusion that the balancing exercise had to be resolved in favour of making the search order sought.

A final defect of the procedure adopted was that, according to a transcript of the hearing in front of the judge, it appears that it only took two or three minutes before the judge reached his decision. With great respect to the judge, it does not appear as if he gave the required careful scrutiny to this application for a warrant to search the home of a solicitor for his “mobile phones and laptops” which might well contain “excluded material” or material subject to LPP. Further, with great respect, the judge should have given reasons and explained, at least briefly, which access conditions applied and why he was satisfied that they and the other statutory requirements in Schedule 1 of PACE were fulfilled.

As we have explained both the mobile phone and the laptop of S as a practising solicitor were very likely to have contained material subject to LPP. Apart from the fact that there would be “excluded material” covered by the search warrant, no provision had been made for independent counsel to scrutinise the material to check it did not contain LPP material before it was passed to the police.

For all of these reasons, Mr Morley was correct to concede that the warrant issued on 15 May 2012 must be quashed.

The Information stated that the “property and material sought [by] this search warrant relate to the offences of attempting to pervert the course of justice [and] concealing criminal property”. It stated that the property sought was“[S]’s ‘in custody’ notebook-solicitors pad and any directly associated documentation relating to [MS]”. The grounds of challenge are that:-

The case for the claimant F centres on a document headed “Details of Request for [F]”, which was supplied when the search was undertaken. It stated not merely that the purpose of the execution of the search warrant was for:

“in custody notebook and/or solicitors pad that [S] used on 27 March 2012 while he was acting as the legal representative for [MS]. If those are or have been removed from the book/pad then we seek those pages”

but it also asked for:

“…. the case file and associated documents relating to your client [MS]”.

It is not suggested that these last words were in some way a request for voluntary disclosure. The case file by its nature would contain and indeed has been found to contain material that is subject to LPP. Thus it could not be handed over voluntarily.

The First Defendant also asserts that “the wording of the warrant was capable of covering [MS’] client file, and the [First Defendant] maintains that was the case”. That is not what the warrant expressly stated: we cannot accept that this is a necessary implication of the wording of the warrant. We therefore reject this latter submission.

It is said on behalf of F that the true purpose of the warrant was to see “the case file and associated documents relating to your client [MS]” and that this purpose was far wider than what was stated in the warrant. DS Patrick Kerr, who was the officer responsible for criminal investigation that led to the applications for this warrant, has explained that:

“we wanted to recover all documentation which might assist with identifying whether there was an agreement to conceal any property. At the same time we did not want to take more than was necessary”.

The case for F is that the search warrant issued in respect of F failed to comply with the statutory safeguards for search warrants and in particular section 15(2) (c) of PACE which states that: “where a constable applies for any [search] warrant it shall be his duty - …(c) to identify, so far as is practicable, the articles or persons to be sought”. Section 15(6) of PACE provides that the warrant “…(b) shall identify, so far as practicable, the material to be sought”. Further, section 16(8) stipulates that a search under a warrant “…may only be a search to the extent required for the purpose for which the warrant was issued”.

The effects of a failure to comply with the provisions of section 15 and 16 of PACE are spelt out in section 15(1):

“This section and section 16 have effect in relation to the issue to an appropriate officer. ..of a search and seizure warrant …and an entry on or search of premises under such warrant is unlawful unless the warrant complies with this section and is executed in accordance with section 16 below.”

In our view it is quite clear from the “Details of Request” document that the purpose of the warrant was to go far beyond what was expressly stated on it and, in fact, it was seeking many more documents, indeed all the documents held by the firm F that related to MS in all his activities. If, as appears to be the case, the First Defendant wanted to have access to the client and case file of MS, then the judge should have been explicitly told of this so he could fulfil his statutory duty. Judge LJ, as he then was, explained why this is so in R (Bright) v Central Criminal Court [2001] 1 WLR 662 at 667:-

“in my judgment, it is clear that the judge personally must be satisfied that the statutory requirements have been established. He is not simply asking himself whether the decision of a constable making the application was reasonable nor whether it would be susceptible to judicial review on Wednesbury grounds… This follows from the express wording of the statute,’If …a circuit judge is satisfied that one… of the sets of access conditions is fulfilled’. The purpose of this provision is to interpose between the opinion of the police officer seeking the order and the consequences of the individual or the organization to whom the order is addressed the safeguard of a judgment and a decision of a circuit judge”.

Another way of putting the same point is that the applicant must give full and complete and frank disclosure. That means doing the exercise identified by Hughes LJ (as he then was) in Re Stanford International Limited [2010] 3 WLR 941 which we have already quoted above.

In the light of what was stated in the written “Details of Request”, the judge clearly was not told what was really being sought and there was an attempt to search beyond the extent required for which the warrant was issued. Accordingly, given the terms of section 15(1) of PACE, the issue of the warrant was unlawful and it must be quashed.

The claimant F makes two criticisms under this head. The first is that the sub-requirement in paragraph 2(a)(iii) of Schedule 1 was not satisfied, viz. that there were not reasonable grounds for believing that the material sought was likely to be of substantial value (by itself or with other material) to the investigation in connection with which the application was made.

The claimant’s argument is that this sub-requirement has to be considered in the light of the fact that the execution of this warrant was as a part of the investigation concerning an alleged offence of attempting to pervert the course of justice and concealing criminal property, ie. in relation to S’s failure immediately to hand over MS’ mobile phone at the police station when asked. However, nothing was stated, in the Information or otherwise, to show whether and, if so, how the information sought by this warrant would add anything to what had been found on the mobile phone handed over on 27 March 2012. Secondly, it did not suggest that there was anything that had been discovered as a result of the execution of the search warrant in respect of S’s home which required this further warrant to be executed. Thus, it is argued, there was no stated basis for a reasonable belief that anything could be found in the police station notes of S or any other documentation that could be regarded as “likely to be of substantial value to the investigation in connection with which the application is made” ie. the alleged offences of perverting the course of justice and concealing criminal property.

The response of the First Defendant is that the notes made by S were likely to be of substantial value to the investigation because they may have contained reference to the holding of MS’s phone or other evidence of a conspiracy. To our mind it is fanciful to imagine that if S and MS had truly been involved in a conspiracy to pervert the course of justice by S keeping MS’s mobile phone from the police this is something that would, either directly or indirectly, be adverted to in his police station notes or in other documentation he had.

The onus is on the applicant to explain how this sub-requirement is satisfied, but this has not been done. In the circumstances of this case, this omission must be fatal to the case for the First Defendant.

The second criticism is that the third main requirement in paragraph 2(c) of Schedule 1 of PACE, was also not satisfied: viz. that granting the application for the search warrant:

“... is in the public interest, having regard - (i) to the benefit likely to accrue to the investigation if the material is obtained; (ii) to the circumstances under which the person in possession of the material holds it,- that the material should be produced whether access to it should be given”.

The First Defendant’s argument is that it was in the public interest for access to be given to the First Defendant’s officers to the premises of F, so that they could investigate whether or not a serious criminal offence had been committed by a solicitor, S. However, this contention has to be considered against the background of what had been already been obtained by the police from S. We are unable to see any particular benefit in the public interest especially when the police knew S had held MS’s phone during the interview and the retention of the phone must in itself have been aimed at ensuring that the police did not get their hands on it. To that extent S was already implicated in the alleged offences of attempting to pervert the course of justice and concealing criminal property. It is difficult to see what further benefit could have been obtained, especially as no ground for this search being in the public interest was given and none was stated by the judge who granted the application. This is another ground for setting aside the warrant.

The warrant was issued with the intention that independent counsel, Mr Aldred, would be present at the time of the search for the purpose of dealing with issues of LPP. Mr Morley accepted that the client file was not examined at F’s offices but, instead, the file was taken away. This was done without recourse to the powers given to those who have a lawful right to be on premises to search by section 50 of the Criminal Justice and Police Act 2001 (“the CJPA”). That section gives a person, (who is lawfully on premises and who finds something which he has reasonable grounds to believe may contain something for which he is authorised to search), the power to seize that material and remove it from the premises to determine whether the material is something he is entitled to seize, provided that this exercise cannot be reasonably practically done at the premises.

In fact the attendance of Mr Aldred did nothing to safeguard LPP material as he deliberately took away the whole file. The reason given for that by the First Defendant’s solicitors on 24 July 2012 was the “need to consider the contents in detail and with great care”. It was apparently anticipated that the whole exercise would take many hours and it would need to be conducted in private but that such a process could not be conducted at the premises of F. However, the evidence of the claimants is that the file in question was very slim and it seems that there is no reason why it could not have been examined and, as necessary, sifted at the premises of F. The fact of Mr Aldred’s presence and his decision that he must take away the file in order to see whether it contained any items subject to LPP is also evidence of the fact that the First Defendant’s officers must have appreciated all along the likelihood that the material they sought would contain “items subject to legal privilege”, which would take the material seized outside the definition of “special procedure material” as set out in section 14(1) and (2) of PACE. Mr Morley therefore has to accept that the seizure and removal of the client file without reliance upon section 50 or 51 of the CJPA went beyond that which was authorised and so must be unlawful.

We think that it is particularly unfortunate that the sifting process did not take place at the premises of a solicitor’s firm, F, with a representative of the firm being invited to be present. As Kennedy LJ explained in the case of R v Chesterfield Justices ex parte Bramley [2000] QB 576, 586 E, “the owner of the material or his representative should have a right to be present when the sorting takes place”. This remark seems particularly apposite when a solicitor’s premises were being searched for material relating to his work and clients.

The grounds of challenge are that:

As we have explained, paragraph 12 of Schedule 1 of PACE requires that, in addition to one or other of the “access conditions” being satisfied, before a warrant can be granted, the circuit judge must also be satisfied that one or other of the further conditions set out in paragraph 14 of Schedule 1 is fulfilled. The further condition relied on in the application for the warrant in the case of L is that in paragraph 14(d), which states:

“(d)

that the service of an application for an order under paragraph 4 above may seriously prejudice the investigation.”

An order under paragraph 4 o f Schedule 1 requires the person against whom the order is sought to produce to a constable, for the constable to take away, or to give the constable access to, the particular material to which the application made relates, in both cases no later than 7 days from the date of the order, or at the end of such longer period as specified in the Order. In other words, paragraph 4 trusts the recipient of the order to hand over the material to which the application relates. The way that the circuit judge has to take account of paragraph 14(d) was considered by the Divisional Court in R (Faisaltex Limited) v. Preston Crown Court [2009] 1WLR 1687. Keene LJ gave the judgment of the court. At paragraph 49 he said:

“We have concluded that there was no rational basis upon which the judge could have concluded that use of the paragraph 4 process of a production order might seriously prejudice the investigation. There was simply no evidence on which he could be satisfied that the condition in paragraph 14(d) was met. Since paragraph 12(a)(ii) required him to be satisfied that one of the paragraph 14 conditions was met, and (d) was the only one relied upon, it follows that he had no power under Schedule 1 to issue the search warrant in respect of Hill Dickinson's premises. This seems to us to be a clear case of the unlawful issuing of a search warrant, and in those circumstances we are not prepared to allow the claimants' failure to issue proceedings promptly to stand in their way. For that reason we shall grant permission to seek judicial review of the Hill Dickinson warrant and deal with the matter as a substantive judicial review application.”

In short, there has to be evidence on which to found a rational basis on which the circuit judge can be satisfied that the use of the paragraph 4 process might (not “must” or “will” or “would”) seriously prejudice the relevant investigation.

The case for the First Defendant is that, in this case, the service of a notice of an application for an order under paragraph 4 of Schedule 1 of PACE for production of the material sought would have reached the threshold that it “may seriously prejudice the investigation”. For these purposes “the investigation” must be that concerning the alleged offence of perverting the course of justice or concealing criminal property by S retaining MS’ mobile phone. It cannot be the background investigation into the theft of the rail track.

Reliance is placed on the witness statement of Detective Sergeant Kerr of the BTP, dated 15 May 2013. He has explained that when the warrant was executed against the firm F, S informed the officers of the BTP that MS’ case had been transferred to the firm L and documentation had been sent to L, although he (S) still had MS’ case file on his desk. DS Kerr said he did not know what documentation had been sent to L or whether any of it was relevant to “the investigation”. He said that a production order (under paragraph 4 of Schedule 1 of PACE) was never considered against L, save in a brief conversation. Paragraph 10 of his witness statement continued:

“It would have alerted L and perhaps others to our intentions. We were investigating serious allegations involving a solicitor, S. We did not know S was associated with D (sic) from L and why the case had been transferred to L. Although there was no evidence indicating that L were involved with any criminal activity there was no evidence confirming they were not. If the warrant had not been executed against L there was no way of knowing whether incriminating evidence might not have been lost”.

DS Kerr therefore decided that the warrant should be executed after S had confirmed documentation had been transferred to L. The only basis for contending that the “service of an application for an order under paragraph 4 above may seriously prejudice the investigation” was that nothing was known about L.

In our view, there neither was at the time of the application for the warrant, nor is there now, any evidence whatsoever that L had acted in any suspicious way or that it would not comply with an order under paragraph 4 of Schedule 1. No evidence was provided in the Information or orally by DC Collins to Judge Lorraine-Smith which could provide him with a rational basis on which to be satisfied that to serve L with notice of an application for an order under paragraph 4 “may seriously prejudice the investigation”. In those circumstances, we must conclude that paragraph 14(d) of Schedule 1 was not satisfied.

A further matter of concern is that Judge Lorraine-Smith may have been left with the view that the officers of the First Defendant had some suspicions about the honesty of the firm L simply because it had been instructed to act for MS. But, as Keene LJ said in the Faisaltex case (at paragraph 47):

“A solicitor is not to be regarded as someone tainted and unreliable because, for example, he acts for someone charged with or convicted of a criminal offence”.

We have already pointed out that there is a duty of full and complete and frank disclosure on the part of the applicant for a warrant. This means that the applicant should have stated in the Information that, (as is confirmed by DS Kerr’s statement) there was no evidence to suggest that L had acted dishonestly or might do so in a manner that might seriously prejudice the investigation into the alleged offence of perverting the course of justice if served with a paragraph 4 notice.

The basis of this ground is that Judge Lorraine-Smith was told at paragraph 39 of the written information laid in relation to the warrants for both F and L that: “Police will visit [F] first, only if [F] declare they do not have the material for which this warrant applies and a search doesn’t locate it will [L] be visited”. The judge issued the warrants on the basis of those statements. In other words, the condition precedent to searching L’s premises required the police to consider first if all the documents “for which this warrant applies” were at F’s premises. However, according to the First Defendant’s initial response to the claimant’s application for judicial review: “…it was important that both warrants were executed at the same time to avoid the possibility of frustration”.

As already noted, the statement of DS Kerr says that when the warrant was executed against F, S informed them that MS’s case had been transferred to L and documentation had been sent to L yet he (S) still had MS’s case file on his desk. DS Kerr said he did not know what documentation had been sent to L or whether any of it was relevant to the investigation so, he said, “…it would have been remiss of me if I hadn’t sought documentation from L and I would have been criticised for this omission”. This does not appear to grasp the exceptional nature of a “special procedure” search warrant and the need to comply strictly with the requirements and the conditions on which one is granted.

When F’s premises were searched, the whole of MS’ case file was taken away and it was not examined on the premises. F did not declare that it did not have the material “for which this warrant applies”. Indeed, at the time that the warrant for the search of L’s premises was executed, the officers of the First Defendant did not know whether the file they had seized (lawfully or otherwise) contained the material “for which this warrant applies” or whether the search at F’s premises had not located it. So neither of the conditions for the execution of the warrant against L had been fulfilled at the time that it was, in fact, executed.

The last ground relied on by the claimants is the judicial failure to give reasons when granting the warrants.

Judge Pegden gave no reasons for granting the warrant on 15 May 2012. He should have done so. If he had done so and had, briefly, considered all the relevant requirements in Schedule 1 and sections 15 and 16 of PACE, the present proceedings might well have been avoided.

As for the 1 June 2012 warrants, Judge Lorraine-Smith considered the written Informations placed before him with care, and he was conscious of the serious nature of the application because a solicitor’s notes being sought, and also the need for precaution relating to LPP material. DC Collins told the judge that a representative of the SRA would be present when the warrants were executed, although, in fact, no representative of SRA was present when the warrants were executed. DC Collins also told the judge that independent counsel “would be in attendance, will review any material which is given to them on the premises, and ascertain whether it is the correct material we are after”. The officer explained to the judge that the procedure would be that if those materials were deemed relevant it would be considered by a judge. This reassured Judge Lorraine-Smith, as did the fact that the sifting process would take place at the solicitors’ premises and items subject to privilege would either be left or placed before a judge.

Judge Lorraine-Smith could not have anticipated that by the time the warrant was executed, its ambit would have been unilaterally extended by an additional document entitled the “Details of Request” to encompass seizure of the entire case file, or that the sifting would not take place on the premises, meaning that LPP material would be taken away. So he could not have anticipated that the warrant as issued would be (or might be) regarded as covering that additional material and sanctioning that procedure.

Judge Lorraine-Smith did not give formal reasons for the grant of the warrants in the cases of F and L, but it is clear from the transcript that he did consider the applications carefully. In those two cases, the allegation of a lack of reasons cannot sensibly be made. Of course, if the judge had been told that no sifting would take place on the premises of F and that the Detail of the Request document would be served on both F and L, extending the ambit of the warrants granted, his conclusions may have been different and he may have refused the applications. But we cannot tell.

For the reasons given, we grant permission to S and L to proceed with their claims on the grounds inidicated. Each of the three warrants must be quashed.

We have been told that the officers involved in these three applications for “special procedure” search warrants and in executing them did not seek legal advice before drafting the Informations or making the applications. It is not apparent that they did so during the execution process either. We feel bound to say that the facts of the whole process suggest a lack of proper supervision. Applications for “Special Procedure” search warrants under PACE, especially when they involve documents held by solicitors, which are more than likely to contain material subject to LPP, require considerable care. In our view police officers and other investigating authorities would be very well-advised to seek legal advice before drafting Informations and before making applications in this type of case. The present case shows a most unfortunate and almost cavalier disregard of the carefully worked out statutory scheme.

In the bundle provided for the hearing of these claims each of the Informations was redacted in certain paragraphs. In the case of all three there were redactions of the whole of paragraphs 3-6 and (the same) part of paragraphs 15, 22 and 26. In the cases of F and L there were also redactions to part of paragraph 36 and the whole of paragraph 37 of those two Informations. It would appear, judging by the context in which the redactions appear, that most relate to the underlying case concerning the theft of the rail track, but those at paragraphs 15, 22, (and in the cases of F and L) 36 and 37 could well relate to facts concerning the alleged conspiracy to pervert the course of justice.

In the initial Pre-Action Protocol letter dated 22 May 2012 from the solicitors acting for the claimants to “The Justice Directorate” of the BTP, copies of all three Informations were sought. Copies were provided, in a redacted form, under cover of a letter dated 24 July 2012 from the solicitors instructed by the First Defendant. No explanation was given as to the reason for the redactions.

It is accepted by the claimants that the redacted portions of the Informations do not appear to be relevant to the present claims. However, whilst the draft judgment was being finalised we asked if counsel could explain why the copies of the Informations provided to the claimants had been redacted and on what basis that had been done. We were informed by Mr Morley, counsel for the First Defendant, that the redactions were made to the documents shortly before they were sent to the Claimants and that the redactions were made at the request of the police officers who were involved in the continuing criminal investigations in order “not to prejudice those ongoing investigations”. It was further stated that:

“the information redacted contained information about the investigations that police officers considered could prejudice the ongoing investigations and which was in any event irrelevant to the issues in the judicial review application that was [then]being threatened”.

Mr Morley also informed us that there were no questions about the redactions from the solicitors acting for the claimants and so the copies supplied to the claimants were used to prepare the court bundle. He confirmed that at no stage had the First Defendant applied to any court for an order that the Informations or part of them be subject to an order to withhold disclosure or production on the ground that to do so would damage the public interest. So the issue of Public Interest Immunity (“PII”) was at no time raised.

Mr Bowers, responding for the claimants, commented that it is common for redactions to be made in the case of continuing investigations when there remains “operational sensitivity” over parts of the material contained in an Information. He said that the same may be true of parts of the transcripts of a hearing before the judge to whom the application is made for the search warrant. He pointed out, however, that it is unusual for such sensitivity to remain once charges have been brought. In this case those charges had been made in October 2012, both in relation to the allegation of perverting the course of justice and the main allegation against MS and others concerning theft of the rail track.

It is obvious that, in these cases, the First Defendant had to give disclosure voluntarily of the three Informations. If they had not done so there would, inevitably, have been a disclosure application. A party (or potential party) to judicial review proceedings who produces documents that are relevant to those proceedings, whether voluntarily or as a result of an order for disclosure, has no right unilaterally to make redactions to them. If a party wishes to make redactions to those documents then they have to be justified. The same is true for the transcripts of any hearings before the judge upon an application for a search warrant. In the public sphere, generally speaking, the only basis on which redactions to documents or transcripts can be justified is that disclosure would damage the public interest, so the document or the relevant parts should be subject to a PII order. The procedure for obtaining a PII order is laid down in CPR Pt 31.19. That procedure could and should have been followed in this case.

There must not be unilateral redaction by the police or relevant investigating authority of a part of an Information that is disclosed to the claimant either before or during judicial review proceedings concerning the grant or execution of a search warrant. The same must be true of the transcripts of hearings before the judge who granted the search warrant. If PII is thought to be required for parts of an Information or parts of a hearing before the judge, it must be sought using the correct CPR procedure.

Special provisions as to access.

A constable may obtain access to excluded material or special procedure material for the purposes of a criminal investigation by making an application under Schedule 1 below and in accordance with that Schedule.

Meaning of “items subject to legal privilege”.

Subject to subsection (2) below, in this Act “items subject to legal privilege” means—

Items held with the intention of furthering a criminal purpose are not items subject to legal privilege.

Meaning of “excluded material”.

Subject to the following provisions of this section, in this Act “excluded material” means—

A person holds material other than journalistic material in confidence for the purposes of this section if he holds it subject—

A person holds journalistic material in confidence for the purposes of this section if—

Meaning of “personal records”

Meaning of “special procedure material”.

In this Act “special procedure material” means—

Subject to the following provisions of this section, this subsection applies to material, other than items subject to legal privilege and excluded material, in the possession of a person who—

Where material is acquired—

Where material is created by an employee in the course of his employment, it is only special procedure material if it would have been special procedure material had his employer created it.

Where material is created by a company on behalf of an associated company, it is only special procedure material if it would have been special procedure material had the associated company created it.

A company is to be treated as another’s associated company for the purposes of this section if it would be so treated under [section 449 of the Corporation Tax Act 2010].

Search warrants—safeguards.

This section and section 16 below have effect in relation to the issue to constables under any enactment, including an enactment contained in an Act passed after this Act, of warrants to enter and search premises; and an entry on or search of premises under a warrant is unlawful unless it complies with this section and section 16 below.

Where a constable applies for any such warrant, it shall be his duty—

An application for such a warrant shall be made ex parte and supported by an information in writing.

The constable shall answer on oath any question that the justice of the peace or judge hearing the application asks him.

A warrant shall authorise an entry on one occasion only unless it specifies that it authorises multiple entries.

A warrant—

Execution of warrants.

A warrant to enter and search premises may be executed by any constable.

Such a warrant may authorise persons to accompany any constable who is executing it.

Entry and search under a warrant must be within three months from the date of its issue.

Entry and search under a warrant must be at a reasonable hour unless it appears to the constable executing it that the purpose of a search may be frustrated on an entry at a reasonable hour.

Where the occupier of premises which are to be entered and searched is present at the time when a constable seeks to execute a warrant to enter and search them, the constable—

Where—

If there is no person who appears to the constable to be in charge of the premises, he shall leave a copy of the warrant in a prominent place on the premises.

A search under a warrant may only be a search to the extent required for the purpose for which the warrant was issued.

A constable executing a warrant shall make an endorsement on it stating—

A warrant shall be returned to the appropriate person mentioned in subsection (10A) below—

A warrant which is returned under subsection (10) above shall be retained for 12 months from its return—

If during the period for which a warrant is to be retained the occupier of premises to which it relates asks to inspect it, he shall be allowed to do so.

If on an application made by a constable a judge is satisfied that one or other of the sets of access conditions is fulfilled, he may make an order under paragraph 4 below.

The first set of access conditions is fulfilled if—

An order under this paragraph is an order that the person who appears to the judge to be in possession of the material to which the application relates shall—

Where notice of an application for an order under paragraph 4 above has been served on a person, he shall not conceal, destroy, alter or dispose of the material to which the application relates except—

If on an application made by a constable a judge—

A constable may seize and retain anything for which a search has been authorised under paragraph 12 above.

The further conditions mentioned in paragraph 12 (a)(ii) above are—

Additional powers of seizure from premises

Where—

Where—

The factors to be taken into account in considering, for the purposes of this section, whether or not it is reasonably practicable on particular premises for something to be determined, or for something to be separated from something else, shall be confined to the following—

Section 19(6) of the 1984 Act and Article 21(6) of the Police and Criminal Evidence (Northern Ireland) Order 1989 (S.I. 1989 1341 (N.I. 12)) (powers of seizure not to include power to seize anything that a person has reasonable grounds for believing is legally privileged) shall not apply to the power of seizure conferred by subsection (2).

This section applies to each of the powers of seizure specified in Part 1 of Schedule 1.

Without prejudice to any power conferred by this section to take a copy of any document, nothing in this section, so far as it has effect by reference to the power to take copies of documents under section 28(2)(b) of the Competition Act 1998 (c. 41), shall be taken to confer any power to seize any document.

Where—

Where—

The factors to be taken into account in considering, for the purposes of this section, whether or not it is reasonably practicable, at the time and place of a search, for something to be determined, or for something to be separated from something else, shall be confined to the following—

Section 19(6) of the 1984 Act and Article 21(6) of the Police and Criminal Evidence (Northern Ireland) Order 1989 (S.I. 1989 1341 (N.I. 12)) (powers of seizure not to include power to seize anything a person has reasonable grounds for believing is legally privileged) shall not apply to the power of seizure conferred by subsection (2).

This section applies to each of the powers of seizure specified in Part 2 of Schedule 1.