F & Ors, R (On the Application Of) v Blackfriars Crown Court & Anor

LORD JUSICE ELIAS: On 20 August 2013 at the Crown Court at Blackfriars before His Honour Judge Marron QC, the judge granted search warrants over two premises on the application of Detective Constable Parker. The warrants were sought under section 9, read with Schedule 1, of The Police and Criminal Evidence Act 1984 (PACE). They were executed simultaneously on the morning of 28 August.

The claimants brought proceedings for judicial review in relation to one of those warrants only, the warrant made with respect to a company I shall identify as FF”. The claimants are the company itself, its director MK and her husband K. They contend that for various reasons the warrant was unlawfully granted and the documents were, therefore, unlawfully seized.

This is a rolled-up hearing, the permission application and, if granted, the substantive application being heard together.

Before considering the facts of the case, I will set out the relevant legislative context. Part 2 of PACE deals with powers of entry, search and seizure. The rules are designed to ensure that a balance is obtained between, on the one hand, ensuring that citizens can properly protect their property from unnecessarily intrusive or unjustified invasion and, on the other, ensuring that the wider public interest in the effective investigation and prosecution of crime is secured: see the observations of Bingham LJ, as he was, in R v Crown Court at Lewes ex parte Hill [1991] 93 Cr. App. R. 60 at page 66.

Because the law permits such a significant interference with the liberty of the subject, the decision to authorise a search is given to a judge. As Lord Hoffmann pointed out in A-G for Jamaica v Williams [1998] AC 351 at 358, the judicial duty to ensure that the legal conditions for entering private premises are satisfied is one of high constitutional importance and requires a most careful scrutiny of the circumstances allegedly justifying the intrusion.

Section 9(1) of PACE is the power which was relied upon in this case. It is as follows:

Special procedure material is defined in section 14 PACE and includes by subsection 2:

It is common ground that the material sought in this case was, or at least included, special procedure material. Since by definition special procedure material cannot include any excluded material or legally privileged material, it follows that a warrant permitting an officer to seize special procedure material does not allow him to seize material in those other two categories.

Excluded material is defined in section 11 PACE and includes, amongst other things:

There is also a detailed definition of legally privileged material in section 10 PACE which it is not necessary to set out.

It was appreciated in this case that the search being carried out by the officers would result in their dealing with legally privileged material which would require careful consideration and exclusion from the scope of any seizure.

Section 15 PACE sets out various requirements which must be complied with when an officer applies for a warrant, as well as identifying the information which the warrant itself must specify. Section 15(1) provides that:

It requires a constable who is applying for a search warrant to specify, inter alia, the ground on which he makes the application and the statutory provision under which the warrant would be issued. By section 15(2)(c) he must identify:

This must be specified in the warrant itself, see section 15(6)(b).

When the warrant is executed, only documents authorised to be seized can be taken. A particular problem sometimes arises where potentially seizable property under the warrant is comprised in, or mixed with, other material which there is no authority to seize. This may occur, for example, where information is contained on a computer disc. The disc may contain a whole range of information and it is often difficult, without careful examination, to determine whether seizable material is contained on the disc or not.

In those circumstances, section 50 of the Criminal Justice and Police Act 2001 provides that where it is not reasonably practicable for the officer to determine on the premises which information is seizable, the officer may seize both the authorised property and that to which it is connected, which he could not otherwise lawfully seize. The separation can then be effected elsewhere.

Section 52 requires notice to be given of the exercise of that power and a written statement must be given to the occupier of the premises stating, inter alia, what items have been seized in reliance on it. There are other safeguards too provided for the benefit of the occupier of premises in these circumstances including, for example, that the material is returned as soon as is reasonably practicable.

With that brief introduction to the key legal principles relevant to this case, I turn to the facts.

The background to the application for this warrant is explained in a witness statement of DC Parker, who is an officer in the Metropolitan Police. He made the application for the warrant before the judge. There is cogent evidence that a series of fraudulent claims had been submitted to Her Majesty's Courts and Tribunal Service for the reimbursement of legal costs in circumstances where a privately represented defendant was granted a Defendants’ Costs Order following an acquittal in a criminal trial or following discontinuation of the proceedings.

The officer was informed by officials of the National Taxing Team of Her Majesty's Courts and Tribunal Service (“HMCTS”) that there were three suspicious claims in particular, relating to the cases of AT at the Central Criminal Court, NC at the Southwark Crown Court and M Ltd and others at the Reading Crown Court. There were also other cases which subsequently emerged where, again, it was suspected that there had been a similar fraud perpetrated.

Detective Constable Parker said that a claim for costs in respect of each of these cases he was investigating had been submitted by either FF or another company HK. FF provided services to solicitors firms, including a cost drafting service. They are not, it seems, a firm of solicitors as such and, indeed, their precise status and range of activities is far from clear.

Apparently the authorities first became suspicious that fraudulent claims had been made following the acquittal of one JS at the Isleworth Crown Court on 4 May 2012, following a five day trial. Some months later, the original solicitor who had dealt with the case, Ms Cheema, made enquiries of HMCTS with regard to a Defendant’s Costs Order claim. She was informed that it had been referred to the Very High Costs Case unit. The original claim had been for £15,790 and that was inflated to £159,294. The submitted claim apparently included details of costs paid to a solicitor and barrister who had, in fact, no involvement with the original case. Ms Cheema herself had been shown as a fee earner in other cases with which she had no involvement. Each claim appeared to have been submitted by the same costs draftsman, namely K.

Mr K, his wife MK and another party, SB, were the original subjects for investigation. K is believed to be the guiding hand behind FF, together with his wife. K was also involved in HK with SB, who is a solicitor. That company is no longer in business and there were civil proceedings between K and SB following the collapse of that business.

Enquiries suggested that FF was being operated from the home address of the directors. The officer said he was aware that a warrant under section 9 would be required. He also appreciated that it was likely that documents which were protected by legal professional privilege would be found amongst the documents on those premises and so the attendance of an independent barrister would be required in order to examine the files and to ensure that privileged material was not removed by the officers carrying out the search.

The information provided to the judge in the statement by Detective Constable Parker made on oath stated that there were reasonable grounds for believing that each of the matters set out in paragraphs 2(a) and (c) of the access conditions had been satisfied. As to paragraph 2(b), the information said that other methods of obtaining the material had not been tried because it appeared that they were bound to fail. He identified the relevant offence as conspiracy to defraud contrary to common law. He also contended that a further condition in paragraph 12 of the Schedule was satisfied, namely that the service of notice of the application may seriously prejudice the application. The material was then identified in the following way:

The circumstances giving rise to a reasonable belief that these various conditions were satisfied were not identified specifically by reference to each of the specified matters. It would have been preferable if they had been. Rather they were set out in general terms in the information, under the heading "Further Information". That section stated, in less detail in fact than is contained in the subsequent witness statement, how the alleged fraud came to light following the case of JS, who was acquitted following his five day trial.

The information also stated that HMCTS had identified false claims totalling over £9 million. Each claim appeared to have been submitted by the same costs draftsman, K. It was alleged that K operated FF with his wife and was a partner in HK with SB. It was stated that:

The information went on to state that the application was being made under section 9, because the companies the target of the proposed warrant were within the legal services sector and, therefore, it was likely that they would have documents in their possession which amounted to special procedure material.

The information disclosed that the listed addresses for both companies were virtual office addresses and that the business of FF was run from the home address of Mr and Mrs K. It was stated that the police only wished to search the premises on one occasion.

The information then added this with respect to legal professional privilege:

The information concluded by saying the human rights considerations had been taken into account and the officer stated:

We have seen the transcript of the hearing itself before the judge. The hearing took some six minutes, although the judge had pre-read the papers before going into court. He sought some explanation as to how it was apparently possibly to submit two bills in relation to the same claim. The judge was clearly convinced that the order should be made because he observed that the warrant was "obviously justified", later adding that he was satisfied that "the statutory criteria had been met and these orders are appropriate."

No fuller explanation for issuing the warrant was given. This was, with respect to the judge, an inadequate scrutiny of the information, although he would have been more effectively served if the information had identified the relevant material by relating it to the particular condition of which the judge had to be satisfied. The judge, in fact, gave no reasons for his conclusion.

Initially these were very wide ranging and challenged the contention that there was a reasonable belief for a number of the matters on which the judge needed to be satisfied. However, Mr Bowers has helpfully -- and, if we may say, sensibly -- narrowed the focus of this challenge.

The first ground is that the warrant was unlawfully issued because it allowed material to be seized which ought not to have been taken. In the hearing this morning, Mr Evans, counsel for the police, has in fact conceded that the warrant does indeed go further than can be permitted. He accepts specifically that the reference "any computer hard-drive or other information storage device capable of storing the above information" is too wide. There is no guarantee that the computer hard-drive or other storage device contains any of the relevant information at all. Where it does so, it is likely to contain, in addition, all sorts of material not covered by the terms of the warrant, including perhaps files on totally different subjects.

In fact, in this case various hard-drives and a USB stick were seized. Some of this material might well have been lawfully taken away pursuant to powers conferred by section 50 of the Criminal Justice and Police Act 2001, but the officers did not purport to seize material pursuant to that power. They did not give the written notice required by section 52 and none of the other safeguards were complied with. So it is admitted that this part of the warrant was unlawful.

Mr Evans contended, however, that it would be appropriate to apply a blue pencil test and effectively sever this part of the warrant from the rest of it, thereby leaving a valid core. He relied on an observation of Gross LJ in the case of Gittins v Central Criminal Court [2011] EWHC 131 (Admin) at paragraph 36 when the judge said this:

So far as counsel are aware, that is the only case where it has ever been suggested that it might be legitimate to sever the terms of a warrant and to save part of it, whilst treating the other part as invalid.

I do not see how it can be an appropriate principle to apply, at least in a case like this. The fact is that this warrant was drawn too widely. As a consequence, material was seized which ought not to have been seized. The failure to identify the material so far as was practicable meant that there was a failure to comply with the requirement in section 15 and section 15(1) dictates that the consequence of that failure is that the entry, search and subsequent seizure is unlawful.

I can see no basis for saying that the warrant is lawful with respect to some items but unlawful with respect to others. The very authority to go onto the premises seems to me to be invalidated as a result of the defect in the warrant.

In those circumstances, Mr Evans concedes that if we were against him on his severance argument then the appropriate remedy would be to quash the warrant. That, it seems to us, must be the right remedy in the circumstances of this case.

In the circumstances, it is not necessary to go into any detail with respect to the other issues which have been argued before us, but since they have been argued at some length I will make some brief observations in relation to them.

Quite independently of the provision relating to the computer hard-drive and other storage devices, Mr Bowers submitted that, in any event, the warrant was too broad and that it did not, so far as is reasonably practicable, identify the material that could be properly seized. First, he said it purported to allow excluded material and material which was subject to legal privilege. Second, it was cast in extremely broad terms relating to all correspondence, documents, case files, et cetera, with respect to particular cases; he submitted that it could not be said that all that material was either relevant evidence or was material which was of substantial value to the investigation. If he is right about that then, of course, some of the conditions in paragraph 2 of Schedule 1 were not complied with.

There is no doubt that the terms of the order do, on the face of it, allow excluded material to be seized. Mr Evans submitted that there was no reason to believe that excluded material would be likely to be found amongst the class of documents covered by the warrant. We do not accept that submission. It seems to us that where the warrant authorises seizure of material in relation to a potentially wide and varied category of criminal claims, it is perfectly possible that that material will include, for example, medical or psychiatric reports which may have a bearing on the outcome of the case.

Similarly, in relation to privileged material, there can be little doubt that it was envisaged that this would be found among the documents. Indeed, the information stated in terms that there would likely be a significant amount of material falling into this category.

It was, of course, for this reason that the officer undertook in the information to ensure that independent counsel would be present with officers executing the search to analyse that material and exclude any material subject to legal privilege. The independent counsel, Mr Stagg, made a statement in these proceedings where he explains in some detail the careful way in which he sought to evaluate the material to see whether it was properly subject to LPP or not. He also reviewed the material which was subsequently found in the computer discs and other materials which were taken away.

There has been no criticism of the way in which he carried out his task. Nonetheless, Mr Bowers says that it is not good enough to provide a procedure to ensure that legally privileged material will not be seen by the officers or seized by them. It is necessary to make it plain on the face of the warrant, both in relation to privileged material and indeed in relation to the excluded category, that documents falling into those categories fall outside the terms of the warrant.

Mr Evans, in response, submitted that this ought not to be necessary. First, section 19(6) of PACE makes it plain that an officer cannot under any circumstances seize any legally privileged material and he said that, likewise, where a warrant is issued under section 9 in relation to special procedure material, it must follow that excluded material cannot be seized because it falls out of that definition. It would have had to be the subject of a separate warrant.

We were referred to certain authorities in relation to this matter. Given that this debate is no longer central to the outcome of this case, given the concession by Mr Evans that the warrant was in any event unlawful, I do not intend to go into this in any detail. Suffice to say that in the light of the authorities, the applicant’s submission appears to be correct. The case of S, F & L v Chief Constable of the British Transport Police at paragraphs 57 to 58 is premised on the principle that if the terms of the warrant would otherwise enable excluded or legally privileged material to be taken, then it is necessary specifically to exclude those categories of material from the scope of the warrant in order for it to be lawful.

We were referred by Mr Evans to some observations of Kennedy LJ in the case of Chesterfield Justices [1999] WL 982431, and also an observation of Gross LJ in the Gittins case to which we have made reference at paragraph 36, in which it is said that it may not be necessary expressly to exclude items subject to LPP. But, as we read those cases, that is only because the terms of the warrant would not reasonably be taken to have extended to them. Once the warrant does on its face extend to them, then it seems to us that on the authorities, it would be necessary expressly to exclude them.

We recognise that in this case there has been, as we have indicated, a very careful procedure properly implemented by the police to ensure that there was no abuse of any of the principles designed to protect privileged material. But in the light of the authorities that is not enough to render the warrant legal as such, although I can see that the provision of these safeguards may well go to the appropriate relief in any case. It may be, for example, that where these safeguards are put in place, and the only error is a failure formally to exclude the material on the face on the warrant, that the remedy might simply be a declaration that there has been a failure to take that step rather than a formal quashing of the warrant itself. But that does not arise in this case.

Ultimately, the rationale for requiring these exclusions on the face of the warrant is, as has often been said, to make sure both that the officers who carry out the search know precisely what they are entitled to do, and to enable the occupier of the premises where the search is being carried out to understand the proper limits of the power of the officers.

Mr Bowers also contended that the warrant was too broad because it included the wide range of documents to which I have made reference. He submitted that these documents should have been identified with greater precision. For example, they could have been narrowed to documents relating to the taxation of defence costs. Had the documents been so described, he submits that it, in fact, would have been unlikely that any excluded or privileged material would have been caught within the scope of the documents which could then have been seized.

We reject this submission. We quite accept that there are going to be many circumstances where a broad categorisation of this kind would not be justified, but here the critical question in the investigations being carried out is whether the amounts charged for the legal work done for these defendants, who were either acquitted or whose cases were not ultimately pursued, were proper charges. It seems to me that in order to make some proper assessment of that it would not be enough simply to have the billing or taxation documents themselves, that would give no real indication of what work had been done. To say, for example, that a particular sum is claimed for producing a witness statement is of no real value unless one can see how detailed and complex the witness statement is.

I am, therefore, not minded to conclude that the category of documents identified was intrinsically too wide. This is an exceptional case, it seems to me, where the broad categorisation was justified. I would not, therefore, have considered the warrant to be unlawful on this count.

It follows that, in my view, these documents would potentially have been of substantial value to the investigation that has been carried out and they would have been potentially material evidence in any subsequent trial.

There was a further submission in relation to full and frank disclosure which Mr Bowers did not pursue and one other relevant ground which concerned the issue whether, in providing the information to the judge, the officer had taken the relevant steps to acquaint the judge properly with the relevant information identified, which the case of S,F& L says he should take. As I have indicated, it was there suggested that the information to support the reasonable belief in certain conditions must be set out and should ideally be related to each of those conditions. That was not done in this case. Mr Bowers submitted that had it been done then almost certainly it would have highlighted the fact that excluded and legally privileged material was wrongly within its scope.

In truth however, as Mr Bowers accepted, this is in substance a reiteration of his ground one argument. The first ground focuses on the error in casting the category of documents in the way in which it was. This focus is on the failure to investigate the necessary conditions in the information and it is submitted that had that been done then the errors identified in the first ground would not have arisen. That point may be well made but it is, in essence, an explanation of how it came to be that the terms of the warrant were too widely cast. Had they not been too widely cast then this, it does not seem to me, would have stood as a ground in its own right.

It follows, however, that following the concession, rightly made by Mr Evans, the warrant was unlawful and it should be quashed. Both counsel have agreed that in the light of that they should have the opportunity now to make written submissions as to what consequences should follow from that order. You will have to agree a timetable as to how that will be done.

MR JUSTICE KENNETH PARKER: I agree. I agree in particular with what my Lord has said as to the consequence of the concession made by Mr Evans. He conceded that the use of the word "capable" in the relevant part of the warrant was to permit the seizure of such device, whether or not it held relevant material. In this context the reference to material must, of course, be a reference to relevant evidence and Mr Evans conceded that the phrase was not limited to relevant evidence, but was apt to apply to all material.

As to the further submissions made by Mr Bowers, I agree again entirely with the observations made by my Lord. I would simply add that the relevant provision in Schedule 1 of PACE at paragraph 2 does appear to give rise to frequent difficulties. Paragraph 2 refers to the need that there be reasonable grounds for believing under (ii):

It is accepted that in each case there must be careful scrutiny of the terms of the warrant to determine whether or not excluded material and/or legally professional privileged material is included within the scope of the warrant. Therefore, the decision on the lawfulness of the warrant must turn in each case on the particular facts of the case, namely the context in which the warrant was issued and also furthermore the terms of the warrant itself.

In, for example, Gittins v Central Criminal Court [2011] EWHC 131 (Admin), to which my Lord has referred, the scope of the warrant did on its face appear rather broad because it related comprehensively to documentation said to be in possession of a firm who were engaged in giving advice on tax avoidance schemes. Nonetheless, and notwithstanding that special procedures were set up in that case to identify legally professional privileged material, the court was able confidently to conclude that the warrant on its true interpretation did not extend to legally professional privileged material.

By contrast, in the R (on the application of S & others), to which my Lord has also referred, the court could not reach such a conclusion where the terms of the warrant referred simply to a mobile phone and to a computer said to be in the possession of a solicitor or firm of solicitors.

I would therefore simply stress that each case does turn very much on the circumstances of the case, in both the context and the scope of the warrant.