IN THE MATTER OF AN APPLICATION FOR JUDICIAL REVIEW
Royal Courts of Justice
Strand, London, WC2A 2LL
Before :
LORD JUSTICE ELIAS
MR JUSTICE OUSELEY
Between :
THE QUEEN ON THE APPLICATION OF (1) DAVID MILLS AND (2) ALISON MILLS | Claimants |
- and - | |
(1) SUSSEX POLICE (2) SOUTHWARK CROWN COURT | Defendants |
Mr Tim Owen QC and Mr Mark Summers QC (instructed by Stokoe Partnership) for the Claimants
Mr Martin Downs (instructed by Sussex Police) for the First Defendant
Hearing date: 5 June 2014
Judgment
Lord Justice Elias :
David Mills, the first claimant, faces charges of corruption, fraudulent trading, and money laundering. It is alleged that he conspired with others to corrupt an officer of the Halifax Bank of Scotland over a period of more than ten years to secure certain contracts for his company, Quayside Corporate Services.
The second claimant, his wife Alison Mills, is alleged to have been a party to the money laundering only. There are a number of other individuals who face similar charges arising out of these matters, but they are not concerned with this application.
This judicial review application relates to a search and seizure warrant which was issued by the Southwark Crown Court on 11 June 2013 (“the search warrant”) and executed at the claimants’ home address, which is also their business address. A large quantity of material was seized under the warrant and pursuant to the power conferred by section 50 of the Criminal Justice and Police Act 2001 (“the 2001 Act”). The claimants contend that the warrant was unlawfully issued and the documents therefore wrongly taken. They seek a return of all materials seized, plus any copies, and declarations of unlawfulness, together with damages and costs.
Background
The successful application was made by the Sussex Police South East Regional Organised Crime Unit. The application was made under sections 352-353 of the Proceeds of Crime Act 2002 Act (“the 2002 Act”). Section 352 requires the warrant to be for the purposes of a confiscation investigation. This is defined by section 341 as “an investigation into whether a person has benefited from his criminal conduct or the extent or whereabouts of any such benefit.” This goes beyond the restraining or identifying of current assets. It also encompasses identifying the sources of such assets, and other assets which may have been disposed of before current assets were restrained. So potentially a wide range of documentary material may need to be seen.
The first claimant had been arrested and interviewed on 1 October 2010 in respect of these matters. He answered questions and was subsequently bailed. His home, which is the subject of the search warrant, was extensively searched at that time by the police and a detailed record was made of its contents.
The confiscation investigation was conducted alongside the criminal investigation. It was at that time under the auspices of the Thames Valley Police Assets Recovery Unit (although the CPS Proceeds of Crime Unit in fact acted on its behalf).
As part of that investigation, on 16 November 2010 a restraint order was obtained ex parte from the Southwark Crown Court pursuant to section 40 of the 2002 Act. The application lodged by the police to obtain that order stated in terms, with respect to the first claimant:
“There appears to have been no attempt to dissipate assets since the date of his arrest.”
The restraint order did not apply to all assets of the claimants. It identified specific assets and chattels only. This was a deliberate decision by the police, as the application for the restraint order made clear, because it was the early stages of the investigation and it was recognised that a full restraint order may have damaged the claimants’ legitimate business and therefore been disproportionate. The order was served on the claimants on 19 November 2010.
When the restraint order was granted on 16 November, the court also imposed a wide disclosure obligation which took effect as part of the order. Indeed, the CPS justified this in part on the basis that the restraint order itself was of narrow ambit and therefore the CPS was entitled to know the extent and whereabouts of the claimants’ assets not subject to the order. This obligation was, by agreement, subsequently limited to providing details of assets of over £5000. The first claimant provided a full written disclosure of these assets on 21 January 2011 and he gave further information on 31 January 2011 in accordance with the terms of the extended restraint order.
The claimants through their solicitor assert - and this has not been disputed - that they have at all times co-operated with the investigation, including providing voluntary disclosure about certain of their assets and business activities. They have been in regular and open correspondence with the CPS Proceeds of Crime Unit concerning their dealings not only with respect to the restrained assets, but also the unrestrained assets. For example, they have notified the police about when there has been refinancing of property; the sale of certain restrained cars and replacement vehicles; the granting of further tenancies in respect of restrained properties; and a proposed sale of certain restrained shares. Moreover, the restraint order was extended ex parte on 19 January 2011 to encompass further assets, namely the proceeds of certain share sales, although the police were still not seeking to impose an all assets restraint.
Throughout this period the conduct of the confiscation investigation had been conducted by the Thames Valley Police. However, it was transferred to the Sussex Police on 23 April 2013. This change of responsibility appears to have been a trigger for the application for the search warrant.
The statutory provisions
There are various methods by which the police may obtain evidence from defendants to pursue confiscation proceedings. A voluntary request may exceptionally suffice but usually some form of compulsion will be necessary. By section 345 of the 2002 Act the police may obtain a production order against the subject of a confiscation investigation, although the order must be sought “in relation to material or material of a description specified in the application”. It must therefore be possible to “specify” the material sought, although precisely what degree of particularity that requires remains somewhat opaque. The order may either require the subject of the application to produce the material for the appropriate officer to take it away, or to give the appropriate officer access to the material (section 345(4)). If the production order is of the latter kind, it may be reinforced with an order to grant entry under section 347. The effect of an order under that section is to require the subject to allow the appropriate officer onto the premises.
The search and seizure warrant issued pursuant to section 352 is the most intrusive of the orders available to the police. The police can enter the premises and seize material without consent and even without the subject being present.
Given the serious infringement of liberties involved in executing such a warrant, Parliament has required stringent conditions to be satisfied before the warrant is issued.
By section 352(1) a judge may issue a search and seizure warrant on the application of an appropriate officer “if satisfied that either of the requirements for issuing the warrant is fulfilled”. Certain matters must be expressly stated in the application before the warrant can be granted to satisfy the court that there is a proper basis for the application: section 352(2) and (3).
The requirements referred to in subsection (1) are specified in subsection (6). They are as follows:
“(6) The requirements for the issue of a search and seizure warrant are —
(a) that a production order made in relation to material has not been complied with and there are reasonable grounds for believing that the material is on the premises specified in the application for the warrant, or
(b) that section 353 is satisfied in relation to the warrant.”
Subsection (6)(a) was not applicable here because no production order was ever sought. The police relied upon subsection (6)(b). Therefore it was necessary for section 353 to be satisfied in relation to the warrant. Section 353(1) is as follows:
“(1) This section is satisfied in relation to a search and seizure warrant if—
(a) subsection (2) applies, and
(b) either the first or the second set of conditions is complied with.”
Subsection (2) requires, inter alia, that there must be reasonable grounds for suspecting that the person specified in the application for the warrant has benefited from criminal conduct or, in the case of money laundering, has committed a money laundering offence. It is not disputed that these conditions are satisfied here.
There are two potential sets of conditions, one of which must be satisfied. The first set of conditions is set out in subsection (3), which must be read together with subsection (4):
“(3) The first set of conditions is that there are reasonable grounds for believing that —
(a) any material on the premises specified in the application for the warrant is likely to be of substantial value (whether or not by itself) to the investigation for the purposes of which the warrant is sought,
(b) it is in the public interest for the material to be obtained, having regard to the benefit likely to accrue to the investigation if the material is obtained, and
(c) it would not be appropriate to make a production order for any one or more of the reasons in subsection (4).
(4) The reasons are —
(a) that it is not practicable to communicate with any person against whom the production order could be made;
(b) that it is not practicable to communicate with any person who would be required to comply with an order to grant entry to the premises;
(c) that the investigation might be seriously prejudiced unless an appropriate person is able to secure immediate access to the material.”
This set of conditions is therefore premised on the assumption that a production order could in principle have been made but would not have been appropriate for a reason given in subsection (4). It follows, therefore, that this set of conditions assumes that the material sought is capable of being specified in a manner sufficient to justify the application for a production order. Subsection (4)(c) envisages the possibility that the material may be concealed or destroyed if a production order is obtained.
The second set of conditions is relied on in this case. These are set out in subsection (5):
“(5) The second set of conditions is that—
(a) there are reasonable grounds for believing that there is material on the premises specified in the application for the warrant and that the material falls within subsection (6), (7), (7A), (7B), (8) or (8A),
(b) there are reasonable grounds for believing that it is in the public interest for the material to be obtained, having regard to the benefit likely to accrue to the investigation if the material is obtained, and
(c) any one or more of the requirements in subsection (9) is met.”
In this case the police alleged that the material fell within subsection (6), which is as follows:
“(6) In the case of a confiscation investigation, material falls within this subsection if it cannot be identified at the time of the application but it—
(a) relates to the person specified in the application, the question whether he has benefited from his criminal conduct or any question as to the extent or whereabouts of his benefit from his criminal conduct, and
(b) is likely to be of substantial value (whether or not by itself) to the investigation for the purposes of which the warrant is sought.”
This set of conditions can only be relied upon where the material sought cannot be identified at the time of the application. The inability to identify the material means that a production order could not be sought. (It is confusing that the first set of conditions refers to material which can be specified, and the second set to material which cannot be identified. A production order can in principle be sought in the first case but not the second. Parliament must surely have intended that “specified” and “identified” should be interchangeable concepts: what can be specified can be identified and vice versa. So either the first set of conditions is applicable or the second applies. Parliament could not have intended that there might be a lacuna where neither applies.)
The relevant requirements in subsection (9) are these:
“(a) that it is not practicable to communicate with any person entitled to grant entry to the premises;
(b) that entry to the premises will not be granted unless a warrant is produced;
(c) that the investigation might be seriously prejudiced unless an appropriate person arriving at the premises is able to secure immediate entry to them.”
It is this provision which ensures that the warrant can only be used as a weapon of last resort. It envisages that the police should first consider whether the material may be obtained by agreement. Subsection (9)(c), which in substance mirrors section 4(c), encompasses the possibility that if advance notice is given, the material may be concealed or destroyed, thereby seriously prejudicing the investigation and defeating the interests of justice. That is not, however, the provision relied on by the prosecution in this case. Rather they have asserted that subsection (9)(b) applies, although there was no attempt to obtain entry by consent before seeking the warrant.
The relevant legal principles
The legal principles relating to the grant of warrants are not in dispute and, insofar as they are material to this application, they can be summarised as follows:-
The courts have frequently emphasised that search warrants confer a “draconian power”: R (Faisaltex) v Preston Crown Court [2009] 1 WLR 1687 para 29 per Keene LJ. They were even described as a “nuclear weapon” in the court’s armoury which, unless properly justified, involve a gross infringement of civil liberties: see R (Mercury TaxGroup) v HMRC [2008] EWHC 2721 at para 71 per Underhill J. It does not perhaps need the use of such hyperbolic language to emphasise they should only be sought as a last resort and should not be employed where other less draconian powers can achieve the relevant objective.
Given that the warrant permits the interference with private property and is obtained ex parte, it is incumbent on the applicant to make full and frank disclosure to the court and to ensure in particular that any material which is potentially adverse to the application is brought to the attention of the judge: see, for example the observations of Bingham LJ in R vCrown Court at Lewes [1991] 93 Cr. App. Rep 60, 69. As Hughes LJ put it in In re StanfordInternational Bank Limited [2010] 3 WLR 941 at para 191, the applicant must:
“put on his defence hat and ask himself, what, if he were representing the defendant or a third party with a relevant interest, he would be saying to the judge”
This obligation of full and frank disclosure necessarily includes a duty not to mislead the judge in any material way: see the Mercury Tax Group case, para 48.
The power to grant the warrant is conferred on a judge. He or she must bring a “rigorous and critical analysis” to the application and satisfy himself or herself that the material provided justifies the grant of the warrant: see R (Rawlinson & Hunter Trustees) v Central CriminalCourt [2012] EWHC 2254 (Admin); [2013] 1 WLR 1634, paras 83-84 per Sir John Thomas P, where earlier authorities are cited. The judge has the obligation to protect the subject of an application (who, of course, is not before the court) against speculative or unsubstantiated assertion: R (B Sky B) v Chelmsford Crown Court [2012] EWHC 1295 (Admin) [2012] 2 Cr.App.R. 33, paras 33-34 per Moses LJ. It is critical, therefore, that the judge is provided with the information necessary to enable him to comply with that obligation and is given the time properly to discharge it: see Rawlinson paras.83-90.
The judge ought to give reasons for his decision. They need not be elaborate but they ought to be sufficient to enable the subject of the warrant to understand why the judge was satisfied that the evidence justified issuing it: see R v Lewes Crown Court ex parte Weller, unreported 12 May 1999 per Kennedy LJ, para 6; and more recently, R (Wood) v North Avon Magistrates’ Court [2009] EWHC 3614 (Admin) para 26, and Rawlinson, para 89.
The application must be made in good faith and it must be for a purpose for which the power is granted. Using a statutory power for a collateral purpose involves a misuse of the power: see, specifically in the context of police powers, R v Inland Revenue Commissioners ex parte Preston [1985] AC 835. These are well established principles of administrative law and are as applicable in this field as in any other.
Obtaining the Warrant
The application was not solely with respect to the two claimants, but was made in order to obtain search warrants to enable the police to search the premises of the other defendants who face similar charges arising out of these events. The judge was given a written information which set out the circumstances of the alleged offending in some detail, and he was also provided with a draft warrant. He determined the application simply on the documents, although an officer was available to be questioned if necessary. The judge appears to have considered this to be a routine application and unfortunately he failed to give any reasons explaining why he was satisfied that the second set of access conditions applied, or why he considered that the requirements of section 353(9)(b) were satisfied.
The principal grounds of challenge
The claimants contend that each of the legal principles set out above has been infringed in this case. The principal ground advanced is that the police lamentably failed to give the full and frank disclosure of material facts. It is said that they ought to have addressed in the application the unfolding of events which led them to seek the order in much fuller detail than they did. The information given to the judge had revealed little more than the bare bones of the history in a potentially misleading way. The court was told that there had been a restraint order and that its terms had been extended, and that the police had searched the property at the time of the claimants’ arrests. But there was no indication of the co-operative stance adopted by the claimants at all stages.
Indeed, counsel submits that the judge would have been positively misled by one of the statements made in the information. After making reference to the earlier search, the information stated that “items of fine art, antiques and jewellery were noted, however these are not captured in the current restraint order”. It is submitted that the natural inference to be drawn from this observation is that such items were not captured by the restraint order only because they were deliberately concealed from the police by the claimants. So not only was there a lack of candour, there was a positive misrepresentation.
The second and third grounds are related to this lack of disclosure. It is submitted that if the court had been given full information, the judge could not possibly have issued the warrant at all. This was quite inappropriate given in particular the history of co-operation between the authorities and the claimants. There are two elements to this submission.
First, it is alleged that the second set of conditions was not met because this was not a case where it could be said that the materials sought by the police could not be identified. On the contrary, the police had extensive evidence of the claimants’ sources of wealth following the previous searches, coupled with the detailed disclosure of financial information. The claimants submit that the grounds relied upon by the police in the warrant fully demonstrated that they knew precisely the kind of material they were looking for. The application itself had referred to bank accounts which indicated the purchase of fine art and also that, on the previous search, items of fine art, fine wines and jewellery had been noted.
Indeed the police had detailed knowledge not only of information relating to the restrained assets but also the unrestrained assets. There was a bald assertion in the information presented to the court that there were reasonable grounds to believe that there was material on the premises which could not be identified and was likely to be of substantial value to the investigation. That was simply false; there were no proper grounds for making that assertion.
This was a case where the police could easily specify the categories of information they sought. It followed that they could only rely upon the first set of conditions to justify applying for the warrant. The second set of conditions should only apply in circumstances where the police genuinely have no idea what materials they are looking for, or what they may find on the premises; that was not this case.
The reliance on the wrong set of conditions necessarily rendered the warrant invalid. Mr Owen QC, counsel for the claimants, submits that in fact the police could not have relied upon the first set of conditions even had they sought to do so. That requires the police to show that a production order would not suffice, yet the history of co-operation demonstrated beyond reasonable doubt that it would have done. There was no reason to suppose that the claimants would deny the police entry. Moreover, if necessary a production order could have been supplemented by an order to grant entry under section 347. There was no basis for supposing that materials would be destroyed or concealed if there was advance notice of the proposed search and indeed the police have never sought to contend otherwise. Had the claimants been inclined to take such steps, they could have done so at any time since May 2009 when newspaper reports alleged that they were involved in potentially improper conduct.
Secondly, even if, contrary to the first argument, the second set of conditions was applicable on the assumption that the material could not be identified, the condition in section 353(9)(b) was not satisfied essentially for the same reason that a production order would have sufficed. There was no reason to suppose that entry to the premises would have been refused if requested, given the degree of past co-operation. There had been no such request.
The police accept that they were under a duty of full and frank disclosure but contend that they complied with that obligation. They deny that they had information about all the relevant material in the claimants’ possession because whilst they knew of the existence of certain assets, they did not know the full extent of transactions relating to them. They were not, therefore, in a position to identify the materials sought in such a way as would justify obtaining a production order; and they could not be sure that the claimants would allow them entry absent a search warrant. The past history of co-operation did not justify the inference that the claimants would be willing to allow entry onto their premises without the sanction of the court.
The defendant further submits that even if they did fail to give adequate disclosure, this should not lead to a quashing of the warrant. In R (Rawlinson and Hunter Trustees) v Central Criminal Court [2012] EWHC 2254(Admin);[2013] 1 WLR 1634, Sir John Thomas P,as he then was, expressed the view, obiter that a warrant should only be set aside where the reviewing court is able to conclude that had there been full disclosure, that would have made a difference to the judge’s decision. It is not enough that it might have made a difference. That observation has been followed in subsequent cases. The defendant contends that there was no basis for confidently asserting that the judge would have refused to issue the warrant, given in particular the gravity of the charges. These were serious offences and the need for an order was obvious. So even if the disclosure was inadequate, the warrant should not be set aside.
Discussion
In my judgment, there was a manifest failure to provide full and frank information in this case. The information provided in support of the application for the warrant related to all of the defendants and not just the two bringing these proceedings. The reference in that information to the prior contacts between the Thames Valley Police and the claimants is extremely exiguous and, for the most part, is not particularised. The information states that pre-charge restraint orders were made on all the defendants; that some of these orders - not specified - were subsequently varied; and that “correspondence has been received by the Crown Prosecution Service in respect of the management of these restraints.” There is no indication of what that correspondence entailed. It was also revealed that the premises of all the defendants were searched at the time of their arrests. The information also states that the South East Regional Crime Unit only took over the confiscation investigation on 23 April 2013.
In my judgment, this falls well short of full and frank disclosure. The judge would have had no inkling of the nature and quality of the past dealings between these claimants and the police. I do not accept that this disclosure begins to satisfy the obligation to “put on the defendant’s hat” as Hughes LJ put it, so as to identify the matters which the defendant would want the judge to consider. There is no explanation to the judge that the original restraint order was limited in the way it was because the police themselves did not think it appropriate to have an all assets order. Nor is there any mention of the fact that extensive information had been provided by these claimants at least, pursuant to the disclosure requirement about assets and transactions relating to them, some going beyond the claimants’ strict legal obligations. Nor was the judge told that there was no suggestion that information has been wrongfully concealed or destroyed.
However, in my judgment, the claimants were going too far to claim that the information was positively misleading. I do not accept that the statement in the information that jewellery and other items were not included in the restraint order would have led the judge to infer that the claimants had positively sought to conceal information about these assets. There was material non-disclosure but not positive misrepresentation.
What is the consequence of non-disclosure?
What effect might full disclosure have had on the judge’s decision? I have serious doubts whether the judge would have issued the warrant had proper disclosure taken place. Even assuming that the second set of conditions was applicable, a judge may very well have concluded that the condition in section 353(9)(b) was not satisfied. In this context it is important to note that the police were not relying upon the provisions in section 353(9)(c). It was not being suggested that there was a risk that the investigation might be seriously prejudiced as a result of concealment or disposal of assets so as to attract the application of that provision. There had been no occasion in the past when the claimants had failed to co-operate, and a judge may have concluded that the claimants would be likely to permit entry voluntarily or at least that the police ought first to put matters to the test, for example by seeking and being refused entry. I do not say that the judge would necessarily have refused to issue the warrant, but I consider that there was a substantial likelihood that he would not have done so, at least not without further explanation from the police as to why it was thought that the claimants would have refused to co-operate and agree to the police entering their premises.
The question whether the first or second set of conditions was the appropriate one is not an easy issue to determine. This is partly because the distinction between materials which cannot be specified and those which can is an elusive one. It depends upon the degree of specificity which the law requires. However, I reject the submission of the claimants that the fact that the police knew, for the most part at least, of the assets owned by the claimants of itself demonstrated that the materials sought can be identified with sufficient particularity. As I have said, the purpose of the search is not to seize the actual assets themselves, but to obtain documents which might better enable the authorities to determine how they were obtained, and in particular whether from their allegedly criminal activities or from lawful business operations.
The claimants may be right to say that it would have been possible for the police to have identified documents with the specificity necessary to obtain a production order. If that is so, then the second set of conditions was not satisfied. But I find it impossible to form a clear view about that. The problem is that the police have not explained to the judge why they could not identify the documents, and it is far from self-evident that they could not have done so.
Accordingly, I am not satisfied that the second set of conditions was necessarily applicable, although the police may have been able to satisfy the judge that it was. For this reason too, therefore, it is impossible to say that full disclosure would have made no difference to the outcome. No reliance was placed upon the first set of conditions although I agree with the claimants that, even if it had been, the police might have had difficulty explaining why they were seeking a warrant rather than a production order.
It may of course be that the Sussex police were ignorant of, or indifferent to, the relationship between the claimants and the Thames Valley police. But it was their duty to find out and to disclose potentially relevant material to the court. If they were unhappy with the way the investigation had been conducted thus far and considered that a more robust approach was required, they needed to spell out to the judge why, notwithstanding a history of co-operation, they considered it necessary to seek a search warrant at this stage.
Accordingly, in my view the warrant was unlawfully issued. There was inadequate disclosure. Had there been proper disclosure, the judge may well have refused to issue the warrant.
What is the test for setting the warrant aside?
As I have said, in Rawlinson the court suggested obiter that the test for setting the warrant aside is whether, had the appropriate disclosure been given, the warrant would not have been issued. The relevant passage in which Sir John Thomas P expressed that provisional conclusion is as follows (paras 171 -173):
“We therefore turn to the question we identified at paragraph 77 where there was debate between the parties as to the test to be applied in determining the effect of errors, misrepresentations and non-disclosure on the validity of the grant of the warrants.
In civil cases, the courts have made very clear that a failure to comply with the duty of disclosure on an ex parte or without notice application will often result in the setting aside of the order: see for example Brink's Mat Ltd v Elcombe [1988] 1 WLR 1350, Fitzgerald v Williams [1996] QB 657. Although it was accepted there is a difference between a civil and a criminal case, it was submitted by RT, VT and the TFT and TDT companies that the test to be applied when considering whether to quash a warrant issued under s.2(4) of the CJA 1987 was whether the errors and non-disclosure might have made a difference to the grant of the warrant. Mr Eadie on behalf of the SFO submitted that the test was whether they would in fact have made a difference. We were referred to a number of decisions including, Jennings v CPS [2006] 1 WLR 182 at 52-8, R (Mercury Tax Group) v HMRC [2008] EWHC 2721 at paragraph 48, R (Wood) v North Avon Magistrates Court [2009] EWHC 3614 at paragraphs 34 and 37, R (Faisaltex) v Crown Court at Preston[2009] EWHC 1687 at paragraph 81, Burgin and Purcell v Commissioner of Police for the Metropolis [2011] EWHC 1835 at 66-71, Re Stanford (supra).
On the facts of this case, the difference is immaterial as we shall explain. It is therefore not necessary for us to reach a concluded view, but in a criminal case the authorities and consideration of public interest point, in our view, to the test being whether the errors and omissions would in fact have made a difference to the decision of the judge to grant the warrants.”
If this view of the law is correct, if the court is uncertain what the outcome would have been, it should treat the warrant as lawfully issued.
This observation has been followed, but without any consideration of the merits of the point, in a number of subsequent cases: e.g. R (on the applications ofGolfrate Property Management and ors) v The Crown Court at Southwark [2014] EWHC 840 (Admin) para. 89 and R (on the application of Goode) v The Crown Court at Nottingham [2013] EWHC 1726 (Admin) para.38; and Zinga v R [2012] EWCA Crim 2357 paras.31-32. If this is indeed the appropriate legal test, then since I cannot say that the warrant would not have been issued if there had been full disclosure, it follows that I should not quash it.
We have received further written submissions on this point following the hearing. Having considered the material, I respectfully disagree with the obiter comments of Sir John Thomas P. In my judgment, the court should state that the warrant has been unlawfully obtained on the basis that the judge might well have refused to issue it had there been full and proper disclosure.
In my judgment, the proposition that the warrant can only be set aside where the court is satisfied that the decision would have been different is wrong in principle, and is not supported by the authorities referred to in paragraph 172 of the Rawlinson decision. I shall briefly indicate why I have formed that view.
First, as to the authorities, in three of the cases the court did not set aside a warrant for non-disclosure because they were satisfied that the non-disclosure made no difference. In each case the court was satisfied that there was no question of bad faith and that it was unarguable but that the search warrant would have been issued even had the application been made with due candour: Burgin and Purcell v Commission of Police for the Metropolis [2011] EWHC 1835 (Admin) per Stadlen J para 71; the Faisaltex case per Keene LJ at para 81; and Wood v North Avon Magistrates’ Court [2009] EWHC 3614 Admin per Moses LJ at para 35. There is every reason for a court upholding the legality of a search warrant when it can be sure that the failure made no difference to the outcome. But these cases do not support the converse principle that the warrant can only be set aside where the court is positively satisfied that had there been full disclosure, it would have made a difference.
Another case relied upon was Jennings v CPS [2006] 1 WLR 182. That was not, however, a search warrant case but rather one where a restraint of assets had been obtained. The courts have taken the view that public interest considerations justify the courts adopting a different approach in such cases than they would in civil restraint proceedings where in general non-disclosure will lead to a discharge of the order. Hughes LJ expressed the relevant principles in this area in Director of Serious Fraud Office v A [2007] EWCA Crim 1927; [2008] Lloyd’s Rep F.C. 30 in the following way (para 18):
“The proper approach is to consider whether the public interest does or does not call for the order to stand, now that the true position is known, and taking into account the previous failure of disclosure. Whether the non-disclosure was deliberate or accidental will be a material factor, although not necessarily determinative. These propositions emerge from a number of cases: see in particular Brink's Mat v Elcombe [1988] 1WLR 1350, and Jennings v CPS [2005] EWCA Civ 746 at paragraphs 52–57 and 62–64. A similar approach to a different kind of without notice application in aid of a criminal investigation, namely one for the production of special procedure material, was taken in R v Crown Court at Lewes ex p Hill (1991) 93 Cr App R 60 at 69. Whilst it is appropriate to insist on strict compliance with the rule of disclosure, discharge of the order does not necessarily follow as a means of disciplining the applicant, at least absent what Longmore LJ in Jennings referred to as ‘so appalling a failure’ that that ultimate sanction should be applied.”
Underhill J referred to these cases in Mercury at para 65 but in my view he then quite correctly pointed out that different considerations apply with respect to search warrants:
“So far as the public interest is concerned, it seems to me that there may be a difference between applications for restraint orders and for search warrants. In the case of the former there will typically be a continuing need for the order to remain in place, whereas in the latter case the warrant will have been executed once and for all and the principal consequence of its being quashed will be to open the way to a claim for damages.”
I would add that it is a particularly draconian order to allow an organ of the state to invade private property. The restraint order does not have that effect.
In this context it is important to emphasise that a quashing of the warrant does not inevitably lead to a return of documents. In some cases that might well be against the public interest and defeat the interests of justice if, for example, it means that those who may be serious criminals have the opportunity to destroy material evidence. That concern has been addressed by Parliament. Section 59 of the Criminal Justice and Police Act 2001 enables the court to allow the police to retain wrongfully seized property in certain circumstances, as indeed the court in Rawlinson recognised in paragraphs 274-280. The court when quashing a warrant, and finding the search to have involved a trespass, may stay any obligation to return documents until the police have had the opportunity to make a section 59 application to the Crown Court: see, for example, R (on the application of Windsor) v Bristol Crown Court [2011] EWHC 1899 (Admin).
In my judgment, the principle which the courts ought to apply in the context of search warrants was properly stated by Stanley Burnton LJ in R(Dulai) v Chelmsford Magistrates’ Court [2012] EWHC 1055 (Admin); [2013] 1 WLR 220 para 45 when he said:
“The question for this court, in judicial review proceedings, is whether the information that it is alleged should have been given to the magistrate might reasonably have led him to refuse to issue the warrant.”
Unfortunately this was not cited in Rawlinson. (In fact the court in Dulai held that if full disclosure had been made, the warrant would have been issued in any event.) Moreover, in the Mercury case Underhill J quashed a warrant because he was not satisfied that the order would have been the same had there been proper disclosure.
Quite apart from the authorities, in my judgment it is wrong in principle to decline to set aside a warrant unless the court below would have refused to issue it if acquainted with all material facts. First and fundamentally, it diminishes a principle which has been a bedrock of English law since the seminal case of Entick v Carrington (1765) 19 St Tr 1029, namely that the common law does not recognise interests of state as a justification for allowing what would otherwise be an unlawful search. If Parliament is concerned that the public interest is not adequately protected by common law principles, it must act accordingly, as it has with section 59.
Second, it means that the applicant will be better off failing to make full disclosure than making it (although any deliberate withholding of information ought to result in a quashing of the order). The application before the judge is more likely to succeed if material potentially beneficial to the defendant is withheld from the judge; and once the warrant is issued, the decision will be upheld on review save in those cases where the court can be sure that the warrant would have been refused.
Third, the court hearing the application for judicial review is not in general in a good position to say what would have happened had full disclosure been made. Where it is alleged that a particular piece of information has not been disclosed the court may state with some confidence that disclosure is likely to have made no difference, as in the cases cited above. Sometimes it may feel that it can confidently say that the warrant would not have been issued had there been disclosure, and indeed Rawlinson itself provides an example. But it seems to me that there will be many cases where it will be far from obvious what the judge would have done.
Fourth, it leads to the bizarre conclusion that the warrant stands even though no judge has examined all the material which ought to have been produced and concluded that the warrant is justified on the merits of that material. This both dilutes and undermines the critical scrutiny which the judges should adopt in order to ensure that there really is a proper justification for compelling a citizen to permit the authorities to enter his or her premises.
Sometimes the court hearing the judicial review application will be given the information which should have been given to the court below. This may involve not merely the material of potential benefit to the defendant which had not been disclosed, but also the police response to that material. In Duia the court accepted (paragraph 46) that this evidence is admissible and that if it is plain that once all the evidence is taken into account the judge below would still have issued the warrant, then it should not be quashed. In effect, the court is concluding that taken in the round, and having regard to the police response, non-disclosure did not materially affect the outcome. On that strict test the court is reviewing the lawfulness of the issue of the warrant but is not undertaking its own assessment.
A different but related question which arises is whether the court should decline to quash the warrant if satisfied that in the light of all the fresh information it would itself have issued the warrant. In Rawlinson the court was unwilling to exercise its discretion to refuse to quash the order on this basis, Sir John Thomas P pointing out that (para.177):
“What we would be doing would be permitting the SFO in effect to justify what it had done by adopting a proper and analytical approach in this court and doing what it had manifestly failed to do when it went to Judge Worsley”
That issue does not strictly arise in this case since although certain witness statements were before the court, they did not begin to allay the concerns about the inadequacy of the original disclosure. Mr Owen submits that the observations in Rawlinson suggest that it can never be legitimate to seek to make good the lack of proper disclosure by relying on fresh material produced in the Divisional Court; and he submits that even the more restrictive approach in Dulia is unwarranted.
Dulia is plainly right in permitting the court to assess the significance of the information which was not disclosed but ought to have been. Whether it was also right to have regard to the response which the police wish to make with respect to the now disclosed information, I would leave for another day when the issue directly arises. I would simply observe that there are in my view considerable problems, as recognised in Rawlinson, in allowing the Divisional Court to make its own assessment of the evidence. The reviewing court is then standing in the shoes of the judge below and performing a function which by statute belongs to that judge. It is also stepping outside its reviewing function and allowing itself to become a merits court. But as I have said, the issue does not directly arise here.
In my judgment, therefore, the warrant should be set aside because there was material non-disclosure which may well have led the judge to issue a warrant which, had there been full candour, he would have refused to issue.
Further grounds of appeal
In view of my clear conclusion on these issues, I can deal with the remaining grounds relatively briefly.
First, it is said that the judge failed to give reasons. As the authorities make clear, this should certainly have been done. No doubt in the light of the material given to the judge it appeared a relatively straightforward case, the alleged commission of serious offences and a ready assumption that entry would be refused without the sanction of the court. Even so, the judge ought to have stated, albeit briefly, what in the information satisfied him that the access conditions were satisfied. Of course, if there had been full disclosure, I have no doubt that he could not have simply left matters on the basis, as it were, that the warrant spoke for itself. He would have had to identify the issues about which he needed to be satisfied, and to have given his reasons for being satisfied. However, the failure to give reasons does not of itself justify invalidating the warrant, nor does it demonstrate that the judge failed to give the application due consideration: see Rawlinson paras 202-208 and Golfrate paras 137-138.
Second, it is alleged that the application was made in bad faith. The premise of this argument is a statement by an officer from the Crown Prosecution Service who stated that the Sussex police “simply wanted to set aside Thames Valley police’s investigations and do it [again] for themselves”. It is said that the true reason for the application was therefore withheld from the judge. I do not accept that; I see no reason to doubt that the true reason was that they thought this a proper and appropriate step in the investigation. There was in my view no bad faith. But I do accept that in view of the transfer of responsibility, it was even more important that the Sussex police should have revealed the full nature of the relationship between the claimants and the Thames Valley police.
A related argument is that their true motive for the search was not to further the investigation of the proceeds of crime but rather to use the information for the improper purpose of assisting the investigation of the substantive offences. Confiscation powers cannot be used for non-confiscation purposes as the House of Lords pointed out in R v Southwark Crown Court ex parte Bowles [1998] AC 641. The material used to sustain this argument is a comment allegedly made by an officer to the claimants’ solicitor that he could see no reason why the information seized should not be passed to the crime investigation team. However, because of concerns expressed by the solicitor, he added that he would take legal advice before taking that step. Also the property receipt for the items taken represented that the materials were seized under powers conferred under section 19 of PACE which relates to the substantive offences.
The latter was plainly in error but involved no more than the careless use of the wrong form. There is in my view nothing remotely sinister in this. As to the comment of the officer, in my view that falls well short of sustaining the argument. There may indeed be an interesting question about the extent to which items seized in a confiscation search can be utilised for other purposes. But the question is why this search warrant was obtained. I have no reason to doubt that it was for the reason advanced to the judge. Indeed, if the information had been required for the crime investigation, I have no doubt that that investigation team would have sought the warrant for itself; it would not have wanted a separate unit to make the application.
Third, it is alleged that the terms of the warrant were too wide because the warrant authorised the seizure of computers, storage devices and mobile telephones. I do not accept that such material can never be properly seized in confiscation investigations, although some explanation might be necessary as to why such items are thought to be of assistance to the investigation. But in any event the point is academic because at the beginning of the search DS Ball stated that the police did not intend to seize any of this material and they did not do so. In the circumstances I would not have been willing to quash the warrant on this ground.
Finally there are detailed points made about the manner in which the warrant was executed. We were shown authorities where searches have been held to be unlawful solely on the basis of an unlawful execution: see e.g. R v ChiefConstable of Lancashire ex parte Parker [1993] QB 577; and R (Bhatti) v Croydon Magistrates’ Court [2011] 1 WLR 948. It is said here that the necessary safeguards to protect legal professional privilege were not in place, notwithstanding that a special counsel was appointed to seek to ensure that no such material was improperly taken. Again, although there were some unsatisfactory features of the way in which the issue was dealt with, I would not have been willing to quash the warrant on that basis. It is very much a peripheral matter in this appeal.
Conclusion
For the reasons I have set out, I am satisfied that the warrant ought not to have been issued. There was a serious failure to disclose, which may well have caused the judge to issue a warrant he would not otherwise have issued. I would therefore set aside the warrant. However, if my Lord agrees, I would wish to hear further representations as to precisely what order should be made and what consequences flow from it. This may be determined either by written representations or a further short oral hearing.
Mr Justice Ouseley:
I agree.