Holman Fenwick Willan LLP, R (On the Application Of) v City Of London Police & Ors

LORD JUSTICE GROSS: This is an application by the claimant, Holman Fenwick Willan, for permission to bring judicial review, seeking, inter alia, the quashing of the endorsement ("the endorsement") by the second defendant on 9 December 2015 of a search warrant issued by the Sheriff Court of Glasgow in Strathkelvin on 4 December 2015 ("the warrant"). Holman Fenwick Willan are well-known and well-established solicitors with an international practice and offices in the City of London and elsewhere around the world. I should make it plain at the outset that no wrongdoing is or ever has been alleged against Holman Fenwick Willan in connection with the matters here in issue.

The first defendant is the City of London Police and I shall return presently to their involvement in the proceedings.

The second defendant is the magistrates' court in question. As is usual in such matters, although the second defendant is necessarily a party, it does not contest the application.

There is a question, which the parties will no doubt resolve in the terms of the order following this hearing, as to whether the third defendant is the Police Service of Scotland or the Crown Office and Prosecutor Fiscal Service. It strikes me at least that both the Scottish police (if I can put it in those terms) and the Scottish Prosecutor Fiscal should be parties, albeit I would see their interests as the same and certainly capable of common representation. If it is necessary to join the Crown Office and Prosecutor Fiscal Service as a fourth defendant, then this should be taken as the court's agreement to do so and it can no doubt be reflected in any order drawn up hereafter.

The background concerns a police investigation into the acquisition in 2011 and the subsequent management of Glasgow Rangers Football Club ("RFC"). The investigation broadened, resulting in further offences being alleged following the sale of the assets of RFC by the joint administrators who are employees of Duff & Phelps ("D&P"). Holman Fenwick Willan are the solicitors for D&P. For present purposes it is unnecessary to delve further or in any detail into the background facts.

Turning to the search warrant, its endorsement and execution or purported execution, the matter is helpfully summarised, at least for today's purposes, in the Holman Fenwick Willan skeleton argument:

The warrant had been endorsed, as already indicated, by the second defendant, the City of London Magistrates' Court, also on 9 December.

There are a number of striking features of these events:

In the event, absent assurances from the relevant police officers, Holman Fenwick Willan applied for and obtained an injunction from Cox J on the night of 9 December 2015 preventing the removal of the materials from the jurisdiction to Scotland. The claim for judicial review was commenced the next day, 10 December.

On 11 December, Holman Fenwick Willan issued a bill of suspension in Scotland by which it sought to challenge the legality and validity of the warrant before a Scottish appellate court. On 17 December, Lang J, following a contested inter partes hearing, continued the injunction granted by Cox J and, understandably, indicated that Holman Fenwick Willan's challenge to the legality and validity of the warrant in Scotland should be heard before the claim for judicial review in England. An appropriate order was made accordingly.

On 18 December, at a hearing of Holman Fenwick Willan's application for interim relief before the High Court in Edinburgh, Lady Dorrian directed that the seized documents should be returned from the City of London Police, by whome they had been held, to the offices of Holman Fenwick Willan - where they should be held in a secure room pending a review of privilege by the Commissioners (to whom I have already referred).

On 5 February 2016, Lord Carloway,the Lord Justice General, sitting in the Appeal Court in Edinburgh, held that the warrant should be suspended. Lord Carloway made a number of trenchant criticisms of the manner in which the warrant had been obtained. They appear from his judgment at paragraphs 26 through to 32. It is unnecessary for today's purposes to read them out, but I would invite full attention to be paid to his observations contained in those paragraphs. Those are grave criticisms indeed and reflect adversely on the third and fourth defendants.

I turn to the hearing before us today and take the rival contentions and positions of the parties as briefly as I can.

First of all, to dispose of a matter which is not in dispute, there is no opposition to the discharge of the injunction continued by Lang J on 17 December. The practical effect is to ensure that the documents currently held on terms at the Holman Fenwick Willan offices can be released to Holman Fenwick Willan unconditionally. That was asked for by Holman Fenwick Willanand was unopposed.

Having disposed of the release of the documents point, it is next fair to say that the court encouraged the parties to consider what might happen if these proceedings continued, with a particular focus on seeking to ensure that only the parties who needed to be here continued as such. In that regard there are, we are told, fruitful discussions between Holman Fenwick Willan and the City of London Police as to the continued involvement of the City of London Police in these proceedings. For wholly understandable reasons it was impossible to finalise those discussions in a few minutes. We propose in that regard to give the parties until 1600 on Wednesday, 13 April to revert to the court with either an agreed order or an intimation that the matter cannot be agreed, in which case the likely default position is that the City of London Police would remain a party to these proceedings - but of course there would be risks as to costs were they to do so.

We should also make it plain that if the City of London Police ceases to be a party, nonetheless its position could be protected, and the public interest served in any proceedings which continued, by ensuring that it was an interested party with the facility to make submissions in writing on points which concerned it. One such point that immediately appears is the role of an English police force in assisting in the execution of a warrant obtained in Scotland but endorsed in England.

Having dealt with those matters, we turn to the principal grounds of contention today. Mr Sturman invited us to grant permission for the judicial review proceedings to continue. Indeed he went further than that: he submitted that his claim was sufficiently strong that we should resolve it (subject to some questions of disputed fact) entirely in his favour today. Mr Keith, for the third and fourth defendants, took the entirely opposite position: he submitted that we had no jurisdiction to deal with the matter at all; it properly belonged in the court in Edinburgh; and accordingly we should refuse permission.

In brief, Mr Sturman's submission proceeded as follows. The authority central to Mr Keith's submission was R v Manchester Stipendiary Magistrate, Ex parte Granada Television Ltd [2001] 1 AC 300. But, said Mr Sturman, that authority did not and did not need to address the question of an unlawful warrant. The warrant here was unlawful, as has now been held by Lord Carloway in Scotland. Accordingly, the authority of Granada did not preclude the English court from continuing to hear these permission proceedings.

Secondly, Granada was distinguishable in that it dealt with journalistic material, not material covered by LPP.

Thirdly, there was undoubtedly at least an arguable case that Granada could not have been intended to apply to a warrant which in effect provided, or was executed in practice as to result, in its operation contrary to local English practice. It was inconceivable, Mr Sturman submitted, that a warrant which was on its face contrary to English practice could not be addressed in proceedings before the English court and that the sole remedy lay in Scotland. One answer to the proposition that this Court had no jurisdiction lay indeed in the judgment of Lord Carloway in this very case, where he observed that the bill of suspension was an appellate remedy - and what was needed here was a simple and effective remedy at first instance.

Fourthly, Mr Sturman submitted that the decision in Granada pre-dated the decision in R (Rawlinson & Hunter Trustees)(supra), which furnished certain conclusions as to indispensable aspects of the English practice, namely the instruction of independent lawyers to address privilege questions. Moreover, Granada proceeded the coming into force of the Human Rights Act and might well require revisiting in the light of the provisions of that Act, with regard in particular to LPP. It could not be said that by proceeding in one part of the United Kingdom and then acting on those proceedings elsewhere, there was a way of circumventing the requirements of LPP.

That is, I hope, a short if rather crude summary of Mr Sturman's submission today.

For his part, Mr Keith, succinctly, with respect, both in writing and orally, submitted that he was not here, at least today, to deal with the conduct of either the third or the fourth defendants. His submission was not about merits but about jurisdiction. His argument was that Granada effectively stood as a block to these proceedings. In the light of Granada, section 9(2) of the Police and Criminal Evidence Act 1984 did not preclude the endorsement under section 4 of the 1881 Act, of a warrant issued in Scotland for the search of material in England which may include privileged material. The correct and only forum for any challenge was the Scottish, not the English, High Court. There was no, as he put it, "free-standing" power to interfere with the backing of the warrant by the second defendant.

As a matter of principle, not as a matter of the conduct in this individual case, the third and fourth defendants were concerned as to the special status of Scotland; hence they adopt the position they do in these proceedings.

I am, for my part, indebted both to Mr Sturman and to Mr Keith for their submissions. As it seems to me, the case for permission is eminently well made out. There are a variety of issues which arise relating to the fact that the warrant here was, as it transpires, unlawful; these go to the question of how the cross-border arrangements are to work both smoothly and simply, as rightly concerns Mr Keith, but also and at the same time not to prejudice the safeguarding of LPP in another part of the United Kingdom. There is also the difficult question as to how these procedures are to be made to operate so that a warrant, for instance issued in Scotland, either acknowledges or provides for safeguards for LPP, or is accompanied by some system of procedure which ensures the independence of those who ascertain whether the material is indeed privileged.

From the evidence we had concerning the stance taken by the third and fourth defendants, it is plain that these are areas of some difficulty and complexity. As it seems to me, the points raised by both Mr. Sturman and Mr. Keith are plainly arguable; I could not, however, for a moment accept either that Mr Sturman is entitled to a decision in his favour today by way of a final resolution of the issues or that Mr Keith is entitled to a ruling today that we have no jurisdiction.

In that regard, I should add that this court would be most reluctant to come to any final decision without at least having the assistance of the Attorney General, if necessary no doubt advised by the Lord Advocate. All other parties to the proceedings have their own particular interests. This court would undoubtedly benefit from the dispassionate assistance of counsel instructed on behalf of the Attorney, in particular so as to consider a United Kingdom approach to the working of these matters.

Finally, in that regard, there is also the question of how section 4 of the 1881 Act is to be read. Mr Keith submitted that Mr Sturman's argument required a wholesale re-reading or re-writing of it. We are not sure as to that, but there clearly will need to be submissions on how section 4 is to be read, how it is to be operated and how it is reconcilable or reconciled with the provisions of the Human Rights Act.

An additional point had been taken in the skeleton arguments as to whether there was any substance left in the proceedings. As it seems to me, there plainly is substance, subject of course to the question of whether the City of London Police remains a party. But if one puts the City of London Police out of the picture, there are substantive questions relating to the quashing of the endorsement - not a matter we could resolve today because it is so central to the entire issue before us - and also the question of declaratory relief in terms of whether those who attended the Holman Fenwick Willan offices acted without lawful authority. Those two matters, it might be observed, themselves indicate why it is at least arguable that this court has jurisdiction to hear these matters. It would at first blush seem a surprising conclusion that this court would have no jurisdiction to address a warrant endorsed by an English magistrates' court without which the search could not have proceeded. But that is a matter ultimately to be determined at the final hearing.

Finally, of course, questions of substance clearly remain as to the issue of damages and there is undoubtedly looming ahead a substantial argument as to questions of costs, together with the basis upon which any costs might be ordered.

For those reasons, I would therefore grant permission to proceed. For my part, I would value the assistance of all counsel as to the form of the order, how the judicial review proceedings are to proceed, which matters need to be transformed into Part 7 proceedings, and all this in addition to the question of the position of the first defendant for which we have extended time until 1600 next Wednesday.

I would reserve the costs which have arisen to date to the final hearing.

MR JUSTICE MITTING: I agree.

MR STURMAN: May I suggest an order to be agreed by next Wednesday at 4 pm as well, or would you rather get it today, my Lord?

LORD JUSTICE GROSS: No, speaking for myself, and if Mitting J is content as well, I would much rather have a composite order by 1600 Wednesday, which does mean you probably need to resolve the position with Mr Thomas a touch before 1600, and I cannot believe that is impossible; and then we can take it from there.

MR STURMAN: Thank you, my Lord.

LORD JUSTICE GROSS: If there are any further questions arising we would be in a position, we hope, to deal with those in writing.

MR THOMAS: My Lord, might I prevail the court very swiftly? In relation to the timing for the agreed order, given it will be a composite order I am conscious that I am on leave next week. I will be available and make sure I can deal with that, but I might be out of contact for slight periods. If we could have an extra 24 hours, for example, that may assist me.

LORD JUSTICE GROSS: I think you might be on quite favourable ground.

MR THOMAS: I am grateful.

MR STURMAN: Shall we say next Friday?

LORD JUSTICE GROSS: Well, let us not do it 1600 on a Friday; I do not like 1600 on a Friday. I think 10 o'clock on Friday. That gives scope for kicking someone in the course of Friday, if they are behind (to use a technical term). 10 am, Friday the 15th.

MR THOMAS: I am very grateful.

LORD JUSTICE GROSS: Have we omitted anything?

MR STURMAN: I do not think so, no.

LORD JUSTICE GROSS: We are very grateful to you all for the very helpful submissions.