Haralambous v St Albans Crown Court & Anor

This is the judgment of the Court to which we have both contributed.

This judicial review raises for express decision whether a person whose premises have been searched and whose property seized under a search warrant must have enough information grounding the warrant to judge its lawfulness and the retention of the material seized under it. In this case the information before the justice of the peace granting the warrant was later redacted to such an extent that what is available to the claimant is not a sufficient legal basis for it or the retention of property seized. Courts below have authorised the redactions on public interest grounds, but the claimant contends that this constitutes a closed material procedure which is without statutory foundation. The second defendant, the Chief Constable of the Hertfordshire Constabulary (“the police”) accepts that a person whose property has been searched and seized is entitled to see the information on which a search warrant is based, and that maximum disclosure consistent with the public interest should be given (albeit that where necessary this can be by way of a summary or gist of the material). However, in this case the police case is that the courts have authorised substantial redactions on public interest grounds and the nature of the statutory scheme is such that the material seized can be retained despite the redactions or the way the courts undertook the task.

On 16 April 2014, DC Skarratts of the Hertfordshire police applied for two search warrants under section 8 of the Police and Criminal Evidence Act 1984 (“PACE”) and rule 6.30 of the Criminal Procedure Rules. The application stated that the offence under investigation was conspiracy to commit fraud by false representation. The application was in respect of the claimant’s home and business premises. As to the investigation, all that is publicly available from the application is that an inquiry had commenced into the handling of stolen artwork and other valuable artefacts and that there were a number of suspects, including the claimant. There had been sizeable repayments on his home mortgage and it appeared that he was a heavy gambler. The application continued that the claimant had no previous convictions. Although he was not allowed to run a company, the police suspected he had a business interest at the business premises named in the warrant. As to the material sought, the application listed fake and stolen artwork, cash, computers and mobile telephones, and documentation relating to the art loss register “or similar”. It asserted that if fake or stolen artwork was found at the addresses, that would significantly progress the investigation and help prove a conspiracy between the suspects.

At 2:40pm on 16 June 2014 JL Grimsey JP, sitting at the St Albans Magistrates’ Court, issued the warrants. It appears that the police attended the court at about 2pm that day. The reasons the JP gave for issuing the warrants were stated to be “because of the substantial evidence that linked all the subjects together and the addresses.”

The warrants were executed 10 days later on 26 June 2014. Over a period of some three and a half hours at the two premises the police seized £15,000 in cash, £2500 in counterfeit notes, computers, documents and other items. The same day the claimant was arrested, questioned and bailed.

In early August 2014, the claimant’s solicitor requested a copy of the information sworn in support of the application, the transcripts or notes of any additional evidence taken in relation to the hearing before the JP, the time she took and the reasons she gave for issue of the warrant. The claimant’s solicitor was provided with a redacted copy of the information, which we have summarised. Consideration was given to gisting the material, but that proved impossible.

On 18 September 2014, the claimant applied to St Albans Magistrates’ Court for the disclosure of the unredacted information. The matter came before District Judge Mellanby at Luton Magistrates’ Court on 23 September 2014. She heard representations by the claimant’s counsel. The police stated that there was no additional evidence or notes taken at the hearing on 16 June 2014 and that the application had taken place over a period of approximately 20 minutes. The District Judge conducted a public interest immunity (“PII”) enquiry in camera in the presence of counsel for the police and four police officers, three of whom gave evidence on oath. She followed the procedure as approved in Commissioner of Police for the Metropolis v. Bangs [2014] EWHC 546 (Admin). That exercise lasted for over an hour. In her judgment, the District Judge said:

“I adopted the starting point that the applicant was entitled to see the information that had persuaded the magistrate to grant the application, unless the public interest demanded that some or all of the material relied upon should not be disclosed. I conducted an enquiry as to the reasons provided for withholding the information sought and determined, after considering those reasons that it was in the public interest to withhold a substantial amount of information which had been before JL Grimsey JP when she granted the search warrant. I was satisfied that if much of the detail contained in the information were to be disclosed to the applicant at this juncture, there was a strong likelihood it would fundamentally compromise the police investigation that was in hand. Furthermore, full disclosure would inevitably reveal confidential sources which the police were relying upon at a critical stage in the investigation. I found no evidence to suggest that DC Skarratts had failed to make a full and frank disclosure at the time of laying his information nor that there was any apparent irregularity in the issuing of the warrant. I heard and accepted the evidence of 3 officers “in camera”. I relied on the witnesses’ expertise, their breadth and depth of knowledge of the investigation and whilst I accept it could not be tested in cross examination, I myself asked a number of questions in order to satisfy myself that the court was undertaking a proper balancing exercise when weighing up the conflict of public interest in withholding information and the public interest in the open and transparent need for the administration of justice.”

The District Judge indicated that there were approximately a further two pages of closely typed information before the JP on 16 June 2014 which supported the application. That withheld material concerned the investigation and should not be disclosed.

The claimant made an application for judicial review on 26 September 2014 on the basis that the application for and issuance and execution of the search warrants was unlawful. There was also an application for an injunction, effectively preventing the police from examining the material seized. However, the police gave undertakings to keep it securely and not to examine it further or to copy any item. Later, the police returned some of the items seized.

Ground 1 of the application for judicial review claimed that the access conditions in section 8(1) of PACE had not been met. It was said that the Information contained internally conflicting descriptions of the “material offence” and was deficient in a number of technical respects. Furthermore, this ground asserted (correctly) that the Information, as disclosed, did not contain sufficient material to support the conclusion that there were reasonable grounds to suspect that an offence had been committed, nor of the others matters set out in section 8(1)(b), (c), and (e). In short, the claimant had not been provided with information to be satisfied about the lawful basis of the warrants. Complaint was made that the police had redacted material unilaterally before disclosing the Information. That was correct but, as we have noted, the redaction exercise was regularised by the District Judge’s ruling on PII. The claimants envisaged that the High Court, in the judicial review proceedings, would conduct its own PII hearing. If it agreed with the magistrate, the PII material could not then be relied upon by the police to sustain the warrants. It would be impossible for the respondents to justify the warrants and they would have to be quashed.

Thus, the claimant’s position in the earlier judicial review proceedings entailed the proposition that even if the magistrate had lawfully issued the warrants on the material placed before her, they should nonetheless be quashed as unlawful because the police would be unable to provide the claimant with sufficient information, disclosure of which would be damaging to the public interest, to justify the warrants. The claimant suggested that if the justification of the warrants lay entirely in undisclosed materials, the effect was to sanction closed evidence proceedings for which there was no provision, citing Al-Rawi v. Security Service [2011] UKSC 34; [2012] 1 A.C. 531. Ground 2 rested on defects on the face of the warrant, in particular their width, by reference to sections 8 and 15(6) of PACE, and ground 3 on the scope of the searches, which went beyond the terms of the warrant, by reference to sections 15(1) and 16(8) of PACE.

The police lodged an Acknowledgement of Service on 17 October 2014, to which the claimant replied. On 28 January 2015, Kenneth Parker J granted permission on all grounds and directed that the police file and serve detailed grounds of defence. That was done on 1 March 2015. The police then lodged an application with the St Albans Crown Court on 23 March 2015 under section 59 of the Criminal Justice and Police Act 2001 (“the 2001 Act”). As a result of that and negotiations between them, the parties lodged a consent order to dispose of the judicial review dated 27 March 2015. Under it, the warrants were quashed, the seizures under them were declared unlawful and the material seized was to be returned, but subject to any order made as a result of the section 59 application. The consent order was sealed by the court on 6 May 2015.

Mr Summers QC for the claimant submits that by agreeing that the earlier warrants should be quashed, the police should to taken to have accepted that no warrant could survive scrutiny unless sufficient material was disclosed which demonstrated that all of the access conditions were satisfied. That conclusion does not follow from the fact that the earlier judicial review proceedings were conceded and, even if the concession had been made on that specific basis, the question of law would remain for determination by this court, not the police.

The section 59 application acknowledged that the claimant’s application for judicial review was likely to succeed in obtaining a declaration that the warrants were to some degree issued or executed unlawfully. However, the application suggested that a hearing ex parte, with the full unredacted information presented at the St Albans Magistrates’ Court on 16 June 2014, would lead to an order that the property seized (or at least some of it) could be retained on the same terms as if seized under lawful search warrants. Redactions, it was said, were in the public interest.

Under the Criminal Procedure Rules 2015, as amended from 4 April 2016 (but not in force at the time of this case), a section 59 hearing is now in private unless the court otherwise directs: r.47.36(a). An application is made on notice to a person with an interest in the property, who can request a hearing: rr.47.38(2)(b)(ii), 47.39(2)(c). This procedure reflects the decision of this court in Van Der Pijl v. The Crown Court at Kingston [2012] EWHC 3745 (Admin); [2013] 1 WLR 2706, paragraphs [81] – [84]. The 2001 Act itself is silent about whether the application can be made ex parte. In this case the claimant outlined his position in a statement in accordance with section 39(5) of the Crown Court Rules 1982. As to the merits, he contended that the section 59 application was a repeat of the same application, and based on the same materials, which had already been conceded by the police to have been unlawful in the judicial review. Regarding PII, the claimant reiterated that there was no mechanism for closed evidence in a section 59 application and there was no authority that the police could claim PII whilst, at the same time, relying on the materials as evidence. The section 59 application, it contended, could not succeed.

The application came before HHJ Bright QC at St Albans Crown Court on 20 May 2015. The judge held that the police were entitled to rely on the PII materials in support of their section 59 application. The judge examined the full, unredacted information and heard oral evidence in the absence of the claimant and his legal team. He announced in open court that he was satisfied that the redactions in the documents disclosed to the claimant were necessary in the public interest and that no further disclosure was necessary. As regards the claimant’s legal argument, HHJ Bright QC said in a reserved judgment dated 9 June 2015:

“…Having considered the various authorities to which I have been referred, it seems to me that the crucial feature of this case which distinguishes it from cases involving inter partes litigation is that the procedure for obtaining a warrant under section 8 PACE 1984 is an ex parte procedure, not an inter partes one. Under section 8 PACE 1984, a Justice of the Peace has to be satisfied that there are reasonable grounds for believing that the relevant conditions are met before issuing a search warrant. That belief can lawfully be based upon PII material. In my judgement, there is no requirement for full disclosure of the Information before the issue of the warrant can be lawful nor are the prosecution under any obligation to make full disclosure of the contents of it after the warrant has been executed. Support for this conclusion is to be found in the judgement of Lord Justice Gross in the case of Gittins v. Central Criminal Court [2011] EWHC 131 at paragraphs 25 and 61-67 and in the judgement of Lord Justice Beatson in the case of Commissioner of Police for the Metropolis v. Bangs [2014] EWHC 546 (Admin) at paragraphs 25-29.

I therefore rule that the Applicant in this case would be entitled to re-apply for a section 8 search warrant in reliance upon information which I have ruled it is not in the public interest to disclose. The issue of such a warrant by Magistrates in such circumstances would not be unlawful even though the redacted documents thereafter supplied to the Respondent contained insufficient material to enable him to judge whether the warrant in question was issued on a lawful basis…”

The court issued an order to this effect. Under it, the non-inspection undertakings were continued.

On 23 June 2015, the claimant issued the present claim for judicial review of the Crown Court’s order authorising the retention of the material pursuant to section 59 of the 2001 Act. The police lodged an Acknowledgment of Service. Collins J gave permission in October 2015. The police made an application on 10 December 2015 for a hearing before us in camera to examine the full unredacted information and to hear evidence as to the reasons for asserting PII. The claimant objected. On 27 January 2016, Collins J ordered that the court hearing the claim should decide whether it needs to see the PII material and needs any statement to justify the PII claim.

We considered this matter at the outset of the hearing. We decided that there should be no in camera hearing and that we did not need to consider the PII material. There was a lawful PII ruling by HHJ Bright QC and the issue before us, in essence whether he was entitled to consider PII material in the section 59 application, was a matter of law which did not require us to see the unredacted material or hear evidence about matters which formed the basis of his PII ruling.

Section 8 of PACE confers power on a justice of the peace to authorise search warrants for the entry and search of premises. It provides, so far as is relevant:

“8 (1) If on an application made by a constable a justice of the peace is satisfied that there are reasonable grounds for believing –

(a)

that an indictable offence has been committed; and

(b)

that there is material on premises mentioned in subsection (1A) below which is likely to be of substantial value (whether by itself or together with other material) to the investigation of the offence; and

(c)

that the material is likely to be relevant evidence; and

(d)

that it does not consist of or include items subject to legal privilege, excluded material or special procedure material; and

(e)

that any of the conditions specified in subsection (3) below applies in relation to each set of premises specified in the application, he may issue a warrant authorising a constable to enter and search the premises.

(1A) The premises referred to in subsection (1)(b) above are –

(a)

one or more sets of premises specified in the application (in which case the application is for a “specific premises warrant”);

…

(2)

A constable may seize and retain anything for which a search has been authorised under subsection (1) above.

(3)

The conditions mentioned in subsection (1)(e) above are—

(a)

that it is not practicable to communicate with any person entitled to grant entry to the premises;

(b)

that it is practicable to communicate with a person entitled to grant entry to the premises but it is not practicable to communicate with any person entitled to grant access to the evidence;

(c)

that entry to the premises will not be granted unless a warrant is produced;

(d)

that the purpose of a search may be frustrated or seriously prejudiced unless a constable arriving at the premises can secure immediate entry to them.

(4)

In this Act “relevant evidence”, in relation to an offence, means anything that would be admissible in evidence at a trial for the offence.

(5)

The power to issue a warrant conferred by this section is in addition to any such power otherwise conferred.”

Search warrants issued under section 8 are subject to the safeguards contained in sections 15 and 16 of PACE. So far as relevant, section 15 provides:

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

(2)

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

(a)

to state –

(i)

the ground on which he makes the application;

(ii)

the enactment under which the warrant would be issued

…

(b)

to specify the matters set out in subsection (2A) below; and

(c)

to identify, so far as is practicable, the articles or persons to be sought.

(2A) The matters which must be specified pursuant to subsection (2)(b) above are –

(a)

if the application relates to one or more sets of premises specified in the application, each set of premises which it is desired to enter and search;

…

(3)

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

(4)

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

(5)

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

…

(6)

A warrant –

(a)

shall specify –

(i)

the name of the person who applies for it;

(ii)

the date on which it is issued;

(iii)

the enactment under which it is issued; and

(iv)

each set of premises to be searched, or [re: “all premises warrants”]

(b)

shall identify, so far as is practicable, the articles or persons to be sought.

(7)

Two copies shall be made of a warrant which specifies only one set of premises and does not authorise multiple entries....

(8)

The copies shall be clearly certified as copies…”

Section 59 of the 2001 Act provides that the Crown Court may authorise the retention of unlawfully seized materials under a search warrant if it would immediately become appropriate to issue a fresh search warrant (s.59(7)). Section 59 provides, so far as relevant:

“59.

(1) This section applies where anything has been seized in exercise, or purported exercise, of a relevant power of seizure.

…

(6)

On any application under this section, the appropriate judicial authority may authorise the retention of any property which –

(a)

has been seized in exercise, or purported exercise, of a relevant power of seizure, and

(b)

would otherwise fall to be returned, if that authority is satisfied that the retention of the property is justified on grounds falling within subsection (7).

(7)

Those grounds are that (if the property were returned) it would immediately become appropriate –

(a)

to issue, on the application of the person who is in possession of the property at the time of the application under this section, a warrant in pursuance of which, or of the exercise of which, it would be lawful to seize the property…”

As indicated earlier in the judgment, the procedure for a section 59 application is now set out in the Criminal Procedure Rules 2015, rr. 47.35 – 47.39.

The claimant’s grounds are two-fold. First, that just as with the previous judicial review of the warrants themselves there was no way that the police could justify their retention of the property seized from him in the section 59 proceedings when it did so on the basis of evidence which was not disclosed to him. In effect, the redaction of the information behind the warrants constituted a closed evidence procedure for which there is no Parliamentary approval. Alternatively, even if the closed evidence proceedings leading to the Crown Court order under challenge was possible, it was necessary that the police disclose enough information in the section 59 proceedings to enable the claimant to know the nature of the allegations against him and have the opportunity to lead evidence to refute them.

For the claimant, Mr Summers QC built his case with respect to the first ground on thirteen propositions. First, the issue of search warrants is a serious invasion of fundamental rights, the liberty of the subject and privacy rights, citing R (Energy Financing Team Ltd) v. Bow Street Magistrates’ Court [2005] EWHC 1626 (Admin); [2006] 1 W.L.R. 1316, [24] (“the EFT case”). Second, commensurate with the severity of the violation the legislation lays down a scheme of essential and rigorous safeguards. Third, as indeed HHJ Bright QC accepted, if the publicly disclosed materials in this case were all that existed they would not justify the issue of the warrants. Fourth, the initial process whereby search warrants can be obtained in the first instance in private is only part of what was recognised in the EFT case as an overall process; a defendant’s participation in the process is delayed, not ousted.

Fifth, the scheme for search warrants includes the subject’s right to examine and challenge the lawfulness of a warrant in an inter partes hearing, recognised in R (Cronin) v. Sheffield Justices [2002] EWHC 2568 (Admin), [2003] 1 WLR 752, [29] and subsequent authorities. Coupled with that, sixth, is the right of the subject, based on fairness, to sight of the materials upon which the warrant was obtained. Seventh, these rights to see the material on which the warrant is based and of access to the court to challenge it are so fundamental that they trump other public interests, as was acknowledged in R(Evans) v. Director of the Serious Fraud Office [2003] EWHC 2304 (Admin), [2003] 1 WLR 299, [7]-[8], [12] (although a letter of request was confidential under a Mutual Legal Assistance treaty, the nature of the criminal investigation had to be revealed). The same approach was adopted in Bunge Ltd v. Minister of Finance [2013] Bda LR 17; [34]-[38], [2013] CA (BDA) 4 Civ).

Eighth, it may be that in the public interest certain information has to be withheld from disclosure. However, ninth, for a warrant to survive there must be an irreducible minimum of information so that it can be publicly demonstrated that it is lawful. If the state applies successfully for material to be redacted on public interest grounds, tenth, it cannot be used in court to justify the warrant because it is closed evidence, and closed evidence is impermissible without Parliamentary approval: Al-Rawi v. Security Service [2011] UKSC 34; [2012] 1 A.C. 531. Eleventh, Al-Rawi applies in this context as it does with judicial review: at [69]: this is a case where the state is attempting to rely positively on material not disclosed by comparison with a PII application where the state is withholding information upon which it will not rely. Twelfth, in as much as the case law might contemplate otherwise they predate Al-Rawi (e.g., Gittins) or were decided without reference to it. Thus thirteenth, if the state cannot justify a search warrant on the open material available it must abandon its intrusion.

Mr Summers’s alternative case, ground two, is that even if search warrant cases fall within that special category of cases where closed evidence procedures are permitted, it is still not possible to adopt completely closed procedures. Enough information must be available to enable the subject to know the nature of the allegations against him and have the opportunity to lead evidence and participate in the court proceedings to refute them, citing Secretary of State for the Home Department v. CC [2014] EWCA Civ 559; [2014] 1 WLR 4240, [20]; Sher v. United Kingdom, App No 5201/11, [2015] ECHR [149].

The starting point in considering the claimant’s case is Parliament’s scheme in Part II of PACE for the issue of search warrants. The first feature of that scheme is that section 8 of PACE confers the power on a justice of the peace to authorise the entry and search of premises on application by a police constable. Section 15(3) provides that the application shall be made ex parte but supported by an information in writing. In other words, it is a practical system where an ordinary police constable can appear ex parte before a lay justice of the peace. After a consideration of all the information without being concerned with issues of PII or non-disclosure, the lay justice can exercise his or her discretion to authorise a search warrant.

That ex parte procedure contrasts with the procedure Parliament chose in section 9 and paragraph 4, Schedule 1, of PACE for a judge to make a production order for what the statute calls excluded or special procedure material (for example, certain journalistic material: see ss.11, 14). Under schedule 1 of PACE an application for a production order has to be made inter partes: paragraph 7. In R (British Sky Broadcasting Ltd) v. Central Criminal Court [2014] UKSC 17; [2014] AC 885 the issue turned on the meaning of that requirement in paragraph 7. In a judgment with which all members of the Supreme Court agreed, Lord Toulson noted that the government had originally proposed that a section 9 production order might be made ex parte, but that met opposition in Parliament. Inherent in the concept of an inter partes hearing, Lord Toulson held, was that each party should know what material the other was asking the court to take into account: [30]. Consequently, the order in that case had been rightly quashed since the judge when granting it had heard evidence in the absence of the broadcaster.

The second feature of Parliament’s scheme for the issue of search warrants is that it has built into it a number of the significant statutory safeguards “to enable searches to be carried out whilst providing the means to ensure that the rights of citizens are protected”: R (on the application of S) v. Chief Constable of the British Transport Police [2013] EWHC 2189 (Admin); [2014] 1 W.L.R. 1647, [39] (“the SFL case”). One aspect is that section 8 of PACE contains important preconditions to the issue of search warrants. Under section 8(1) the justice of the peace must himself be satisfied that there are reasonable grounds for believing that all these are established.

As well as the preconditions in section 8 of PACE, section 15 contains what its side note calls “Search warrants – safeguards” and applies to any warrant to enter and search premises. One protection is that the constable applying for a warrant must swear a written information and answer on oath any question that the justice of the peace or judge hearing the application asks: s.15 (4). There is also a range of statutory safeguards in Part II of PACE 1984 regarding the execution of search warrants and the seizure and retention of the material seized. These statutory protections are underpinned by Code B, made under PACE, and by the Criminal Procedure Rules 2015, Part 47, section 7.

A third, and crucial feature of Parliament’s scheme, is that it has interposed the judiciary to scrutinise independently whether a request of the police or the Executive for a search warrant meets the statutory preconditions. Justices and judges exercise this scrutiny function on a daily basis. In a passage quoted in the SFL case at paragraph [38], Lord Hoffmann explained in Attorney General of Jamaica v. Williams [1988] AC 351 that the judicial duty in this respect is of high constitutional importance, since the law “relies on the independent scrutiny of the judiciary to protect the citizen against the excesses which would inevitably flow from allowing an executive officer to decide for himself whether the conditions under which he is permitted to enter on private property have been met”: at 358.

In addition to the protections which Parliament has established, challenges can be made in the courts to the issue and execution of search warrants as well as to applications by the authorities under the section 59 procedure to retain material seized under warrants which are unlawful or have been quashed. That task of addressing such challenges is undertaken by the courts against the background of the competing public policies in PACE – a public interest in the effective investigation and prosecution of crime, and a public interest in protecting the personal and property rights of citizens against infringement and invasion. After identifying these two interests in R v. Crown Court at Lewes ex parte Hill (1991) 93 Cr App R 60, Lord Bingham CJ continued:

“There is an obvious tension between these two public interests because crime could be most effectively investigated and prosecuted if the personal and property rights of citizens could be freely overridden and total protection of the personal and property rights of citizens would make investigation and prosecution of many crimes impossible or virtually so” (at 66).

In our view Lord Bingham’s language encapsulates better the subject's interests than the descriptions in other cases. Strictly speaking search warrants do not trench on “the liberty of the subject”, albeit that the personal, privacy and property rights in play are serious. Nor, we would add, do search warrants necessarily result in a deprivation of those rights, despite what might be a serious interference with them. Cases such as Secretary of State for the Home Department v. CC [2014] EWCA Civ 559, [2014] 1 W.L.R. 4240 and Sher v. United Kingdom, App. No. 5201/11, [2015] ECHR 5201/11, which the claimant cited as supporting an obligation at least to gist the basis for a search warrant, were cases where the liberty of the subject was very definitely affected either by detention or control orders. In other contexts the nature of the right and the degree of interference with it have been held to be relevant to whether information can be withheld from a litigant on public interest grounds: see Tariq v. Home Office [2011] UKSC 35; [2012] 1 AC 452.

In the cases where search warrants have been challenged, the courts have added to the rights Parliament has made available to those affected. Thus in R (Cronin) v. Sheffield Justices [2002] EWHC 2568 (Admin), [2003] 1 WLR 752, Lord Woolf CJ enunciated the right to see the information on which a search warrant is based, although he noted that it would be contrary to the public interest to reveal the details of an informer and possibly “other statements to which public interest immunity might apply”: [29]. In R (Austen) v. Chief Constable of Wiltshire [2011] EWHC 3385 (Admin) Ouseley J extended the right to the evidence given on oath by police officers in support of the warrants, adding that it was “subject to public interest immunity (“PII”)”: [49]. The rationale for this common law right to information was expressed by Kennedy LJ in R (Energy Financing Team Ltd) v. Bow Street Magistrates’ Court [2005] EWHC 1626 (Admin), [2006] 1 WLR 1316, that judicial control could not operate effectively unless those affected are put in a position to take meaningful advice, and if so advised to seek relief from the court: [24(10)].

The issue which arises in this case is whether this common law right to information after the issue of a search warrant requires sufficient information to be provided to the subject of the warrant to assess its legality against the statutory conditions. Although the challenge in this case relates to the procedure under which an application pursuant to section 59 of the 2001 Act should be conducted, Mr Summers’s submissions on behalf of the claimant make no distinction between such an application and an application challenging the lawfulness of a warrant.

Although the Cronin and Austen cases considered that information could be withheld from a claimant, which was before the magistrate in issuing a search warrant, they did not consider the metes and bounds of non-disclosure. In Gittins v. Central Criminal Court [2011] EWHC 131 (Admin); [2011] Lloyd’s Rep. F.C. 219, Gross LJ said that disclosure should be given “if at all possible” ([30]) and Davis J referred to exceptional cases where no disclosure at all might be justified: [79]. In Commissioner of Police of the Metropolis v. Bangs [2014] EWHC 546 (Admin) Beatson LJ (with whom Griffith Williams J agreed) contemplated that because of the public interest in non-disclosure some or all of the information may not be available to someone who later challenges a search warrant: [25]-[26], [33], [35].

In our view, these obiter remarks are justified by the nature of the detailed scheme Parliament has established for search warrants. Parliament provided specifically for ex parte proceedings in section 15(3) for obtaining a search warrant, which contrasts with the inter partes procedure it provided for production orders in section 9. Parliament also laid down a host of statutory protections relating to search warrants, and interposed the judiciary to act as a check on their issue.

It is against this statutory background that the common law right to obtain information justifying a warrant must be seen. The statutory scheme under PACE is one of ex parte proceedings for the issue of a search warrant which may entail the presentation of material to the magistrate that cannot be disclosed to the subject of the warrant. In our view, Parliament has contemplated that in some cases information grounding the warrant may not be disclosed if that is in the public interest. A magistrate or judge will need to consider both whether the search warrant or the retention of property seized is justified and what information can be disclosed to the party affected by the warrant. It may be that as a result of the information withheld the person cannot see how the warrant can be lawful. But that is the balance Parliament has struck.

We do not regard Al-Rawi v. Security Service [2011] UKSC 34; [2012] 1 A.C. 531 as having an application in this type of case. Lord Dyson said obiter that the principle in Al-Rawi applies to judicial review. However, the common law right to information justifying a search warrant does not arise in judicial review proceedings. It arises before a magistrate under the procedure approved in Bangs for challenging its issue or execution, or when a judge hears a section 59 application in the Crown Court (see R (on the application of Panesar) v. Central Criminal Court [2014] EWHC 2821 (Admin), [2015] 4 All ER 754) for the retention of material seized under a search warrant which it transpires is unlawful. In both cases the magistrate and judge also considers what material can be made available to the party affected by the warrant and what should be redacted in the public interest.

The claimant’s submissions in our view would frustrate Parliament’s intention in establishing a relatively simple system for the issue of search warrants. Before applying for a search warrant the police would have to consider carefully whether they had enough disclosable material relating to each of the statutory preconditions, together with material they anticipated would otherwise become available to justify it. What is disclosable in the public interest can vary over time, so that if there is a challenge it might be a matter of chance whether when the matter is before the magistrates’ court or a judge there is enough disclosable material justifying a search warrant or the retention of material seized. We cannot conceive that Parliament would contemplate such arbitrary results.

Moreover, the claimant's case is in our view at odds with the public interest in the investigation and prosecution of crime which Lord Bingham LJ identified in R v. Crown Court at Lewes ex parte Hill (1991) 93 Cr App R 60. For example, if the claimant is correct, when a search warrant is based on information from a single but reliable source the police, if challenged, will have to disclose that person’s identity or return the material seized, even if on the basis of the material placed before the magistrate the warrant’s issue was unimpeachable. The informant might be the member of a criminal gang, the abused partner of an offender or a family member of someone planning to engage in terrorist acts. Thus on the claimant’s case material seized, such as a mobile telephone, will have to be returned if its seizure is challenged. That material might not have been examined if the party under investigation obtains interim relief pending the court hearing the challenge. In such cases, the police are highly unlikely to disclose the informant’s identity. Unless other information had become available the investigation may need to be aborted. In addition to the position with informants, there are similar concerns whenever a search warrant is to be based largely on material which it is not in the public interest to disclose.

We conclude that the claimant’s argument does not succeed in the context of a warrant issued under section 8 of PACE. The question arises whether the approach should be different under section 59 of the 2001 Act. This statutory provision was introduced to deal with a particular difficulty which arose from the previous statutory scheme. If a warrant was quashed in contested judicial review proceedings, or if a seizing authority accepted that there was a defect in a warrant or the process leading to its issue which undermined its legality and consented to its being quashed, there was a risk that in the interval between the return of the seized material and the opportunity to obtain and execute a fresh warrant evidence would be lost. The main purpose of section 59 is, in short, to enable material to be retained which would inevitably be seized if a fresh warrant was issued by a magistrate and to avoid the risk to the criminal investigation of relevant evidence being lost.

A difference between the procedure under section 8 of PACE and section 59 of the 2001 Act is that the latter inevitably follows the execution of the warrant, the seizure of material and a recognition that the warrant is at the very least vulnerable to being quashed. Not infrequently, as in this case, the warrant will have been quashed. Whilst Parliament did not provide expressly that such applications should be inter partes, someone in the position of this claimant should be in a position to oppose the application. The Panesar case explores the ambit of the discretion vested in the Crown Court judge and, quite apart from technical questions that would arise under section 8 of PACE on the notional re-application, the factors which the judge should have in mind.

Whilst such an application is inter partes, at the heart of the judge’s consideration is the notional re-consideration by the magistrate of a fresh section 8 PACE application. In those circumstances it would be artificial for the judge in the Crown Court to restrict himself to considering material that could be disclosed if (as here) there is additional information which quite properly would be considered by the magistrate were a fresh application to be made. We do not accept that Parliament can have created a procedure with that as its result.

We consider that the same conclusion applies to an application to retain material pursuant to section 59 of the 2001 Act as applies to an application pursuant to section 8 of PACE. It follows that the judge may consider material which cannot be disclosed to the subject of the impugned warrant and may restrict what may be disclosed, even if what falls to be disclosed cannot, without more, support the various conclusions necessary for a warrant to issue.

The scope of this claim is narrowly focussed on whether the procedure followed by the judge in the Crown Court was lawful, rather than whether there is any basis for quashing his decision on the assumption that it was. It was no part of this claim that if the Crown Court judge was entitled to rule that the claimant should be denied access to the material he ruled was protected from disclosure, that his decision should be quashed. An argument of that nature was run in the earlier judicial review proceedings. It was met by reference to Carnduff v. Rock and Chief Constable of West Midlands Police [2001] EWCA Civ 680; [2001] 1 WLR 1786 that the absence of disclosure should not lead to the quashing of the warrants, when it was clear that the magistrate had taken account of material, which could not be disclosed on public interest grounds.

We have not had to consider such an argument. In AHK v. Secretary of State for the Home Department [2012] EWHC 1117 (Admin) and [2013] EWHC 1426 (Admin), Ouseley J considered similar arguments in the context of a challenge to the refusal of naturalisation. The Secretary of State could not deploy the material upon which she refused naturalisation on character grounds. Ouseley J upheld the non-disclosure of the material on PII grounds. He held that the inability of the open material to provide a sustainable reason for the decision did not lead to its being quashed. The problem encountered in the AHK case has since been ameliorated by the Justice and Security Act 2013. That has authorised a closed material procedure in judicial review proceedings in limited circumstances. We note that as a result of section 6(11) of the 2013 Act proceedings in the High Court which are a criminal cause or matter may not adopt the closed material procedures provided for under that Act. The approach in AHK would provide at least an analogy were the argument to be joined in another case.

For the reasons we have given we refuse judicial review in this case.