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BLOG: Challenging search warrants

05/09/2018

Jonathan Lennon looks at the various lines of attack against the execution and the fruits of search warrants.


What to do with a client with a search warrant

It is not an un-common experience for a solicitor’s first encounter with a new client to happen very soon after an arrest and search operation.  The client, looking for help and reassurance, clutches a copy of the warrant as the only official evidence of his distressing experience.  The solicitor might then be making a mental note to him or herself to look at the warrant later.  Experience tells us it is worthwhile keeping that mental note in mind.

This article does not deal with the substantive law, but what practical steps should be taken at this early and critical stage.

Identifying an Issue

Of course these are myriad and range from whether the warrant should have been granted at all, to whether the police seized too many items, whether LPP material has been seized, the return of seized computers and so on.  This article cannot even begin to touch on the multiple issues that might arise.  However, once a possible issue has been identified it is vital that the solicitor acts quickly.
This is because ultimately the end result is likely to be a potential application for permission for Judicial Review.  Judicial Review is front-loaded – a lot of work has to be done early on in order to prepare the application; and what’s more it has to be done quickly.  If permission for Judicial Review is granted (usually on the papers) then the forensic work for the solicitor tends to reduce.  The work post-leave is more likely to involve practical liaison between the Court and parties, issues about bundling and dealing with the client’s concerns about the case.  The real meat of the claim will already have been dealt with at the early stages.

Time Limit

To add to this pressure there is also a strict time limit for applications for Judicial Review. The Administrative Court now tends to treat such time limits quite strictly.  CPR r54.5 states that the claim for Judicial Review must be filed “promptly” and in any event not later than 3 months after the grounds first arose.  Note – the time limit is not 3 months – it is ‘promptly’ – though it would be difficult for the Respondent to argue that the claim has not been made promptly if it is made within 3 months of the search and seizures.

If you are late with the claim then even a solid claim for leave could risk not making it past the first hurdle – i.e. seeking permission to file out of time.

If the delay is not too significant and the Grounds appear fairly strong then the best hope is to argue the case of R (Grierson) v OFCOM [2005] EWHC 1899 (Admin).  In that case the Claimant sought to review OFCOM’s award of a license of a second commercial radio station to a rival company.  Stanley Burnton J. (as he was then) commented that:

The more important an arguable issue, the stronger its apparent merits, the more ready should the court be [to] grant standing and the less strict should it be in its application of the requirement that proceedings be commenced promptly.

In R (Young) v Oxford City Council [2002] EWCA Civ 990, the Court considered that the factors relevant to the exercise of the discretion to allow a claim to be made out of time include the following, were:

  1. The Claimant reasonably did not know of the decision.
  2. The Claimant was pursuing alternative remedies.
  3. Delay in obtaining CLS funding.
  4. Hardship, prejudice and detriment to good administration.
  5. The merits of the claim and the importance of the issues.

In a warrant case it will likely be points 4 and 5 that may apply. So, if you are a bit late, but have a strong case, then the Court may well be sympathetic.  Delay caused by funding issues will not normally impress the High Court.

Letter Before Claim

The three months does not get extended to allow time for replies to a letter before claim.  However, under the Pre-Action Protocol on Judicial Review such a letter must be sent.The Protocol needs to be read carefully.  If the various points are not addressed there is the possibility that the prospective Defendant will argue procedural points.  The Protocol sets out good practice.  The letter before claim should include the date and details of the decision under challenge and should state why the decision is unlawful/irrational etc and what relief is sought.  It should, if possible allow 14 days for a response although shorter times can be used depending on the circumstances.

Judicially Reviewing the Court

If the claim is going to include an application to quash the warrant that a Magistrates’ or Crown Court made then that Court ought to be named as a Respondent so that, if successful, an order can be made against it.  This is so even if there is no challenge to any decision the lower Court made – e.g. if the claim is that the Court was misled at the ex parte hearing.  This will mean formally sending the Court a letter before claim.  The fact is that the lower Court will never usually get involved in litigation.  However, if its is formally going to be a party to a Judicial Review then the Court has to be named as such and the lower Court sent a letter before action in the usual way.

The lower Court will Acknowledge Service once the claim has been issued and served but will not usually take an active part in the proceedings, or be represented at any hearing.  At most the Court will supply information with the Acknowledgment of Service dealing with some limited factual issues; e.g. the District Judge’s reading of the papers and his/her understanding of what occurred at the without notice warrant application.

Getting the Ammunition

Sometime the solicitor will have a feeling that something may be amiss but before anything can be done he or she needs to find out what was said and done in Court.  Therefore the absolute very first thing to action is getting that material.

At this point in time the solicitor may only have a scruffy copy of the warrant.  If it is going to be suggested that the Court was mislead then clearly the police/HMRC’s Information in support will be required.  In fact it is wise to seek the Information even if the potential challenge does not involve suggesting that the officer misled the Judge.

How to ask for the material will depend on the circumstances, especially how much time is left available on the three-month limit.  The police should be asked firmly to provide not just the Information in support, but any notes taken at the hearing and all material out before the Judge.  It maybe that the letter can include a threat that failure to provide the material will result in a further Ground for Judicial Review against the police; i.e. an unlawful refusal to provide the Information in support etc.  A short time frame should be given.

The ball is in the solicitor’s court at this point.  The client has a right to reasons for the ruling and to know what was said about him in his absence.  There is no harm reminding the police of the law on this.  There is plenty of case law that shows that a note of the Magistrates’ findings, together with any Skeleton Arguments etc need to be disclosed; see e.g. R (ota Goode) The Crown Court at Nottingham [2013] EWHC 1726 (Admin).

The solicitors should also be making demand of the lower Court itself for any notes etc that were made and anything else relevant to the application in the Court’s files following the without notice hearing.
This application however has to follow the procedure set out in the Crim PR r5.5 onwards.  Specifically, r5.7(6) should be followed – this provides that the application; i.e. the application for disclosure of the Judge’s reasons and notes of the hearing etc should be made to the Court in writing but copied to the police/HMRC etc.
The police then have 14 days to object to disclosure.  It is a good idea to copy the letter to the police along with the separate demand to the police for disclosure of the Information in support.

Advising the Client

The client will want to know what a Judicial Review means.  If it is successful it could mean the return of the seized items and potentially the end of the case.  However, that is not necessarily the case.  Judicial Review remedies are always discretionary.

In R (Cook) v Serious Organised Crime Agency [2011] 1 WLR 144, SOCA were investigating a fraud allegation.  Warrants were applied for, issued and the searches undertaken.  The warrants only provided details of the relevant addresses in schedules to the warrant that were then not left at the searched premises, in contravention of the rules.  Though the officers were lawfully at the premises, the seizures were rendered unlawful.  SOCA agreed to pay damages and certain legal costs.  But when the suspect asked for the return of his property he was told that SOCA were re-seizing the items under powers in PACE.  The High Court held that the unlawful seizure could not be rendered lawful by subsequent re-seizure.  SOCA had to take care in drafting warrants in the future and Cook’s material was to be returned.  However, SOCA were later involved in a similar Judicial Review with the same Judge, Leveson LJ, but the opposite result; R (Cummins) v Manchester Crown Court [2010] EWHC (Admin) 2111.

In the Cummins case SOCA, in their investigation of a money-laundering allegation, had again improperly seized material and were forced to return it.  This time however SOCA obtained a Production Order under the Proceeds of Crime Act 2002 compelling Cummins to deliver to SOCA the very same material.  This was possible because of the particular offence being investigated.  The Court found there was no reason why SOCA should be in any worse position than if the warrant had never been sought or why those the subject of an unlawful warrant should somehow be better off.

Section 59 of the Criminal Justice and Police Act 2001

Parliament came up with a mechanism to allow the police to try and keep their investigation on the rails following a quashing of a warrant by the High Court.

Once a warrant is quashed then under s59 of this 2001 Act the police can apply to the High Court for permission to retain the material for a short time whilst it re-applies to the Crown Court for, in effect a new Order justifying the old seizure; see generally R (Panesar) v Central Criminal Court [2015] 1 WLR 2577.  In those circumstances, the Crown Court has a discretion to authorise the retention of the material seized, despite the unlawfulness of the original search, if, were the material to be returned, it would be immediately appropriate to issue a warrant under which it would be lawful to seize the property; i.e. they get the application right the second time round!  In R (Chatwani) v NCA [2015] EWHC 1283 (Admin) it was held that it would be rare for the High Court to refuse permission for temporary stay of the quashing of a warrant whilst the police made an application to the Crown Court – such stay applications would only be refused if there had been bad faith on the part of the police in securing the warrant.

So the client has to be warned that any potential Judicial Review could be academic.  But then again it might not be – the other side might not seek to retain the material.  In any event a Judicial Review sends a clear message to the opposition that this suspect will fight and the litigation may even lead to early disclosure of material that the police would rather not disclose giving some tactical advantage in the criminal matter that otherwise would not be there.  Furthermore, if there was to be a second application following the quashing of a warrant it would have to be inter partes; that levels the playing field making it more difficult for the Judge to grant the application.  Costs of course are always an issue and the client has to be advised about the litigation risk.  But, it must be said, that other than the costs risk, there is often no reason not to challenge where there might be an arguable claim; indeed there are positive advantages.

05/09/2018

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