AB and Another v Huddersfield Magistrates' Court and Another
| Jurisdiction | England & Wales |
| Judge | Mr Justice Stuart-Smith |
| Judgment Date | 10 April 2014 |
| Neutral Citation | [2014] EWHC 1089 (Admin) |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 10 April 2014 |
| Docket Number | Case No: CO/7534/2013 |
2014 EWHC 1089 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
DIVISIONAL COURT
Sitting at Leeds Combined Court Centre
1 Oxford Road, Leeds
West Yorkshire
LS1 3BG
Lady Justice Rafferty
Mr Justice Stuart-Smith
Case No: CO/7534/2013
Rupert Bowers and Abigail Bright (instructed by Qamar Solicitors) for the Claimants
Mark Ley Morgan (instructed by Police Headquarters Legal Services) for the 2 nd Defendants
Hearing dates: Thursday 13th March 2014
Introduction
On 8 May 2013 the First Defendant Magistrates' Court issued a specific premises warrant under s. 8 Police and Criminal Evidence Act 1984 ("PACE"). It was executed by officers of the Second Defendant's force on 13 and 22 May 2013, with another search taking place on 14 May 2013 in purported compliance with s. 18(1) of PACE. The premises searched are 46 M… Road, the home of the Claimants and other family members. The Claimants challenge the lawfulness of the issue of the warrant and the searches subsequently carried out.
On 18 November 2013 Blake J directed a rolled-up permission hearing before the Divisional Court. The hearing took place on 12 March 2014. This is the judgment of the Court to which we have both contributed.
The Factual Background
On 12 May 2002 a lethal house fire in Huddersfield took the lives of eight people ranging in age from 54 down to a babe of six months. When it was clear that the fire had been maliciously started, the police promptly arrested a number of people including MS ("MS"). MS was bailed because there was then insufficient evidence to justify charging him; but by 21 May 2002 forensic evidence justified his re-arrest with a view to charging him (and others) with murder. When the police attempted to trace MS he had disappeared. He has been on the run ever since, wanted for the murder of the eight victims of the fire. It is thought that MS may have escaped to Pakistan. In 2003 other suspects who had been arrested along with MS were tried and convicted of murder. During the trial evidence was given that implicated MS.
The Claimants are members of MS's family. The police applied for the warrant now under challenge because they had received information that leads them to believe that MS's family was actively involved in assisting him to leave the country and has continued to assist him in evading arrest. In addition to being members of MS's family, the Claimants are solicitors. They practise in criminal law and act as duty solicitors at police stations, as was well known to the police.
The application for the warrant was made on a standard form signed by DC Martin Jarvis and authorised by DI Paul Smith. It is central to the present proceedings and stated as follows:
"Application is today made before me the undersigned by DC 4886 Martin Jarvis:
For the issue of a specific premises warrant under section 8 Police and Criminal Evidence Act 1984
The applicant says on oath that there are reasonable grounds for believing:
that an indictable offence, namely (perverting the course of public Justice (Common Law) and assisting an offender Contrary to section 4(1) and (3) of the Criminal Law Act 1967 has been committed:
(a) that there is on 46 M… Road …. The outhouses and vehicles within the curtilage of this property. material that is likely to be relevant evidence and be of substantial value to the investigation of the offence and does not consist of or include items subject to legal privilege excluded material or special procedure material, namely Computers/mobile telephones/media storage devices/identity documents/financial documents supporting the financing of MS/Documents relating to premises in Pakistan belonging to/ in possession/control of the occupants of…
(b) …
(iii) that entry to the premises will not be granted unless a warrant is produced;
(iv) 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; AND
(d) that to achieve the purpose for which the warrant is being applied it is necessary that the warrant authorises entry to and search of each set of premises:
subject to any second and subsequent entry being authorised in writing by an inspector or above on an UNLIMITED number of occasions.
FURTHER INFORMATION:
1) All applications; explain why it is believed the material sought will be found on the premises to be searched.
At approximately 2am on Sunday 12 th May 2002, emergency services were called to 40 Osbourne Road, Birky, Huddersfield to reports of a house fire. On their arrival the house was found to be totally engulfed in flames. Following its extinguish it was determined that seven people from the Christi family, ranging from 35 years to 6 months in age had perished within the address. A further female aged 54 years died a week later as a result injuries sustained in the fire. Sadly three generations of the Christi family perished as a result of the fire.
During the daytime of Sunday 12 th May 2002 a number of individuals were arrested in relation to this matter. One of these individuals, MS was interviewed at length in relation to the house fire, after extended detention, he was bailed to return to Huddersfield Police station in July 2002. At the time of release there was insufficient evidence to charge the suspects. Although forensic examinations were ongoing, it was not possible to conclude these during the detention period. On 21 st May 2002 fresh forensic evidence was obtained, the evidence was enough to justify the re-arrest of all suspects including MS but despite extensive enquiries he could not be traced. He was circulated as wanted for 8 offences of murder and remains at large to this date.
In June 2003 a trial was concluded at Leeds crown court in relation to the other defendants charged, this resulted in the other defendants giving evidence against their co-defendants including MS.
The investigation has continued as a man hunt for the intervening period and despite lengthy and protracted enquiries the suspect remains outstanding.
As a result of enquiries made to establish the current location of MS the investigation team have gathered information and intelligence that would lead them to believe that MS's family were actively involved in assisting him to leave the country and have continued assisting him in evading the Police and frustrating the investigation. MS's family live at 46 M… Road, …. This is where the investigation believes it will find evidence of this conspiracy that can help locate MS.
2. If applicable, describe any person(s) to be authorised to accompany the officer executing the warrant.
Warrant will be executed by officers from the Homicide Major enquiry team and assisted by local Officers from the neighbourhood Policing team.
3. If the application is for an "all premises" warrant; explain;
(a) Why it is believed necessary to search premises occupied or controlled by the person in question that are not specified in the schedule; and
(b) Why it is not reasonable practicable to specify in the Schedule ALL the premises the person occupies or controls and which might need to be searched.
This application is for 46 M… Road … and to allow investigating officers multiple entries to that premises.
4. If authority to enter and search the premises on more than one occasion is needed, explain why, and how many, further entries are needed to achieve the purpose for which the warrant is to be issued.
The Investigating Officers will require entry to the premises on more than one occasion. This is because the investigation is dynamic and as a result of on going enquiries and interviews new lines of enquiry could be indentified that would give rise to further searches taking place at the address."
The application came before Mr Brady. DC Jarvis attended with DS Brandon Greenwood. DS Greenwood took notes and recorded "What is the intelligence? Not sure of what the source". To similar effect, the clerk to the court noted:
"Intelligence — not too sure of its sources or reliability."
DC Jarvis' evidence is that he "could not disclose the provenance of all the intelligence because it came from many different strands. [He] told [the Magistrates] that enquiries made by the enquiry team had led to relevant material being obtained from multiple sources including Crime Stoppers, confidential sources and witnesses. It was the size and number of these reports that led [him] to being non-specific about the provenance of it all."
It is common ground that the issuing court was not told that the Claimants are solicitors. It is also common ground that the Court was not told that the police expected to find significant quantities of items subject to legal privilege, excluded material or special procedure material within the meaning of ss. 10, 11 and 14 of PACE respectively. The Claimants' case is that this information should have been provided. The Second Defendant's case is that no such disclosure was required. First, the Claimants' occupation is said to have been irrelevant because (a) the warrant concerned their residential address and not their office; (b) the police were not looking for excluded material or special procedure material; and (c) the material sought had nothing whatsoever to do with the Claimants' occupation as solicitors or dealings with their clients. Second, for the reasons just identified, there were no reasonable grounds for the officers to believe that...
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