Carr v Atkins

On the 3rd July, 1986 His Honour Judge Machin, sitting as a circuit judge at the Central Criminal Court, made orders under Schedule I of the Police and Criminal Evidence Act 1984 upon the application of Detective Chief Inspector Atkins of the Company Fraud Department at New Scotland Yard requiring the four appellants to produce documents to a constable within seven days or within 28 days of their proposed application for judicial review. The particular documents were specified in a written information laid before the learned judge by the Detective Chief Inspector, each applicant was given advance notice of the documents which were required to be produced, and those documents related to the accounts of the Broadwater Farm Youth Association.

On the 27th February, 1987 a divisional court consisting of Lord Justice Glidewell and Mr. Justice McCullough heard applications for judicial review designed to quash those orders of Judge Machin. The Divisional Court dismissed the applications for judicial review on their merits, and went on to determine as a matter of law that the original production orders made by the learned circuit judge had been made in a criminal cause or matter, thereby indicating that so far as they were concerned any appeal must be to the House of Lords. They were not asked at that moment to certify that a matter of public importance was involved and nor were they asked to give leave to appeal. If they had been asked, they might well have given a certificate but they might not have given leave to appeal as the general practice is to leave it to their Lordships' House to decide which appeals they will hear. They adjourned any further consideration in order to enable the appellants, if they were so minded, to explore the possibility of appealing to the Civil Division of the Court of Appeal. We have been dealing with such an application that we hear such an appeal as a preliminary point limited to the question of whether we have jurisdiction to do so.

Under section 16 of the Supreme Court Act 1981, appeals lie to this court from the Divisional Court of the Queen's Bench Division unless excluded by other provisions. The only potential exclusion so far as this case is concerned is contained in section 18(1) (a) of the 1981 Act, which reads:

"No appeal shall lie to the Court of Appeal—

• (a) except as provided by the Administration of Justice Act 1960 "—which relates to contempt -"from any judgment of the High Court in any criminal cause or matter".

So we have to decide whether any appeal to this court from the order of the Divisional Court could properly be described as an appeal in a criminal cause or matter.

Mr. Geoffrey Shaw, in an extremely helpful skeleton argument, has been good enough to draw to our attention the fact that the phrase "criminal cause or matter" arises not only in the context of section 18 of the 1981 Act but also under Order 53 rule 3(4), which provides that applications for leave to apply for judicial review, if refused in the first instance, can be renewed to a divsional court if the cause or matter is criminal, but otherwise to a single judge. Again under Order 53 rule 5(1), where leave has been granted, an application for judicial review is made to a divisional court, not to a single judge, if the cause or matter is criminal. Also, under section 5(1) of the Costs in Criminal Cases Act 1973, which has now been repealed and replaced by the Prosecution of Offences Act 1985 using rather different wording, a divisional court used to have power to order the payment out of central funds of the costs of any party to proceedings before the Divisional Court in a criminal cause or matter.

It is quite clear that the legislature uses the phrase "in a criminal cause or matter" as being a convenient description of matters which are not civil. It is very unfortunate that that phrase has given rise to a considerable conflict of judicial opinion as to its meaning, since if the legislature, by a simple form of words like this, is unable to divide the sheep from the goats, the criminal from the civil, great difficulties are created. But that is the position at the moment.

Given that difficulty, I have to consider the current proceedings. One thing is quite clear. The nature of an order made or refused in judicial review proceedings must depend not upon that order but upon the order that is sought to be reviewed. What was being reviewed in this case was an order under the Police and Criminal Evidence Act 1984. That is an Act which has a long title, reading as follows:

"An Act to make further provision in relation to the powers and duties of the police, persons in police detention, criminal evidence, police discipline and complaints against the police; to provide for arrangements for obtaining the views of the community on policing and for a rank of deputy chief constable; to amend the law relating to the Police Federations and Police Forces and Police Cadets in Scotland: and for connected purposes."

For our purposes, it is sufficient only to look at the First Schedule in Part II of the Act.Part II, which is headed "Powers of entry, search and seizure", deals in section 8 with the "Power of justice of the peace to authorise entry and search of premises". But that section contains what amounts to an exception in cases where the application relates to items described as "excluded material" or "special procedure material". One finds what those materials are in section 14. They are materials of a specially sensitive nature either as being journalistic material or as being material which is subject in one way or another to an obligation of confidentiality. Applications to obtain access to excluded material or special procedure material are governed by section 9. That provides:

"(1) A constable may obtain access to excluded material or special procedure material for the purposes of a criminal investigation by making an application under Schedule 1…

(2) Any Act (including a local Act) passed before this Act under which a search of premises"—and I stress these words—" for the purposes of a criminal investigation could be authorised by the issue of a warrant to a constable shall cease to have effect so far as it relates to the authorisation of searches"—as I have summarised above.

I then turn to the First Schedule, which provides:

"If on an application made by a constable a circuit judge is satisfied that one or other of the sets of access conditions is fulfilled, he may make an order under paragraph 4 below."

Paragraph 4 provides:

"An order under this paragraph is an order that the person who appears to the circuit judge to be in possession of the material to which the application relates shall—

• (a) produce it to a constable for him to take away; or

• (b) give a constable access to it…"

The access conditions are complex, but for present purposes it is sufficient to say that there have to be reasonable grounds for believing that a serious arrestable offence has been committed and that the material is likely to be of substantial value, whether by itself or together with other materials, to the investigation in connection with which the application is made.

I ought also to refer to paragraph 15 of the Schedule, which provides:

"(1) If a person fails to comply with an order under paragraph 4 above, a circuit judge may deal with him as if he had committed a contempt of the Crown Court.

(2) Any enactment relating to contempt of the Crown Court shall have effect in relation to such a failure as if it were such a contempt."

So disobedience of the circuit judge's order is being treated as if it were a contempt of the Crown Court, and of course the Crown Court is a court with a largely criminal jurisdiction.

It is to my mind clear beyond argument that the order which was made in this case was made in a criminal context, but it is right to note, as Mr. Shaw has stressed, that there are no proceedings in existence. In the limited time that has been available I have not been able to find out whether this Act could or would be used where criminal proceedings have been begun, but it does not really matter for Mr. Shaw's purposes. It is sufficient to note that no criminal proceedings have been begun here and, indeed, in most cases there is no doubt that orders would be sought under this Act where a decision had not yet been reached whether or not to prosecute. It is essentially a statutory provision in aid of a criminal investigation designed, if the evidence will stand it, to lead to a criminal prosecution. But unless it is to be said that an order under the Act is either never or very rarely one which is by its nature a criminal cause or matter merely because of the stage at which the order is made, then the fact that there are no criminal proceedings does not, in my judgment, matter. That fact stems purely from the nature of the Act and the statutory provisions and does not affect the criminal character of the proceedings.

As I have said, countless...