G v Commissioner of Police for the Metropolis
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE LAWS,MR JUSTICE SIMON |
| Judgment Date | 07 October 2011 |
| Neutral Citation | [2011] EWHC 3331 (Admin) |
| Court | Queen's Bench Division (Administrative Court) |
| Docket Number | CO/8833/2010 |
| Date | 07 October 2011 |
[2011] EWHC 3331 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
DIVISIONAL COURT
Royal Courts of Justice
Strand
London WC2A 2LL
Lord Justice Laws
Mr Justice Simon
CO/8833/2010
Mr R Horwell QC & Miss A Macdonald (instructed by Robin Booth/Duncan Hayes BCL Burton Copeland) appeared on behalf of the Claimant
Mr N Wilcox (instructed by Mark Davis MPS) appeared on behalf of the Defendant
This is an application for relief by way of judicial review brought with permission granted by Rafferty J (as she then was) on 1st October 2010. The claim is directed to the Metropolitan Police Commissioner's application for an execution of a warrant of seizure and the decision of the city of Westminster Magistrates' Court to issue the warrant.
The claimant, whose anonymity was ordered by Rafferty J when she granted judicial review permission and which we will preserve, is a businessman living in London.
On 18th May 2009 the Metropolitan Police applied to the City of Westminster Magistrates' Court for a warrant to seize materials from his home. The application was made pursuant on section 4 of the Protection of Children Act 1978 which provides in part:
"(1)… It is an offence for a person—
(a)to take, or permit to be taken [or to make], any indecent photograph [or pseudo-photograph] of a child…"
Section 4(1):
"The following applies where a justice of the peace is satisfied by information on oath, laid by or on behalf of the Director of Public Prosecutions or by a constable, that there is reasonable ground for suspecting that, in any premises…there [is an indecent photograph [or pseudo-photograph] of a child].
(2) The justice may issue a warrant under his hand authorising any constable to enter (if need be by force) and search the premises … and to seize and remove any articles which he believes (with reasonable cause) to be or include indecent photographs [or pseudo-photographs]of children."
The district judge granted the warrant on 18th May 2009 authorising the police to search the premises and remove indecent photographs or pseudo-photographs of children, together with any associated documentation and equipment capable of being used to produce, obtain and/or circulate such material.
The warrant was executed on 29th July 2009. The police were led by DC Robert Duckworth of the "SCD 5 Special Crime Directorate." The claimant was present but was not questioned or arrested. The police seized a number of electronic and data storage devices.
On 17th September 2009 the police informed the claimant's solicitors by telephone that they had found nothing untoward but had one more item to examine; and on 19th October 2009 they indicated that that too revealed nothing. Two days later, they returned items they had seized and stated that they were taking no further action and the investigation was closed.
There followed a series of further communications between the solicitors and the police. The solicitors were concerned to discover the factual basis on which the search had been authorised and conducted, and how the high level of security arrangements for the Wi-fi technology at their client's home had been breached. The police turned down a request for a meeting. They provided some information, but at length, not being satisfied that they had been given the full picture, the solicitors on 25th January 2010 wrote to the police seeking a copy of the written information which had been placed before the Magistrates' Court when the warrant had been obtained. That was followed by an application by letter of 18th February 2010 to the Magistrates' Court for a copy of the information.
The police, for their part, refused to provide it. In a badly drafted letter of 16th February 2010 they appeared to rely on a claim for public interest immunity. There were further communications with the court and an exchange of skeleton arguments prepared by counsel. The application for disclosure of the information was heard by District Judge Snow on 19th May 2010 and granted. At the hearing the district judge made it clear that no information had been provided to the court when the warrant was obtained beyond what was contained in the written information, save that an erroneous date had been corrected.
The material part of the information reads as follows:
"Alleged offence: section 1(1)(a) Protection of Children Act 1978 making an indecent photograph of children. This deponent on oath says: information has been received by police interest Interpol Law Enforcement Agencies that on 23/7/1997 a person called [and then there appears the claimant's first and second names] with an email address of mirageflight2007@yahoo.co.uk and supplying bank account details in the same name registered with and subscribed to a website called, 'IWEPAY'. This website provides access to a substantial number of websites hosting images of child pornography.
Police intelligence checks have identified that Mr [and then the claimant's full name appears and a date given for his date of birth] now resides at the address subject to this warrant.
There are reasonable grounds to believe that this person has access and downloaded indecent images of children."
The date there given of 23rd July 1997 was wrong. It was corrected to 23rd July 2007.
I turn to the claimant's grounds. I should say that the defendant takes no point as to time or delay, rightly in view of the claimant's efforts to resolve the matter without recourse to judicial review proceedings. The first and primary ground on which judicial review relief is sought is that the information supplied by the police in order to obtain the warrant was inaccurate, misleading and incomplete. The claimant has quite a number of points under this head. A major aspect is as follows. In order to access indecent images on a website in the ordinary way, you have to pay. So much is no doubt common sense; in any event the point has been addressed by this court in dealing with the facts of two other cases before it, O'Shea v Coventry Magistrates' Court [2004] EWHC (Admin) 905, per Gage J (as he then was) at paragraphs 8 and 12, and C v Chief Constable of A Police [2006] EWHC (Admin) 2352, per Underhill J at paragraphs 1, 10, 12 and 13.
The defendant Commissioner accepts this point about payment. This is what was said at paragraph 3G of his grounds for contesting the claim:
"It is correct that actual payment is required before accessing any indecent images in the normal way that these operations work."
I should note that Mr Wilcox submits, however, that there are instances (and there is some evidence about this) in which access may be obtained without payment.
The information placed before the Magistrates' Court in this case implies that the claimant had made payments for access to child pornography through IWEPAY website. That is in my judgment the plain implication of the reference to the "bank account details",...
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