Gerard Fitzgerald v Preston Crown Court
| Jurisdiction | England & Wales |
| Judge | Lord Justice Gross |
| Judgment Date | 18 April 2018 |
| Neutral Citation | [2018] EWHC 804 (Admin) |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 18 April 2018 |
| Docket Number | Case No: CO/3870/2017 |
[2018] EWHC 804 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
Lord Justice Gross
Mr Justice Nicol
Case No: CO/3870/2017
Rupert Bowers QC (instructed by Hogan Brown) for the Claimant
Andrew Bird (instructed by Lancashire Police Force solicitor) for the 2 nd Defendant
Hearing dates: 20 th December 2017
Judgment Approved
INTRODUCTION
This is the judgment of the Court to which we have each contributed.
This is another case about search warrants and covers familiar areas, involving striking a balance between the effective investigation and prosecution of crime and protecting the personal and property rights of citizens against infringement and invasion: R(A) v Central Criminal Court [2017] EWHC 70 (Admin); [2017] 1 WLR 3567, at [31] and following, together with the authorities there cited. In a nutshell, the context is an underlying police investigation into corruption in local government; it is that investigation which it is said that the Claimant and others were conspiring to pervert – and the search warrants were sought in connection with that conspiracy to pervert the course of justice. Sensitive and complex though the investigations no doubt are, the essence of the present matter before the Court is as simple as we have just described it. It has, however, been made needlessly complex by the regrettable manner in which the application to the Court below was drafted and presented – drafting and presentation of the kind we very much hope and expect will not be encountered again.
On 19 th May 2017 HHJ Altham, sitting in Preston Crown Court, was presented with an application by D.C. Fishwick of the Lancashire Police. She applied for a warrant under the Police and Criminal Evidence Act 1984 (“PACE”) s.9 and Schedule 1 thereto (“Schedule 1”), para. 12. Judge Altham granted the application and issued four warrants. One of these authorised the police to search the home address of the Claimant who, at the time, was the Chief Executive Officer of Liverpool City Council (“LiCC”) and had previously been Chief Executive Officer of Lancashire County Council (“LaCC”) from 2008 – 2011.
The warrant was executed on 22 nd May 2017. At the same time the police executed the other three warrants which HHJ Altham had issued in response to the same application by D.C. Fishwick. They were for the home addresses of:
i) Mr Geoffrey Driver, then the leader of LaCC;
ii) Mr Philip Hassall, who had been employed by LiCC between 2002 and 2009, was Deputy Chief Executive Officer of LaCC under the Claimant and who then took over as CEO of LaCC in 2011.
iii) Mr David McElhinney, who was at various times the Chief Executive Officer of a joint venture called Liverpool Direct Ltd (“LDL”) between LiCC and BT, interim CEO of LiCC (from June 2010 – February 2011), and the Chief Executive Officer of another joint venture called One Connect Ltd (“OCL”) between LaCC and BT.
In each case the warrants authorised officers to search for
“any electronic storage devices including but not exclusively mobile phones, computers, lap tops, iPads and any other digital or electronic storage devices”
At the same time as the Claimant's home was searched, he was arrested by PC Coates under PACE s.24 on the grounds that he reasonably suspected the Claimant of having committed the offences of conspiracy to pervert the course of public justice and witness intimidation.
The Claimant was taken to Skelmersdale Police Station. His continued detention was authorised by Police Sergeant Wainwright pursuant to PACE s.37 on the grounds that this was necessary to secure and preserve evidence and to obtain evidence by questioning.
On 3 rd August 2017 the Claimant sought a transcript of the hearing which had taken place before HHJ Altham in chambers on 19 th May 2017. The Judge ordered that a transcript could be prepared, but at the Claimant's expense. It was to be reviewed for appropriate redactions first by the police and then by the Court. Redactions would be considered either to protect the privacy of other people mentioned in the course of the hearing and where those matters were irrelevant to the application being considered by the Court in relation to the Claimant, or on grounds of public interest immunity. The police voluntarily agreed to provide a copy of the application for the warrant, redacted on the same basis as the transcript.
The Claim Form was issued on 22 nd August 2017. It challenged the legality of:
i) the warrant granted by HHJ Altham on 19 th May 2017 (“Ground I: The warrant”);
ii) the execution of the warrant (“Ground II: The execution of the warrant”);
iii) the arrest of the Claimant by PC Coates (“Ground III: The arrest of the Claimant”);
iv) PS Wainwright's authorisation of the Claimant's continued detention (“Ground IV: The Claimant's continued detention”);
v) HHJ Altham's order of 3 rd August 2017 making access to the transcript contingent on the Claimant paying the costs (“Ground V: Payment for the transcript”).
Transcripts of the hearing on 19 th May 2017 and of HHJ Altham's ruling have been prepared. As it happens, the cost of preparing them was met by the police. The transcripts were redacted in accordance with HHJ Altham's order of 3 rd August 2017 and the application for the warrant has also been redacted.
The Claim Form was issued in Manchester. On 30 th October 2017 Dove J. ordered a rolled up hearing. He reminded the parties of the duty of candour which applied to claims for judicial review and that the decisions of the Preston Crown Court regarding public interest immunity would not bind the High Court. On 21 st November 2017 Dove J. made a further order. He directed that the case should be heard by a Divisional Court and that that would take place in London. Consequently, he transferred the case to the Royal Courts of Justice.
Counsel reviewed the redactions and has confirmed that they include nothing which would assist the Claimant's case or undermine that of the police. The parties agreed that we could decide the case on the basis of the redacted documents. As a result, there was no need for any Public Interest Immunity hearing before this Court.
It was this rolled up hearing which we heard on 20 th December 2017. As is usual, the Crown Court has taken no part in the proceedings. The Claimant was represented by Mr Rupert Bowers QC; the Chief Constable of Lancashire Police (“the police”) by Mr Andrew Bird.
SEARCH WARRANTS: THE STATUTORY BACKGROUND
For present purposes, there are two relevant types of search warrants: (i) those issued by a magistrate pursuant to PACE s.8; and (ii) those issued by a Circuit Judge pursuant to PACE s.9 and Schedule 1 paragraph 12.
PACE s.8 says,
“(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 mentioned 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.
….
(3) The conditions mentioned in subsection (1)(e) above are —
….
(d) that the purpose of the 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.”
PACE provides a definition of “items subject to legal privilege” (“LPP”) in s.10, of the term “excluded material” in s.11 and of the term “special procedure material” (“SPM”) in s.14. It is not necessary for the purposes of this claim to dwell on the precise statutory meanings of those expressions.
PACE s.9 makes special provision for access to SPM and excluded material. It says,
“(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 below and in accordance with that Schedule….”
The material parts of Schedule 1 are as follows —
“1. If on an application made by a constable a judge is satisfied that one or other of the sets of access conditions is fulfilled, he may make an order under paragraph 4 below.
2. The first set of access conditions is fulfilled if —
(a) there are reasonable grounds for believing —
(i) that an indictable offence has been committed;
(ii) that there is material which consists of special procedure material or includes special procedure material and does not also include excluded material on premises specified in the application or on premises occupied or controlled by a person specified in the application (including all such premises on which there are reasonable grounds for believing that there is such material as it is reasonably practicable to specify);
(iii) that the material is likely to be of substantial value (whether by itself or together with other material) to the investigation in connection with which the application is made; and
(iv) that the material is likely to be relevant evidence;
(b) other methods of obtaining the material —
(i) have been tried without...
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