John Haralambous v St Albans Crown Court (1st Defendant) Hertfordshire Constabulary (2nd Defendant)
| Jurisdiction | England & Wales |
| Judge | Mr Justice Cranston |
| Judgment Date | 22 April 2016 |
| Neutral Citation | [2016] EWHC 916 (Admin) |
| Docket Number | Case No: CO/3114/2015 |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 22 April 2016 |
[2016] EWHC 916 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
DIVISIONAL COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
The Rt. Hon. Lord Justice Burnett
and
The Hon. Mr Justice Cranston
Case No: CO/3114/2015
and
Mark Summers QC (instructed by Stokoe Partnership Solicitors) for the Claimant
Alan Newman QC and David Matthew (instructed by St Albans Crown Court) for the 2 nd Defendant
Hearing date: 04/03/2016
Introduction
This is the judgment of the Court to which we have both contributed.
This judicial review raises for express decision whether a person whose premises have been searched and whose property seized under a search warrant must have enough information grounding the warrant to judge its lawfulness and the retention of the material seized under it. In this case the information before the justice of the peace granting the warrant was later redacted to such an extent that what is available to the claimant is not a sufficient legal basis for it or the retention of property seized. Courts below have authorised the redactions on public interest grounds, but the claimant contends that this constitutes a closed material procedure which is without statutory foundation. The second defendant, the Chief Constable of the Hertfordshire Constabulary ("the police") accepts that a person whose property has been searched and seized is entitled to see the information on which a search warrant is based, and that maximum disclosure consistent with the public interest should be given (albeit that where necessary this can be by way of a summary or gist of the material). However, in this case the police case is that the courts have authorised substantial redactions on public interest grounds and the nature of the statutory scheme is such that the material seized can be retained despite the redactions or the way the courts undertook the task.
Background
On 16 April 2014, DC Skarratts of the Hertfordshire police applied for two search warrants under section 8 of the Police and Criminal Evidence Act 1984 ("PACE") and rule 6.30 of the Criminal Procedure Rules. The application stated that the offence under investigation was conspiracy to commit fraud by false representation. The application was in respect of the claimant's home and business premises. As to the investigation, all that is publicly available from the application is that an inquiry had commenced into the handling of stolen artwork and other valuable artefacts and that there were a number of suspects, including the claimant. There had been sizeable repayments on his home mortgage and it appeared that he was a heavy gambler. The application continued that the claimant had no previous convictions. Although he was not allowed to run a company, the police suspected he had a business interest at the business premises named in the warrant. As to the material sought, the application listed fake and stolen artwork, cash, computers and mobile telephones, and documentation relating to the art loss register "or similar". It asserted that if fake or stolen artwork was found at the addresses, that would significantly progress the investigation and help prove a conspiracy between the suspects.
At 2:40pm on 16 June 2014 JL Grimsey JP, sitting at the St Albans Magistrates' Court, issued the warrants. It appears that the police attended the court at about 2pm that day. The reasons the JP gave for issuing the warrants were stated to be "because of the substantial evidence that linked all the subjects together and the addresses."
The warrants were executed 10 days later on 26 June 2014. Over a period of some three and a half hours at the two premises the police seized £15,000 in cash, £2500 in counterfeit notes, computers, documents and other items. The same day the claimant was arrested, questioned and bailed.
In early August 2014, the claimant's solicitor requested a copy of the information sworn in support of the application, the transcripts or notes of any additional evidence taken in relation to the hearing before the JP, the time she took and the reasons she gave for issue of the warrant. The claimant's solicitor was provided with a redacted copy of the information, which we have summarised. Consideration was given to gisting the material, but that proved impossible.
On 18 September 2014, the claimant applied to St Albans Magistrates' Court for the disclosure of the unredacted information. The matter came before District Judge Mellanby at Luton Magistrates' Court on 23 September 2014. She heard representations by the claimant's counsel. The police stated that there was no additional evidence or notes taken at the hearing on 16 June 2014 and that the application had taken place over a period of approximately 20 minutes. The District Judge conducted a public interest immunity ("PII") enquiry in camera in the presence of counsel for the police and four police officers, three of whom gave evidence on oath. She followed the procedure as approved in Commissioner of Police for the Metropolis v. Bangs [2014] EWHC 546 (Admin). That exercise lasted for over an hour. In her judgment, the District Judge said:
"I adopted the starting point that the applicant was entitled to see the information that had persuaded the magistrate to grant the application, unless the public interest demanded that some or all of the material relied upon should not be disclosed. I conducted an enquiry as to the reasons provided for withholding the information sought and determined, after considering those reasons that it was in the public interest to withhold a substantial amount of information which had been before JL Grimsey JP when she granted the search warrant. I was satisfied that if much of the detail contained in the information were to be disclosed to the applicant at this juncture, there was a strong likelihood it would fundamentally compromise the police investigation that was in hand. Furthermore, full disclosure would inevitably reveal confidential sources which the police were relying upon at a critical stage in the investigation. I found no evidence to suggest that DC Skarratts had failed to make a full and frank disclosure at the time of laying his information nor that there was any apparent irregularity in the issuing of the warrant. I heard and accepted the evidence of 3 officers "in camera". I relied on the witnesses' expertise, their breadth and depth of knowledge of the investigation and whilst I accept it could not be tested in cross examination, I myself asked a number of questions in order to satisfy myself that the court was undertaking a proper balancing exercise when weighing up the conflict of public interest in withholding information and the public interest in the open and transparent need for the administration of justice."
The District Judge indicated that there were approximately a further two pages of closely typed information before the JP on 16 June 2014 which supported the application. That withheld material concerned the investigation and should not be disclosed.
The claimant made an application for judicial review on 26 September 2014 on the basis that the application for and issuance and execution of the search warrants was unlawful. There was also an application for an injunction, effectively preventing the police from examining the material seized. However, the police gave undertakings to keep it securely and not to examine it further or to copy any item. Later, the police returned some of the items seized.
Ground 1 of the application for judicial review claimed that the access conditions in section 8(1) of PACE had not been met. It was said that the Information contained internally conflicting descriptions of the "material offence" and was deficient in a number of technical respects. Furthermore, this ground asserted (correctly) that the Information, as disclosed, did not contain sufficient material to support the conclusion that there were reasonable grounds to suspect that an offence had been committed, nor of the others matters set out in section 8(1)(b), (c), and (e). In short, the claimant had not been provided with information to be satisfied about the lawful basis of the warrants. Complaint was made that the police had redacted material unilaterally before disclosing the Information. That was correct but, as we have noted, the redaction exercise was regularised by the District Judge's ruling on PII. The claimants envisaged that the High Court, in the judicial review proceedings, would conduct its own PII hearing. If it agreed with the magistrate, the PII material could not then be relied upon by the police to sustain the warrants. It would be impossible for the respondents to justify the warrants and they would have to be quashed.
Thus, the claimant's position in the earlier judicial review proceedings entailed the proposition that even if the magistrate had lawfully issued the warrants on the material placed before her, they should nonetheless be quashed as unlawful because the police would be unable to provide the claimant with sufficient information, disclosure of which would be damaging to the public interest, to justify the warrants. The claimant suggested that if the justification of the warrants lay entirely in undisclosed materials, the effect was to sanction closed evidence proceedings for which there was no provision, citing Al-Rawi v. Security Service [2011] UKSC 34; [2012] 1 A.C. 531. Ground 2 rested on defects on the face of the warrant, in...
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