R (C) v Chief Constable of 'A' Police and another
| Jurisdiction | England & Wales |
| Judge | Mr Justice Underhill |
| Judgment Date | 26 September 2006 |
| Neutral Citation | [2006] EWHC 2352 (Admin) |
| Docket Number | Case No: CO/6913/2006 |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 26 September 2006 |
[2006] EWHC 2352 (Admin)
Mr Justice Underhill
Case No: CO/6913/2006
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Mr Alun Jones QC & Mr Hugo Lodge (instructed by Jeffrey Green Russell) for the Claimant
Mr Edmund Lawson QC & Mr Jason Beer (instructed by The Legal Services Department of “A” Police) for the First Defendant
Hearing dates: 19th, 20th September 2006
Mr Justice Underhill:
The Claimant is a banker. He has had a long career in the City and at present holds a senior position in a major financial institution. He is married, with recently grown-up children: the youngest is eighteen and still lives at home. He lives in the Home Counties. He is a man of good character. Early in the morning of 24 th May 2006 police from his local county force (force “A”) arrived at his home to execute a search warrant which had been issued by a justice of the peace the previous week. The search was part of “Operation Ore”, which is a multi-force operation investigating offences by persons thought to have visited child pornography websites operated in the United States by a company called “Landslide”. In 2002 the U.S. authorities supplied the National Criminal Intelligence Service (“NCIS”) with details taken from Landslide's records of over 7,000 holders of credit cards which had been used to purchase access to its sites. The Claimant was one of the individuals whose details were recorded as having been used in this way to purchase access to sites featuring child pornography: the records show his credit card details and address being used to purchase access to two such sites, on 19 th and 20 th June 1999, paying $24.95 on each occasion.
Once the search of his home was under way, the Claimant was arrested on suspicion of downloading indecent images of children and taken to a local police station where he was interviewed. Three computers and a quantity of videos were seized and taken away for examination. Later in the day he was released on police bail until 6 th December 2006. No indecent images were found on the seized computers, though some other arguably relevant material was, as I describe below.
The Claimant vehemently denies ever having accessed the Landslide sites or indeed having any involvement with child pornography. His solicitors have conducted a vigorous correspondence with the police questioning the way in which the investigation was initiated and has since been conducted. It is his case that there was never any proper basis for the issue of a search warrant or for his arrest and that in any event on the basis of the evidence now available there can be no justification for the investigation to continue. In particular he says that:
(a) The likeliest explanation for his details having been found on the Landslide system is “identity theft”– that is, that a stranger had obtained them dishonestly and had used them to generate a bogus purchase and divert all or part of the money. It is common ground that there is material in the public domain, of which I need not give the details here, showing that stolen details have at least sometimes been used in this way in connection with the Landslide sites – including information published by the Sussex police acknowledging that this had occurred specifically in the case of Operation Ore suspects. The Claimant says that there are strong objective indications that this is what happened in his case. Again, I need not give the details, but they include the facts (i) that he had challenged two other unauthorised transactions on his card in the course of 1999 (though admittedly not these particular ones); (ii) that, as noted above, no indecent images were found on any of the seized computers; and (iii) that there is no evidence that Landslide ever sent the purchaser the return e-mail, giving the password allowing access to the sites, which would have automatically been generated if there had been an actual purchase. The Claimant says that most of the indications that he was the victim of identity theft were either known to the police, or could have been ascertained by them by proper enquiries, before the decision to seek a search warrant was made.
(b) Even if, contrary to the foregoing, there are good grounds to believe that the sites were accessed by someone at the Claimant's home, all the signs clearly point not to the Claimant himself but to his son, P, who was in 1999 a teenager living at home and who had authority from the Claimant to use his credit card. In particular, a person purchasing access to Landslide sites had to give an e-mail address and a password. The e-mail address which was given by the apparent purchaser in this case was, as has now been established, an address of P's: the Claimant says that this could have been ascertained at any time from the ISP which hosted the e-mail service (or indeed – somewhat surprisingly—from a simple Google search). Likewise the password is one which has now been found from the examination of one of the seized computers to be a password used on at least one other (innocent) occasion by P but with no connection to the Claimant.
The Claimant says that it is now essential that the police should, as a matter of urgency, formally acknowledge that there is no case against him. This is not simply because of the enormous personal stresses caused to him and his family by having the investigation hanging over them, which he explains with great force in his witness statements. More specifically, he is facing acute professional and employment difficulties because as a result of his role he frequently has to make “fit and proper person” returns to regulatory authorities in the U.K. and abroad: if he refers in such returns to the fact that he is under investigation for serious criminal offences, that will cause grave difficulties for both himself and his employer, yet the questions may be framed in such a way that he cannot conscientiously avoid doing so.
In those circumstances the Claimant on 17 th August commenced these proceedings seeking judicial review of (a) the decisions involved in the issuing of the search warrant (being decisions of both force A, whose Chief Constable is the First Defendant, and the justice who authorised the issue of the warrant, represented by the Second Defendant); (b) the decision to arrest him; and (c) the continuance of the investigation. On 7 th September Silber J. granted permission and ordered expedition. He granted, and I have continued, orders under CPR 39.2 ensuring that the Claimant's identity should not be revealed, since otherwise the purpose of the proceedings would be undermined and there would be a plain injustice to the Claimant; and this judgment is anonymised for the same reason. The Claimant has been represented before me by Mr. Alun Jones QC and Mr. Hugo Lodge. The First Defendant has been represented by Mr. Edmund Lawson QC and Mr. Jason Beer. The Second Defendant has decided not to appear; but the justice who authorised the issue of the warrant, to whom I will refer as “the magistrate”, has provided a witness statement at the invitation of the Claimant's solicitors.
I take in turn the three areas of challenge identified in para. 3 above. I should observe at this stage that it is, at least as far as the authorities cited to me suggest, very unusual for issues as to the lawfulness of decisions to issue a search warrant or to make an arrest to be raised by way of judicial review. Typically, they arise in private-law actions for trespass or unlawful imprisonment, where the Court will have the opportunity to hear oral evidence and to have the reasons for the actions taken fully explored in cross-examination; and the Divisional Court in R. v. Chief Constable of Warwickshire, ex p. Fitzpatrick [1999] 1 WLR 564 expressed the view that judicial review would often not be an appropriate tool for deciding issues of this kind. But in circumstances like those in which the Claimant finds himself it may be the only practically available route, and I should not refuse to consider his claims in limine.
(A) THE LAWFULNESS OF THE WARRANT
The Statutory Basis
The powers of a justice of the peace to issue a search warrant derive from s. 8 of the Police and Criminal Evidence Act 1984 (“PACE”), as amended by the Serious Organised Crime and Police Act 2005 (“the 2005 Act”). S. 8 is, so far as relevant, in the following terms:
(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 specified 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.
(1A) The premises referred to in subsection (1)(b) above are—
(a) one or more sets of premises specified in the application (in which case the application is for a “specific premises warrant”); or
(b) any premises occupied or...
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