R Holman Fenwick Willan LLP v Commissioner of City of London Police and Others
| Jurisdiction | England & Wales |
| Judge | Lord Justice Gross,Mr Justice Mitting |
| Judgment Date | 07 April 2016 |
| Neutral Citation | [2016] EWHC 1005 (Admin) |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 07 April 2016 |
| Docket Number | CO/6283/2015 |
[2016] EWHC 1005 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
DIVISIONAL COURT
Royal Courts of Justice
Strand
London WC2A 2LL
Lord Justice Gross
Mr Justice Mitting
CO/6283/2015
Mr James Sturman QC and Mr Rupert Allen (instructed by Holman Fenwick Willan LLP) appeared on behalf of the Claimant
Mr Mark Thomas (instructed by City of London Police) appeared on behalf of the First Defendant
Mr Ben Keith (Instructed by the Government Legal Department) appeared on behalf of the Third Defendant
The Second Defendant did not attend and was not represented
This is an application by the claimant, Holman Fenwick Willan, for permission to bring judicial review, seeking, inter alia, the quashing of the endorsement ("the endorsement") by the second defendant on 9 December 2015 of a search warrant issued by the Sheriff Court of Glasgow in Strathkelvin on 4 December 2015 ("the warrant"). Holman Fenwick Willan are well-known and well-established solicitors with an international practice and offices in the City of London and elsewhere around the world. I should make it plain at the outset that no wrongdoing is or ever has been alleged against Holman Fenwick Willan in connection with the matters here in issue.
The first defendant is the City of London Police and I shall return presently to their involvement in the proceedings.
The second defendant is the magistrates' court in question. As is usual in such matters, although the second defendant is necessarily a party, it does not contest the application.
There is a question, which the parties will no doubt resolve in the terms of the order following this hearing, as to whether the third defendant is the Police Service of Scotland or the Crown Office and Prosecutor Fiscal Service. It strikes me at least that both the Scottish police (if I can put it in those terms) and the Scottish Prosecutor Fiscal should be parties, albeit I would see their interests as the same and certainly capable of common representation. If it is necessary to join the Crown Office and Prosecutor Fiscal Service as a fourth defendant, then this should be taken as the court's agreement to do so and it can no doubt be reflected in any order drawn up hereafter.
The background concerns a police investigation into the acquisition in 2011 and the subsequent management of Glasgow Rangers Football Club ("RFC"). The investigation broadened, resulting in further offences being alleged following the sale of the assets of RFC by the joint administrators who are employees of Duff & Phelps ("D&P"). Holman Fenwick Willan are the solicitors for D&P. For present purposes it is unnecessary to delve further or in any detail into the background facts.
Turning to the search warrant, its endorsement and execution or purported execution, the matter is helpfully summarised, at least for today's purposes, in the Holman Fenwick Willan skeleton argument:
i. "The Endorsement was granted pursuant to section 4 of the Summary Jurisdiction (Process) Act 1881 ('the 1881 Act') and purported to authorise the execution of the Warrant at the London offices of HFW ('the Offices'). Officers of the Police Service of Scotland ('PSS') and the City of London Police ('COLP') purported to execute the Warrant at the Offices on 9 December 2015. Some 47 boxes of materials were removed from the offices as a result of the search, despite the fact that HFW maintained claims to privilege over much of that material on behalf of its clients (as at least PSS and the Crown Office and Prosecutor Fiscal Service ('COPFS') knew even prior to their attendance at the Offices on 9 December 2015). Indeed the materials removed from the Offices included privileged and confidential documents relating to matters which were unrelated to the criminal investigation in respect of which the Warrant was obtained and which fell outside the scope of the Warrant)."
The warrant had been endorsed, as already indicated, by the second defendant, the City of London Magistrates' Court, also on 9 December.
There are a number of striking features of these events:
(1) The search warrant was issued, endorsed and executed without prior notice to Holman Fenwick Willan. On the materials before us this was so notwithstanding the fact that Holman Fenwick Willan had been in communication with the third defendant and/or the fourth defendant (as I shall refer to the Crown Office and Prosecutor Fiscal Service) since 2013 in relation to these matters. Before us today Mr Sturman QC, for Holman Fenwick Willan, submitted that the third and/or the fourth defendant had dug their heels in since 2013 — and indeed their conduct in December 2015 reflected an entrenched but erroneous view held since 2013.
(2) The warrant contained no reference to privileged documents, nor was any procedure stipulated for dealing with the question of legal professional privilege ("LPP") in executing the warrant. This was so despite the obvious issues which arose as to privilege given the seizure of documents from a firm of solicitors.
(3) Neither the third defendant, the fourth defendant nor the first defendant had arranged for the presence of independent lawyers during the search, notwithstanding the observations in R (Rawlinson & Hunter Trustees) v Central Criminal Court [2012] EWHC 2254 (Admin); [2013] 1 WLR 1634 at [264] – [267].
(4) In the event, some seven police officers — two from the first defendant described as "chaperones" and five from the third defendant — attended very conspicuously at the Holman Fenwick Willan office. They seized no less than 47 boxes of documents, including, it is alleged by Holman's, documents for which privilege is claimed in connection with the matter in question and documents for which privilege is claimed relating to other cases, which have nothing whatever to do with the matter in question. These allegations enjoy the support of the Commissioners, i.e., the independent counsel instructed by the Scottish court to look into the question of what documents were seized and to report to the court in Edinburgh.
In the event, absent assurances from the relevant police officers, Holman Fenwick Willan applied for and obtained an injunction from Cox J on the night of 9 December 2015 preventing the removal of the materials from the jurisdiction to Scotland. The claim for judicial review was commenced the next day, 10 December.
On 11 December, Holman Fenwick Willan issued a bill of suspension in Scotland by which it sought to challenge the legality and validity of the warrant before a Scottish appellate court. On 17 December, Lang J, following a contested inter partes hearing, continued the injunction granted by Cox J and, understandably, indicated that Holman Fenwick Willan's challenge to the legality and validity of the warrant in Scotland should be heard before the claim for judicial review in England. An appropriate order was made accordingly.
On 18 December, at a hearing of Holman Fenwick Willan's application for interim relief before the High Court in Edinburgh, Lady Dorrian directed that the seized documents should be returned from the City of London Police, by whome they had been held, to the offices of Holman Fenwick Willan — where they should be held in a secure room pending a review of privilege by the Commissioners (to whom I have already referred).
On 5 February 2016, Lord Carloway, the Lord Justice General, sitting in the Appeal Court in Edinburgh, held that the warrant should be suspended. Lord Carloway made a number of trenchant criticisms of the manner in which the warrant had been obtained. They appear from his judgment at paragraphs 26 through to 32. It is unnecessary for today's purposes to read them out, but I would invite full attention to be paid to his observations contained in those...
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