R: HS and 15 others v South Cheshire Magistrates Court and Another
| Jurisdiction | England & Wales |
| Judge | Lord Justice Simon,Stewart J |
| Judgment Date | 30 November 2015 |
| Neutral Citation | [2015] EWHC 3415 (Admin) |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 30 November 2015 |
| Docket Number | CO Ref: CO/0254/2015 CO Ref: CO/3461/2015 CO Ref: CO/4133/2015 |
[2015] EWHC 3415 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
DIVISIONAL COURT
Leeds Combined Court Centre
1 Oxford Road, LS1 3BG
Lord Justice Simon
and
Mr Justice Stewart
CO Ref: CO/0254/2015
CO Ref: CO/2749/2015
CO Ref: CO/3461/2015
CO Ref: CO/4133/2015
and
and
Mr Rupert Bowers QC (instructed by Khan, Solicitors) for the Claimants
Mr Graham Wells (instructed by Force Solicitor, Cheshire Constabulary) for the 2nd Defendant
Hearing date: 22 October 2015
Introduction and issues
This case, involving four different claims, concerns the interrelationship between (a) claims for Judicial Review where the complaint is about the legality of the issue and execution of search warrants and the relief sought is the return of material seized by the police under those warrants, and (b) applications or potential applications by the Police to the Crown Court under s.59 of the Criminal Justice and Police Act 2001 ('the CJPA 2001') for retention of the property which has been seized.
In order to identify the particular issues which arise in these claims it is convenient to set out a chronological history.
Facts and chronology
On 27 November 2014 search warrants were issued by the South Cheshire Magistrates' Court that are the subject of the challenge in the first claim (Claim 254). On 2 December the warrants were executed; and on 9 December a letter was written on behalf of the Claimants asserting legal professional privilege ('LPP') over material that had been seized under the warrants. This was followed by email correspondence between Solicitors acting for the Claimants and the senior officer in charge of the investigation DI Andrew Large, some of which was forwarded by DI Large to the Crown Prosecution Service. In the course of the correspondence the Claimants' solicitors sought an assurance that the Police would not look at material seized in hard copy or digital form until the LPP issue had been resolved.
On 11 December an email was sent by the Claimants' Solicitors indicating that a letter of claim would be sent and in the meantime seeking confirmation that there would be no examination of material.
On 16 December a letter of claim was sent to the 2nd Defendant ('the Chief Constable') requiring an undertaking that none of the material which had been seized under the warrants would be examined or copied. Following consideration of this issue, DI Large concluded on 17 December that it was unlikely that the seized material (in particular, computers) would contain LPP material and the decision was made by the Police to continue examining the material.
By 18 December the Police had adopted a different approach in correspondence. They now asserted that the letter of claim did not comply with the Pre-action Protocol for Judicial Review proceedings. It remains unclear why this view was taken, since it was not justified and was soon abandoned.
On 22 December the Chief Constable was invited to explain what it was that was unclear about the Claimants' case.
On 22 December there was a conversation between DI Large and Mr Phillip Kenyon (Deputy Force Solicitor for the Cheshire Constabulary) during which Mr Kenyon appears to have understood from DI Large that there would be limited opportunity for the Police to carry out further reviews or to copy the seized material until after the Christmas break. Mr Kenyon was mistaken in this understanding since the Police continued to examine the material, notwithstanding the previous request for an undertaking not to do so.
The conduct of the Police has formed the basis of a complaint in the present hearing. Mr Bowers QC submitted that the Police had failed to conduct themselves in a way which was to be expected of a public body. They had failed to respond to the letter of claim, they had failed to give an undertaking not to inspect material about which they had been informed there was an issue, and they had allowed the Claimants' Solicitors to believe that nothing would be done to prejudice their clients' rights over the Christmas break.
On 8 January 2015 a letter was written on the Chief Constable's behalf saying that he had reviewed the matter and accepted that the warrants in relation to two of the premises were open to challenge, and that he proposed to make an application under s.59 of the CJPA 2001 'out of an abundance of caution'. It is clear that the Police were considering an application to the Crown Court for retention of the property seized, notwithstanding the complaints about the warrants.
On 9 January the Claimants' solicitors wrote to the Police complaining that their 8 January letter was not a substantive response to the issues that had been raised, and that it had failed to comply with the practice direction under CPR Part 54. The letter noted that it seemed that seized material had been examined despite earlier indications that it would not, and that the implicit representation which had led to the Claimants not applying for an injunction appeared to be false.
On 12 January the Police responded by email indicating that the claims for Judicial Review would not be contested. The Claimants complain that by this stage the examination and copying of material which had continued over the Christmas period had effectively been completed.
On the same day the Claimants' Solicitors wrote to the Police stating that, since the warrants had been conceded to be unlawful, the appropriate relief was an order of the High Court quashing them. It was suggested that proceedings be issued together with a consent order in these terms.
On 12 January the Chief Constable sent a 'formal response' to the letter of claim. The response indicated that the claim was not contested, presumably on the basis that the breaches of ss15 and 16 of PACE rendered the searches and seizures unlawful. Under the heading 'Settlement', he stated an intention to issue a s.59 application forthwith. There was also an assurance that the material in dispute would not be viewed or examined by independent counsel assessing LPP 'unless and until' an order was made under s.59.
The Claimants are entitled to point out that it was only at this point that the Chief Constable effectively gave the undertaking that had been sought on 16 December 2014. No explanation was given as to why it had not been provided earlier or why examination and copying had continued during the period when the Chief Constable did not engage with the points made on the Claimants' behalf.
On 20 January the Claim 254 was issued, seeking (a) a declaration that entries, searches and seizures made pursuant to the warrants were all unlawful, (b) an order quashing the warrants, (c) a mandatory order for the return of all seized items and any copies which had been made, (d) damages, and (e) costs. Five grounds were relied on. (1) There was no power under s.8 of the Police and Criminal Evidence Act 1984 ('PACE') to search for a person. (2) The warrant was too broadly expressed and failed to comply with the requirements of s.15(6)(b) of PACE to particularise, so far as practicable, the material actually sought. (3) The warrants were not executed in accordance with s.16(8) of PACE, thereby rendering the entry and search under the warrant unlawful by virtue of s.15(1). (4) The warrants unlawfully delegated satisfaction of the statutory criteria to the Police Officers executing them. (5) The Chief Constable had failed in his duty of full and frank disclosure.
On 28 January a warrant was issued by North Cheshire Magistrates' Court in respect of the premises of MU, which was executed on the following day.
On 6 February the Chief Constable served his Acknowledgement of Service containing Summary Grounds of Defence. The Summary Grounds conceded that the warrants should be quashed although it contested the relief claimed, and there was a restatement of the intention to make applications under s.59.
On 13 March a warrant was issued for the premises of AR, which was executed at his premises on 19 March. It is a matter of complaint that the North Cheshire Magistrates were not told that the Police had conceded that the earlier warrants (the subject of Claim 254) were unlawful.
On 20 March the Police indicated that they no longer intended to make a s.59 application in relation to the warrants which were the subject of Claim 254, and now intended to make an application to the Crown Court for production orders in relation to material already in their possession. The Claimants' solicitors replied that production orders could not be obtained for property already held by the Police, and that the question of relief in Claim 254 was a matter for the High Court. On 24 March the Police informed the Claimants' Solicitors that the applications had been withdrawn.
On 25 March there was further correspondence in relation Claim 254. The Claimants' solicitors asked for information as to the nature and extent of any examination carried out by the Police, and suggestions were made as...
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