R (on the application of Haralambous) v Crown Court at St Albans and another

JurisdictionEngland & Wales
CourtSupreme Court
JudgeLord Lloyd-Jones,Lord Hughes,Lord Kerr,Lady Black,Lord Mance
Judgment Date24 Jan 2018
Neutral Citation[2018] UKSC 1

Hilary Term [2018] UKSC 1

On appeal from: [2016] EWHC 916 (Admin)

before

Lord Mance, Deputy President

Lord Kerr

Lord Hughes

Lady Black

Lord Lloyd-Jones

R (on the application of Haralambous)
(Appellant)
and
Crown Court at St Albans and another
(Respondents)

Appellant

Mark Summers QC

Jessica Jones

(Instructed by Stokoe Partnership Solicitors)

Respondents

Martin Chamberlain QC

David Matthew

(Instructed by Hertfordshire Constabulary Legal Services)

Intervener (Secretary of State for the Home Department)

James Eadie QC

Melanie Cumberland

(Instructed by The Government Legal Department)

Heard on 8 November 2017

Lord Mance

( with whom Lord Kerr, Lord Hughes, Lady Black and Lord Lloyd-Jones agree)

Introduction
1

This appeal raises significant issues regarding the procedures whereby, firstly, magistrates may issue warrants to enter and search premises and seize property under section 8 of the Police and Criminal Evidence Act 1984 (“PACE”), secondly, Crown courts may, under section 59 of the Criminal Justice and Police Act 2001 (“CJPA”), order the retention by the police of unlawfully seized material on the grounds that, if returned, the material would be immediately susceptible to lawful seizure and, thirdly persons affected may challenge such decisions by judicial review. Central to the issues is whether the relevant judicial authorities are, under the principle in Al Rawi v Security Service [2011] UKSC 34; [2012] 1 AC 531 and in the absence of express Parliamentary authorisation to conduct a closed material procedure, precluded at each or any of these stages from having regard to information which, on public interest grounds, cannot be disclosed to any person affected who wishes to challenge the warrant or any seizure or order for retention under section 59.

2

Section 8 of PACE sets out conditions for obtaining a search and seizure warrant:

“(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 … 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,

he may issue a warrant authorising a constable to enter and search the premises …

(3) The conditions mentioned in subsection (1)(e) above are —

(a) that it is not practicable to communicate with any person entitled to grant entry to the premises;

(b) that it is practicable to communicate with a person entitled to grant entry to the premises but it is not practicable to communicate with any person entitled to grant access to the evidence;

(c) that entry to the premises will not be granted unless a warrant is produced;

(d) that the purpose of a search may be frustrated or seriously prejudiced unless a constable arriving at the premises can secure immediate entry to them.”

3

Section 15 of PACE contains safeguards relating to the procedure for obtaining such a warrant:

“(1) This section and section 16 below have effect in relation to the issue to constables under any enactment, including an enactment contained in an Act passed after this Act, of warrants to enter and search premises; and an entry on or search of premises under a warrant is unlawful unless it complies with this section and section 16 below.

(2) Where a constable applies for any such warrant, it shall be his duty —

(a) to state —

(i) the ground on which he makes the application;

(ii) the enactment under which the warrant would be issued; and

(iii) if the application is for a warrant authorising entry and search on more than one occasion, the ground on which he applies for such a warrant, and whether he seeks a warrant authorising an unlimited number of entries, or (if not) the maximum number of entries desired;

(b) to specify the matters set out in subsection (2A) below; and

(c) to identify, so far as is practicable, the articles or persons to be sought.

(2A) The matters which must be specified pursuant to subsection (2)(b) above are —

(a) if the application relates to one or more sets of premises specified in the application, each set of premises which it is desired to enter and search;

(b) if the application relates to any premises occupied or controlled by a person specified in the application —

(i) as many sets of premises which it is desired to enter and search as it is reasonably practicable to specify;

(ii) the person who is in occupation or control of those premises and any others which it is desired to enter and search;

(iii) why it is necessary to search more premises than those specified under sub-paragraph (i); and

(iv) why it is not reasonably practicable to specify all the premises which it is desired to enter and search.

(3) An application for such a warrant shall be made ex parte and supported by an information in writing.

(4) The constable shall answer on oath any question that the justice of the peace or judge hearing the application asks him.

(5) A warrant shall authorise an entry on one occasion only unless it specifies that it authorises multiple entries. …”

4

Section 59 of the CJPA provides for circumstances where property seized under a warrant or purported warrant would otherwise fall to be returned — as for example where the search and seizure warrant was for some reason invalid — but where, if the property were returned, it would immediately become appropriate to issue a fresh warrant in pursuance of which it would be lawful to seize the property. Section 59 provides that in such circumstances the court may order the retention of the property seized.

Factual background
5

The appeal arises from the issue on 16 June 2014 by St Albans Magistrates' Court (JL Grimsey JP) of two search and seizure warrants in respect of London addresses at 22 Leys Gardens, Barnet and Unit 5, Island Blue Ltd, Overbury Road, Harringay (said to be addresses at which the appellant Mr John Haralambous respectively lived and was suspected to have a business interest) and from their execution on 26 June 2014 by entry and seizure of a number of items. The warrants were issued following an ex parte application by the second respondent, the Chief Constable of the Hertfordshire Constabulary, under section 8 of PACE. The appellant was also arrested on 26 June 2014 and bailed. Any further investigation by the police of any matter to which such warrants and arrest related has been suspended pending the outcome of these proceedings.

6

The appellant sought disclosure of, inter alia, the written application for the warrants, and was on 16 September 2014 provided with what the second respondent informed him on 17 September 2014 was a redacted copy. On 18 September 2014 the appellant applied to the St Albans Magistrates' Court for an unredacted version, relying on the procedure in Commissioner of Police of the Metropolis v Bangs [2014] EWHC 546 (Admin). The application was heard in the Luton Magistrates' Court on 23 September by District Judge Mellanby. The appellant was provided from the court's file with JL Grimsey's written statement dated 16 June 2014 of reasons for issuing the warrants, namely “because of the substantial evidence that linked all the subjects together and the addresses”, and was informed that the evidence, which was being withheld, consisted of two closely typed pages. On 25 September 2014 District Judge Mellanby issued her open reasons for refusing the application for disclosure of the redacted and withheld information, and on the next day she handed the second respondent a closed judgment.

7

By a first judicial review claim issued on 26 September 2014 (CO/4505/2014), the appellant sought return of the material seized on 26 June 2014 on the basis that the warrants, entries, searches and seizures, were unlawful for a range of reasons. These included alleged deficiencies in the terms in which the application could be seen to have been expressed. They also included the appellant's central contention that the information disclosed to him showed no basis on which lawful search warrants could have been issued, and that it had not been and was not permissible for reliance to be placed on the withheld information.

8

By a consent order signed on 27 March and sealed on 6 May 2015, the second respondent agreed that the warrants should be quashed. Prior to so doing the second respondent on 23 March 2015 served a protective application for retention of the seized material under section 59 of the CJPA. On 9 June 2015 HHJ Bright QC sitting in the St Albans Crown Court ruled that the second respondent was entitled to rely on the withheld information in support of its section 59 application, and on 11 June 2015, in the light of this ruling, the parties agreed and HHJ Bright QC made an order authorising retention of the seized material under section 59.

9

By a second judicial review claim issued on 26 June 2015 (CO/3114/2015), the appellant sought the return of the seized material on the grounds that the section 59 order should be quashed, since it was impermissible to rely on the withheld information in its support. In response to an application by the second respondent for directions to allow the Divisional Court, should it wish, to see the withheld information in an ex parte hearing, the appellant accepted that, if HHJ Bright QC had been entitled to have regard to the withheld information, then the lawfulness of his ruling was not in issue; the only issue was whether he was so entitled; and only if he was not, did the section 59 order fall to be quashed. Collins J on 20 January 2016 left it to...

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