R Paul Jordan v The Chief Constable of Merseyside Police
| Jurisdiction | England & Wales |
| Judge | Mr Justice Chamberlain |
| Judgment Date | 21 August 2020 |
| Neutral Citation | [2020] EWHC 2274 (Admin) |
| Date | 21 August 2020 |
| Court | Queen's Bench Division (Administrative Court) |
| Docket Number | Case No: CO/3962/2019 |
[2020] EWHC 2274 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Manchester Civil Justice Centre
1 Bridge Street West
Manchester
M60 9DJ
HON. Mr Justice Chamberlain
Case No: CO/3962/2019
Henry Gow (instructed by James Murray Solicitors) for the Claimant
Graham Wells (instructed by Merseyside Police) for the First Defendant
Hearing dates: 14 August 2020
Approved Judgment
Introduction
On 5 July 2019, officers from Merseyside Police applied for a search warrant under the Misuse of Drugs Act 1971 (“the 1971 Act”) to search the home of Paul Jordan. The factual basis for the application was set out in an application form. In one respect, this was supplemented orally. The warrant was issued by a justice of the peace at Sefton Magistrates' Court. It was executed on the same day.
By this claim, Mr Jordan seeks an order quashing the warrant. There are two pleaded grounds of challenge: first, that it was granted on the basis of a deliberately false and exaggerated account of the execution of a previous warrant on 20 February 2019; second, that there were material non-disclosures about that search and about subsequent occasions on which police officers attended but found nothing of interest and took no further action.
Permission to apply for judicial review was granted by HHJ Eyre QC, sitting as a Judge of the High Court, on 22 March 2020. By that time, the First Defendant had indicated that he intended to assert public interest immunity (“PII”) in respect of part of the contents of the application form, which had been provided in redacted form to the Claimant. Judge Eyre therefore gave directions for determination of the PII claim.
On 16 July 2020, Julian Knowles J ordered that the PII claim be determined by a High Court Judge at a remote hearing and that the substantive hearing of the judicial review claim be listed before the same judge. The hearings were both to take place during the vacation if possible.
There was a remote hearing before me to determine the PII claim on 14 August 2020. I heard open submissions from Mr Graham Wells for the First Defendant and Mr Henry Gow for the Claimant. In accordance with the usual practice, the Second Defendant was not represented and remained neutral. Mr Wells and Mr Gow were able to make open submissions on the legal principles to be applied. Mr Gow made brief open submissions on the substance of the PII application, but he had not seen the redacted material or the reasons for claiming PII. I considered these in detail with the assistance of Mr Wells in a separate closed hearing.
During the course of the closed session, Mr Wells accepted that one further piece of information about one of the reports summarised in the warrant application could be given by way of a “gist”. I will direct the First Defendant to provide that information. Otherwise, I uphold the PII claim. In those circumstances, there should be no difficulty in proceeding directly to a substantive hearing. As I indicated in the open hearing, the substantive hearing will take place remotely, before me, on 2 September 2020.
In this open judgment, I explain:
(1) the principles I have applied in determining the PII claim;
(2) in general terms, and without revealing the content of the material that attracts PII, why I have upheld the PII claim; and
(3) how the substantive hearing is to be conducted.
There is a separate closed annex to this judgment, in which I give further reasons for upholding the PII claim. The annex has not been communicated to the Claimant and will not be made public unless and until the court so directs. I have indicated in this open judgment those of my conclusions that depend in part or in whole on evidence referred to in the closed annex.
(1) The legal principles
In general, the effect of a PII claim, if upheld, is that the material to which it relates becomes inadmissible for all purposes. It cannot be relied upon by either side and cannot be considered by the court in reaching its decision on the merits of the case. In this respect, a PII procedure differs fundamentally from a closed material procedure (“CMP”), in which material which the court permits to be withheld from disclosure to one or more parties may still be considered and relied upon by the court in reaching its substantive decision: see Al Rawi v Security Service [2012] 1 AC 531, [30]–[40].
In R (Haralambous) v St Albans Crown Court [2018] UKSC 1, [2018] AC 236, the Supreme Court considered a series of issues about the use of material whose disclosure would be damaging to the public interest by judicial authorities granting search warrants and by courts reviewing such grants. Some of its conclusions are material to this case. They can be summarised as follows:
(a) The statutory scheme for the grant of search warrants under ss. 8 and 15 of the Police and Criminal Evidence Act 1984 (“PACE”) envisages a purely ex parte procedure in which a constable may rely on information whose disclosure to the subject of the warrant would be damaging to the public interest: [27].
(b) This may include information from an informer whose identity could readily be identified from the nature of the information or information which would reveal lines or methods of investigation: ibid.
(c) Such material need not be identified at the time of making the application to a magistrate. It must, however, be identified, if an application for disclosure is made to the magistrate after execution of the warrant in accordance with the procedure in Commissioner of Police for the Metropolis v Bangs [2014] EWHC 546 (Admin) and/or if there is an application to the Crown Court under s. 59 of the Criminal Justice and Police Act 2001: ibid.
(d) On an application for judicial review challenging a search warrant granted on the basis of material which was not and cannot be disclosed to the claimant, the High Court can hold a CMP, despite the absence of express statutory authority to do so. This enables the High Court to consider all the material before the magistrate, and to rely on that material in reaching its substantive decision, without disclosing it to the claimant: [59].
(e) In a challenge to the grant of a search warrant, there is no requirement to disclose a sufficient gist of the closed material to enable the claimant to address the essence of the case for the warrant: [65].
Although the statutory authority for the warrant under challenge here was the 1971 Act, rather than PACE, neither party has suggested that that makes any difference. There is no reason why it should.
In Competition and Markets Authority v Concordia International RX (UK) Ltd [2017] EWHC 2911 (Ch), Marcus Smith J had held that a CMP was not possible. In the light of Haralambous, that judgment was overturned by the Court of Appeal: [2018] EWCA Civ 1881. Marcus Smith J returned to the issue in a subsequent iteration of the Concordia case: [2018] EWHC 3448 (Ch), [2019] Lloyd's Rep FC 183. At [11], he summarised the process by which PII claims should be resolved in advance of any hearing to determine the substance of the challenge:
“As to the process that must be followed when considering whether material is protected by PII:
(1) The general rule is that the court should consider first representations by the party asserting PII (in this case, the CMA), then by the party the subject of the warrant (Concordia) in ‘open’ proceedings, then further representations by the party asserting PII in the subject's absence in ‘closed’ proceedings: Commissioner of Police for the Metropolis v Bangs [2014] EWHC 546 (Admin) (‘ Bangs’) at [31].
(2) So far as possible, purely legal matters should be resolved in the ‘open’ proceedings: Bangs at [32].
(3) Where it is necessary to hold ‘open’ and ‘closed’ hearings, the judge must give ‘open’ and ‘closed’ judgments. It is highly desirable, in the ‘open’ judgment, to identify every conclusion in that judgment which has been reached in whole or in part in the light of points made in evidence referred to in the ‘closed’ judgment and state that this is what has been done: Bank Mellat v HM Treasury (No 2) [2013] UKSC 38 at [68].”
I have followed this approach.
Later in the same judgment, at [26], Marcus Smith J cited the speech of Lord Templeman in R v Chief Constable of West Midlands Police ex p. Wiley [1995] 1 AC 274, 280–281, which explained the three issues to be considered when determining a PII claim:
(a) whether the evidence in relation to which PII is asserted is relevant to an issue in the proceedings;
(b) whether the disclosure of that evidence would cause harm to the public interest; and
(c) if so, whether, balancing the public interest in the administration of justice against the harm to the public interest that would be occasioned by disclosure, an order for disclosure should be made.
At [26], Marcus Smith J noted that these three distinct stages had to an extent been superseded by Haralambous. In a warrant case it was self-evident that material before the authority which issued the warrant was relevant. But, at [27]–[29], he explained that the availability of a CMP affected the balance to be performed at the third stage – often referred to as the “ Wiley balance”:
“27. But it must be noted that the adverse effect on the public interest in the administration of justice is materially greater under the present dispensation than previously. Previously, the worst that could happen was that relevant material was withheld generally. Now, the position is that relevant material is deployed before the court in the absence of an interested party. Inevitably, the court loses the benefit of the scrutiny and submissions...
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