R (S and Others) v Chief Constable of the British Transport Police and another
| Jurisdiction | England & Wales |
| Judge | Lord Justice Aikens,Mr Justice Silber |
| Judgment Date | 20 June 2013 |
| Neutral Citation | [2013] EWHC 2189 (Admin) |
| Docket Number | Case No: CO/8612/2012 |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 20 June 2013 |
[2013] EWHC 2189 (Admin)
Lord Justice Aikens
Mr Justice Silber
Case No: CO/8612/2012
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
Rupert Bowers and Abigail Bright (instructed by Faradays) for the Claimant
Stephen Morley (instructed by Mariel Irvine) for the First Defendant
The Second Defendant was not represented
Hearing date: 21 May 2013
Lord Justice Aikens and
This is the judgment of the court, to which both of us have contributed.
S is a practising solicitor and a partner in the claimant solicitors' firm F. The claimant L is another firm of solicitors. All three claimants seek to quash search warrants issued in respect of their home (in the case of S) or professional premises (in the cases of F and L) by circuit judges sitting at Southwark Crown Court ("the Court") at the request of the Chief Constable of the British Transport Police ("the First Defendant" and "BTP") on, respectively, 15 May 2012 and 1 June 2012. The case raises serious issues about the proper procedure to be used when the police wish to search the premises or homes of solicitors for documents or other materials when the solicitors are acting for those who are the subject of police investigations. The present case concerns the procedures set out in section 9 and following and Schedule 1 of the Police and Criminal Evidence Act 1984 ("PACE"), which deal with applications for investigating authorities to search for and seize "excluded material" and "special procedure material", as defined in PACE.
Blake J gave permission to the claimant L to pursue its claim for judicial review, but he refused to grant permission to S and to F to proceed. Parts of those applications were renewed before us and we granted permission. In relation to the first of the three warrants issued, ("the first warrant"), that in respect of S's home, Mr Stephen Morley, counsel for the First Defendant made a number of concessions at the outset of the hearing before us on 21 May 2013, which resulted in him accepting that this first warrant had to be quashed. We accept those concessions and will explain below why, in our view, Mr Morley was correct to make them. The contest before us on 21 May 2013 therefore concentrated on the warrants issued in respect of the professional premises of F and L. Anonymity orders have been made in favour of each of the claimants and they remain in force. The case is therefore to be reported using initials only.
I. Chronology
From March 2012, S and his firm F acted for MS in relation to a criminal investigation being carried out by the BTP concerning the theft of stolen rail lines from various locations. MS was a director of a company which carried on business as scrap metal merchants. During the investigation, MS had originally been regarded as a prosecution witness. However, following a further conversation between the BTP and MS resulting in amendments to his draft witness statement which had been prepared by officers of the BTP, the BTP indicated that he was to be treated as a suspect and they proposed to interview him as such.
MS agreed to attend Ebury Bridge Road police station to be interviewed on 27 March 2012. MS arrived there at 8.40 am on 27 March 2012 and met DC Collins. MS was accompanied by his solicitor, the First Claimant, S. At 10.06 am, MS was arrested by DC Collins on suspicion of conspiring to steal rail track during the period 1 January 2011 to 9 April 2011. MS was cautioned but made no reply. Thereafter MS was interviewed at 11.20 am (with S in attendance) and he gave " no comment" answers.
Prior to that interview, officers of the BTP had provided MS and S with certain disclosure. This disclosure and the questions during the interview (which referred to downloads of other suspects' seized mobile phones, text messages, photographs from phones, media texts, call data, cell site analysis and documentary evidence) made it clear that the investigating officers regarded evidence from mobile telephones as important to their investigations. This fact is also apparent from the Information which was the basis on which the search warrant of S's house was sought and obtained. The Information seeking the search warrant for S's house states that, at this point of events on 27 March at the police station, "…in view of the significance of telecommunications evidence gathered [in the police investigation] a decision was made to enquire as to the presence of the phone [MS] was using when he returned to the custody desk".
After the interview at 12.33, MS and S had a further consultation in private until 13.02. MS and S then returned to the custody desk area whereupon DC Collins asked MS if he had his mobile phone on him to which MS replied in the negative. DC Collins then informed MS that he would search him to confirm that this was the case as MS had not previously been searched.
While putting on a pair of search gloves, DC Collins had the following exchange with S:
DC: "Do you have your client's mobile phone?"
S: "I have my phone officer."
DC: "I wasn't asking if you had your phone, do you have your client's phone?"
S: "Again, I have my phone officer."
DC: "Do you have [MS]'s phone?"
Brief Pause
S: "I do".
At the end of the conversation, S handed DC Collins a mobile phone from his briefcase.
On 15 May 2012, DC Collins attended at Southwark Crown Court and applied for a warrant to search S's home address. The warrant was sought pursuant to the procedure set out in section 9 and Schedule 1 (particularly paragraph 2 and 12(a)) of PACE. These provisions relate to applications for search warrants to obtain access to "excluded material" and "special procedure material" as defined in sections 11 and 14 of PACE. The Information sworn by DC Collins and provided to HHJ Pegden explained that the property for which the warrant was sought was " Laptops, Mobile Phones and SIM cards" and that they were wanted in connection with offences of "Attempting to pervert the course of justice" and "Concealing criminal property". The Information explained that the application was made because S had been in possession of MS's mobile phone at the police station on 27 March 2012, that he had retained it in his own briefcase and that he did not present it to the police whilst MS was in custody having been arrested by appointment.
We will analyse the contents of the Information further after we have explained the relevant provisions of PACE as this will make it easier to understand the significance of what was and what was not in the Information.
The warrant was issued by Judge Pegden. We were told that this was done after less than five minutes of hearing and consideration. The warrant identified the " material likely to be relevant evidence" as being " a mobile phone and a laptop computer". At around 7am on 17 May 2012 the First Defendant's officers attended S's home address to execute the warrant issued by Judge Pegden. A search started at 7.13 am and it concluded at 7.20 am. During the search, S's mobile telephone and a laptop computer were seized.
Before the search had been completed, S was arrested on suspicion of having been a party to a conspiracy to pervert the course of justice. After the search, S was taken to West Ham police station where he was interviewed and then bailed. During his interview, S said that he made an error of judgment in holding MS's mobile telephone for him at the police station on 27 March 2012. S was asked about his " in custody notes" and he stated that he sometimes took pages out of his notebook and placed them in the client's file.
Subsequently MS engaged the services of a different law firm, called L, to represent him. On 1 June 2012, the First Defendant's officers applied at Southwark Crown Court for warrants to search the premises of the two solicitors' firms F and L. The Information in support of the applications was again provided by DC Collins. The material sought was, in each case:
"[S's] 'in custody' notebook/solicitors pad and any directly associated documentation relating to [MS]".
In each case the Information stated that the property and material sought under the proposed warrant related to the offences of " attempting to pervert the course of justice" and " concealing criminal property". The format of the Information in each case was the same and it explained that it originated from S being in possession of MS' mobile phone at the Ebury Bridge police station on 27 March 2012 and retaining it in his own brief case. Each Information pointed out that the warrant in respect of S's house had been executed on 17 May and that a laptop and mobile phone had been seized on that occasion. The Informations did not state what had been found in either the laptop or the mobile phone. Each Information then gave an outline of the original investigation into the theft of rail track and MS's alleged part in that conspiracy. They set out the chronology of events on 27 March 2012 at the police station and summarised a prepared statement made by S when interviewed under caution after his arrest on 24 May 2012.. Each Information stated, at paragraph 39, that if the warrants were granted, the police would visit the premises of F first and " only if F declare that they do not have the material for which this warrant applies and a search does not locate it will [the premises of L] be visited".
Each...
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