R (on the application of AB and CD) v Huddersfield Magistrates’ Court and West Yorkshire Police
A look at a recent case where the execution of a 'specific premises warrant' was unlawful due to information not being supplied to the court.
Administrative Court (Rafferty LJ and Stuart-Smith J)
10 April 2014
On the particular facts applicable to an application for a section 8 PACE ‘specific premises warrant’, failure to tell the court that the claimants were practising solicitors and the description of the items sought fell short of what was required by law, rendering the warrant and its execution unlawful.
Following a lethal house fire in 2002, in which eight people died, the police arrested a number of people including Mohammed Shahid. He was bailed due to insufficient evidence pending forensic investigations. When forensic evidence justified his re-arrest, he had disappeared and still remains on the run. A number of other suspects were tried and convicted of murder but Shahid continued to be implicated.
The claimants were members of Shahid’s family and the police applied for a warrant to search their residential premises. They were both solicitors practising in criminal law and acting as duty solicitors, facts known to the police.
The information laid before the court indicated that intelligence and information received led the police to believe that the family had been involved actively in assisting Shahid to leave the country and had continued to help him evade arrest.
Following the application for a section 8 warrant, the magistrate issued a warrant authorising the entry and search of the premises for "computers/mobile telephones/media storage devices/identity documents/financial documents supporting the financing of Shahid Mohammed/documents relating to the premises in Pakistan belonging to/in possession of/control of the occupants of [the premises]".
The search was authorised on two occasions. On both, the police were accompanied by independent counsel in case either claimant had items subject to legal privilege so as to ensure that, if so, they were not inspected by the police.
The claimants challenged the warrant on a number of grounds, primarily that the information failed to disclose the fact that they were solicitors and the possible consequences of that, that the wording was too wide and that the application was based on unreliable and uncorroborated intelligence.
Although the target of the warrant was the claimants’ residential premises, having accepted the possibility (through the sensible precaution of engaging independent counsel) that material subject to legal privilege might be encountered, it was readily foreseeable that would be the case.
Even if the claimants were rigorous in maintaining separate phones and computers for home and work, there would be every likelihood of work-based devices being at home. Further, it was common knowledge that solicitors often kept both work and home content on single devices. As a result, when answering the essential question of whether the applicant for the warrant had reasonable grounds for believing that items included in the warrant would not consist of or include items subject to legal privilege, it was material for the court to be told that devices may be found belonging to solicitors practising in the field of criminal law. The failure to give such disclosure fell foul of the duty of full and frank disclosure and was fatal to the warrant.
As to the description of the target items sought, the court concluded that it was not possible to substitute commas for forward slashes and effectively sever the descriptive wording used on the warrant so as to suggest that all items were qualified by the description "supporting the financing of Shahid Mohammed". The use of forward slashes indicated contemplation of a series of discrete categories of documents, not a single collection governed by those words. Further, even if the wording on the warrant could be construed differently, there were still "no words at all indicating any limitation or qualification relating to assisting Mohammed Shahid to escape or to remain at large". The wording used fell short of what was required and as a result, the issue and execution of the warrant had been unlawful.
On the question of unreliable and uncorroborated intelligence, despite some tension between the evidence, the officer applying for the warrant and notes taken at the hearing, the administrative court was content that the officer applied his mind to the reliability and accuracy of the available information before making the application ("we are not persuaded that this was not done"). The court noted the encouragement in paragraph B 3.1 of the PACE Code of Practice that officers must take reasonable steps to check that underlying information is accurate, but did not accept that the guidance required "anything approaching a full audit of the information or going back to the original sources". On the facts, the court was satisfied that there was material before the magistrate sufficient to entitle him to form the reasonable belief that an indictable offence had been committed.
The actions of the police in this matter were clearly well-intentioned, as they sought to track down a suspect for a house fire that had claimed eight lives, including a six month old baby.
Unfortunately, the demands of the law in this area are increasingly unforgiving. As the court observed in a passage to be borne in mind by police and courts alike:
"…it should by now be clearly appreciated by all who make or decide applications for the issuing of warrants that there is no part of the process that should be regarded as a formality. Each application must be carefully and precisely formulated so as to satisfy both the statutory requirements and the duty of full and frank disclosure; and a decision to issue may only be taken after that level of critical scrutiny that is required when the court is asked to sanction a substantial invasion of fundamental rights. The flow of the authorities tends towards requiring increasing rigour and precision at all stages of the process…"