R (on the application of Mills) v Sussex Police and another

A manifest failure to provide full and frank information on an application for a search and seizure warrant led the Administrative Court to set aside…

Executive summary

A manifest failure to provide full and frank information on an application for a search and seizure warrant led the Administrative Court to set aside the warrant.

Background

Mr and Mrs Mills were under investigation for various corruption and money laundering charges. Initially, Thames Valley Police conducted the investigation before its transfer to Sussex Police.

After transfer, Sussex Police sought and obtained a search and seizure warrant under the Proceeds of Crime Act 2002 from Southwark Crown Court. The warrant related to the claimants’ home address (also their business address) and a large amount of material was subsequently seized.

The claimants contended that the warrant was unlawfully issued with the result that the documents had been wrongly taken.

The decision

The court noted the statutory framework under the Proceeds of Crime Act, and in particular what Elias LJ described as the confusion between competing sets of conditions to be satisfied.

In this particular case the reference in the information for warrant to prior contact between Thames Valley Police and the claimants was described as "extremely exiguous" and mostly unparticularised. In the judgment of Elias LJ, what was produced "[fell] well short of full and frank disclosure" with the result that "the judge would have had no inkling of the nature and quality of the past dealings between these claimants and the police". But the claimants’ assertion that the information was positively misleading was rejected: there had been material non-disclosure but not positive misrepresentation.

The court considered the appropriate principle to apply in circumstances where a judge may well have declined to issue the warrant had he been in full possession of the facts. The principle was noted as correctly stated by Stanley Burnton LJ in R (Dulai) v Chelmsford Magistrates’ Court [2012] in these terms:

"The question for this court, in judicial review proceedings, is whether the information that is alleged should have been given to the magistrate might reasonably have led him to refuse to issue the warrant."

Answering that question in the affirmative, the administrative court set aside the warrant.

Although the case was decided on its facts, the court’s distillation of relevant legal principles makes useful reading:

1. Warrants should only be sought as a last resort and not employed where other less draconian powers can achieve the relevant objective.

2. It is incumbent on the applicant to make full and frank disclosure and ensure that any material potentially adverse to the application is brought to the attention of the judge.

3. The obligation of full and frank disclosure necessarily includes a duty not to mislead the court in a material way.

4. The judge must bring a rigorous and critical analysis to the application. To do so, the judge must be provided with the information necessary to discharge that obligation.

5. The judge should give reasons for the decision, which need not be elaborate, but should be sufficient to enable the decision to be understood.

6. Application for warrant must be made in good faith and for a purpose for which the power is granted. Using a statutory power for a collateral purpose is a misuse of power.

Comments 

This is another useful reminder of the law’s requirements when applying for warrants. Readers are referred to Weightmans’ recent legal update in the cited case of R (on the applications of Golfrate Ltd and Adam) v Metropolitan Police and others and R (on the application of AB and CD) v Huddersfield Magistrates’ Court and West Yorkshire Police for similar criticisms of the information provided in applications for warrants. The judicial tide is very much in favour of a full and frank approach to applications for warrants and an increase of judicial rigour in the process.

For further information about Weightmans or to discuss any of the issues in this update, please contact Nick Peel, Partner on 0151 242 9453 or email nick.peel@weightmans.com.

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