The claimants sought to set aside warrants and executions under them to provide assistance to a foreign court investigating alleged unlawful assistance to companies in Bosnia Herzegovina.
Held: The issue of such a warrant was a serious step. The court gave guidance on the practice to be followed, but it was not correct for the details of the request to be released. The application failed.
Kennedy LJ said: ‘The warrant needs to be drafted with sufficient precision to enable both those who execute it and those whose property is affected by it to know whether any individual document or class of document falls within it. If that is done it seems to me that the specifically required will be no less than would be required for a notice under section 2(3) were it practicable to serve such a notice and although the terms of the warrant may be wide it will not simply be fishing if it is directed to support an investigation which has apparent merit.’
Crane J said: ‘a warrant should be capable of being understood by those carrying out the search and by those whose premises are being searched without reference to any other document.’
‘The remedy which is available to a person or persons affected by a warrant is to seek judicial review. It is an adequate remedy because the statutory provisions have to be read in the light of those articles of the European Convention which are now part of English law. In fact, . . if the statutory provisions are satisfied the requirements of article 8 of the Convention will also be satisfied, and at least since the implementation of the Human Rights Act an application for judicial review is not bound to fail if, for example, the applicant cannot show that the Director’s decision to seek a warrant in a particular form was irrational, but in deciding whether to grant permission to apply for judicial review the High Court will always bear in mind that the seizure of documents pursuant to a warrant is an investigative step, perhaps best reconsidered either at or even after the trial.
(10) Often it may not be appropriate, even after the warrant has been executed, to disclose to the person affected or his legal representatives all of the material laid before the district judge because to do so might alert others or frustrate the purposes of the overall inquiry, but the person affected has a right to be satisfied as to the legality of the procedure which led to the execution of the warrant, and if he or his representatives do ask to see what was laid before the district judge and to be told about what happened at the hearing, there should, so far as possible, be an accommodating response to that request. It is not sufficient to say that the applicant has been adequately protected because discretion has been exercised first by the Director and then by the district judge. In order to respond to the request of an applicant it may be that permission for disclosure has to be sought from an investigating authority abroad, and/or that what was produced or said to the district judge can only be disclosed in an edited form, but judicial control by way of judicial review cannot operate effectively unless the person or persons affected are put in a position to take meaningful advice, and if so advised to seek relief from the court. Furthermore it is no answer to say that there is no general duty of disclosure in proceedings for judicial review.’
Judges:
Kennedy LJ, Crane J
Citations:
[2005] EWHC 1626 (Admin), [2006] 1 WLR 1316
Links:
Statutes:
Police and Criminal Evidence Act 1984
Jurisdiction:
England and Wales
Citing:
Cited – Williams v Somerfield 1972
The court emphasised that a search warrant is a potentially serious invasion of the liberty of the subject, and a gross invasion of privacy. Lord Widgery also drew the distinction between authorising the obtaining of material as permitted by . .
Cited – ex parte Adegbesan 1987
The court emphasised the need for specificity in any notice given under section 9 of the 1984 Act. . .
Cited – Regina v Director of Serious Fraud Office ex parte KM and others 7-Apr-1998
A request for assistance came from the United States pursuant to the Mutual Legal Assistance Treaty of 2nd December 1996. Pill LJ, giving the first judgment stressed the need for candour and full disclosure when a warrant is being sought, quoting . .
Cited – Regina v Lewes Crown Court ex parte Hill 1991
Bingham LJ said: ‘The Police and Criminal Evidence Act governs a field in which there are two very obvious public interests. There is, first of all, a public interest in the effective investigation and prosecution of crime. Secondly, there is a . .
Cited – Regina v Secretary of State for the Home Department and Another, Ex Parte Finninvest Spa and Others QBD 23-Oct-1996
The referral of an approach from the Italian authorities for help to the Serious Fraud Office was not wrong. Where assistance is being given to an authority abroad in relation to an on-going investigation both the letter of request and the draft . .
Approved – Regina v Southwark Crown Court and Another, Ex Parte Sorsky and Defries QBD 21-Jul-1995
A search warrant should be issued on behalf of a foreign court only after a fullest consideration of the law, but it could be used to allow removal of material as evidence of foreign offences. The court heard an application to a Crown Court judge . .
Cited – Peck v The United Kingdom ECHR 28-Jan-2003
peck_ukECHR2003
The claimant had been filmed by CCTV. He had, after attempting suicide, left home with a knife, been arrested by the police and disarmed, but then sent home without charge. The CCTV film was used on several occasions to advertise the effectiveness . .
Cited – Abacha, Bagudu v The Secretary of State for the Home Department, The Federal Republic of Nigeria Interested Party Admn 18-Oct-2001
Attempts were being made by the Federal Government of Nigeria to recover moneys alleged to have been taken fraudulently from the state. They sought assistance from the UK, and the claimants sought details of that request. The statute provided that . .
Cited – Smith and Grady v The United Kingdom ECHR 27-Sep-1999
The United Kingdom’s ban on homosexuals within the armed forces was a breach of the applicants’ right to respect for their private and family life. Applicants had also been denied an effective remedy under the Convention. The investigations into . .
Cited – Regina v Secretary of State for The Home Department Ex Parte Simms HL 8-Jul-1999
Ban on Prisoners talking to Journalists unlawful
The two prisoners, serving life sentences for murder, had had their appeals rejected. They continued to protest innocence, and sought to bring their campaigns to public attention through the press, having oral interviews with journalists without . .
Cited – Regina v Evans and Lord Admn 2002
The United States, in connection with the investigation of an alleged fraud, sought the assistance of the Secretary of State to obtain evidence and information from members of an English firm of accountants, who were not themselves under suspicion. . .
Cited – Kent Pharmaceuticals Ltd and others v Serious Fraud Office Admn 2002
There was to be an investigation by the SFO into allegations that some in the pharmaceutical industry were dishonestly increasing the price charged for drugs supplied to the NHS. On 27th March 2002 District Judge Nicholas Evans received written . .
Cited – Kent Pharmaceuticals Ltd, (Regina on the Application of ) v Serious Fraud Office and Another Admn 17-Dec-2003
The claimant sought judicial review of the decision of the respondent to disclose documents obtained by it from them during an investigation.
Held: The decisions to disclose material to the DoH were ‘in accordance with law’ within the meaning . .
Cited – Buck v Germany ECHR 28-Apr-2005
ECHR Judgment (Merits and Just Satisfaction) – Violation of Art. 8; No separate issue under Art. 6; Pecuniary damage – claim rejected; Non-pecuniary damage – finding of violation sufficient; Costs and expenses . .
Cited – Bowman v Fels (Bar Council and Others intervening) CA 8-Mar-2005
The parties had lived together in a house owned in the defendant’s name and in which she claimed an interest. The claimant’s solicitors notified NCIS that they thought the defendant had acted illegally in setting off against his VAT liability the . .
Cited – Regina (Kent Pharmaceuticals Ltd) v Serious Fraud Office CA 11-Nov-2004
In 2002 the SFO was investigating allegations that drug companies were selling generic drugs, including penicillin-based antibiotics and warfarin, to the National Health Service at artificially sustained prices. To further the investigation the SFO . .
Cited – In re S (a Child) (Identification: Restrictions on Publication) HL 28-Oct-2004
Inherent High Court power may restrain Publicity
The claimant child’s mother was to be tried for the murder of his brother by poisoning with salt. It was feared that the publicity which would normally attend a trial, would be damaging to S, and an application was made for reporting restrictions to . .
Cited by:
Mentioned – Mercury Tax Group Ltd and Another, Regina (On the Application of) v HM Revenue and Customs and Others Admn 13-Nov-2008
The claimant sought judicial review of the lawfulness of search warrants given to the Commissioners and executed at their various offices. The Revenue had suspect the dishonest implementation of a tax avoidance scheme. The claimants said that there . .
Cited – Mercury Tax Group Ltd and Another, Regina (On the Application of) v HM Revenue and Customs and Others Admn 13-Nov-2008
The claimant sought judicial review of the lawfulness of search warrants given to the Commissioners and executed at their various offices. The Revenue had suspect the dishonest implementation of a tax avoidance scheme. The claimants said that there . .
Cited – Fitzpatrick and Others v The Commissioner of Police of The Metropolis QBD 11-Jan-2012
The claimants, two solicitors and their employer firm sought damages alleging trespass and malicious procurement by police officers in obtaining and executing search warrants against the firm in 2007 when they were investigating suspected offences . .
Cited – Global Cash and Carry Ltd, Regina (on The Application of) v Birmingham Magistrates’ Court and Others Admn 19-Feb-2013
The claimant sought an order quashing a search warrant, and for damages. The officer had said that he had evidence that the claimants were storing an distributing from the premises large quantities of counterfeit goods and drugs.
Held: The . .
Cited – Haralambous, Regina (on The Application of) v Crown Court at St Albans and Another SC 24-Jan-2018
The appellant challenged by review the use of closed material first in the issue of a search warrant, and subsequently to justify the retention of materials removed during the search.
Held: The appeal failed. No express statutory justification . .
Cited – Haralambous v St Albans Crown Court and Another Admn 22-Apr-2016
This judicial review raised for express decision whether a person whose premises have been searched and whose property seized under a search warrant must have enough information grounding the warrant to judge its lawfulness and the retention of the . .
Lists of cited by and citing cases may be incomplete.
Criminal Practice, International
Updated: 17 May 2022; Ref: scu.229058