Lord Justice Pitchford :
The issue
- This is a challenge by the claimant to the validity of two search warrants issued by the Nottingham Crown Court on 25 May 2011. The claimant seeks an order quashing the warrants and/or a declaration that the entries, searches and seizures made on 25 May 2011 were unlawful; the return of all property seized and copies; and damages. Although, as pleaded, the claimant sought a declaration that his subsequent exclusion from police stations in Nottinghamshire was unlawful, that aspect of the claim is no longer pursued. The claim is before this court in consequence of an order made by Flaux J on 11 February 2013 at Nottingham Crown Court when, in circumstances which I shall describe later in this judgment, he set a timetable for the issue of a claim for judicial review, service of an acknowledgement of service and the exchange and delivery of evidence and skeleton arguments. This matter is listed as a rolled up hearing for a decision upon the application for permission with the substantive hearing to follow should permission be granted.
The factual background to the application
- The claimant is a Fellow of the Chartered Institute of Legal Executives, and an Accredited Representative for police stations and a panel A member of the Very High Costs Cases panel. He was employed by a firm of Nottingham Solicitors, Messrs Bhatia Best, for a period of some 18 years until in early 2010 he joined the firm of Challinors practising in the west and east Midlands.
- On 13 May 2011 Detective Inspector ("DI") David Kennedy of the Nottinghamshire Police made an ex-parte application to His Honour Judge ("HHJ") Teare at Nottingham Crown Court for a warrant to search the home address of the claimant and one of the practice addresses of his employers, Challinors. A search was required to retrieve evidence which it was believed would support a reasonable belief that the claimant had participated in a conspiracy to pervert the course of justice by Colin Gunn and Michael O'Brien. Those warrants were issued in terms to which I refer below at paragraphs 16 and 17. Both warrants were executed on 25 May 2011.
- No challenge was made to the warrants or the searches which followed at the time when the searches took place. The first intimation of a complaint was on 31 May 2012 when Kaim Todner Solicitors Limited ("Kaim Todner"), for the claimant, wrote to the Nottinghamshire Force solicitor to complain that a substantial quantity of his property had been retained in consequence of the seizure. The return of the claimant's property was demanded within a period of 14 days, failing which the Force was invited to respond to a request for information as to the following matters:
" (1) On what basis was the warrant issued …
(2) A written note or transcript of the oral hearing before Judge Teare and a record of his reasons for granting the warrant.
(3) A complete record of property seized from Mr Goode's house.
(4) The report made by any independent counsel who has studied or sifted Mr Goode's property.
(5) …
(6) The outcome of the examination of the property conducted pursuant to the service of section 50 and 51 notice[s].
(7) An explanation as to why Mr Goode's property is still retained, and how long its continued retention will be required …
(8) An explanation as to why the property is retained in counsel's chambers and what security arrangements protect that property.
(9) An explanation as to why Mr Goode's electronic equipment such as phones and computers have not been "downloaded and mirrored" allowing the return of such hardware as promised by DC Johnson on 25 May 2011 who explained that this was a simple process and the actual hardware would be returned within a few days."
- On 7 June 2012 the East Midlands Legal Services Unit sent a holding reply saying that they would make enquiries and respond shortly. In the meantime, on 12 June 2012 the claimant was arrested on suspicion of conspiracy to pervert the course of justice. On 15 June Kaim Todner wrote to complain that an arrest at the claimant's home address without prior arrangement had been unnecessary. The claimant was released after examination by a force medical examiner and bailed to attend Lincoln police station on 21 June. The date for surrender was extended to 5 July on which date the claimant was interviewed under caution at Lincoln. He was further bailed to 1 November 2012. A discussion took place at Lincoln police station between Kaim Todner and the police as to the possible return of the claimant's property.
- On 18 July the claimant attended a police station in Nottinghamshire and was refused access to a client. He was assured that there was no blanket ban in force. On 24 July he was again refused access to a client in a police station and on 25 July Kaim Todner wrote in protest. On the same day the Head of Legal Services at the East Midlands Legal Services Unit wrote to Kaim Todner repeating the assertion that a decision would be required by the police inspector responsible for any station visited by the claimant. On 27 July Mr Sutherland wrote with a more detailed explanation which it is unnecessary to repeat. In short, an investigation was continuing into a suspected attempt by the claimant, Gunn and O'Brien to pervert the course of justice.
- On 17 August the Legal Services Unit responded to Kaim Todner's request for the return of property. It was asserted that DC Johnson (it may be that Mr Johnson had been, by then, promoted to sergeant) had not agreed to the return of property but that he would review the property held and return it if possible. It was asserted that examination of the material was continuing. On 20 September 2012 a number of items were released for collection, comprising computers, mobile telephones and related equipment.
- On 21 September 2012 Kaim Todner wrote to the Crown Court at Nottingham requesting information about the application for a warrant to search the claimant's home. On 3 October 2012 counsel who attended the search on 25 May 2012, Ms Tracy Stobart, wrote a full note for Kaim Todner setting out her role and the whereabouts and status of items which came into her possession at the time of the search . On 23 October 2012 Kaim Todner gave notice to Nottingham Crown Court of their intention to apply for an order under section 59 Criminal Justice and Police Act 2001 for the return of the claimant's property, and a related application for the provision of information. A directions hearing attended by counsel took place in HHJ Teare's chambers on 29 November 2012. Judge Teare indicated that he would recuse himself from hearing the application. The application for a section 59 order was listed before Flaux J, one of the presiding judges of the Midland Circuit, on 11 February 2012. On that date Mr Alun Jones QC appeared for the claimant and Mr Skinner represented the Chief Constable. In breach of the directions given by Judge Teare the Chief Constable had failed to submit a skeleton argument or evidence in response to the application. However, Mr Jones addressed the judge on the question whether the applications were properly before the Crown Court. The underlying ground for the application was that the warrant was invalid and should be, Mr Jones submitted, the subject of a claim for judicial review. It was the judge's opinion that a challenge to the validity of the warrant was normally a matter to be considered in the Administrative Court. He adjourned the matter to enable to the claimant to submit a claim for judicial review and, as I have said, set a timetable.
- On 2 May 2013 the claimant was charged with an offence contrary to section 40D(1)(b) and (5) Prison Act 1952 that on 22 May 2011, without authorisation, he caused a transmission to be made from inside Her Majesty's Prison, Cardiff (see paragraph 14 below). Having regard to the contents of this judgment, it is important to emphasise that the claimant was notified under section 37B(5) Police and Criminal Evidence Act 1984 that he was released without charge in respect of the offence of conspiring to pervert the course of justice on the ground that there was insufficient evidence to provide a realistic prospect of conviction.
The application for the warrants
- DI Kennedy has made a witness statement on behalf of the Chief Constable in response to the claim for judicial review. We are informed that DI Kennedy appeared at Nottingham Crown Court on 13 May 2011 with signed copies of applications for search warrants to be executed at the claimant's home address and at one of the offices of his employers, Challinors. Supplied with each application was a signed information to which was attached an identical "Summary of evidence/intelligence" (the "Summary"). The documents were submitted some 30 minutes to one hour before DI Kennedy appeared in the judge's court, sitting in chambers, to make the applications. The signed originals of these documents, which I am satisfied were submitted to the Court, are no longer available, but DI Kennedy has exhibited to his witness statement unsigned drafts as exact copies of the signed originals. DI Kennedy assumed that because the hearing was taking place in the courtroom the proceedings were being tape-recorded. It appears that no such recording took place, the learned judge did not record his reasons for issuing the warrants, and the applicant did not make a note of the proceedings, either at the time or immediately afterwards. Accordingly, our examination of the application proceeds solely upon an assessment of DI Kennedy's recollection of events many months after it took place. This court has emphasised on previous occasions the obligations upon the applicant in ex-parte applications of this kind to ensure not only that the statutory requirements for the application are met but also that a sufficient record of the proceedings is made. No-one appears to have given thought to the necessity of ensuring that the proceedings were recorded or noted. Without such information any reviewing court is at a disadvantage and the absence of a record may result in adverse findings which otherwise could have been avoided (see, for example, the observations of the court in R (Energy Financing Ltd) v Bow Street Magistrates Court [2005] EWHC 1626 (Admin) per Kennedy LJ at paragraph 24(6) – (7); Gittins v Central Criminal Court [2011] EWHC 131 (Admin) per Gross LJ at paragraph 25(2) and (5)).
- We have also been provided with witness statements from the claimant. The undisputed background is that in 2006 Colin Gunn and Michael McNee were convicted of conspiracy to murder an elderly Lincolnshire couple. The victims were the mother and step-father of Michael O'Brien. Colin Gunn's older brother, David, was also charged with conspiracy to commit the murder. He was represented by the claimant, who was then employed by Bhatia Best, solicitors. David Gunn was acquitted. Colin Gunn and Michael McNee were sentenced to life imprisonment. Michael O'Brien was himself, in a separate trial, convicted of the murder of Colin Gunn's nephew and was also serving a sentence of life imprisonment. The evidence submitted by DI Kennedy revealed that during 2009 Nottinghamshire Police received intelligence that, despite every apparent reason for enmity between them, Colin Gunn and Michael O'Brien were, through their criminal associates, in secret communication with one another. There appeared to be an agreement between Gunn and O'Brien for mutual assistance. Correspondence intercepted by the investigation suggested that O'Brien was offering assistance to Gunn in an appeal against his conviction. On 17 March 2011 Gunn's cell was searched. A large quantity of material was removed which, it was believed, established in coded terms a conspiracy between O'Brien and Gunn to pervert the course of justice. It was the view of the investigating officers that Gunn and O'Brien had received advance notice from an unknown source that their property might be searched. It was known that the claimant had been instructed by Colin Gunn for the purpose of an appeal. It was believed that Gunn had been sending relevant papers to the claimant for safe-keeping. In his witness statement the claimant confirms that he was instructed by Colin Gunn in December 2010. He agrees that Colin Gunn did indeed send him documents. The claimant's evidence is that, upon Mr Gunn's instructions, he would retain the originals and return copies to Mr Gunn. The purpose was to ensure that solicitors, counsel and the client had an identical set of papers. The police were in possession of information from the claimant's former employers that the claimant was somewhat chaotic in his organisation of work. It was believed that papers and electronic material would be stored not only at his place of work but also at his home address. It was suspected that the relationship between the claimant, Gunn and O'Brien was corrupt and that any notice to him would defeat the purpose of a search.
- The written Information presented by DI Kennedy revealed that the Nottinghamshire Police were engaged in an investigation into suspected offences including perverting the course of public justice. The subjects of the investigation were Gunn, O'Brien and the claimant. The ground for the application for the warrant to search the claimant's home address was that evidence had been secured that strongly supported the allegation that Colin Gunn and his legal advisors were knowingly constructing false, dishonest grounds of appeal against his 2006 conviction for conspiracy to commit murder. It was believed that payments of money were being made for the receipt of information and the coercion of witnesses.
- Included within the Summary written by DI Kennedy and submitted to Judge Teare was the following information:
"Gunn is paying Goode privately for his services. The exact fee is not known, although it is stated as £50,000-60,000. Much of this fee will be paid to the QC … [I]nitial financial enquiries identify that Goode is in significant debt. The investigation team believe that evidence of suspicious financial transactions will be identified at Goode's home address."
In the first witness statement submitted by the claimant in the current proceedings he accepts that Challinors and counsel had been paid a substantial retainer to act for him. He denies being a personal recipient of money from or on behalf of Gunn, and denies being a knowing participant in any corrupt relationship between Gunn and O'Brien. He asserts that an enquiry of Challinors would have revealed that fees advanced on behalf of Gunn had been cleared through Challinors' client account. The claimant says that in November 2010 following his move to Challinors he was contacted by Mr Gunn's mother seeking his assistance. Her sister had sold her home in Lincolnshire in order, amongst other things, to raise money to fund Gunn's application for leave to appeal. Money had been held by one of Gunn's friends but some thousands of pounds had gone missing. The claimant says that he approached the police and spoke to a female detective sergeant in the financial investigation unit. He was informed by the officer that the police were satisfied that the funds to which Gunn's mother was referring were indeed intended for Gunn's appeal. Subsequently Challinors received funds of about £55,000, £30,000 of which was paid to counsel and £25,000 to Challinors. At the appeal it was intended that Challinors would represent both Colin Gunn and Michael McNee.
- As to the incident which led to the charge of making an unauthorised telephone call to O'Brien in prison, the claimant says in his first witness statement that on 22 May 2011, while out walking with his family, he received a call from a person representing himself as "AJ of JJ" requesting that the claimant return his call. The claimant accepts that he did make a return call to the caller, who turned out to be Michael O'Brien. The claimant was due to visit Mr O'Brien in prison concerning Colin Gunn's appeal and had written to inform him of that fact. The claimant remained on the line with Michael O'Brien for some 10 minutes. The claimant says that he made clear to O'Brien that O'Brien should not be talking to him on an unauthorised mobile telephone. Following the call the claimant reported it to his supervisor and to leading counsel.
- DI Kennedy recalls that Judge Teare raised with him the possibility that legally privileged material might be recovered during the searches. In the Summary DI Kennedy had written:
"If authorised the investigation team will conduct the searches assisted by independent counsel. Counsel will conduct an initial assessment of seized material. Counsel will remove any material that they believe is genuinely legally privileged. The remaining, non-privileged material will be made available for assessment by the police. This will ensure that the searches remain proportionate to their aims by avoiding unnecessary exposure to legally privileged material."
DI Kennedy confirmed the employment of independent counsel at both addresses for the purpose stated.
- Judge Teare issued and signed both warrants. The terms of the warrant which authorised a search at the claimant's home read:
" WARRANT TO ENTER AND SEARCH PREMISES
POLICE AND CRIMINAL EVIDENCE ACT 1984 (PURSUANT TO PARAGRAPH 12(1) OF SCHEDULE 1) AS AMENDED BY PART 3 SCHEDULE 7 OF THE SERIOUS ORGANISED CRIME AND POLICE ACT 2005
Application has been made this day by a police officer of Nottinghamshire Police for a warrant to search the premises of: 151 Curzon Street, Long Eaton, NG10 4FH.
I am satisfied that there are reasonable grounds for believing that an indictable offence, namely the common law offence of perverting the course of public justice has been committed, that there is at the above mentioned premises material likely to be relevant evidence, being material of which, in pursuance of paragraph 2 of schedule 1 to the Police and Criminal Evidence Act 1984 an order under paragraph 4 thereof could be made by me, namely
- All material relating to Colin GUNN and his appeal process.
- All material relating to money or other rewards obtained by Matthew Goode from Colin Gunn and his associates.
- All evidence contained within any computer equipment, personal digital assistance, mobile telephones, business documents, including letters and financial dealings, which may be evidence of the suspects' involvement in these offences.
And that the issue of a warrant is appropriate by reason that the service of a notice of an application for an order under paragraph 4 may seriously prejudice the investigation.
Authority is hereby given for any constable, accompanied by such other person or persons are necessary for the purpose of the search, to enter the said premises on one occasion only within 3 months from the date of issue of this warrant and to search for the articles in respect of which the above application is made.
A copy of this warrant should be left with the occupier of the premises or, in his absence, a person who appears to be in charge of the premises or, if no such person is present, in a prominent place on the premises.
Authority is also given to any such constable to enter the said premises if need be by force and to search the premises and any person found therein." [original emphasis]
- The second warrant authorised a search of the offices of Challinors at the Wilkins Building, Private Road No. 1, Colwick, Nottingham NG42 JQ and was in identical terms save for its specification of the material for which the search was authorised as follows:
- All material relating to Colin Gunn and his appeal process.
- All evidence contained within any computer equipment, personal digital assistance, mobile telephones, business documents, including letters and financial dealings, which may be evidence of the suspects' involvement in these offences.
The statutory provisions
Special procedure material
- It is to be noted that the application was made under schedule 1 to the Police and Criminal Evidence Act 1984 in respect of "special procedure material". Section 9 of the 1984 Act provides that a constable may obtain access to "excluded material" or "special procedure material" for the purposes of a criminal investigation by making an application under schedule 1. It is agreed that the Chief Constable had no right of access to legally privileged material but by section 10(2) of the 1984 Act legally privileged material does not include items held with the intention of furthering a criminal purpose. It is not contended that the material seized was excluded material within the meaning of sections 11 and 12 of the 1984 Act. "Special procedure material" is defined by section 14(2) as:
"(2) … material, other than items subject to legal privilege and excluded material, in possession of a person who –
(a) acquired or created it in the course of any trade, business, profession or other occupation or for the purpose of any paid or unpaid office; and
(b) holds it subject –
(i) to an express or implied undertaking to hold it in confidence; or
(ii) …"
- The application was made by DI Kennedy on oath relying upon the first set of access conditions set out in paragraph 2 of schedule 1. He gave evidence which, if accepted by the judge, established those access conditions. DI Kennedy asserted that he had reasonable cause for believing that:
i) The indictable offence of perverting the course of justice had been committed (schedule 1, paragraph 2(a)(i));
ii) There was material at the claimant's home address consisting of or including special procedure material but not including excluded material (paragraph 2(a)(ii));
iii) The material was likely to be of substantial value to the investigation (paragraph 2(a)(iii));
iv) The material was likely to be relevant evidence (paragraph 2(a)(iv));
v) Other methods of obtaining the material had not been tried because it appeared that they were bound to fail (paragraph 2(b)(i)); and
vi) It was in the public interest, having regard to the benefit likely to accrue to the investigation and to the circumstances under which the claimant held the material, that it should be produced, or that access to it should be given (paragraph 2(c)).
Similar evidence was given in connection with the application to search Challinors' office premises.
- By paragraph 1 of schedule 1, compliance with the first set of access conditions provided the applicant with the grounds on which to apply on notice to a judge for an order that the person in possession of the material sought should produce or give the applicant access to it, under paragraph 4 of the schedule. However, by paragraphs 12(a) and 14(d) the applicant, if either set of access conditions is fulfilled and the judge is satisfied that service of a paragraph for notice to produce may seriously prejudice the investigation, may apply to the judge for the issue of a warrant authorising a constable to enter and search the named premises. As the warrants certified (paragraph 16 above), the judge was satisfied that the issue of a warrant was appropriate because service of a paragraph 4 notice upon the claimant may seriously prejudice the investigation.
Requirements for the warrant and its execution
- Section 15 of the 1984 Act identifies in section 15(2) - 5(A) the duties of the constable making any application for a warrant to enter and search premises to specify the grounds of and the enactment under which the application is made, to specify the premises to be searched, to identify the articles sought, to make the application ex-parte supported by a written information, and to answer any questions as required on oath. Section 15(6) provides that the warrant:
"(a) shall specify –
(i) the name of the person who applies for it;
(ii) the date on which it is issued;
(iii) the enactment under which it is issued; and
(iv) each set of premises to be searched …
(b) shall identify, so far as practicable, the articles or persons to be sought."
- Section 16 makes provision for the manner in which the execution of the warrant is to be performed.
- Section 15(1) provides:
"(1) This section and section 16 below have effect in relation to the issue to constables under any enactment, including an enactment contained in an Act passed after this Act, of warrants to enter and search premises; and an entry of or search of premises under a warrant is unlawful unless it complies with this section and section 16 below."
Section 15(1) is an important provision since it renders unlawful any entry on or search of premises conducted under the authority of a warrant which fails to fulfil the requirements of section 15 or whose execution is contrary to the requirements of section 16 (R v Chief Constable of Lancashire, ex parte Parker [1993] QB 577 at page 584 per Nolan LJ). In R v Chief Constable of the Warwickshire Constabulary, ex parte Fitzpatrick and others [1999] 1 WLR 564, decided before the section 59 relief granted by the Criminal Justice and Police Act 2001 was available, this Court (Rose LJ and Jowitt J) expressed the view, at page 579D-F, that judicial review proceedings was an inappropriate medium for the investigation of claims of excessive seizure, which should be the subject of a private law action.
Electronic material
- Section 50 Criminal Justice and Police Act 2001 applies to a person lawfully carrying out a search (section 50(1)) who has reasonable grounds for believing that an object may be or may contain something which he is authorised to search, or (section 50(2)) who has reasonable grounds for believing that an object for which he has authority to search is contained within another object for which he is not authorised to search. In the first case, if it is not reasonably practicable for the constable to determine there and then whether he has found something he is entitled to seize or its extent, he may remove the object in order to make the determination on a later occasion (section 50(1)(c). In the second case, if it is not reasonably practicable there and then to separate the property which the constable is authorised to seize from that which he is not, both may be removed for separation on a later occasion (section 50(2)(c)). Section 50(3) identifies the factors to be considered when making a judgment whether determination or separation was there and then reasonably practicable.
- It was anticipated in the present case that such material would be found at the claimant's address and he was issued with pre-typed notice under section 52 of the 2001 Act to the effect that "documents" had been seized which would be removed for determination or separation. The claimant was notified of his right to attend the examination and to appeal to the Crown Court under section 59 for its return. We have received no evidence as to the details of the search at Challinors but we have no reason to doubt that a similar notice was issued at that search.
- Sections 53-55 make provision for the duties of the person seizing property under the powers given by section 50 and section 51 (seizure from the person) to examine and return property. Sections 56 and 57 contain powers for the retention of property, and section 58 identifies persons to whom property should be returned.
Application to the Crown Court
- The provisions of section 59 apply, by sub-section (1), "where anything has been seized in exercise, or purported exercise, of a relevant power of seizure". Section 59(10) defines the relevant powers of seizure for the purposes of section 59 as:
" (a) the powers of seizure conferred by sections 50 and 51;
(b) each of the powers of seizure specified in parts 1 and 2 of schedule 1; and
(c) any power of seizure (not falling within paragraphs (a) or (b)) conferred on a constable by or under any enactment, including an enactment passed after this Act."
- By section 59(2) a person with a relevant interest in the seized property may apply to the appropriate judicial authority (by section 64(1)(a), a judge of the Crown Court) on one or more of the grounds specified in sub-section (3) for the return of the whole or a part of the seized property. Those grounds include (sub-section (3)(a)): "that there was no power to make a seizure". To the extent that the applicant establishes any of the grounds provided by sub-section (3), the Crown Court is required to order the return of the seized property but only to the extent that the ground relied on is made out. By sub-section (5) the Court may give directions as to the examination, retention, separation or return of the whole or any part of the seized property. Property may, however, be retained under the authority of the Crown Court by sub-section (6) if the Court is satisfied that the retention of the property is justified on grounds falling within sub-section (7). Those grounds are that:
"(7) … [if the property were returned] it would immediately become appropriate –
(a) to issue on the application that the person who is in possession of the property at the time of the application under this section, a warrant in pursuance of which, or of the exercise of which, it would be lawful to seize the property; or
(b) to make an order under –
(i) paragraph 4 of schedule 1 to the 1984 Act …
under which the property would fall to be delivered up or to be produced to the person mentioned in paragraph (a)."
Preliminary Issues
Delay
- The first indications were of a possible challenge to either of the warrants was made on 31 May 2012 when the claimant's solicitors sought the return of property to the claimant. That letter was written fully 12 months after the warrants had been executed. No such claim was made by Challinors. The claimant elected in the first instance to make an application to the Crown Court under section 59 of the 2001 Act in a letter dated 23 October 2012. It was conceded during the hearing before Flaux J on 11 February 2013 that a challenge to the validity of the warrants should properly be addressed to the Administrative Court. In consequence, the claim form was issued some 21 months after the execution of the search warrants on 25 May 2011. The obligation under CPR 54.5(1) is to bring such proceedings promptly and in any event within 3 months of the decision being examined.
- By any standards the current claim is grossly out of time. There is no satisfactory explanation for the delay given in the claimant's witness statement. He says only that he asked DC Johnson for the return of his property and was told that the police investigation was continuing. The court has a discretion whether to give permission in claims which are out of time. In R (Faiseltex) Ltd v Preston Crown Court [2008] EWHC 2832 (Admin), a case in which the claim had been pursued just within the 3 month outer limit but not promptly, Keene LJ, at paragraphs 34-38, expressed the opinion that the court would, despite the lack of promptness, examine the nature of the fundamental rights at stake, the merits of the claim and any prejudice suffered by the parties.
- It is submitted by Ms Leek QC on behalf of the Chief Constable that a real prejudice has arisen in the present case. Through no fault of the applicant no recording was made at the Crown Court of the proceedings before HHJ Teare. The earliest time that DI Kennedy was required to cast his mind back to the hearing in which the warrants were issued was some 12 months after they had been executed. Furthermore, it was axiomatic that, subject to prompt challenge to the validity of the warrant, steps would have been taken to retain and examine property seized under a warrant signed by the judge. Good administration requires that if a challenge is to be made to the validity of a search warrant it should be made promptly in order that the parties may know where they stand and that any criminal investigation for which the search is required is not hindered. Should the Court be persuaded to grant an extension of time the excessive delay in the present case is material to the exercise of the Court's discretion to grant relief. I accept that this court should examine the merits of the claim before making a decision whether permission should be granted. I also accept that if, exceptionally, an extension is granted, delay is a consideration material to the grant of discretionary relief.
The Challinors warrant
- No challenge to the validity of the warrant or its execution was made by the firm against which it was directed. The only personal property of the claimant which he says was removed during the course of the search was a sports magazine. He says the magazine was not returned to him; the Chief Constable insists that all property has been returned to him save for the mobile telephone upon which he made the call to O'Brien. Any other property seized in the course of the execution of the warrant at Challinors was property held by the claimant on his employer's behalf. It seems to me that the claimant has barely established a standing in relation to the property seized from Challinors which would entitle him to bring a claim in respect of the warrant issued against them. This is, in my judgment, a factor to be considered in the exercise of the court's discretion whether to give permission to proceed.
Discussion
The application for the warrants
- It is common ground between the claimant and the Chief Constable that the applicant for the issue of a search warrant owes a duty to present the evidence upon which the application is founded accurately and fairly. The judge should be informed of circumstances which may affect the exercise of his judgement whether the necessary statutory criteria have been met. A failure by the applicant to comply with his duty may lead to the quashing of the warrant (see R (Rawlinson & Hunter Trustees & Others) v Central Criminal Court [2012] EWHC 2254 (Admin) at paragraphs 81 – 103; 170; 172 – 173).
- The claimant argues that DI Kennedy, in expressing the state of the evidence as to the claimant's receipt of money and his financial circumstances, seriously misled the judge. In the passage which, at paragraph 13 above, I have extracted from the Summary submitted to the judge, it would appear that on the face of it DI Kennedy was representing that the claimant personally received payment from Colin Gunn for his services. It is acknowledged on behalf of the Chief Constable that DI Kennedy knew or ought to have known that payments made by Gunn were made not to Mr Goode personally but to his employers. At paragraph 12 of his witness statement DI Kennedy expressed his knowledge as follows:
"12. I had confirmed that Colin Gunn did not have legal aid to pay for lawyers to work on his appeal against conviction. I had also seen intelligence that said Mr Gunn was therefore "paying privately" for the services of his solicitors and counsel. He had paid a significant sum in advance for Mr Goode and [counsel] to represent him.
13. I had intelligence that on the 7 April 2011 Mr Goode had debt of at least £374,000. £254,000 of this was his mortgage. £120,000 was credit card debt spread over 16 credit cards. The credit cards were all at their maximum credit limit. His outgoings were approximately £1,600 in mortgage payments and, at an average of 3% minimum repayment on credit cards he would have been paying £3,600 in credit card bills. To cover these outgoing alone, notwithstanding living costs, would need an income of approximately £90,000 per annum. I knew that Mr Goode's salary in the previous year had been approximately £50,000. This was the basis of my belief that Mr Goode was in need of extra income." [emphasis added]
- There can be little doubt, having regard to the final sentence of paragraph 13 of DI Kennedy's witness statement, that he was indeed representing to the judge a possible financial motive for the claimant's alleged involvement in a conspiracy to pervert the course of justice. I accept Mr Alun Jones QC's submission that the Summary, without further explanation, was capable of leaving the learned judge with the impression that, of the fee charged, the lion's share would go to counsel and the balance to the claimant personally. I have to observe that, so unlikely would have been such a proposition (because there was no doubt that it was the firm which had been instructed), that I would have expected the judge, if he understood this to be the effect of the evidence, to raise questions to confirm his understanding. I think it unlikely, but just possible, that the judge was misled.
- Ms Leek QC invites the court to acquit DI Kennedy of any bad faith. We are invited to infer that his reference to "paying Goode privately" was a poor use of language. DI Kennedy should have said that Gunn was paying his "lawyers" privately. Since the claimant was the individual who was handling Mr Gunn's appeal, mistakenly and negligently, in the language he used he attributed payment to that individual rather than to his employer. The relevance of the fact that Gunn was in a position to pay his lawyers from private resources was that he would also be in a position to secure the claimant's co-operation in an offence of perverting the course of justice by making further corrupt payments from private resources. That, it is submitted, is the significance of the final sentence in the passage quoted from the Summary (at paragraph 13 above). The investigation team believed that evidence of suspicious financial transactions between those actually involved in the conspiracy would be identified from material recovered from the claimant's home address.
- In his submissions Mr Alun Jones QC sought to erect a case that DI Kennedy deliberately misled the judge in order to justify an application without merit, for the purpose not of a genuine investigation into his alleged participation in the conspiracy but to punish and embarrass him for having the temerity to represent a convicted murderer on his application for permission to appeal against conviction. In my judgment, the misstatement in the Summary to which I have just referred comes nowhere near establishing bad faith on the part of DI Kennedy. Mr Jones sought to add weight to his argument that the misstatement was deliberate by referring to DI Kennedy's 'failure' to emphasise the good character of the claimant and the likely presence of his teenage children at his home if the warrant was executed, as it was, in the early morning. Mr Jones suggested that the claimant was likely to be known by judges in Nottingham, that independent counsel were also likely to be known to the claimant, that the intrusiveness of a search at his home was out of proportion with its purported purpose, that a list of property removed from his home was not there and then made, that much of the property was retained for over a year, that the claimant was not arrested until June 2012, and that the application in respect of his workplace was unjustified. No application was made for the witness to be called to answer the assertion of bad faith and dishonesty in cross examination. I do not consider that these features of the claimant's case, which I do not accept in the terms in which they were expressed, are supportive of Mr Jones' underlying assertion. It is much more probable that in his enthusiasm for the evidence that Colin Gunn had plenty of money with which to fund his appeal and to corrupt witnesses DI Kennedy mistakenly, and without realising the impression thus created, attributed payment to Mr Goode personally. I am certainly not prepared at this length of time after the hearing before Judge Teare to make a finding of deliberate manipulation of the process.
- The question therefore arises whether by reason of this egregious error in the Summary the lawfulness of the warrant is vitiated. If it is, I would be minded to grant permission and consider discretionary relief. In Rawlinson & Hunter the issue arose whether the correct test for quashing a warrant in such circumstances was whether the errors and non-disclosure might have made a difference to the grant of the warrant or would in fact have made a difference. Sir John Thomas, President of the Queen's Bench Division, expressed the view, obiter, at paragraph 173 of his judgment, that the test should be whether the errors and omissions would in fact have made a difference to the decision of the judge to grant the warrants. For the reasons I have given, I shall assume that, in this respect, the contents of the Summary were mistakenly inaccurate. In my judgment, there can be no doubt that had the judge been informed, as he should, that Challinors were being paid privately he would nevertheless have accepted DI Kennedy's statement that the investigation team believed on reasonable grounds that evidence of suspicious financial transactions between the claimant and Colin Gunn and his associates would be revealed upon a search at his home address. The stated belief that the claimant was in "significant debt" is borne out by the more detailed information provided in DI Kennedy's witness statement to this court. Furthermore, the judge was in possession of intelligence, redacted from the Summary made available to the claimant, which supported the belief that Gunn was prepared to pay handsomely for corrupt services. In other words, the belief that the claimant may be prepared to accept corrupt payments did not depend upon a belief that he was personally a recipient of any sum set aside for the legal costs of the appeal.
Legal professional privilege
- The claimant argues that the warrants issued authorise a search for material which was legally privileged. Mr Jones recognises that nowhere does either warrant expressly authorise a search for legally privileged material. His argument is that since it was virtually certain that amongst the items taken, stored within computer equipment whose search was expressly authorised, there was bound to be material which was privileged. That being the case the warrant must be taken as "authorising" the search for and seizure of legally privileged material. I do not accept Mr Jones' argument. First, the warrants were confined to material concerning Mr Gunn's appeal which the investigators contended were not privileged because they were retained for the purpose of a conspiracy to pervert the course of justice (see section 10(2) of the 1984 Act); second, the argument fails to recognise the statutory prohibition against the seizure of legally privileged material. It cannot, in my judgment, be concluded on facts such as the present that a warrant which does not specifically exclude a search for privileged material impliedly permits it.
- Section 19(6) of the 1984 Act provides that no power of seizure conferred on a constable under any enactment can be taken to authorise the seizure of an item which the constable exercising the power has reasonable grounds for believing to be the subject of legal privilege. It is quite plain on the face of the evidence presented to the judge that he was well aware of the risk that on execution of the warrants a constable would come across material the subject of legal professional privilege. He made an enquiry of DI Kennedy as to the steps which would be taken to ensure that privileged material was not handed to the police. As I have noted, section 50 of the 2001 Act gave authority, when it was not reasonably practicable there and then to separate relevant from privileged material, to remove the material for later determination or separation. It was the anticipation of such an event that caused the preparation of a section 52 notice. Mr Jones sought to argue that since the section 52 notice referred only to "documents" the Chief Constable was unable to rely upon section 50 as the legal justification for removing the computer equipment. I do not accept this argument either. The issue of an inaccurate section 52 notice does not remove the statutory powers given to a constable under section 50 of the 2001 Act (see R (Dulai) v Chelmsford Magistrates Court [2012] EWHC 1055 (Admin) at paragraphs 51 – 60).
- It was not suggested in argument that under the authority of these warrants the Chief Constable has had access to material which was legally privileged (but see the Addendum below).
No reasonable grounds for belief of serious prejudice
- It is submitted that there was no evidence available to the judge that the issue of a paragraph 4, schedule 1 notice of an application for the production of documents would have caused serious prejudice to the investigation. In my judgment this ground is without merit. If, as the judge was satisfied, there were reasonable grounds for believing that the claimant was a participant in a conspiracy to pervert the course of justice, it was a matter of plain inference that there was a significant risk, if notice was provided, that important evidence would be lost.
Unfairness
- This argument is an adjunct to the claimant's assertion that DI Kennedy failed to make full disclosure to the judge and adopted disproportionate measures to secure the issue of a warrant when other means were available. It is asserted that the claimant is unable, even now, to comprehend the evidence upon which the issue of the warrants was sought. I do not accept these submissions. I do accept that there should have been available at the Crown Court for the claimant's inspection a returned copy of each of the warrants following their execution. Unfortunately 12 months passed before anyone thought of approaching the Crown Court for sight of the file. Had the file been discovered during a reasonable period following execution not to contain the material which, subject to redaction, the claimant was entitled to see, steps could have been taken to ensure that the relevant information was provided to him. It is impossible this length of time after the execution of the warrant to conclude that the proceedings were so unfair to the claimant that the validity of the warrants should be at risk on that account.
Section 15(6) Police and Criminal Evidence Act 1984
- It is contended that the warrants failed to comply with section 15(6) in two respects: first, neither warrant named the officer who made the application, contrary to section 15(6)(a); secondly, it is contended that the terms of the warrants were too widely drawn, contrary to section 15(6)(b).
- It is conceded on behalf of the Chief Constable that each of the warrants was defective on the first ground. It is further conceded that the effect of section 15(1) is to render the entries onto property and the searches unlawful. In the circumstances of the present case, however, it is submitted on behalf of the Chief Constable that the breach was technical only. The claimant was himself present at the search which took place in his own home. He would have had no difficulty, if it was relevant, in discovering the identity of the officer who made the application. No prejudice has resulted to the claimant from the fact that the officer was not named in either warrant. I accept these submissions. Section 15(1) in its terms operates to render interference with the claimant's property under the authority of the warrant unlawful but it does not render the warrant itself unlawful. The claimant is seeking discretionary relief from the court. It is most improbable, in my view, that on this ground a court would make an order quashing the warrant after its execution.
- In my judgment, the terms of the warrant issued in respect of the claimant's home were plainly sufficiently explicit to define the boundaries of the constable's lawful search. The claimant contends that the reference to "the suspects' involvement in these offences" is open-ended since it does not identify who those suspects may be. In my view, the word "suspects" in context means plainly Matthew Goode, Colin Gunn and any of his associates.
- The same construction is not available in the case of the warrant to search Challinors' office. The words "suspects' involvement in these offences" cannot be defined by reference to the context of the preceding paragraph. However, the offence into which the investigation was taking place is defined in the warrant as "perverting the course of public justice". By plain inference that offence, it was believed, was committed in the context of Colin Gunn's appeal. Thus, the reference in the second paragraph to "evidence of the suspects' involvement" embraces only those whom the material would lead to a reasonable belief were implicated in the offence of perverting the course of public justice in connection with Mr Gunn's appeal. In my judgment the Challinors' warrant also contained sufficient particulars to define the boundary of a lawful search.
Conclusion
- In my judgment the only ground of challenge to these warrants which has legal merit is the omission of DI Kennedy's name as the applicant on the face of the warrants. It is my view that the breach of section 15(6)(a) was so technical that in the circumstances of the present case there is no prospect that the court would use its discretionary powers either to quash the warrants or to make a declaration of invalidity. Having regard to the exceptional period of delay before these proceedings were issued and the prejudice which inevitably results to good administration I would refuse permission to proceed to review.
Application under section 59 Criminal Justice and Police Act 2001
- We were informed by counsel for the Chief Constable that all property recovered from the claimants' home and Challinors had been returned with one qualification. Some documents had been retained and copies returned to the claimant. In other cases originals have been returned and copies had been retained. The Chief Constable undertook to provide to the claimant within 14 days a written itemised list of any original or copy material in his possession in order to facilitate any application the claimant may wish to make for return under section 59 of the 2001 Act. While the issue of the Crown Court's power to review the validity of a warrant does not strictly arise in the present proceedings, the court is invited to consider giving such assistance as it can.
- By section 64(1)(a) of the 2001 Act the appropriate judicial authority to which an application under section 59 is to be made is, with some exceptions which do not apply in the present case, a judge of the Crown Court. A judge of the High Court is invested with the authority of a judge of the Crown Court. As Stanley Burnton LJ observed in R (Dulai) v Chelmsford Magistrates Court at paragraph 38, a High Court judge has jurisdiction both to consider the validity of a warrant (as a nominated member of the Administrative Court) and the grounds for return of property using the separate powers provided to the Crown Court under section 59. The issue which arose in Dulai but which it was unnecessary to resolve was the meaning of the term "there was no power to make the seizure" in section 59(3)(a) of the 2001 Act. By section 59(2) any one of the grounds set out in section 59(3)(a)-(d) may found an application for the return of property "seized in exercise or purported exercise of a relevant power of seizure" within the meaning of section 59(1). As I have said, section 59(10) defines "relevant powers of seizure". Challenges to the validity of a warrant to search and seize property were, before the 2001 Act, made and continue to be made in the Administrative Court and not in the Crown Court. The issue is whether section 59(3)(a) handed to the Crown Court the jurisdiction to adjudicate upon the lawfulness of the issue of a warrant. A warrant issued by a magistrate under section 8 Police and Criminal Evidence Act 1984 or by a judge under section 9 of the 1984 Act is valid unless and until it is quashed. The House of Lords held in McGrath v Chief Constable of the Royal Ulster Constabulary [2001] UK HL 39, [2001] 3 WLR 312 that a warrant for the arrest of a person is valid until set aside. Lord Clyde said at paragraphs 16 and 17:
"16. Of more direct relevance is one of the other cases to which we were referred, Hoye v Bush [1940] 1 Man and G 775. It was held in that case that an arrest was wrongful where the constable had applied for a warrant to arrest Richard Hoye, the warrant had been mistakenly issued in the name of John Hoye and the constable had arrested Richard Hoye. Thus a police officer cannot under a warrant arrest someone who is not named in it even although he knows the person intended to be covered by it. Tindal CJ (p 786) observed:
"it would be dangerous if a person whose office is wholly ministerial, were allowed to sit in judgment, and say who is the unnamed person intended by the warrant which he is required to execute".
One principle which can be found in Hoye is that the person executing a warrant should follow and be entitled to rely on the face of the warrant. He may not act outside the terms of the warrant. That was what happened in Hoye but he should not be held to have act unlawfully if he carries out the instruction which appears from the face of the warrant. It is not for him to question that instruction if it is clear.
17. Warrants issued by a court of law require to be treated with the same respect as must be accorded to any order of the court. The general rule was stated by Ormer LJ in Hadkinson v Hadkinson [1952] P 285-288:
"It is the plain and unqualified obligation of every person against, or in respect of whom, an order is made by a court of competent jurisdiction, to obey it unless and until that order is discharged. The uncompromising nature of this obligation is shown by the fact that it extends even to cases where the person affected by the order believes it to be irregular or even void. "A person who knows of an order whether null and void, regular or irregular, cannot be permitted to disobey it … it would be most dangerous to hold that the suitors, or their solicitors, could themselves judge whether an order was null and void – whether it was regular or irregular. That they should come to the court and not take upon themselves to determine such a question: that the course of a party knowing of an order which was null and irregular and who might be affected by it was plain. He should apply to the court that it might be discharged. As long as it existed it must not be disobeyed." (per Lord Cottenham in Chuck v Cremer [1846] Cooper Temp Cot 205, 338). That passage was followed in R v Oldham Justices, Ex parte Cauley [1997] QB1, where it was held that a prison governor did not require to question the order contained in a warrant of committal".
- The issue of a warrant is a judicial act. It would be a novel and surprising development of the law if a court of equal jurisdiction enjoyed the power to declare invalid the judicial act of another. Stanley Burnton LJ expressed the view, obiter, in Dulai at paragraph 39 that the Crown Court did not have jurisdiction to examine the circumstances of the issue of a warrant by a magistrates court. With respect, I agree. It seems to me that the ground of challenge to seizure provided by section 59(3)(a) does not enable the applicant to challenge the validity of the warrant in the Crown Court. The challenge under section 59(3)(a) is not, in any event, limited to occasions when property has been seized in execution of a warrant. Section 19(1) of the 1984 Act gives limited power to a constable to seize certain property if he is "lawfully on any premises". Section 18 enables a constable to search for evidence upon the premises of a person who has been arrested for an indictable offence. In my judgment, the term "there was no power to make the seizure" describes either a seizure in excess of a statutory power of search or a seizure in excess of the power of search given by a warrant. It does not describe a seizure made under a warrant issued with judicial authority which might subsequently be quashed or declared unlawful by the Administrative Court in proceedings for judicial review of the power exercised by the Magistrates Court or the Crown Court. Should the warrant subsequently be declared invalid, the Administrative Court may in the exercise of its discretionary powers order the return of the property seized, but when considering such an order it will no doubt have in mind that if property is retained as evidence in forthcoming criminal proceedings the Magistrates Court or the Crown Court can in appropriate cases use its discretion to exclude evidence improperly obtained; also, that the property would, if returned, immediately be the subject of a fresh application for a warrant or an order for production under paragraph 4 of schedule 1 (as to which see section 59(6) and (7)).
Addendum
- On 22 May 2013, having reserved its judgments, the court received an email communication from Mr Malcolm Turner, deputy head of East Midlands Police Legal Services. The court was informed that contrary to the assurance give to the court on 21 May the Challinors material had not been returned on 14 May. Subsequently, the court was provided with a witness statement from DI Kennedy dated 26 May in which he states that before going on leave he had instructed DC Johnson to return items outstanding to the claimant and to Challinors on 14 May. When he returned on 20 May DI Kennedy discovered that for some reason the return to Challinors had not taken place. His efforts to contact DC Johnson were unsuccessful. Accordingly, on 22 May DI Kennedy returned the material personally. DI Kennedy learned that, unknown to him, material had been returned to Mr Goode's home address on 14 May but DC Johnson's other duties had caused a postponement of the return of the Challinors material. On or about 22 May DI Kennedy asked Mr Chris Bevan, independent counsel who attended the search at Challinors, to make copies of the material he had downloaded from two retained mobile devices and forward them to the claimant's solicitors. Mr Bevan has since confirmed that this had been done. In an email dated 28 May to Kaim Todner Mr Bevan listed items which he retained almost all of which the police had not seen. He made clear that privileged material had not been handed to the police. DI Kennedy now says that in performance of the undertaking given to the court he has listed all property retained by the police and independent counsel in an exhibit to his witness statement. On 24 May DC Johnson delivered to Mr Goode copies of all Challinors material retained by the police (see paragraph 49 above).
- The claimant has made a witness statement dated 28 May 2013. He says that the list of property provided to him on 14 May fails adequately to identify its nature and contents. He had been unable to check the Challinors property because independent counsel who returned it had failed to provide a list. Now, he was unable to check the property returned to his home address because the list provided gave inadequate particulars.
- On 23 May the claimant went to Challinors to check the contents of 16 boxes of material returned to Challinors by DI Kennedy on 22 May. He says that much of the material returned was privileged. It appeared to the claimant that privileged material had been disclosed to the police.
- The claimant says that the box of material returned to his home on 24 May by DC Johnson appeared to be 'copies' of material taken from Challinors (this agreed, see paragraph 52 above). Some of it was privileged.
- In his further submissions of 22 May Mr Jones QC argued that the further assertions made by DI Kennedy (in Mr Turner's email of 22 May) could not be regarded as "truthful" having regard to the information provided to the court during the hearing. In her further written submissions of 28 May Ms Leek QC identifies those items which, following inspection by independent counsel, were authorised for release to the police.
- It follows that the parties are at odds as to whether the property, originally seized and retained by (i) the police and (ii) independent counsel, or released by independent counsel to the police, has been properly listed; also whether the police have had access to privileged material; also, whether the property returned or copied and returned has been properly listed; finally, subject to identified electronic devices, whether the material retained has all been copied and provided to Challinors or to the claimant or both.
- In my judgment, this court is simply not in a position to adjudicate upon the factual dispute which has now arisen as to the matters identified in the last paragraph. It seems to me that the obvious course is a round table meeting between the parties to resolve these matters. I have no doubt that any remaining dispute is an appropriate subject for a section 59 application to the Crown Court and not for attention of the High Court on a judicial review challenge to the warrants. Having considered the limited further submissions made and the further evidence tendered I do not conclude that the underlying merits of the application for judicial review are affected. I remain un-persuaded that the applications for the warrants may have been made made unfairly or in bad faith. I would refuse permission.
Mr Justice Burnett:
- I agree.
