England and Wales High Court (Administrative Court) Decisions

1. MR JUSTICE KEENE: I say at the outset that I propose to grant permission to proceed in this case. Since the matter has been heard on a contested basis, I am going to give a short judgment.

2. This application seeks permission to challenge, first of all, a decision of the Chesterfield Justices dated 7th January 1999 to issue search warrants in respect of two premises owned or occupied by the Applicant, one in Derbyshire and one in Sheffield. Secondly, permission is sought to challenge a decision by police officers, on the following day, 8th January 1999, purportedly acting under the warrants to cease documents protected by legal professional privilege from one of the premises, that is to say the Old Vicarage, Ridgeway, Derbyshire.

3. I deal first with the warrants. The informations laid before the magistrates, seeking the issue of warrants, relied upon section 26 of the Theft Act 1968 and the warrants issued, duly specified that section as being the authorising provision. Section 26 is not a section which I need read verbatim for present purposes, but it deals with searches for stolen goods. The items specified in the informations and the warrants were not, on the face of the informations laid, alleged to be stolen goods nor did the grounds of the application assert that.

4. It is said today by Mr Crawford, on behalf of the Chief Constable of Derbyshire, that the application for the warrants was couched in terms which implied that there could be stolen items on the premises. I am bound to say that I do not read them in that way. It is contended in the affidavits on behalf of the police that some vehicle parts mentioned in the informations and warrants might have been connected with the vehicle alleged by Mr Bramley to have been stolen when he made his insurance claim which the police believe to be fraudulent. The essence of the police activity was, indeed, that this was a fraud inquiry focusing upon possibly fraudulent claims against the insurers for a stolen Ferrari motor car, but even if it were the case that certain vehicle parts were on the premises which might have been connected with that fraud, that in itself would, in my view, not justify the issue of a search warrant under section 26 of the Theft Act.

5. But, in any event, for present purposes, it is enough that the Applicant has shown a more than arguable case that the Justices' decision was invalid. The Clerk to the Justices has since conceded that there was what is described in the correspondence from the Justices' Clerk as a "technical defect" in the warrants. In any event, I am in no doubt that this is an appropriate matter to be dealt with by means of judicial review and that remains the case even though there is a claim for damages linked to the alleged validity of the warrants. That claim for damages I make clear is now apparently going to be pursued against the police; that is to say the Second Respondent, and not against the Chesterfield Justices, who were the First Respondent, and when we come to directions we will need to make that clear.

6. As for the other limb of the case, there Mr Davies, who has appeared today on behalf of the Applicant, stresses that allegations concerning the seizure of documents covered by legal privilege have been dealt with in judicial review proceedings and he refers, in particular, to the decision in Ex parte South West Meat Limited (1992) Crim LR 672. He argues that the police, at the time of seeking these warrants and then executing them, were well aware that the Applicant, Mr Bramley, was already facing criminal proceedings in respect of another alleged fraudulent insurance claim concerning a Porsche motor car and they must have been aware that there were likely to be privileged documents relating to that set of criminal proceedings on the premises.

7. Indeed, at the application before the Justices for the warrants, the officer particularly dealing with the matter made reference to the criminal proceedings concerning the Porsche and, indeed, as I understand it, there is no issue that that was so. It appears in paragraph 38 of the affidavit sworn by Alan Stone in these proceedings.

8. Yet, says Mr Davies, there is no evidence that the Justices were told that there were reasonable grounds for believing that the documents, which were covered by the proposed warrants, did not include any privileged documents. He says the police behaviour was not lawful, both because of the invalidity of the warrants and because of the seizure and reading of documents which were covered by that privilege.

9. He recognises, does Mr Davis, that the police are put into a difficult position when a claim is made at the premises for legal professional privilege, because one cannot expect them simply to take at face value any claim for legal privilege which is raised and to have nothing further to do with those documents. I can see the force of the point made on behalf of the police in relation to that because it would provide an enormous loophole in such a situation.

10. On the other hand, says Mr Davies, if the police see documents headed with the name of a firm of solicitors, as was the case with some of the documents in this case, then they should stop. At the very least, they should take some steps to put the documents on one side so that they can be dealt with separately.

11. In response to this, Mr Crawford argues that one would have expected the Applicant's solicitor, who was actually present for part of the search of the premises in question, to have suggested that the documents alleged to be privileged should be placed into some separate container and then sealed, so the matter could be investigated properly. He contends that it is really the Applicant's responsibility to raise such a suggestion, if legal professional privilege is being claimed and he emphasises that that was not done here.

12. I am not sure that I accept the propositions advanced by Mr Crawford but, in any event, it is enough for present purposes that I am not persuaded that the contrary is not arguable. It seems to me, at first blush, that it is arguable that there must be some responsibility resting on the police in such a situation. Moreover, all this argument about the legality of the police actions under the warrant in relation to those documents protected allegedly by legal privilege is tied up with the other issue of the legality of the search warrants themselves and it seems to me to be right that those matters should be dealt with together. I take the view that there is a sufficient case here for the permission which I give for judicial review proceedings to relate to the second limb of the Applicant's case as well as the first.

13. I acknowledge the point made by Mr Crawford that there are likely to be certain issues of fact which will arise, particularly in relation to the second issue which I have identified. That can be seen on the face of the affidavit evidence as it stands at the moment. Nonetheless, it is not impossible for there to be cross-examination in judicial review proceedings on affidavits. It is not usual, but it is done. As things stand at the moment, it seems to me that it is an appropriate way forward in this particular case.

14. Suffice it for the moment to indicate that I do grant permission for this matter to proceed and I will now hear counsel as to what the appropriate directions are to be given at this stage. Mr Davies, do you want to start on that?

15. MR DAVIES: Yes, in view of the fact that substantial evidence has already been filed by the respondent, I do not know whether further evidence is going to be filed and whether a timetable ought to be fixed for that.

16. MR JUSTICE KEENE: My provisional view would be that certainly there ought to be a timetable. I would have thought there ought to be expedition ordered in this case as well. I am sure Mr Crawford would be happy to see expedition, because the sooner this matter is resolved the better.

17. MR CRAWFORD: The other way of looking at this is, in my respectful submission, that the Crown Court trials are pending and certainly I would have thought that they would be tried within the next three to six months, both of them. I am just wondering whether these proceedings should be stayed pending the outcome of the criminal trials.

18. MR JUSTICE KEENE: I am not sure the criminal trials are necessarily going to resolve these issues in quite the same way.

19. MR CRAWFORD: They might not resolve the issues, but they might crystalise them.

20. MR JUSTICE KEENE: We can get on with things quite quickly in the Crown Office list, if the trials do not yet have a date and, as I understand it, there has not yet been a committal in the case of the Ferrari.

21. MR CRAWFORD: The first one has and the second one has not. I would anticipate in respect of the first matter the Porsche matter has been committed and will be tried shortly, I would imagine. There will not be a great time lap between committal and the hearing at Derby Crown Court.

22. MR JUSTICE KEENE: I am not persuaded that there ought to be a stay. It seems to me the issues are sufficiently distinct and, in any event, the timescales are such that a stay is not appropriate in this case. If that is so, Mr Crawford, what is your reaction to the suggestion that there ought to be expedition here and a timetable which cuts time down beyond the rather generous time limits that usually operate under Order 53?

23. MR JUSTICE KEENE: We have a lot of evidence in already.

24. MR DAVIES: We would merely wish 21 days to reply to the evidence after it has been completed by the respondent.

25. MR JUSTICE KEENE: Let us see. Are you likely to want,

26. Mr Crawford, to file further evidence?

27. MR CRAWFORD: No. The file is complete.

28. MR JUSTICE KEENE: Would you like a brief nominal period to at least reflect on that?

29. MR CRAWFORD: Perhaps 14 or 21 days.

30. MR JUSTICE KEENE: I will give you 14 days, if you are content with that. The First Respondent, of course, is no longer playing any part in this matter.

31. MR JUSTICE KEENE: I do not know if you seek any order in respect of that, do you?

32. MR DAVIES: The Justices sought an assurance, in a more formal manner, that we do not seek damages against them and I am happy to give that.

33. MR JUSTICE KEENE: Unless the associate tells me anything different, I would take the view that they will remain on that footing. They will play no part in the proceedings and they will not, therefore, be at risk of costs.

34. MR JUSTICE KEENE: Very well then, the Second Respondent to have 14 days to file and serve any further evidence which they are minded to. You will need some opportunity to reply, but I am not going to be that generous with you Mr Davies. Would 14 days be enough for you? Would you be content with that, Mr Crawford, 14 days for the Applicant to file and serve any further evidence they may have in response to yours? I will leave to you deal with the List Office. Of course, you will have to deal with the Notice of Motion, but I assume you can do that promptly, can you not? Is there any reason you cannot do that within 7 days?

35. MR JUSTICE KEENE: The Notice of Motion within 7 days of today. So far as we are concerned, that timetable has run its course. The parties ought to give notice of any witnesses they wish to cross-examine on their affidavits. I say that because I am assuming that not every witness will need to be cross-examined. Is there any reason why the parties should not give notice within 14 days of the Applicant's further evidence in reply of witnesses that each side wishes to cross-examine?

36. MR CRAWFORD: We could give notice today, but certainly----

37. MR JUSTICE KEENE: You will want to consider obviously.

38. MR CRAWFORD: We will consider it, but at the moment it is

39. Mr Stowers (?) and Mr Bramley.

40. MR JUSTICE KEENE: What is your position on this, Mr Davies, I have said 14 days?

41. MR DAVIES: 14 days is perfectly adequate.

42. MR JUSTICE KEENE: Do you need 14 days to consider that? Most of the police evidence is in, if there is any more, not only will you be replying to it and have 14 days for that, but virtually within the same period you could presumably decide -- I think you can have seven days in that case. The parties each to notify the other of those witnesses they wish to cross-examine, that seven days to run from the expiry of the 14 days that you have, Mr Davies, for service of any further evidence by the Applicant. Is everybody clear about that?

43. MR JUSTICE KEENE: It seems to me that this is a matter which ought to go to a Divisional Court rather than a single judge.

44. MR DAVIES: I respectfully agree, I was going to raise it. I think it probably has to.

45. MR JUSTICE KEENE: In any event, it is appropriate. Do you want to say anything about that, Mr Crawford?

46. MR CRAWFORD: We respectfully agree.

47. MR JUSTICE KEENE: I will direct expedition just to assist you with the List Office. Any other directions you think are appropriate here?

48. MR JUSTICE KEENE: You are both content with the state of the pleadings as they stand on the Order 53 Notice and the affidavits, they are sufficient for this purpose are they not?

49. MR DAVIES: I will have another look at them again any way.

50. MR JUSTICE KEENE: I will give you liberty to apply.

51. MR DAVIES: My Lord, I think anything else can probably be sorted out between us.

52. MR CRAWFORD: Yes. One thing I think I should have raised whether or not it would be appropriate to make an order for the delivery up of the documents which it is alleged are privileged to the Court.

53. MR JUSTICE KEENE: Where are they at the moment?

54. MR CRAWFORD: They have been given back.

55. MR JUSTICE KEENE: You have a list of them, do you not?

56. MR CRAWFORD: No, we do not. That is the difficulty. To clarify matters----

57. MR JUSTICE KEENE: Did you not list the documents?

58. MR CRAWFORD: That is the whole point my Lord, they were returned in good faith.

59. MR JUSTICE KEENE: Mr Davies, you have custody of these at the moment.

60. MR DAVIES: We have no objection to making them available. What I think my friend is referring to is the contents in the blue file which was the subject of an exchange at the police station.

61. MR JUSTICE KEENE: If this is going to be the subject of directions or an order now, we ought to clearly identify which documents we are talking about.

62. MR CRAWFORD: We are at one, it is the blue file.

63. MR JUSTICE KEENE: Is that a sufficient way of identifying it for everyone?

64. MR JUSTICE KEENE: The documents contained in the blue file marked AJS 1.

65. MR DAVIES: Also AJS 2, there were two blue files.

66. MR JUSTICE KEENE: That was my recollection.

67. MR CRAWFORD: Both of them, please, my Lord.

68. MR JUSTICE KEENE: Delivered to the court within?

69. MR DAVIES: What about seven days before the hearing?

70. MR CRAWFORD: I would have thought it could be dealt with relatively quickly as it is just a case of photostating and sending them.

71. MR JUSTICE KEENE: So long as copies are available for the trial and nothing goes astray, you do not mind, presumably, if the Applicant or his solicitors holds on to the originals, do you?

72. MR JUSTICE KEENE: You can do that within 14 days of today.

73. MR JUSTICE KEENE: Copies of the documents contained in the blue files AJS 1 and ASJ 2 to be delivered to the Court (Crown Office) within 14 days of today. Can I check. Those are, in any event, identified somewhere in the affidavits are they?

74. MR DAVIES: Yes, there is a list of them in fact.

75. MR JUSTICE KEENE: I think it would be wise if the copies were verified by a separate brief affidavit by your instructing solicitor, Mr Davies, to verify that these are true copies of all the documents that are contained in those two blue files.

76. MR CRAWFORD: Arising out of that, my Lord, so the Second Respondent can be properly advised, is it appropriate for me to have sight of those documents, because I would have thought I will have to advice those who instruct me as to my view of them?

77. MR JUSTICE KEENE: Can that be avoided, Mr Davies? There is going to be argument about whether they are properly covered by the professional privilege?

78. MR JUSTICE KEENE: I think for the purposes of these proceedings, and for no other purpose, of course, and Mr Crawford understands that full well, those must be made available to counsel appearing on behalf of the Second Respondent.

79. MR JUSTICE KEENE: Are you content with it in that form?

80. MR JUSTICE KEENE: You understand the limitation I am placing on that, that, of course, they are not available to those instructing you in relation to any of the criminal proceedings or any other matter?

81. MR CRAWFORD: In actual fact, I am not instructed in the criminal proceedings only in the civil proceedings.

82. MR DAVIES: I knew that, my Lord, otherwise Chinese walls would become completely inoperable.

83. MR JUSTICE KEENE: I am anxious to make sure the limits are made clear.

84. MR CRAWFORD: There will certainly be no question of any disclosure to the police. I suppose from a professional stand point, I would ask for disclosure for myself and those instructing me in the civil matter, the Chief Constable's solicitor.

85. MR DAVIES: I can see no objections.

86. MR CRAWFORD: We undertake that the documents will go no further than our sight.

87. MR JUSTICE KEENE: Thank you. Costs of today? I would have thought ought to be really in the cause.

88. MR JUSTICE KEENE: We do still have a costs order in that form, do we not?.

89. MR DAVIES: I am sure there is a different word for "cause".

90. MR JUSTICE KEENE: We all know what we mean. It is costs in the case as it now is.

91. MR DAVIES: I understand we still can obtain orders of certiorari?

92. MR JUSTICE KEENE: Yes, at the moment, that is under consideration. Thank you. Does that deal with everything? Thank you all very much indeed.