England and Wales High Court (Administrative Court) Decisions

IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
(THE ADMINISTRATIVE COURT)
THE DIVISIONAL COURT

		Royal Courts of Justice The Strand London WC2
		10 May 2002

1. LORD JUSTICE SEDLEY: This is a renewed application for permission to seek judicial review following refusal of permission on the papers by Turner J. In refusing permission he wrote:

"The application is out of time and certainly was not made promptly. In any event there was material before the magistrate which justified the issue of a warrant (see the contents of the acknowledgment of service). The case is unarguable."

2. The claimant's home was raided on a search warrant issued on 21st November 2001 in proper form by a justice of the peace on written information under section 23 of the Misuse of Drugs Act 1971. All such warrants must, of course, be issued in conformity with the procedural provisions of PACE, section 15. The information on which the warrant was based turned out, when a raid was conducted under a week later, to be at best unreliable and at worst false. It is not suggested by Mr Cragg, for the claimant, that the police acted otherwise than in good faith in obtaining it nor that the magistrate's assertion that he would have made such enquiry as he thought proper is not to be believed. But what Mr Cragg seeks to argue is that by virtue of the Human Rights Act 1998 and the European Convention on Human Rights, Article 8, the magistrate was under an obligation to have a record made of what transpired before him, specifically of what questions he thought it right to ask and what answers he got, and of his reasons thereafter for granting the warrant.
3. So far as time is concerned the point on time was not taken either by the respondent magistrate or by the interested party, the Chief Constable. While that is never a conclusive consideration for the court, it indicates at least that no embarrassment has been caused; and Miss Barton, for the Chief Constable, has confirmed today that it is so. For the rest, the lapse of time is in my judgment now satisfactorily explained in form 86B, the claimant's submissions on renewal. Without rehearsing them, I would accept them and allow the application to proceed with such enlargement of time as may be necessary.
4. If the application is to succeed it has to be on the ground that since 2nd October 2000 there have been incorporated into section 15 of PACE the further safeguards which the claimant contends are called for by section 3(1) of the Human Rights Act by way of interpretation. It is by section 15(3) of PACE that the doors of the warrant hearing are closed to anybody but the constable applying for the warrant. It is not, as I understand it, suggested that this in itself infringes the Convention, and one can entirely see why.
5. The subsection goes on to require an information to be in writing, and subsection (4) then requires the constable to answer any questions from the magistrate on oath. Subsection (1) in its final part makes it clear that entry under a warrant which has been issued otherwise than in compliance with these and the other provisions of sections 15 and 16 is an unlawful entry. It seems to follow that the warrant itself is not void, but remains good.
6. It is not disputed that in such a procedure the magistrate is under a duty of careful enquiry and scrutiny. The reasons are too obvious to need stating. Although in this case it is asserted, without the possibility of direct contradiction, that the duty was complied with, Mr Cragg's case is that this is no longer good enough. A record of the scrutiny is required and a recorded decision as to the reasons for granting the warrant. These, it is sought to argue, are safeguards against abuse which are an essential part of a proportionate restriction, if it is to be legitimated under Article 8(2), of the respect for the individual's home which is guaranteed by Article 8(1).
7. For my part I consider it arguable that Article 8 does import such a requirement. There are no doubt arguments to the contrary. But I am not disposed to accept the Chief Constable's submission that the decision of the European Commission of Human Rights in Funke V France [1993] 16 EHRR 297 affords a knockout blow against the argument which I have outlined. The Court did not reiterate what is said in paragraph 88 of the Commission's decision precisely because it came to the conclusion that there had been a violation of Article 8 on other grounds. It may even be that in paragraph 57 of its reasons a contrary view can be deduced from that discerned by Miss Barton in paragraph 88 of the Commission's reasoning. But, in any event, paragraph 88 of the Commission's reasoning seems to me to go no further than to say that, in terms, Article 8 does not demand judicial scrutiny. That of course is right, but it is a long way from the proposition that jurisprudentially Article 8 does not carry with it such a requirement.
8. The question then is whether it is arguable that section 15 of PACE leaves any room for incorporation of these steps. In the language of section 3(1) of the Human Rights Act is it possible to read or give effect to section 15 in the way that Mr Cragg contends for? It is worth noting that the desirability of making a note of warrant proceedings and recording the justices' reasons was recognised not long before the Human Rights Act became law by Rose LJ in the case of R v Marylebone Magistrates Court ex parte Amdrell limited (unreported) 31st July 1998. The desirability of making such a record note was expressed without any reservation as to its compatibility with the text of section 15; yet Miss Barton certainly has not been able to tell us that practice has changed in recognition of the advice which Rose LJ's judgment contained.
9. It seems to me that the facts of the present case provide a useful foundation for both limbs of the argument. This is partly because of the adventitious fact that a copy of the written information was disclosed in correspondence. In the associated cases resulting from this police operation the clerk to the justices has indicated, although without giving a specific legal reason, that he does not consider that disclosure of the informations should have occurred.
10. My Lord has drawn attention to the decision of Scott J in Taylor V Anderton The Times Law Reports, 21st October 1986, which suggests that public interest immunity attaches to such informations. The disclosed information contains nothing which at present (though this may be subject to argument in another case) is capable of sustaining a claim to public interest immunity, and I would have great difficulty in accepting that as a class informations of this kind are capable of attracting it. If any one information did tend to disclose the identity of an informer then of course the question of PII would arise, but the information before the court seems to me to make any such risk fanciful. It gives no clue to the identity of the informant and contains no other sensitive intelligence.
11. It is, if I may say so, a matter of real concern that it seems to be only by chance that this court has been able to see the crucial document in a case which is of importance both to the fight against crime and to the integrity of citizens' homes. I can see that the written information which was placed before the magistrate in the present case was open on its face to quite serious question. The assertions, first, that the source was "an anonymous male" who was unregistered as an informer, and secondly that this source had "...contacted the Police on several occasions and has supplied reliable information", appear to be in flat mutual contradiction.
12. Miss Barton has suggested that the word anonymous does not mean that the name was not known to the police, but only that the police were not prepared to say who it was. That however may not be the explanation. It is not the natural meaning of the language and it tends to illustrate why there may be something in Mr Cragg's argument that a record showing whether the magistrate enquired into this at all, and if he did, what answer he got, is a necessary element of justice. If the magistrate received a satisfactory explanation the record would show it. If he did not do so then it would, it seems to me, be at least arguable that there was a failure of due process within section 15 rendering the search unlawful.
13. One has to set against this that section 15, expressly requiring an ex parte procedure, with no subsequent provision for renewal on notice, makes it plain enough that Parliament did not contemplate any particular transparency. I can also see real difficulties in importing into the apparently exhaustive procedural provision of section 15 a requirement of record making which (and this may matter) is not an end in itself but a means to a further end, namely the exposure of a search to subsequent legal challenge on the grounds that the warrant was not properly issued.
14. What is interesting, however, is that that very end is within Parliament's express contemplation: the last words of section 15(1) say that it is. Indeed, one has to ask how a search could ever be found to be unlawful under that provision if there was no means of knowing how the warrant had come to be issued.
15. It seems to me arguable in this situation that the Human Rights Act is capable of importing into section 15 of PACE, and that section 15 of PACE is capable of accommodating, an obligation to record proceedings on the hearing of an information in support of a warrant and the justices' reasons for granting the warrant. It would not follow that every case called for elaborate enquiry. Nor would it follow that it is not perfectly proper in a suitable case simply to adopt without further comment the contents of a sufficiently particular and sufficiently convincing written information, confirmed, as it must be, by evidence on oath. But it might follow that it was not good enough simply to adopt the contents of an information like the one that was laid in the present case.
16. For these reasons I would be minded to grant permission to seek judicial review. The main thing that will then require attention is the form of relief. Quashing and declaratory relief and damages are sought; but section 15(1) of PACE is specific about the effect of a procedurally deficient warrant. It is the entry and search, not the warrant, which become illegal. Consideration therefore needs to be given by the parties to a suitable direction under CPR 54.20 for the mode in which the case is to continue.
17. MR JUSTICE POOLE: I agree. This application is arguable, but as my Lord has suggested, it is far from being free of difficulty. In the Amdrell case, to which my Lord has referred, Rose LJ in the Divisional Court said this:

"In relation to the lack of a note of proceedings before the magistrate and the fact that he expressed no reasons for his decision, it would, in my judgment, have been preferable both for a note to have been made and for reasons to have been briefly expressed, in the particular circumstances of the present case: I have in mind both the comparative novelty of the proceedings and the substantial length of time spent on the application for warrants. Had a note been taken and reasons given some of the concerns expressed on the applicant's behalf might not have arisen. However, neither the absence of a note nor the lack of expressed reasons in my judgment invalidates the issue of the warrants."

18. The applicant suggests that that conclusion has now been overtaken by the provisions of the Human Rights Act. However, it is reasonably clear from the scheme of section 15 of PACE that Parliament was contemplating anything but an open and transparent procedure and the reasons for that are too obvious to mention. Furthermore, like my Lord, I see some difficulty in importing into the procedural provision a recording requirement as a means to later legal challenge. The Chief Constable will have his opportunity at the full hearing to develop his argument that the application is a veiled attempt to invoke Article 13.
19. Finally, whilst noting what in the absence of explanation may be a contradiction on the face of the information between the reference to "an anonymous male" and a source who had "...contacted the Police on several occasions and has supplied reliable information", I note that there does appear to have been ample material for reasonable grounds of belief on the part of the magistrate that the criteria for the issue of a warrant were met.
20. LORD JUSTICE SEDLEY: In that case permission will be granted and while I do not think the point about the mode of proceeding needs to be incorporated in the order, it is something that the parties must now pay attention to.

MR CRAGG: My Lord, I am grateful. One doubts there has to be a costs order in each hearing.

LORD JUSTICE SEDLEY: Would you like an assessment now or do you simply want your costs made costs in the case?

MR CRAGG: Costs in the case would be sufficient, my Lord.

LORD JUSTICE SEDLEY: Do you have any problem about that, Miss Barton?

MS BARTON: No, I do not, my Lord.

LORD JUSTICE SEDLEY: I think that is probably right. So it is going to be the claimant's costs in the case and that is all. Thank you both very much.