QUEEN'S BENCH DIVISION
B e f o r e :
(The Lord Woolf of Barnes)
MRS JUSTICE HALLETT
MR JUSTICE STANLEY BURNTON
|The Queen on the application of|
|SHEFFIELD MAGISTRATES' COURT||Defendant|
|CHIEF CONSTABLE OF SOUTH YORKSHIRE POLICE||Interested Party|
Smith Bernal, 190 Fleet Street, London EC4
Telephone No: 020-7421 4040
(Official Shorthand Writers to the Court)
MISS FIONA BARTON (instructed by the Force Solicitor, South Yorkshire Police) appeared on behalf of THE INTERESTED PARTY
Crown Copyright ©
Wednesday 20 November 2002
THE LORD CHIEF JUSTICE:
"Power of justice of the peace to authorise entryand search of premises
(1) If on an application made by a constable a justice of the peace is satisfied that there are reasonable grounds for believing --
he may issue a warrant authorising a constable to enter and search the premises."
There are then provisions relating to the seizure and retention of anything for which the search had been authorised, which are not relevant to the present application.
"Search warrants -- safeguards
(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 on or search of premises under a warrant is unlawful unless it complies with this section and section 16 below.
(2) Where a constable applies for any such warrant, it shall be his duty --
(a) to state --
(i)the ground on which he makes the application; and
(ii)the enactment under which the warrant would be issued;
(b) to specify the premises which it is desired to enter and search; and
(c) to identify, so far as is practicable, the articles or persons to be sought.
(3) An application for such a warrant shall be made ex parte an supported by an information in writing.
(4) A constable shall answer on oath any question that the justice of the peace or judge hearing the application asks him.
(5) A warrant shall authorise an entry on one occasion only.
(6) A 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)the premises to be searched; and
(b) shall identify, so far as is practicable the articles or persons to be sought.
(7) Two copies shall be made of a warrant.
(8) The copies shall be clearly certified as copies."
"If a constable has reasonable grounds to suspect that any person is in possession of a controlled drug in contravention of this Act or any regulations made thereunder, the constable may --
(a) search that person, and detain him for the purpose of searching him;
(3) If a justice of the peace .... is satisfied by information on oath that there is reasonable grounds for suspecting --
(a) that any controlled drugs are, in contravention of this Act or any regulations made thereunder, in the possession of a person on any premises; or
(b) that a document directly or indirectly relating to, or connected with, a transaction or dealing which was, or an intended transaction or dealing which would if carried out be, an offence under this Act, or in the case of a transaction or dealing carried out or intended to be carried out in a place outside the United Kingdom, an offence against the provisions of a corresponding law in force in that place, is in the possession of a person on any premises,
he may grant a warrant authorising any constable acting for the police area in which the premises are situated at any time or times within one month from the date of the warrant, to enter, if need be by force, the premises named in the warrant, and to search the premises and any persons found therein and, if there is reasonable ground for suspecting that an offence under this Act has been committed in elation to any controlled drugs found on the premises, or in the possession of any such person, or that a document so found is such a document as is mentioned in paragraph (b) above, to seize and detain those drugs or the documents, as the case may be."
"A person commits an offence if he --
(a) intentionally obstructs a person in the exercise of his powers under this section; ...."
The police relied upon section 23(3)(a) to obtain a warrant in this case.
"Please give consideration to the following points:
What intelligence there is; What observations have been made; How reliable is the information received; Enquiries made to establish what is known about he likely occupier of the premises themselves; Enquiries made to corroborate the information; if the source is reliable, tried and tested; Sources contacted to ensure that this is the correct address."
Under that box appear the following statements:
"This address is occupied by Mark Cronin.
In October/November 2001, the police were contacted by an anonymous [that word should be noted] male stating that they had witnessed various persons visiting the target address at all times of the day, both on foot and in vehicles. These persons were unknown to the source but only visited the target premise for a matter of minutes before leaving. It has been stated that the premises were involved in the supply of cannabis.
The source has since contacted the Police and confirmed that the activity is constant.
This same unregistered source had contacted the police on several occasions and has supplied reliable information.
Enquiries with the council reveal that Cronin is the tenant of the semi-detached property and they have also received complaints in relation to vehicles visiting the address in the summer of 2001, by local residents.
The vehicles which are visiting the address on a regular basis, are used by the local drug fraternity who have previous criminal convictions for possession of cannabis."
"Please give consideration to the following points:
Why it is necessary to secure a warrant; What other methods have been considered to gain entry; Is the execution of a search warrant proportional to the criminal activity under investigation? What would be the likely outcome if notification of the proposed search was given? The timing of the proposed search; The risks of unnecessary intrusion into the privacy of others not under investigation; What other occupants are likely to be on the premises."
"Due to it being suspected that these premises contain drugs it is strongly suspected that access will not be permitted without a search warrant. Therefore evidence may be destroyed prior to the search being concluded. This is the least intrusive method of carrying out this enquiry. A search warrant is considered to be a proportionate response.
It is anticipated that the sole occupant will be present at the search of the premises and there is no suggestion of any children being present.
There will be no intrusion into the privacy of others due to the warrant being limited to the residential property of 35 Coultas Avenue."
It is then dated and signed by the officer, and the name of the officer making the application is included. There is a provision for "Comments by Officer authorising the application", but no comment is noted. However, the document is dated 20 November. It is signed by the officer authorising the inspection. His rank is that of inspector. There is then provision for "Comments by the Justice of the Peace". The document concludes: "This information laid before me on 21 November 2001", and it is signed by a justice of the peace.
"Authority is hereby given for any constable accompanied by such person or persons as are necessary for the purpose of the search, to enter the said premises on one occasion only within one month from the date of issue of this warrant and to search for the articles or persons 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, in no such person is present, in a prominent place on the premises."
It is dated, it gives the time that it issued and is signed by the justice of the peace.
"In circumstances such as existed on that occasion it is usual to deal with search warrants in the privacy of the retiring room to recognise the sensitive nature of the applications."
The fact that a warrant is being sought is sensitive because if it came to the knowledge of the person whose premises were the subject of the search, the whole object of entering the premises under the warrant without warning could be defeated. The legal adviser adds:
"My invariable practice is to direct the justice of the peace to the relevant test to be applied for warrants sought under the relevant provision. For applications under section 23(3) Misuse of Drugs Act 1971 the magistrate must be satisfied that there is reasonable ground for suspecting any controlled drug is in contravention of that Act or any regulation made thereunder in the possession of a person on any premises. I would make particular reference to any statutory direction or requirements, including those safeguards set down in section 15 PACE 1984.
I would draw to the attention of the justice relevant considerations under the Human Rights Act 1998, specifically whether it is necessary and proportional to the circumstances presented to issue a warrant. Considerations here would include why it is necessary too secure a warrant; what other methods have been considered to gain entry; whether the execution of a search warrant is proportional to the criminal activity under investigation; the timing and details of the proposed execution; the risks of unnecessary intrusion into the privacy of others not under investigation and whether other occupants are likely to be on the premises.
I would proceed to draw the justice of the peace's attention to any factors which I consider to be relevant to the application acting within the terms of the Practice Direction: (Justices: Clerk to Court) 2000.
Where relevant matters arise during the course of the application, as a result of directions given to the justice of the peace or as a result of enquiries made of the applicant and which do not otherwise appear within the body of the information, it is my invariable practice to direct the justice of the peach to endorse those matters by way of written comments in the relevant section of the information.
If matters had arisen or enquiries revealed factors which have properly been taken into account on issuing the warrant, I would direct the justice to indicate those factors by marking the information accordingly."
"In furtherance of this application, I have reviewed the original information and search warrant documentation. Whilst I remain unable to recall specific detail of the application, I would respectfully suggest that no reasonable magistrate cold conclude that the tests set out above for he issue of the warrant have not been made out on the face of the information, irrespective of any additional relevant matters which may or may no have been elicited by the enquiries of [the two magistrates]."
He then makes certain important observations:
"It would appear that the applicant is seeking relief in the form of a direction that notes of evidence should be taken and reasons given for the grant of search warrants. On he applicant's interpretation, this would be the procedural safeguard to rebut any suggestion that such applications do not succumb to a process of sufficient scrutiny and judicial cognizance and are, in fact, a 'rubber stamping' exercise.
The logical continuation and inference of this argument must be that, if notes and reasons are to be a requirement of this process, they should be available to those persons directly affected by the granting of search warrants )usually occupants of the target premises -- in this case the claimant). How otherwise could such person(s) be satisfied that a full and proper judicial process has been followed and that adequate scrutiny and consideration of the information has taken place?
I would ask the court to find that notes of evidence are, in effect, taken. The information is confirmed on oath and becomes the written record of evidence received. Other additional matters elicited through direct enquiry of the applicant are recorded to the extent that they have a direct bearing upon the issue of the warrant are properly noted on the information under the provision marked 'comments by justice of the peace". Again such comments provide a written record of evidence received and evidence taken into account or discounted.
For justices of the peace or legal adviser to take a full note of the evidence of an applicant would unreasonably protract applications and [serve] no useful purpose as it would invariably be a restatement of the facts contained in the written information.
With regard to the recording of reasons, the information already the note of the evidence is the basis of any reasons the magistrate could give. Any formal reasons provided by the justice could only be a restatement of what is already contained within the information (to include additional matters where comments have been endorsed).
There is no opportunity in these circumstances to make findings of fact. This is an ex parte application and not a trial situation, with no provision for the other party to present an alternative scenario. To pub any relevant party on notice would defeat the purpose of the application. Nothing is capable of being challenged by the magistrate's own enquiry.
By signing the information the magistrate is accepting the prima facie truth of the matters stated on oath and contained within the information verified on oath. Matters with which the magistrate is not satisfied, following enquiry of the applicant, would be highlighted and endorsed within the 'comments' section of the information.
I would also respectfully ask the court to consider the implications of disclosure of the information, notes of evidence or reasons for the grant of an ex parte application. Whether such disclosure would be in the public interest or interests of justice, having regard to the material potentially contained in such an information, notes of evidence or reasons, and the possibility that an investigation could be compromised or a source of information placed in jeopardy or danger, and the potential effect knowledge of such disclosure would have on the willingness of sources of information to provide criminal intelligence to the police."
"1. Everyone has the right to respect for his private and family life, his home and his correspondence.
2. There shall be no interference by a public authority with the exercise of this right except such as in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others."
The provisions of Article 8 have to be considered in the light of the jurisprudence of the European Court of Human Rights. Mr Cragg relies on a number of authorities, but it is sufficient for our purposes to refer only to Funke v France (1993) 16 EHRR 297, which sets out the position generally in relation to Article 8. The facts in Funke v France are very different to the facts that are before us. There the search took place without any procedure such as is required by the United Kingdom domestic legislation to which reference has been made. The European Court came to the conclusion that there was no infringement of Article 6, but concluded that there was an infringement of Article 8.1 and, furthermore, that it was an infringement which was not justified by Article 8.2. Any search of premises made without the consent of the occupier will automatically be an interference with Article 8.1. If it is to be compatible with Article 8, it will be necessary for it to be shown that it falls within Article 8.2. For that to be the case, as paragraph 4 of the headnote points out, interference must be in accordance with the law; there must be a legitimate aim and it must be proportional. In that case the Court came to the conclusion that there was a violation of Article 8 for the following reasons:
"(i)the very wide powers the customs authorities possessed when undertaking searches and seizures;
(ii)in the absence of any requirement of a judicial warrant the restrictions and conditions provided for in law were insufficient for the interferences in the applicant's right to have been strictly proportionate to the legitimate aim pursued; and
(iii)the customs authorities never lodged a complaint against the applicant alleging an offence against the relevant financial dealings regulations."
"56. .... the relevant legislation and practice must afford adequate and effective safeguards against abuse.
57. This was not so in the instant case. At the material time -- and the Court does not have to express an opinion on the legislative reforms of 1986 and 1989, which were designed to afford better protection for individuals -- the customs authorities had very wide powers; in particular, they had exclusive competence to assess the expediency, number, length and scale of inspections. Above all, in the absence of any requirement of a judicial warrant the restrictions and conditions provided for in law, which were emphasised by the government, appear too lax and full of loopholes for the interferences in the applicant's right to have been strictly proportionate to the legitimate aim pursued."
"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."
The last sentence of that paragraph has to be considered in the context of it being in a judgment which was given before the Human Rights Act came into force. But as to the remainder of the paragraph, I strongly endorse what Rose LJ said.