England and Wales High Court (Administrative Court) Decisions

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

		Royal Courts of Justice Strand, London, WC2A 2LL
		26/09/2006

Mr Justice Underhill:

1. The Claimant is a banker. He has had a long career in the City and at present holds a senior position in a major financial institution. He is married, with recently grown-up children: the youngest is eighteen and still lives at home. He lives in the Home Counties. He is a man of good character. Early in the morning of 24^th May 2006 police from his local county force (force "A") arrived at his home to execute a search warrant which had been issued by a justice of the peace the previous week. The search was part of "Operation Ore", which is a multi-force operation investigating offences by persons thought to have visited child pornography websites operated in the United States by a company called "Landslide". In 2002 the U.S. authorities supplied the National Criminal Intelligence Service ("NCIS") with details taken from Landslide's records of over 7,000 holders of credit cards which had been used to purchase access to its sites. The Claimant was one of the individuals whose details were recorded as having been used in this way to purchase access to sites featuring child pornography: the records show his credit card details and address being used to purchase access to two such sites, on 19^th and 20^th June 1999, paying $24.95 on each occasion.
2. Once the search of his home was under way, the Claimant was arrested on suspicion of downloading indecent images of children and taken to a local police station where he was interviewed. Three computers and a quantity of videos were seized and taken away for examination. Later in the day he was released on police bail until 6^th December 2006. No indecent images were found on the seized computers, though some other arguably relevant material was, as I describe below.
3. The Claimant vehemently denies ever having accessed the Landslide sites or indeed having any involvement with child pornography. His solicitors have conducted a vigorous correspondence with the police questioning the way in which the investigation was initiated and has since been conducted. It is his case that there was never any proper basis for the issue of a search warrant or for his arrest and that in any event on the basis of the evidence now available there can be no justification for the investigation to continue. In particular he says that:

(a) The likeliest explanation for his details having been found on the Landslide system is "identity theft" – that is, that a stranger had obtained them dishonestly and had used them to generate a bogus purchase and divert all or part of the money. It is common ground that there is material in the public domain, of which I need not give the details here, showing that stolen details have at least sometimes been used in this way in connection with the Landslide sites – including information published by the Sussex police acknowledging that this had occurred specifically in the case of Operation Ore suspects. The Claimant says that there are strong objective indications that this is what happened in his case. Again, I need not give the details, but they include the facts (i) that he had challenged two other unauthorised transactions on his card in the course of 1999 (though admittedly not these particular ones); (ii) that, as noted above, no indecent images were found on any of the seized computers; and (iii) that there is no evidence that Landslide ever sent the purchaser the return e-mail, giving the password allowing access to the sites, which would have automatically been generated if there had been an actual purchase. The Claimant says that most of the indications that he was the victim of identity theft were either known to the police, or could have been ascertained by them by proper enquiries, before the decision to seek a search warrant was made.

(b) Even if, contrary to the foregoing, there are good grounds to believe that the sites were accessed by someone at the Claimant's home, all the signs clearly point not to the Claimant himself but to his son, P, who was in 1999 a teenager living at home and who had authority from the Claimant to use his credit card. In particular, a person purchasing access to Landslide sites had to give an e-mail address and a password. The e-mail address which was given by the apparent purchaser in this case was, as has now been established, an address of P's: the Claimant says that this could have been ascertained at any time from the ISP which hosted the e-mail service (or indeed – somewhat surprisingly - from a simple Google search). Likewise the password is one which has now been found from the examination of one of the seized computers to be a password used on at least one other (innocent) occasion by P but with no connection to the Claimant.

4. The Claimant says that it is now essential that the police should, as a matter of urgency, formally acknowledge that there is no case against him. This is not simply because of the enormous personal stresses caused to him and his family by having the investigation hanging over them, which he explains with great force in his witness statements. More specifically, he is facing acute professional and employment difficulties because as a result of his role he frequently has to make "fit and proper person" returns to regulatory authorities in the U.K. and abroad: if he refers in such returns to the fact that he is under investigation for serious criminal offences, that will cause grave difficulties for both himself and his employer, yet the questions may be framed in such a way that he cannot conscientiously avoid doing so.
5. In those circumstances the Claimant on 17^th August commenced these proceedings seeking judicial review of (a) the decisions involved in the issuing of the search warrant (being decisions of both force A, whose Chief Constable is the First Defendant, and the justice who authorised the issue of the warrant, represented by the Second Defendant); (b) the decision to arrest him; and (c) the continuance of the investigation. On 7^th September Silber J. granted permission and ordered expedition. He granted, and I have continued, orders under CPR 39.2 ensuring that the Claimant's identity should not be revealed, since otherwise the purpose of the proceedings would be undermined and there would be a plain injustice to the Claimant; and this judgment is anonymised for the same reason. The Claimant has been represented before me by Mr. Alun Jones QC and Mr. Hugo Lodge. The First Defendant has been represented by Mr. Edmund Lawson QC and Mr. Jason Beer. The Second Defendant has decided not to appear; but the justice who authorised the issue of the warrant, to whom I will refer as "the magistrate", has provided a witness statement at the invitation of the Claimant's solicitors.
6. I take in turn the three areas of challenge identified in para. 3 above. I should observe at this stage that it is, at least as far as the authorities cited to me suggest, very unusual for issues as to the lawfulness of decisions to issue a search warrant or to make an arrest to be raised by way of judicial review. Typically, they arise in private-law actions for trespass or unlawful imprisonment, where the Court will have the opportunity to hear oral evidence and to have the reasons for the actions taken fully explored in cross-examination; and the Divisional Court in R. v. Chief Constable of Warwickshire, ex p. Fitzpatrick [1999] 1 WLR 564 expressed the view that judicial review would often not be an appropriate tool for deciding issues of this kind. But in circumstances like those in which the Claimant finds himself it may be the only practically available route, and I should not refuse to consider his claims in limine.

(A) THE LAWFULNESS OF THE WARRANT

The Statutory Basis

7. The powers of a justice of the peace to issue a search warrant derive from s. 8 of the Police and Criminal Evidence Act 1984 ("PACE"), as amended by the Serious Organised Crime and Police Act 2005 ("the 2005 Act"). S. 8 is, so far as relevant, in the following terms:

(1) If on an application made by a constable a justice of the peace is satisfied that there are reasonable grounds for believing—

(a) that an indictable offence has been committed; and

(b) that there is material on premises mentioned in subsection (1A) below which is likely to be of substantial value (whether by itself or together with other material) to the investigation of the offence; and

(c) that the material is likely to be relevant evidence; and

(d) that it does not consist of or include items subject to legal privilege, excluded material or special procedure material; and

(e) that any of the conditions specified in subsection (3) below applies in relation to each set of premises specified in the application,

he may issue a warrant authorising a constable to enter and search the premises.

(1A) The premises referred to in subsection (1)(b) above are—

(a) one or more sets of premises specified in the application (in which case the application is for a "specific premises warrant"); or

(b) any premises occupied or controlled by a person specified in the application, including such sets of premises as are so specified (in which case the application is for an "all premises warrant").

(1B) …

(1C) The warrant may authorise entry to and search of premises on more than one occasion if, on the application, the justice of the peace is satisfied that it is necessary to authorise multiple entries in order to achieve the purpose for which he issues the warrant.

(1D) If it authorises multiple entries, the number of entries authorised may be unlimited, or limited to a maximum.

(2) A constable may seize and retain anything for which a search has been authorised under subsection (1) above.

(3) The conditions mentioned in subsection (1)(e) above are—

(a) that it is not practicable to communicate with any person entitled to grant entry to the premises;

(b) that it is practicable to communicate with a person entitled to grant entry to the premises but it is not practicable to communicate with any person entitled to grant access to the evidence;

(c) that entry to the premises will not be granted unless a warrant is produced;

(d) that the purpose of a search may be frustrated or seriously prejudiced unless a constable arriving at the premises can secure immediate entry to them.

(4)-(6) … .

8. It will be noted that one of the matters on which a justice issuing a warrant is required by s-s. (1) to be satisfied is that there are reasonable grounds for believing that the material to be searched for "does not consist of or include … special procedure material" (see head (d)). "Special procedure material" is the subject of an elaborate definition in s. 14. For present purposes it is sufficient to say that one kind of special procedure material is material acquired or created "in the course of any trade, business, profession or other occupation or for the purpose of any paid or unpaid office" and which is held under an obligation of confidence. S-s. (4) provides that material created by an employee in the course of his employment only falls within the definition "if it would have been special procedure material had his employer created it". This is somewhat opaque, but I take the effect to be that the material must be confidential because of obligations owed to an outside party, typically a client or customer. For the purpose of this judgment I will refer to material of this kind as "business confidential material". Where the justice is not satisfied that there are reasonable grounds to believe that the material to be searched will not include such material, he has no power to issue a warrant, and the police can only obtain authority to carry out a search under the more demanding procedure prescribed by s. 9, which requires an application to a Circuit Judge.
9. It is common ground that the execution of a search warrant is a serious interference with the liberty of the subject, and the statutory conditions for the issue must be conscientiously complied with. Mr. Jones referred me to the observation by Lord Widgery CJ in Williams v. Summerfield [1972] 2 QB 512 (at p. 518) that:

Generations of justices have, or I would hope have, been brought up to recognise that the issue of a search warrant is a very serious interference with the liberty of the subject, and a step which would only be taken after the most mature careful consideration of all the facts of the case.

That observation was repeated with approval by Bingham J. in R v. Crown Court at Lewes, ex p. Hill (1991) 93 Cr App R 60 (at p. 66).

The Exercise of the Powers in the Present Case

10. The way that the warrant authorising the search of the Claimant's home came to be issued can be summarised as follows:

(1) At an early stage of Operation Ore decisions were taken about prioritisation. After some very limited initial enquiries by NCIS, the Claimant appears to have been regarded as falling into the medium-risk category – not being a person who worked with children - and accordingly was not made the subject of immediate investigation. That explains, though views may differ about whether it wholly excuses, the fact that no steps were taken in his case until this year. The initial enquiries established the identity of the Claimant's then employer, which could readily have been identified as a financial institution by a simple Google search if it had not been otherwise recognised.

(2) When the A police finally came in 2005 to consider the Claimant's case, together with that of a number of other medium-risk names, they carried out various preliminary enquiries, principally but not solely intended to "house" the Claimant – that is, to establish that he was still to be found at the address given to Landslide. These included enquiries with the local authority council tax department, the Land Registry, the electoral register - which simply confirmed that the Claimant and his wife still lived at the address given in 1999 – and with DVLA, which revealed that five cars (including two Mercedes saloons) were registered there. Other enquiries included

- informal approaches to the bank which had issued the credit card in question, in order to obtain statements covering the period of the payment: the police were apparently told, wrongly, that such statements were no longer available;

- a search at Companies House: this is said to have produced a nil return, though that is frankly inexplicable if a proper search was done, since the Claimant was a director of his current employer and of various associated companies and another institution with which he had a charitable connection;

- enquiries with the Inland Revenue designed to identify his employer: these however – again inexplicably if the enquiries were done properly - revealed only the name of a tax-shelter company in which the Claimant had invested, from which the police concluded, entirely wrongly, that he worked in the film industry;

- enquiries with the Department of Work and Pensions designed to establish whether he had children: they were told that he had none.

The uniform inaccuracy of the results of these latter enquiries is unimpressive, and does not suggest that they were carried out with real rigour – though it may also reflect the fact that they were carried out on an informal basis, without resort to statutory powers, which may have affected the care with which they were dealt with by the persons enquired of. It does not appear that the A police had available to them the information obtained by NCIS in 2002, which would at least have revealed the identity of the Claimant's previous employer and thus potentially the nature of his occupation. The information was brought together in an "Intelligence Profile".

(3) Sometime prior to 18^th May the decision was made to seek search warrants for some eighteen Operation Ore suspects. "Packs" were prepared relating to each suspect. These included, in addition to the formal papers required to obtain the warrant, a "briefing sheet" for each suspect and the Intelligence Profile. The briefing sheet in the Claimant's case rehearsed the original Landslide information, together with information from the Intelligence Profile, but it also included some information about the premises to be searched, which was described as "a very large … building with believed 6+ bedrooms". It also covered two other points of some importance:

(a) It referred expressly to the possibility that the Claimant's credit card details may have been used by another member of the household.

(b) It stated "… it is intended to arrest the alleged offender, any arrests will be directed in the Officer in the Case whilst on the scene"; and it provided for the "Arresting Officer" to be identified. Although the contents of the briefing sheet were specific to the Claimant, the general lay-out clearly followed a standard pattern; and it can, I think, reasonably be inferred that similar wording appeared in relation to all eighteen cases and reflected a general policy determined by someone with overall responsibility for the exercise.

(4) On the morning of 18^th May D.C. S, who was an officer in the team within the A police dealing with "computer-generated paedophile activity" but who had had no previous involvement in preparing the applications, received the eighteen packs. He familiarised himself with the contents and amended them in one respect to which I refer below. He then obtained from a Detective Inspector authority to make the applications and drove to the magistrates' court, where arrangements had been made for a justice to consider the applications before the morning list: the magistrate in question was a justice of the peace of 24 years' experience. D.C. S gave him a short general explanation of the background and then took him through the eighteen applications, giving the essential "Landslide details" in each case by reference to the material in the packs. The magistrate issued warrants in all the cases. The entire exercise, on the evidence, lasted not much more than an hour – an average of about three minutes per application. It has been suggested that this indicates that the magistrate performed his task perfunctorily, but I do not think that that can fairly be inferred simply from the time taken. However conscientiously the magistrate approached his task, the applications will have followed a standard pattern and each individual case will not (subject to the issues which I consider below) have required long consideration.

(5) The essential document placed before the magistrate by D.C. S in each case was a form bearing the title "Warrant to enter and search premises for evidence of an indictable offence (Section 15 of the Police and Criminal Evidence Act 1984)". Despite its title, this is not in fact a warrant but an information supporting the application for a warrant, as required by s. 15 (3) of PACE: I will refer to it as "the Information". Its function is to set out the grounds on which the constable applying for a warrant relies (and certain other matters): see s. 15 (2). The form used in the A Magistrates Court took the form of an affidavit/affirmation. The printed parts state that "there are reasonable grounds for believing" four matters, listed as (a)-(d), correlating to the statutory requirements set out above. (There is a head (e), but it does not – despite the structure of the form – appear to be a matter on which the constable is required to state reasonable grounds for belief, and it is in any event irrelevant for present purposes.) Taking them in turn:

- The first – (a) - is that an indictable offence had been committed. The offences specified by whoever completed the form were offences under s. 160 of the Criminal Justice Act 1988 - namely possession of an indecent photograph of a child – and s. 1 of the Protection of Children Act 1978 – namely taking an indecent photograph of a child.

- The second – (b) - is that there was at the specified premises "material that is likely to be relevant evidence and be of substantial value in the investigation of the offence and does not consist of or include items subject to legal privilege, excluded material or special procedure material, namely …". The material in question was specified by a printed label, which had been prepared for use in all eighteen cases and was in the following terms (reproducing the precise punctuation):

• Computer Hardware, Peripherals, Associated Software & Media (suspected Containing Indecent Images

• Printed, Written, Published or Other Items Connected or Associated With Child Indecent Images and/or Sexual Offending

• Any other material written or otherwise associated with the abuse of children

- The third – (c) – lists the alternative statutory grounds for the issue of a warrant under s. 8 (3) of PACE, with the rubric "delete whichever … is NOT applicable". None are deleted. This was clearly carelessness on the part of the person completing the form: it cannot have been believed that all the specified alternatives applied.

- The fourth – (d) – provides for a choice between authorising a single entry or multiple entries. It too was carelessly left uncompleted.

There is then a heading "Further Information" setting out various matters on which further explanation should be given, including – as 1. – "why it is believed the material sought will be found on the premises to be searched". In the space provided a further standard-form label was fixed containing a brief statement that as a result of investigations in the U.S.A. into the Landslide websites "law enforcement agencies from around the world were supplied with details of suspects that had used their credit cards to purchase access to internet sites known to contain indecent images of children". This entirely general statement does not answer the question posed by the form because it does not say that the premises in question were the address of a card-holder whose details had been so supplied; but in the circumstances that could safely be inferred, and it was in any event intended that that information would be givenorally by the officer in each case. D.C. S appears nevertheless to have regarded the label as inadequate because he added in manuscript (on all eighteen forms) the words "Police believe that there are still images of children being held in the premises". This was misleading in so far as it suggested that the police had any specific information: all that D.C. S was in a position to say was that if, as there was reason to believe, a person at the premises had accessed one of the sites, it might reasonably be presumed that he had downloaded images from it and that those images might still, despite the passage of time, be held on a computer there.

(6) As will have appeared from the foregoing, the completion of the form of Information was shoddy. The warrant which the magistrate proceeded to issue was, regrettably, also carelessly completed. It referred to the Information, incorporating (by means of the same label) its specification of the material to be searched for, and gave authority for any constable to enter the premises "on the number of occasions specified below" in order to search for that material. The lower part of the form is intended to specify the number of searches authorised. It is badly designed, but on analysis there are two primary alternatives, the first being authorisation for a single search and the second being authorisation for multiple searches: the multiple search alternative starts with a line requiring (as per the statute) written authority for any second or subsequent search to be obtained from a police officer of the rank of inspector or above and then splits into sub-alternatives – namely either a specified maximum number of searches or an unlimited number. The person completing the form left the first alternative - "on ONE occasion only" - undeleted. That must mean that only a single search was being authorised. But instead of deleting the remaining three lines, they deleted only the last two. On a careful reading it is clear that the undeleted second line adds nothing and is meaningless in view of the deletion of both two alternative forms of multiple search authority. But I can understand how it might have been read, as the Claimant says he read it, as authorising multiple searches. The form contains no express statement by the magistrate that he has been satisfied of the various matters of which he is required by statute to be satisfied. It is not necessary that it should: see Inland Revenue Commissioners v. Rossminster [1980] AC 952, per Lord Wilberforce at p. 1000. (However I should say that it is surprising that the form ignores Lord Wilberforce's comment that the inclusion of such a statement would be "wise": it is highly desirable that forms of this kind are drafted in such a way that the attention of the justices who have to make decisions is explicitly directed to each point that they have to consider.)

(7) The warrant was executed six days later, by a team led by a different officer from the same team as D.C. S, namely D.C. D. The officers arrived at the Claimant's home at 6.45 in the morning. He and his wife and two other members of the family who were staying were still asleep. The Claimant makes various allegations of unreasonable behaviour by the officers, which D.C. D denies: I need not form a view about these for the purpose of this application. Even if the officers behaved impeccably, it is easy to appreciate that the experience was deeply distressing to the Claimant and the others in the house. At a fairly early stage in the search D.C. D told the Claimant that he was being arrested on suspicion of downloading indecent photographs of children. He was taken to the local police station and kept in a cell for over three hours before giving an interview under caution, with a solicitor present. He was released in the early afternoon on police bail to return on 6^th December, i.e. in some six-and-a-half months' time.

(8) As noted above, three computers were found as part of the search and were seized and taken for examination. The police have power under s. 20 of PACE to require computerised information found on the premises to be copied so that it can be taken away; but that power was not used. The reason, as explained to me on instructions though not covered by the evidence, was that in a search of this kind the police are not interested simply in a few readily-identifiable files but need to access and examine in detail the entire hard drive in order to find not only current files but also deleted or other vestigial material which may give clues to material that may once have existed. Although this can be, and generally is, done using a copy of the hard drive, obtaining that copy requires a much more elaborate exercise than can conveniently be done on site.

(9) It is common ground before me that one or more of the computers seized by the police had on the hard drive documents belonging to the Claimant or his employer which fell within the definition of special procedure material (specifically, to use my terminology, business confidential material). These were returned (in electronic form) reasonably promptly once identified.

The Claimant's Criticisms

11. Mr. Jones in his skeleton argument advanced a large number of criticisms of both the police and the magistrate. I can group them under three heads – (1) the grounds for believing that relevant material would be on the premises; (2) the grounds for believing that no special procedure material would be included in the search; and (3) the grounds for believing that the conditions specified in s-s. (3) were satisfied.

(1) The grounds for believing that relevant material would be on the premises

12. On the face of it, there were plainly reasonable grounds for the police to believe that there might be material at the Claimant's premises relating to the commission of an offence under one or both the statutory provisions identified in the Information. It is common ground that the material supplied from the U.S. authorities showed that the Claimant's details, including his address, had been used in an apparent purchase of the right to access child pornography sites. That gives reasonable grounds to believe that an offence was committed and also, in my judgment, that it was committed by the Claimant, or in any event someone in his household who had authority to use his credit card details. It follows that there were reasonable grounds to believe that materials relevant to the commission of the offence would be found at the Claimant's home – whether in the form of actual downloaded images on a computer or of other evidential material. Mr. Jones pointed out that the putative offence had occurred seven years previously, and that a computer used at the time might well not have been retained, but that possibility does not seem to me sufficient to undermine the reasonableness of the belief that relevant materials would be found.
13. It must be accepted that, although in my view the police certainly had reasonable grounds, they were very not well expressed in the Information, which is designed to communicate the grounds to the magistrate. The pro forma information on the label affixed to the "Further Information" section (see para. 10 (5) above) contained some limited general material about Operation Ore but, as I have noted, nothing to link it to the particular premises sought to be searched. Conversely, the statement added by D.C. S in manuscript tended to suggest more specific information than the police in fact had. But, while these failings are to be deplored, they are in truth matters of form. Plainly the magistrate was made aware that the premises to be searched had been given as the address of a credit-card holder whose details had been used to acquire the right to access a child pornography website: once that point was reached, he was entitled, for the same reasons as I have given at para. 12 above, to be satisfied that there were reasonable grounds for the necessary belief.
14. However, Mr. Jones submitted that while that reasoning might be realistic as far as it went it took no account of the possibility that the Claimant's credit card details might have been used by someone else, in either of the ways identified as (a) and (b) in para. 3 above. I can deal briefly with (b), i.e. the question of use by another family member: the police were alive to this possibility – as noted above, it was expressly referred to in the briefing sheet - but the identity of the particular person who had made the transaction was irrelevant to the justification for searching the premises. Thus even if the police were remiss in not establishing the owner of the e-mail address supplied to Landslide, that is not significant at this stage. As for (a), it was Mr. Jones's submission that in view of the known possibility of identity theft being the explanation for instances of apparent access to the Landslide sites it was not reasonable for the police to form the belief that the Claimant (or someone in his household) had accessed the sites unless and until they had carried out such enquiries as were possible to test the possibility of identity theft; and that the enquiries made prior to 18^th May did not satisfy that obligation.
15. I do not accept this argument. Searches form part of the investigative process, and it would be an unreasonable and impracticable fetter on the investigation of crime if they could be resorted to only after the police had investigated and so far as possible excluded all possibilities that someone other than the suspect might be responsible for the putative offence. The concept of "reasonable grounds for belief" does not require so high a threshold: it is akin, though it may not precisely correspond, to the concept of a prima facie case. I accept of course that each case depends on its particular facts. In some cases the primary facts on which the police seek to rely may be so susceptible to an alternative explanation that the alternative must be assessed before a reasonable belief can be formed. But that is not in my judgment the case here. The evidence which there undoubtedly is that some instances of apparent purchase from the Landslide sites were cases of identity theft is not sufficient to displace the prima facie case to which the use of the Claimant's details gave rise: it falls far short of establishing that the Landslide information was seriously unreliable. I would have reached that conclusion without the assistance of authority, but my view is reinforced by the decision of the Divisional Court in O'Shea v. City of Coventry Magistrates Court [2004] EWHC 905 (Admin), where facts not essentially different from those in the present case were held sufficient to justify the decision of a magistrate to commit a defendant for trial (see in particular the judgment of Gage J. at paras. 28-29).

(2) The grounds for believing that no special procedure material would be included in the search

16. The magistrate was told in terms by the Information that there were no reasonable grounds to believe that the material to be searched for included special procedure material: see para. 10 (5) above (at (b)). In his witness statement he does not in terms refer to the formal statement in the Information relating to special procedure material but says rather that D.C. S did not tell him that there was any special procedure material on the premises; but the substance of his evidence is plainly that he relied on what he was told by the police. The question is whether in those circumstances he was entitled to be satisfied by the bald statement made to him. I believe that he was. The authorities rightly emphasise that magistrates must not treat their role as merely that of a rubber-stamp. In an appropriate case they must question what they are told by the police in order to ensure that the necessary matters are established to their own satisfaction. But it does not follow that they are obliged to be critical of everything that they are told. The degree of specific attention required will vary as between different matters according to the circumstances of the case. In the present case what the magistrate knew was (a) that the search was to be carried out at the Claimant's home and (b) that the suspected offences, and thus the subject-matter of the search, had nothing whatever to do with such business activities as he might be engaged in. I do not believe that on that information he had any reason to believe that it was a serious possibility that the material to be searched might include business confidential material or, therefore, that he was under any obligation to ask for further specific information or assurances from D.C. S: specifically, I do not believe that he was obliged to ask what was known about the Claimant's occupation. It is of course true that people nowadays often work from home, or bring home lap-tops containing material from their work, but I do not believe that those circumstances themselves were sufficient to put the magistrate on enquiry: it must be borne in mind that business confidential material is a much narrower category than simply "work-related material" or even (by reason s-s. (4)) confidential work-related material.
17. Mr. Jones submitted that D.C. S knew more than the magistrate. He knew, at the least, from what could be inferred from the pack, that the search was of the home of a well-off middle-class man with business interests. I do not believe that those facts by themselves prevented him, any more than they would have prevented the magistrate if he had known them, from being satisfied that there were reasonable grounds to believe that the computers to be searched would not contain business confidential material. However, he also submitted that if the preliminary enquiries identified in para. 10 (2) above had been carried out competently D.C. S would have known that the Claimant was a senior employee of a major financial institution; and that, once he knew that, he plainly did not have reasonable grounds to believe that computers searched at his home would not contain special procedure material – it was entirely on the cards, if not positively probable, that such a person would have business confidential information on a computer at his home. With that I agree: given the way in which people work nowadays, it is certainly not safe to assume that a person's home computer or laptop will not contain work-related material, and that material may well – depending on their occupation - include business confidential information. But this does not help the Claimant. The issuing of the search warrant was the act not of the police but of the magistrate. What the police knew, or should have known, is relevant only to the extent that it was known to the magistrate (or should have been established by him on proper enquiry). Mr. Jones submitted that if the police had no proper basis for what they told the magistrate, his decision is vitiated: if the application to the magistrate was flawed, the warrant itself must equally be flawed. I do not accept that. If the police have by incompetence or even bad faith misled the magistrate that may give the Claimant a right of action against them, but it does not affect the validity of his act. (I would add that if, contrary to that conclusion, the case on this point turned on an examination of the adequacy of the enquiries carried out by the police before applying for the warrant, I should have been very reluctant to decide that issue in these proceedings: see para. 6 above.)
18. Mr. Lawson proposed an alternative, and on its face more straightforward, route to the same conclusion. He pointed out that there was only a problem about special procedure material if it might, using the statutory language, be "included" in the material to be searched for. He referred to Ex p. Fitzpatrick (above), where the Divisional Court emphasised that a warrant was not unlawful simply because premises might contain special procedure material if that material was not the subject of the search - see at p. 573, per Jowitt J. In the present case "computer hardware" and "associated software" were indeed among the material specified as the subject of the warrant, but they were qualified by the phrase "(suspected containing indecent images"; so that even if it should have been predicted that the computers would contain special procedure material that would not have been a problem since that material would not have been included in the search. That may be a sufficient answer, but I am not entirely easy about it. I agree that the words in question can be read as authorising, albeit clumsily, a search only for computer hardware and software which contained indecent images. But the police required to be able to search the computer for more than just images: they were interested in any material that might be relevant to the offences being committed. And even if that problem could be (or could in another case have been) resolved by careful drafting, there is the further problem that the police required to be able to search, and take away, the entire hard drive (and thus in practice the entire computer) – as they indeed did; and if the "material" has for that purpose to be broadly defined, it may be arguable that the hard drive and the computer as so defined "include" all the files contained on them, whether those are intended to be specifically examined or not. I do not say that those problems are insoluble; but I did not hear detailed argument on them and I prefer not to base my conclusion on this part of Mr. Lawson's submissions.
19. Mr. Lawson advanced one other argument which I will mention for the sake of completeness, but which I need not address. He pointed out that although the warrant had unquestionably been obtained under s. 8 of PACE, that was not the only possible route. The briefing sheet reveals that the original intention had apparently been to apply under s. 4 of the Protection of Children Act 1978; and the police also have powers under s. 18 of PACE to carry out a search where they have made an arrest. Neither section incorporates provisions equivalent to those in s. 8 (3); and Mr. Lawson relies on the recent decision of the Privy Council in P.F. Sugrue Ltd. v. Attorney General [2005] UKPC 44 as establishing that where an officer has mistakenly seized material under one power his action may nevertheless be lawful if he could have acted under another power, albeit that that was unappreciated at the time. It is unnecessary for me to decide whether that argument is available on the facts of the present case.

(3) The grounds for believing that the conditions specified in s-s. (3) were satisfied

20. As noted above, whoever completed the Information carelessly failed to identify which of the alternatives under s. 8 (3) was relied on. I do not believe that it follows that the magistrate could not have been satisfied that there were reasonable grounds for believing that at least one of those conditions applied. If the other material before him inevitably led to the conclusion that there were such grounds the defectiveness of the form would not matter. In my judgment the magistrate must in the circumstances of the present case inevitably have concluded (or, which is sufficient, would have done had he explicitly considered the point) that there were reasonable grounds to believe that – in the language of condition (d) – the purpose of a search might be frustrated or seriously prejudiced unless a constable arriving at the premises could secure immediate entry. There must, as a matter of common sense, be a real risk that if any person who has in fact downloaded indecent images of children is given advance notice that the police wish to conduct a search on a voluntary basis he will take steps to conceal or destroy evidence of his activities: how effectively he may be able to do so will depend on the circumstances, but the police cannot know in advance precisely how great the risk is.
21. Mr. Jones submits that while that may be correct as a general proposition its application in a particular case depends on the facts which are known, or which should have been known if proper enquiries had been made, about the person whose premises it is proposed to search. In the case of a highly respectable citizen such as the Claimant, the risk of his attempting to obstruct the purpose of a search would be negligible. I cannot accept this. If, as I believe it is reasonable to assume, persons guilty of downloading internet pornography may take steps to frustrate an anticipated search, it is practically impossible to make a reasoned pre-assessment of how serious the risk is in any given case; and in any event I can see no rational basis for concluding that the risk can be discounted in cases where the suspect is of good character – it could indeed be argued that such people have a particular incentive to cover their tracks.

Conclusion

22. The way in which both the Information and the search warrant which led to the search of the Claimant's home on 24^th May were completed was unsatisfactory and reflects no credit on either the police or the Court staff involved. I hope they will learn lessons. There will be cases where carelessness of the kind which occurred here will result in a search being unlawful and the police being liable in damages. But on the particular facts of this case I do not believe that that result follows. The substantive decisions on the part of the police to seek a search warrant, and on the part of the magistrate to grant one, were in my judgment entirely reasonable on the material available; and the particular formal defects in the paperwork are, for the reasons given, not such as to invalidate the warrant.

(b) THE DECISION TO ARREST THE CLAIMANT

23. The lawfulness of the Claimant's arrest was governed by the provisions of s. 24 of PACE. S. 24 in its current form was substituted, with effect from 1^st January 2006, by s. 110 (1) of the 2005 Act. The principal effect of the change was to abolish the previous distinction between arrestable and non-arrestable offences; but there was also introduced a more elaborate definition of the circumstances in which a constable may lawfully make an arrest. To coincide with the introduction of the new statutory provisions, a new Code G has been issued under s. 66 of PACE giving guidance on the exercise of the power of arrest.
24. In the present case the legal basis for the Claimant's arrest was s. 24 (2), which gives a constable a power to arrest where he has reasonable grounds to believe that an offence has been committed and to suspect the person arrested of being guilty of that offence. I have no doubt that D.C. D had such grounds in the present case, for essentially the same reasons as set out in paras 12 and 14 above: the possibility, acknowledged in the briefing sheet, that the offences may have been committed by someone else in the Claimant's household did not in my judgment mean that there were no reasonable grounds for suspecting the Claimant.
25. However, it is necessary also to consider s-s. (4), which requires the constable to have reasonable grounds for believing that "for one or more of the reasons mentioned in subsection (5) it is necessary to arrest [the suspect]". I need not set out all the admissible reasons listed in s-s. (5), since the arrest record shows that the reason relied on by D.C. D was (e), namely "to allow the prompt and effective investigation of the offence or of the conduct of the person in question". It seems reasonably clear – though, as discussed below, D.C. D gives no explicit evidence on the point – that the purpose of the arrest was in order to be able to take the Claimant to the police station that day and conduct an immediate interview under caution; and that plainly falls within the phrase "prompt and effective investigation". What Mr. Jones submits, however, is that it could not reasonably have been considered necessary to arrest the Claimant in order to achieve such an interview. The correct course, when the plans for the searches were being made, would have been to instruct officers to see whether the suspect was willing to attend voluntarily for interview and to arrest him if, but only if, he was not prepared to do so: only in that case could an arrest reasonably be considered "necessary". That was not the course which D.C. D took: the Claimant was arrested automatically, without any enquiry being made as to whether he would be willing to attend voluntarily. In fact, though it is not necessary to his submission to establish this, all the evidence is that the Claimant would have agreed: his attitude at the time of the search was, as it has remained subsequently, entirely co-operative.
26. The terms of s-s. (5) are new and there is no authority on their effect. The previous s. 24 (6) provided simply that where a constable had reasonable grounds to suspect a person of having committed an arrestable offence he had a power to arrest without a warrant. The limits on the exercise of that power, and the extent of its reviewability, have been considered in a number of cases – of which I was referred in particular to Holgate-Mohammed v. Duke [1984] 1 AC 437, Cumming v. Chief Constable of Northumbria [2003] EWCA Civ 1844 and Al Fayed v. Commissioner of Metropolitan Police [2004] EWCA Civ 1579. In Al Fayed Auld LJ, at para. 83, noted that the earlier authorities established that the exercise of the discretion was reviewable only on Wednesbury principles. He went on to say:

(4) The requirement of Wednesbury reasonableness, given the burden on the claimant to establish that the arresting officer's exercise or non-exercise of discretion to arrest him was unlawful, may, depending on the circumstances of each case, be modified where appropriate by the human rights jurisprudence to some of which I have referred, so as to narrow, where appropriate, the traditionally generous ambit of Wednesbury discretion - Cumming, per Latham LJ at para 26. It is not, as a norm, to be equated with necessity; neither Article 5 nor section 24(6) so provide. The extent, if at all, of that narrowing of the ambit or lightening of the burden on the claimant will depend on the nature of the human right in play – in this context one of the most fundamental, the Article 5 right to liberty. In my view, it will also depend on how substantial an interference with that right, in all or any of the senses mentioned in paragraph 82 above, an arrest in any particular circumstances constitutes. The more substantial the interference, the narrower the otherwise generous Wednesbury ambit of reasonableness becomes. See the principles laid down by the House of Lords in R v. SSHD, ex p Bugdaycay [1987] AC 514, and in R v SSHD, ex p Brind [1991] 1 AC 696, see e.g. per Lord Bridge of Harwich, at 748F-747B. Latham LJ had also to consider this aspect in Cumming, where, following Lord Diplock in Mohammed-Holgate, at 444G-445C, he said at paragraphs 43 and 44:

43. … it seems to me that it is necessary to bear in mind that the right to liberty under Article 5 was engaged and that any decision to arrest had to take into account the importance of this right even though the Human Rights Act was not in force at the time. … The court must consider with care whether or not the decision to arrest was one which no police officer, applying his mind to the matter could reasonably take bearing in mind the effect on the appellants' right to liberty. …

44. … It has to be remembered that the protection provided by Article 5 is against arbitrary arrest. The European Court of Human Rights in Fox, Campbell and Hartley held that the protection required by the article was met by the requirement that there must be 'reasonable grounds' for the arrest. I do not therefore consider that Article 5 required the court to evaluate the exercise of discretion in any different way from the exercise of any other executive discretion, although it must do so … in the light of the important right to liberty which was at stake.

(5) It is a legitimate, but not on that account necessarily Wednesbury reasonable use of the power, to arrest in order to interview and/or to seek further evidence – section 37(2) and, Holgate-Mohammed, per Lord Diplock at 445E-G.

(6) It may be Wednesbury reasonable to use the section 24(6) power of arrest as a means of exercising some control over a suspect with a view to securing a confession or other information where there is a need to bring matters to a head speedily, for example to preserve evidence or to prevent the further commission of crime – see e.g. Cumming, per Latham LJ at para 44.

27. It may be arguable – the point was not addressed before me - that the rigour of the test to be applied has been intensified by the introduction of the new s-s. (5). But the nature of the Court's review will be the same as explained in Al Fayed. It is clear – and well illustrated by the approach taken in such cases as Cumming and Al Fayed itself - that consideration of whether the exercise of the discretion now required by s-s. (5) was lawful involves a detailed and fact-sensitive enquiry into the decision-making process of the constable making the arrest. Mr. Lawson submits that I ought not to embark on such an exercise in these proceedings. Not only are they ill-adapted for resolving detailed issues of fact (see para. 6 above) but they have come on urgently and with very limited time for the preparation of evidence, and the issues only properly emerged in the course of the hearing. As regards the latter point, he points out that although the Claim Form challenged the lawfulness of the arrest, it referred to s. 24 of PACE only in its pre-amendment form, without therefore any reference to s-ss. (4) and (5). Perhaps in consequence (though in fact I am doubtful of this – see below) D.C. D in his witness statement does not attempt to explain his reasons for making an arrest beyond the extremely general statement that "I spoke with [the Claimant] about why the search warrant was being executed and satisfied myself that it would be appropriate to arrest [him]". Nor is there any evidence as to the considerations lying behind the general policy which appears from the briefing sheet, which itself was only produced in the course of the hearing: although the decision must ultimately be that of D.C. D he will have been entitled to take that instruction into account. Mr. Lawson submits that I ought to leave the Claimant to bring, if he chooses, a private-law action.
28. Mr. Jones submits that I can and should resolve the issue in these proceedings. He submits that it is adequately clear that D.C. D did not exercise any independent consideration: he simply applied the policy in the briefing sheet. It is clear from authority that the mere unthinking application of a standard policy to arrest in all cases of a certain class will not be lawful. He acknowledges that the Claim Form did not refer to the Act in its current form, and that the main focus may have been on the alleged absence of reasonable grounds for suspicion; but it did nevertheless also squarely allege an improper exercise of the discretion conferred by (as it was then thought) s. 24 (6). D.C. D was thus on notice that his grounds for arresting the Claimant, even if he had a reasonable suspicion that he had committed an offence, were in issue, and if he had more to say than appears in his witness statement he should have said it.
29. On balance I do not think that I ought to decide the question. I would have done so if I had been satisfied that the evidence was clear and reasonably complete and that there were strong reasons why the question had to be urgently determined. But, as to the former, D.C. D's statement that he "satisfied himself that it would be appropriate to arrest [the Claimant]" plainly requires exploration; and I should also like to know more about the reasons underlying the expectation (to put it no higher) expressed in the briefing sheet that all suspects would be arrested. While it is correct that the issue of the exercise of discretion by D.C. D was raised in the Claim Form, it is right that it was not at the forefront of the Claimant's case: that may be illustrated by the fact that it was only in supplemental notes filed after the conclusion of argument that I was referred to either Al Fayed or Code G. It is not satisfactory to decide important issues on the hoof in this way. As to the Claimant's reasons for wanting the point determined now, it is clear from his evidence that the root of his difficulties is not the fact that he has been arrested but the fact that he is under investigation: even if I were to proceed to quash the arrest that would not halt the investigation. It was suggested in the Claim Form, though not explicitly confirmed in evidence, that a person seeking to enter the United States has to answer a question whether he has been arrested, and will not be admitted if they say that they have; but even if that be right I am not convinced that the removal of that prejudice (on the assumption that an unlawful arrest need not be disclosed) is a sufficient reason for me to proceed in what would otherwise be an inappropriate case.
30. Mr. Jones submitted that even if the arrest was lawful the decision to set a bail date of 6^th December was unreasonable because the period was too long. Even if that criticism were fair, I do not believe that the length of the period of bail is a live issue in the events which have happened or that the Claimant has suffered any prejudice from the bail date as such which calls for relief. The real question is whether it is lawful for the investigation to continue, and the timetable, both to date and as projected, may be relevant to that issue, which I consider below. There is no reason to believe that the length of the investigation is a product of the bail date chosen.

(3) THE LAWFULNESS OF THE ONGOING INVESTIGATION

31. It is the Claimant's case that, whatever it may have been reasonable for the police to believe on the basis of the information available to them at the time of the decision to apply for a warrant and to arrest the Claimant, on the material now available there is no justification for the investigation to continue. Mr. Jones relies on the points which I have set out in para. 3 above. I am invited to make a declaration "that the continuing investigation of the Claimant by the First Defendant into the allegations in respect of which the Claimant was bailed on 24 May 2006 is unlawful": Mr. Jones accepted that that is tantamount to an order prohibiting the continuation of the investigation. Although logically his case would be the same however expeditiously the police investigations had proceeded, he submits that the case for granting relief is reinforced by the unduly leisurely timetable which has in fact been followed. The investigations in the present case have already lasted over three months, which should have been ample for the police to reach a decision; yet the bail date of 6^th December suggests that a decision is still months away. It is intolerable that the matter should be left hanging over him for such a period.
32. Mr. Lawson takes the preliminary point that the police ought not without very good reason be put in the potentially highly awkward position of having to explain and justify the course of an ongoing investigation. But he has nevertheless, without prejudice to that point, been prepared to state at least in general terms the present state of the police's thinking. Specifically:

- They do not accept that the case that the transactions in question were the result of identity theft is in any way compelling. On present indications it is a possibility but not a probability. I need not rehearse their detailed reasons, but they include the facts

(a) that the person who accessed the Landslide sites used not only the Claimant's credit card details but also a password and an e-mail address (namely P's: see para. 3 above) which were independently associated with the Claimant's home – an identity thief might have stolen those too, but it is much less likely; and

(b) importantly, that one of the seized computers (described on behalf of the Claimant as "the family computer", i.e. not one used primarily by him) was found to contain a five-page pornographic story about sex with children, apparently downloaded from the internet, together with records of two visits to internet sites with names suggesting a similar subject-matter: this, it is said, strongly suggests that there was someone at the Claimant's home with an interest in child sex, and it would be remarkable if the identity thief had by pure coincidence happened to access the Landslide sites in the name of a person who (or a member of whose family) had an active interest in child pornography.

However:

- They do accept that there are strong indications that the person responsible for the Landslide transactions was P and not the Claimant. Again, it is unnecessary to go into great detail, but the most telling points are simply that the e-mail and password given to Landslide were P's and have no association with the Claimant. Mr. Lawson accepted my formulation that "the focus of the enquiry had now shifted to P".

But the police are not at a stage in their enquiries where they are prepared to exclude the Claimant. They believe that it would be wrong to do so until they have interviewed P and heard what he has to say. Mr. Lawson was not prepared to commit to a timetable: indeed what he told the Court on instructions suggested that the matter was likely to remain open for several more weeks.

33. Mr. Jones was not able to show me any precedent for the Court intervening to, in effect, close down an ongoing investigation on the basis that there was no prospect of a prosecution eventuating. That does not mean that such relief could never be granted, but it reinforces my own view that it will only be appropriate, if at all, in the most exceptional cases. Where, as I have found to be the case here, there were unquestionably reasonable grounds initially to suspect a person under investigation, the Court should be very slow to second-guess the police in deciding at what point he can be dismissed from the enquiry. In order that it could do so safely the Court would have to be put in possession of all the material that was before the investigators and be given a good understanding of all the many factors that would legitimately be taken into account in making a decision of this kind. That would be highly laborious and would also involve an unwelcome blurring of the separate roles of Court and prosecutor/investigator. Nor is it clear exactly what form of relief would be appropriate. The continuance of an investigation is a factual rather than a legal state of affairs: it has no formal status and until proceedings are commenced by a charge there is no public action taken. Investigations may continue at various levels of intensity and may for good reason be shelved without prejudice to the possibility of being later revived in different circumstances: they do not therefore necessarily have a defined conclusion. It would be highly undesirable to put the police in the position where they had to issue public declarations of innocence.
34. Against that unpromising background I have considered whether the refusal of the police formally to close their investigation of the Claimant is so inexplicable as to require to be characterised as irrational. I do not believe that it is. The evidence before me falls far short of establishing that the police are bound to conclude that the Claimant was the victim of identity theft (or, perhaps more accurately, that the evidence of identity theft is sufficiently compelling to render a prosecution impossible). It is, I think, undesirable that I should give my reasons in detail: it suffices to say that, apart from any other point, the two points referred to at para. 31 above are a sufficient contra-indication to the identity theft theory to justify continued investigation. The position as regards P is different. The question is whether, given that it is acknowledged that he is now the prime suspect, it is nevertheless reasonable for the police to wish to interview him before reaching any final conclusion. In my view it is. It is impossible to know what he may say, and I can understand the view that it would be premature to exclude the Claimant from the enquiry at this stage.
35. If that is right, I cannot believe that any different conclusion could be justified on the basis that the police have been guilty of undue delay in their investigations to date. As regards this, various allegations have been made but Mr. Jones's principal criticism is – as noted at para. 3 above - that the police could have discovered months ago that the e-mail address given by the person who accessed the site was P's: if they had, P could have been interviewed weeks ago. Mr. Lawson does not accept that that is a fair criticism, and he in any event points out that information about P's ownership of the e-mail address (and the password) could have been volunteered by the Claimant, at least if he had made enquiries of P himself; and indeed I understood Mr. Jones to acknowledge that in the early stages the Claimant had tried deliberately to keep P out of the investigation – which is understandable in human terms but sits ill with any criticism of the police for not appreciating his potential role earlier. But even if there were room for criticism of the police here, the fact that there may have been unjustifiable delay in some part of their enquiries cannot in my view justify requiring them to close an otherwise legitimate investigation and (ex hypothesi) abandon the possibility of prosecuting a person who may have committed a serious offence.
36. In reaching this conclusion I do not ignore the serious difficulties which the continuance of the investigation will cause for the Claimant, as explained at para. 4 above. But these are alas unavoidable. Innocent people will sometimes be legitimately suspected of serious criminal offences. For such a person to have to endure an investigation, with all the stresses and problems to which that may give rise, is a great misfortune, but those consequences necessarily follow from the fact that serious crimes have to be investigated. If the Claimant is indeed innocent I have every sympathy with his predicament, but it does not mean that anything has gone wrong with the system or that the police have acted unlawfully.
37. Having said that, I have no doubt that the police are obliged to act as sensitively and humanely as is consistent with their duty properly to investigate. In the context of this case – being on notice, as they are, of the acute difficulties which the Claimant is suffering – that means that they should take the remaining steps which they think necessary as quickly as they properly can. The sooner P is interviewed the better, and I would hope that the somewhat pessimistic timetable indicated by Mr. Lawson could be accelerated.
38. I would also point out that the present position of the police, as recorded in para. 31 above, has now been stated publicly and on the record. It may be, though this is for the Claimant to judge, that some at least of the concerns which he fears will be felt by his employer and/or the regulatory authorities will be alleviated if those statements are drawn to their attention. Responsible employers and responsible regulators will, I am sure, wish to proceed, except where there are very strong countervailing considerations, on the basis that a man is innocent until he is proved guilty; and they will no doubt appreciate that the Claimant has not even been, and may never be, charged with any offence.

Conclusion

39. For the reasons given above I dismiss this application.