England and Wales High Court (Administrative Court) Decisions

IN THE HIGH COURT OF JUSTICE
DIVISIONAL

		Royal Courts of Justice Strand, London, WC2A 2LL
		23/05/2008

Lord Justice Latham :

1. The first claimant is the manager of Portsmouth City Football Club "the Club"; and the second claimant is his wife. In 2006, the first defendant began investigating suspected conspiracy to defraud, false accounting and money laundering offences surrounding the transfer activity of professional football players at the Club and elsewhere. It was suspected that the first claimant as manager of the Club, together with the Managing Director Peter Storrie, and the Club's then owner and Chairman Milan Mandaric may have conspired together to make disguised payments to a player, Andy Faye, using the agent William McKay to receive payments offshore. These enquiries have been stimulated by information obtained from the French authorities.
2. In pursuance of these enquiries, the first defendant was granted Production Orders pursuant to section 345 of the Proceeds of Crime Act 2002 ("POCA") by Her Honour Judge Goddard Q.C. sitting at the Central Criminal Court. These orders were directed essentially at the Club, and two other football clubs, Glasgow Rangers and Newcastle United, requiring them to supply documents in respect of a number of named transfers.
3. On 11^th July 2007, unsatisfied by the material that had been obtained, and suspicious that William McKay had been "tipped off" as to the nature of the police investigations, the first defendant made a further application to Her Honour Judge Goddard Q.C. at the Central Criminal Court for warrants on this occasion under section 9 and schedule 1 paragraph 12 of the Police and Criminal Evidence Act 1984 ("PACE"). The terms of these warrants were such as to allow searches of the business premises of the same clubs with a view to obtaining access, inter alia, to excluded material or special procedure material within the meaning of PACE. These warrants were executed. Thereafter in strongly worded correspondence, solicitors acting for the first claimant complained about the way the search had been carried out at the Club. Amongst other things files containing correspondence between solicitors and the Club and the first claimant were taken. We are not directly concerned with any dispute that might arise out of the execution of that warrant. The correspondence does make it clear thereafter that the first claimant was stating that he was prepared to co-operate with the police, but was anxious that every effort should be taken to ensure that publicity, which had already taken place in relation to this enquiry, should be avoided or at least kept to the minimum. Among the correspondence was a fax from Detective Inspector Manley the officer in charge of the enquiry to a solicitor called Mr Fraser then acting for the first claimant, thanking him for his co-operation and for the assistance given by the Club following the execution of the search warrant. This fax is dated the 2^nd August 2007.
4. From the material that we have, which includes extracts from D.I. Manley's "Decision Log", the police considered that they had enough information to proceed with the investigation to the extent of requiring searches of the home addresses of some of those who were considered to be involved, and at the same time as the execution of the search warrants, their arrest for the purposes of interview. To some extent these decisions would appear to have been informed by the fact that the police suspected there to have been contact between the relevant individuals which had inhibited the police from obtaining all the information that they wished. It was in these circumstances that the warrant in relation to the first claimant's house was obtained, and his arrest was effected about which the claimants make complaint in these proceedings. I propose to deal with the warrant and the arrest separately.

The Warrant

5. The warrant in question was granted on the 19^th November 2007 by a Justice of the Peace of the City of London Magistrates Court under section 8 of PACE. It was granted on an application made by Detective Constable Driscoll under section 8 of PACE. The schedule to the application and the warrant set out eight premises, including the claimants' property, and/or premises occupied by Milan Manderic who had at one time as I have said, been the owner and Chairman of the Club. The warrant was executed at 06.00 hours on the 29^th November 2007 to coincide with the execution of the warrants at the other addresses, and the arrest of a number of persons. The intention was that the first claimant should be arrested at that stage; but he was in Germany. As a consequence when the officers entered the claimant's home, only the second claimant was present. The search was witnessed by a number of reporters from the Sun newspaper; and the resultant publicity was extensive and damaging.
6. The claimants said that not only was the warrant defective, and the search therefore unlawful, but that the circumstances in which the warrant was executed, and the resulting publicity were also matters about which they could properly complain, in particular on the grounds that the evidence suggests that The Sun newspaper obtained advance information about the intention of executing the warrant from the investigating officers.
7. So far as the validity of the warrant is concerned, the claimants put forward five grounds, each of which, it is submitted, renders the issue of the warrant unlawful. First, the Justice of the Peace had no power to grant a warrant to search for the material specified in it. Second, none of the statutory pre conditions in section 8(1)(e) and (3) of PACE were satisfied. Third, the Justice of the Peace had no power to grant a warrant which was both a "specific premises warrant" and an "all premises warrant". Fourth, the warrant was drawn too widely. Fifth, it purports to authorise an entry and search of premises in Scotland, one of the premises identified in the schedule to which I have already referred.
8. The relevant provisions of PACE are as follows:

"8.- Power of Justice of the Peace to authorise entry and 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 –

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

(b) that there is material on premises mentioned in sub section (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; 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 sub section (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 I 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").

(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.

…"

9. Section 9 enables a constable to obtain access to excluded material, as defined in section 11, and special procedure material as defined in section 14. The procedure is set out in schedule 1 to the Act and requires an application to a circuit judge. These were the provisions under which the warrants were granted in July 2007.
10. Section 15 (1) sets out the procedure to be followed by constables when making applications for warrants. By subsection (1) an entry on or search of premises under a warrant is unlawful unless it complies with the provisions of section 15, and section 16, which sets out the procedures which have to be followed when a warrant is executed. So far as the obtaining of the warrant is concerned, the constable must state the ground on which he makes the application, the enactment under which the warrant would be issued, he must identify the articles sought, and the application must be supported by information in writing. Any constable making an application is required to answer on oath any questions that may be raised in the ex parte hearing. The warrant must specify each set of premises to be searched.
11. By section 16 (4) entry under such a warrant must be at a reasonable hour unless it appears to a constable executing it that the purpose of a search may be frustrated on an entry at a reasonable hour. And by sub section (5) when premises are occupied, the constable executing the warrant must not only produce the warrant to the person in occupation, but supply him with a copy of it.
12. As I have said, the application for the warrant was made by Detective Constable Driscoll at an ex parte hearing. The application was supported by information setting out the basis of the police suspicions in relation to the activities in question. It was on a pro forma document containing a number of printed alternatives which require deletion of inapplicable alternatives. The items identified as the material that was likely to be relevant evidence were precisely the same as those which had been identified in the application to the circuit judge for the section 9 and schedule 1 warrant with the addition of the words "which does not include material or information that is or consists of items subject to legal privilege or excluded material or information." Item (c) of the pro forma identifies each of the four conditions in section 8(3) of PACE and directs the applicant to delete whichever is not applicable. None of the four alternatives has been deleted. Further, although not critical to the validity of this particular warrant, the pro forma also required in (d) the applicant to identify whether entry is to be on one or more than one occasions. Again, none of the alternatives has been deleted.
13. Turning then to the grounds upon which it is said that the warrant was unlawfully issued, the first thing that has to be said is that the failures that I have already referred to are wholly unacceptable. This court has complained in the past about slipshod completion of application forms such as this, the last occasion being the judgment of Underhill J in R (on the application of "C") v The Chief Constable of "A" Police and another [2006] EWHC 2352 (Admin). The obtaining of a search warrant is never to be treated as a formality. It authorises the invasion of a person's home. All the material necessary to justify the grant of a warrant should be contained in the information provided on the form. If the magistrate or judge in the case of an application under section 9, does require any further information in order to satisfy himself that the warrant is justified, a note should be made of the additional information so that there is a proper record of the full basis upon which the warrant has been granted. In the present case, the only evidence, apart from the information itself, is contained in the witness statement of D.C. Driscoll. He accepts that the description of the material sought was essentially the same as that sought in the earlier warrants, except for the words excluding from the search documents which attracted legal privilege or excluded material. His explanation for the fact the same categories of documents and material were identified was that the July applications related to business premises in which excluded material and special procedure material might well be found so that a warrant under section 9 and schedule 1 was appropriate, whereas the premises identified in the application which we are concerned in general related to private addresses where such material was unlikely to be found. In any event, he said, any such excluded or special procedure material and any material subject to legal privilege would be properly treated, in other words separated and appropriately bagged. Nowhere does he say that he identified to the magistrate which of the conditions in section 8(3) was the one upon which he was relying to justify the warrant.
14. Mr Alun Jones, in support of the first ground states that this material could not possibly have justified the magistrate in granting the warrant. The argument in part encompasses the fourth ground. He submits that the description of the material is so far ranging as to justify the seizure of any document or means of communication. The description of the relevant material of its very nature indicates that what has been sought is capable of being excluded material or special procedure material, as it would appear to relate to matters which could involve personal data relating to a footballer, confidential material and, by reason of the fact the police were aware by reason of the letter from the solicitors in July that complaints were being made about the seizure of documents in respect of which legal privilege could be claimed, material which was so covered. The very fact that a section 9 and schedule 1 warrant had been applied for in respect of material of the same description, makes it clear that the police must have expected such material to be included.
15. I have no doubt that the magistrate should have been informed either in the information or orally, that material similarly described had been the subject matter of the earlier warrants. It seems to me however that the police were justified in drawing the description of the material widely in the circumstances of the case. Having done so, the only realistic way of excluding the material which could not properly be seized pursuant to the warrant was by using the excluding words at the end of the description. In other words, even if the magistrate had been told what he should have been told, I can see no justification for his having refused the warrant simply on the grounds that it was widely drawn and there would be a need to make provision for ensuring that material which should not be seized was not seized. It is not necessary, in those circumstances, to enter into the debate about what constitutes confidential material for the purposes of section 14(2)-(4) of PACE. Further, I can see no justification on the material before us for concluding that the application was made in bad faith, so the question of what the consequence would be if the police had so acted does not arise in this case.
16. But as to the second ground, I can see no answer to Mr Jones' argument. The application for the warrant did not identify which of the conditions in section 8 (3) was being relied on; and, as I have said, I cannot see anything in D.C. Driscoll's statement which clearly identifies the fact that the magistrate was clearly told anything which could remedy that defect. I am not prepared to infer from the contents of the statement that the magistrate must have been told, or that there is enough in the statement to indicate that there was material before the magistrate which could have justified him in concluding that at least one of the conditions was met. As I have already said, it is wholly unsatisfactory, where the validity of such a warrant is in issue, to be asked to rely on anything other than the application itself, and if necessary, a proper note or record of any further information given orally to the magistrate. As the conditions set out in 8(3) have accordingly not been met, the warrant was unlawfully issued.
17. Strictly, as a result, it is not necessary to consider the other grounds relating to the issue of the warrant. But it may be helpful if I consider them shortly. As far as the third ground is concerned, whilst the act distinguishes descriptively between "a specific premises warrant" and an "all premises warrant", there is no indication in PACE itself that one warrant cannot include both types. In those circumstances, I do not think that we should conclude that Parliament intended such a warrant to be unlawful. Provided the relevant information is given to the magistrate, there can be no vice in such a warrant. Accordingly, I would reject this ground. The fourth ground relates to the fact that one of the addresses on the schedule to the application in Scotland. The police evidence makes it clear that a warrant was properly granted in Scotland relating to the Scottish premises. The fact that that address was included in the schedule in no way invalidates the warrant granted in respect of the claimant's premises.
18. Turning to the grounds, which relate to the entry and search of the claimant's premises, once again because of my conclusions in relation to the issues of the warrant, it is not strictly necessary to deal with these issues. But it may be helpful if I set out my views. One of the major complaints, and understandably so, was the fact that the search took place in the presence of journalists from The Sun newspaper. But that can only have relevance if there was material before us which could justify the conclusion that the police had in some way procured the presence of the journalists. Whatever suspicions the claimants may have, I do not consider that we could properly conclude that there had indeed been any collusion between the police and the press. In order to make such a finding, we would have had to embark on a detailed examination of the evidence, including hearing from the police officers concerned. That is not the exercise we can carry out on this application, accordingly this ground fails.
19. Another understandable complaint is that the search took place at 06.06 hours. This cannot be described it is submitted, as a "reasonable hour" as required by section 16(3) of PACE. The police response is that they intended to execute all the search warrants and arrest all those whom they intended to arrest at the same time so as to ensure that there was no communication between the various proposed interviewees. In those circumstances it was necessary to carry out the search at a time when the police could be reasonably confident that all those they sought would be at home. In order fully to evaluate the validity of that assertion, the court would again have been required to hear evidence in relation to the operational needs of the exercise. Once again, we can only, on the present application deal with matter on the material before us, and on that material there is no basis on which we could conclude that the requirements of section 16 (3) had not been met.
20. The claimants further assert that the search went beyond that which was justified by the warrant. It is said that multiple entries were effected. I have to confess that I am not clear on what evidence that ground is essentially based. The search took place on one occasion. As for its extent it is true that a substantial amount of material was seen by the police, and recorded in the search log, but only a lap top computer and some bank statements were in fact removed. But that in it itself provides no justification for concluding that the search was excessive or that those items were removed wrongly.
21. There is however substance in the complaint, that the copy of the warrant provided to the second claimant failed to specify the address of her home. This is agreed as a fact. It is further agreed that the second claimant was not shown the schedule to the warrant, and accordingly was not shown the fact that her address was on the warrant. The police explained this by saying that they did not wish her to know what other addresses were being searched. In my view that is no answer. The second claimant was entitled to be shown the warrant, and to a copy of the warrant, which must include the schedule to the warrant. What any householder wants to be satisfied about if his house is to be searched is not only that there is a warrant in existence, but that it refers to his or her address. There should be no difficulty in ensuring that the address is identified on the warrant or the schedule; there can be no difficulty in ensuring that no other addresses are identified. Either separate warrants should be obtained, or the other addresses can be redacted. In my judgment, accordingly, the execution of the warrant was not valid, the requirements of section 16(5) of PACE had not been satisfied.

The arrest

22. As I have said, the first claimant was in Germany on the morning that the warrant was executed. As I understand the evidence, the intention had been to arrest him at that time, had he been present at the premises. As it was, arrangements were made for him to go to Chichester Police Station on his arrival back in England with his solicitor. That took place. Once again, he complains that The Sun had been tipped off, so their journalists greeted his arrival at the police station. Within a very short time of his arrival he was arrested and taken into the custody suite. The custody record in fact shows the arrest to be at the same time as his arrival at the police station; and the custody officer authorised his detention some two minutes later. He was subsequently interviewed and released on bail to appear at Bishopsgate Police Station on 20^th February 2008. These proceedings were brought on the 23^rd January 2008. There was correspondence which resulted in a letter from the City of London police on 29^th January 2008 stating that they "have decided to extend your clients bail to 23^rd May 2008. Written confirmation to bail alterations will be sent out tomorrow."
23. The first claimant seeks to challenge the decision to arrest him, to detain him, to bail him, and then to extend bail. As far as the decision to arrest is concerned, I accept that, as this court has said on a number of previous occasions, such a decision is amenable to judicial review in appropriate circumstances. It is the exercise of a discretion which can be challenged on Wednesbury or other grounds. In the present case, the first claimant submits as follows: there were no grounds on which the discretion could properly have been exercised. The first claimant had always made himself available to the police, and indicated that he was willing to answer questions and help with the police enquiries. There was accordingly no justification for the decision to arrest. As far as detention was concerned, the custody officer cannot have given proper consideration to the justification for detention in view of the fact that he authorised detention only two minutes after the arrest. There was, further, no justification for his release on bail. There was no indication that that was required for any statutory purpose. And finally, the extension of bail to the 23^rd May 2008 was one which was made without power to make it under any of the provisions of PACE.
24. As far as the justification for arrest is concerned, we have been provided with substantial background information by the police on the enquiries that they carried out, and relevant extracts from D. I. Manley's "Decision Log". From these it is clear that in order to evaluate the justification for arrest, there would have to be a substantial factual inquiry, in the same way as there would have to be a factual inquiry into the circumstances surrounding the decisions on the execution of the warrant, which are not appropriate for this court to undertake on the material before us, for the same reasons as Underhill J gave in the case of "C" in paragraphs 22 ff of his judgment. As to the decision to detain, that would also require evidence of the state of mind of the custody officer in the light of the fact that he had already had to deal with a significant number of other detainees in relation to the same operation, and would have had information about the nature of the investigation as a result. The same comment applies in relation to the decision to bail the first claimant.
25. In those circumstances, I do not consider that there is anything in the material before us which could justify us making any order in relation to the decisions to arrest, detain or bail the first claimant. I would refuse permission to apply for judicial review on those grounds. As far as the decision to extend bail is concerned, assuming that the original decision to bail cannot be challenged, I would not give leave to challenge the extension, even if the first claimant's argument is correct, in the exercise of discretion. The extension is clearly related to the timing of these proceedings.
26. For the reasons that I have given, I would therefore grant leave to apply for judicial review of the issue and execution of the warrant, declare that the warrant was issued unlawfully and quash the warrant.

Mr Justice Underhill :

27. I agree. I wish to add only one point in relation to my judgment in C, to which My Lord has referred. I said at paragraph 17 of that judgment that even in a case where a justice is misled, in bad faith, by the officer seeking the warrant, the warrant would not be invalidated. The observation was obiter because what I was there concerned with was simply an allegation that the police had carelessly failed to ascertain facts which, if known and revealed to the justice issuing the warrant, might have put matters in a different light. In the light of the authorities put before us in the present case, I am clear that what I said was wrong. Those authorities clearly establish that a failure by the police to disclose material facts known to them may invalidate the warrant.