QUEEN'S BENCH DIVISION
Strand, London, WC2A 2LL
B e f o r e :
MR JUSTICE WILKIE
| PETER JOSEPH POWER-HYNES
|- and -
|(1) NORWICH MAGISTRATES' COURT
|(2) THE CHIEF CONSTABLE OF NORFOLK
Adam Clemens (instructed by Legal Services, Norfolk Constabulary) for the Second Defendant
The First Defendant was not present or represented
Hearing date: 12 June 2009
Crown Copyright ©
Lord Justice Stanley Burnton:
The grounds of the application
(i) That the warrant did not adequately identify the premises to be searched;
(ii) The warrant related to special procedure material, for which justices cannot issue a warrant;
(iii) The warrant was too broad and uncertain.
(iv) The warrant was unnecessary: an order for production would have adequately elicited the material sought by the police;
(v) The police failed to comply with the duty of full and frank disclosure when applying for the warrant.
The facts in summary
The district judge was given details of an alleged wide-reaching fraud of £9.7 million relating to a well-known Norwich businessman. Nine sets of premises were identified at addresses in different parts of the country. No challenge to the warrant has been made in respect of any of the other premises subject to search. In relation to the specific grounds in this claim:
1. The judge was informed that 9 Marryat Square was also known as 16 The Coda Centre and the postcodes of both were cited in the application as being the same.
2. The application specifically excluded items subject to legally privileged, excluded material or special procedure material.
3. The extent of the warrant was justified having regard to the nature and sophistication of the alleged offence.
4. The judge was satisfied that had notice of the police intention been given, it was unlikely that incriminating material would have been retained or surrendered.
5. The judge was satisfied that the complainant had suffered a substantial loss and that an indictable offence had been committed.
6. Having heard directly from the officer in the case, the judge was satisfied that he had received adequate information about the alleged offence and the police inquiry to issue the warrant.
"… an application was made by DC 616 Christopher Gay for the issue of a warrant under section 8 of the Police and Criminal Evidence Act 1984 to enter the premises described in the attached schedule [to] search for
Documents and records (Electronic or otherwise) relating to high value financial transactions.
Authority is hereby given for any constable …. to enter the said premises …. to search for the material in respect of which the application is made."
"Met Police have no entries on their intelligence system for the address or the occupant.
The purpose of this search is to obtain evidence of [HCAF] its involvement in this matter, Hunt's links to this company and other individuals under investigation, and identify bank accounts, assets and details of financial transactions he or the company have been involved in.
This company is believed to be a vehicle for fraud and it is envisaged that any documents or records held for this company at the address should be seized."
The applicable legislative provisions
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 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
(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) In this Act "relevant evidence", in relation to an offence, means anything that would be admissible in evidence at a trial for the offence.
(5) The power to issue a warrant conferred by this section is in addition to any such power otherwise conferred.
Special provisions as to access.
9.—(1) A constable may obtain access to excluded material or special procedure material for the purposes of a criminal investigation by making an application under Schedule 1 below and in accordance with that Schedule.
Meaning of 'special procedure material'.
14.—(1) In this Act 'special procedure material' means—
(a) material to which subsection (2) below applies; and
(b) journalistic material, other than excluded material.
(2) Subject to the following provisions of this section, this subsection applies to material, other than items subject to legal privilege and excluded material, in the possession of a person who—
(a) acquired or created it in the course of any trade, business, profession or other occupation or for the purpose of any paid or unpaid office; and
(b) holds it subject—
(i) to an express or implied undertaking to hold it in confidence; or
(ii) to a restriction or obligation such as is mentioned in section 11(2)(b) above.
15 Search warrants—safeguards
(1) This section and section 16 below have effect in relation to the issue to constables under any enactment, including an enactment contained in an Act passed after this Act, of warrants to enter and search premises; and an entry on or search of premises under a warrant is unlawful unless it complies with this section and section 16 below.
(2) Where a constable applies for any such warrant, it shall be his duty—
(a) to state—
(i) the ground on which he makes the application; . . .
(ii) the enactment under which the warrant would be issued; and
(c) to identify, so far as is practicable, the articles or persons to be sought.
(3) An application for such a warrant shall be made ex parte and supported by an information in writing.
(4) The constable shall answer on oath any question that the justice of the peace or judge hearing the application asks him.
(6) A warrant—
(b) shall identify, so far as is practicable, the articles or persons to be sought.
The contentions of the parties
"There was a discrepancy between the information sworn by the officer and the warrant issued by the judge. The information referred to "all records of business details relating to the finances of [the company], namely letters, notes…," whereas the warrant referred to letters and notes but omitted to identify them as records of financial business details of the company. That was a crucial omission because the warrant purported to give the holder a free hand to seek and seize all documents of the kind described irrespective of whether they fell within the scope of the investigation to which the information related. For this reason alone it failed to comply with section 15 (6) (b) and was invalid."
Mr Justice Wilkie: