England and Wales High Court (Administrative Court) Decisions

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

		Royal Courts of Justice Strand London WC2A 2LL
		3 February 2010

1. LORD JUSTICE ELIAS: The first and third claimants in this case are being prosecuted for a variety of offences, including fraud and immigration offences. It is alleged that these offences were committed in connection with the operation of the fourth claimant, namely Middlesex College. It is said that the college issued diplomas and certificates without the right or permission to do so, that diplomas so provided were used to support UK visa applications and extensions, and that unqualified teachers were provided to teach. The first claimant owns the fourth claimant, the Middlesex College and his wife is the second claimant. The third claimant runs the college.
2. In connection with these alleged offences certain properties connected with the claimants were searched, including their home addresses and the College itself. The claimants sought judicial review challenging the warrants and the manner in which they were executed. Permission on paper was refused by Calvert Smith J. The application was renewed before Sullivan LJ and Blair J. They rejected most of the grounds as unsuitable for judicial review but granted permission on one issue only (not apparently advanced before Calvert Smith J). This concerns a single issue relating to the search of the properties of the first, third and fourth claimants. It is accepted, at least for the purposes of this hearing, that proper warrants to search the premises were obtained from the magistrate. However, the relevant legislation provides that a copy of the warrant should be supplied to the occupier of the premises searched, and it is submitted that although a document which purported to be a copy was left in respect of each of these premises, it was not a proper copy complying with the second defendant's legal obligations. Accordingly, it is submitted that the entry, search and the execution of the search warrants was unlawful.

The legislation

3. The powers of entry, search and seizure are laid down by Part 2 of the Police and Criminal Evidence Act 1984. Section 8 empowers a justice of the peace to issue a warrant authorising a constable to enter and search premises provided he is satisfied that certain conditions are met. These include that he must have reasonable grounds for believing that an indictable offence has been committed and that there is material on the premises which is likely to be of substantial value to the investigation of the offence, and is likely to be relevant evidence.
4. Subsection 1(A) distinguishes between two kinds of warrant. The first is called 'a specific premises warrant' where one or more sets of premises is specified in the application for the warrant. The second is termed an 'all premises warrant' and relates to applications to search premises occupied or controlled by a person specified in the application, but where it is not reasonably practicable to specify in the application itself all the premises which might be occupied or controlled by him and which may need to be searched. Where an unspecified property is subsequently searched pursuant to the warrant, written authorisation must be obtained from an officer of the rank of inspector or above.
5. Sections 15 and 16 set down certain safeguards applicable for the execution of search warrants. Section 15(6) reads as follows:

"a warrant -

(a) shall specify -

(i) the name of the person who applies for it;

(ii) the date on which it is issued;

(iii) the enactment under which it is issued; and (iv) each set of premises to be searched, or (in the case of an all premises warrant) the person who is in occupation or control of premises to be searched, together with any premises under his occupation or control; and.

(b) shall identify, so far as is practicable, the articles or persons to be sought."

Section 15(7) then deals with the questions of copies. It provides as follows:

"two copies shall be made of a warrant (see section 8(1A)(a) above which specifies only one set of premises and does not authorise multiple entries; and as many copies as are reasonably required may be made of any other kind of warrant."

Subsection (8) provides that the copies shall be clearly certified as copies.

Section 16 of the Act, which is concerned with the execution of warrants, provides in subsection (5) as follows:

"where the occupier of premises which are to be entered and searched is present at the time when a constable seeks to execute a warrant to enter and search them, the constable -

(a) shall identify himself to the occupier and, if not in uniform, shall produce to him documentary evidence that he is a constable;

(b) shall produce the warrant to him; and

(c) shall supply him with a copy of it."

6. Subsection (6) provides that a copy shall be left with anyone in charge of the premises if the occupier is not present and subsection (7) provides that if no-one is present a copy shall be left on the premises in a prominent place.
7. The question what constitutes a copy was considered by the Divisional Court in the case of R v Chief Constable of Lancashire Constabulary, ex parte Parker [1993] 2 All ER 56. In that case there was a two paged document headed 'warrant to enter and search premises' which set out all the information required by section 15(6)(a). It did not, however, on its face identify the articles or persons to be sought in subparagraph (b). That information was contained in a separate schedule. The court rejected the submission that the former document constituted the warrant and the latter a distinct schedule which was independent of the warrant. The warrant was both documents taken together. Nolan LJ, giving the judgment of this court (Nolan LJ and Jowitt J) said this:

"It will be seen that the two-paged document satisfies the requirements of para (a), and it is common ground that the one-paged document, the schedule, satisfied the requirements of para (b), so that taken together they constitute a warrant which complies with the provisions of sub-s(6). Taken separately, neither of them does so."

Nolan LJ also identified the purpose of producing two certified copies (page 61):

"the need for two certified copies of the warrant is explicable in the following way. A copy has to be served on the occupier or left at the premises and the occupier needs a copy whose authenticity does not depend on the word of the police. For their part the police need to be able to retain an authentic copy for record purposes lest any question should arise over the legality of the warrant and its execution. They also should be able to rely on a copy for whose authenticity they are not responsible."

The facts.

8. In this case the home address of both the first and third claimants were searched as well as the property occupied by the college. In each case the warrants were framed in similar terms. I will by way of example take the warrant relating to the premises of the first claimant at his home at 85 Avondale Road. It identified on the front page all the matters to be included in a warrant as identified in section 15(6), save for the relevant premises as required in subsection (6)(a)(iv). A separate page, stated to be a schedule, then identified the particular property at Avondale Road and also added, as properties that might be searched, "premises occupied and controlled by Mr. Bhatti (the first named claimant)".
9. As Mr. Alun Jones QC, counsel for the claimants, pointed out, it is a hybrid warrant, identifying particular premises but also conferring the right to search other properties belonging to the first claimant.
10. It is accepted that a copy warrant was left with the occupier. It did not, however, include the schedule. Instead there was a rectangular box at the bottom of the document which said this:

"to be completed by the officer in charge of the search if the premises entered are not specified above: For the information of the occupier, the premises entered on this occasion are: Premises..."

And then there is a space for that box to be filled in:

"you are not entitled to be given details of, or any information about, other premises to which the warrant authorises entry."

This was completed by an officer who was legitimately part of the search party at the time when the copy warrant was handed to the occupier (who was in fact the second claimant) during the search.

11. A similar procedure was adopted with respect to the other two warrants. In neither case did the copy replicate in full the original warrant.
12. The claimants' submission is that this involves a breach of section 16(5) and therefore renders the execution unlawful. A copy of the warrant was not provided. Instead it was merely a partial copy which did not identify the premises in respect of which the authority was given.
13. Mr. Alun Jones submits that the policy behind section 16(5) is clear. The police are exercising draconian powers of entry and search. Indeed, in the searches involved with respect to these two claimants, he says that the police broke their way into the houses, causing severe fright and distress. Parliament requires them to leave clear and unambiguous documentary evidence establishing their authority to carry out actions of this nature, and they did not do so.
14. In none of these cases could the claimants satisfy themselves from the copy warrant that the premises written in by the executing officer were in fact the same premises which the police had been authorised to search. Reliance is placed on the recent decision of the Divisional Court (Latham LJ and Underhill J) in Redknapp v Commissioner of the City of London Police [2008] EWHC 1177(Admin). That case was also concerned with the legality of the execution of certain search warrants. The court found that no warrant had ever properly been issued. However, another issue that arose for consideration by the court was that the copy of the warrant failed to specify the address of the claimant's home. Unlike this case, there was no identification of any property at all on the copy warrant. Latham LJ, giving the judgment of the court, concluded that this was a breach of the obligation under section 16(5). He said this at paragraph 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."

15. The claimants submit that the same principle applies here. Although an address was provided the actual schedule was not in any of these cases, and therefore the purpose that was identified by Latham LJ, namely that the householders could satisfy themselves that it was their property which the justice of the peace had authorised to be searched, was not achieved.
16. The second defendant accepts that a copy was not provided but submits that there was substantial compliance with that obligation. Moreover Mr. Beggs QC, counsel for the Metropolitan Police, submits that the procedure adopted by the officers with respect to these searches reflects the practice which has been adopted generally and which is consistent with certain Notes of Guidance which are provided by the Home Office as Annex B to the PACE Code of Practice on Search and Seizure.
17. There are Home Office templates which specifically envisage that the copy warrant will differ from the warrant relied upon to secure entry. The guidance suggests that where more than one set of premises is to be searched - and this is whether pursuant to a specific premises warrant or an all premises warrant as I understand it - the identity of the premises, insofar as they are known (which they will not necessarily be in the case of an all premises warrant) should be set out in a schedule. However, this should not be shown to the occupier of premises because that will alert him to the fact that other premises might be searched, and for obvious reasons the police do not want to provide that information in case he alerts the occupiers of those other premises. Frequently, of course, attempts will be made to search those other premises at the same time. Hence the guidance suggests that in these circumstances the police should themselves enter the identity of the particular premises on the warrant, which they do by filling out the specific box on the face of the warrant in the way I have indicated above.
18. Mr. Beggs submits that this notifies the householder that his house has been authorised for search. The fact that it is not an exact copy of the warrant is immaterial. The legislative purpose is substantially achieved without prejudicing operational efficiency by disclosing to the householder information about the other premises. He says that the objective identified by Latham LJ in the Redknapp case can never fully be achieved. The householder cannot be sure that the signature authorising the search is that of the justice who is alleged to have signed it. Further, there is nothing to prevent the schedule being handwritten, and if that is the case, and particularly if the schedule itself is not also signed by the magistrate, the householder can have no greater confidence that that has been proper authorisation than he can with the procedure adopted by the police. In Redknapp the court was not apparently directed to those practical issues.
19. Furthermore, in an all premises warrant there will be premises which were not identified in the warrant, and so the householder will not have the luxury of knowing that there is authority to search them even if an accurate copy of the warrant is provided.
20. I reject those submissions. The schedule is a crucial and integral part of the warrant, in that it identifies the premises which the police are authorised to enter. It is repeating the confusion that Nolan LJ referred to in the Parker case to treat the schedule as something distinct from the warrant, which Mr Beggs's submissions effectively do. Moreover, it is apparently the practice, as I think paragraph 7 of Annex B assumes, for both parts of the warrant to be signed by the issuing justice or district judge. As the court noted in Parker, this is not legally required but it was recommended in that case that it should be done, and we are told that it commonly is. For an officer to add the name of the property after the warrant is signed necessarily leaves the householder in doubt as to the scope of the authority of the police searching the premises. As Latham LJ recognised in Redknapp, that is to frustrate the very purpose of providing the copy. Essentially the same point was made by Nolan LJ in the Parker case when he said that the authenticity of the warrant should not depend upon the word of the police. In that case too the court concluded that the entry, search and seizure were unlawful and that the Chief Constable was not entitled to retain any of the documents unlawfully seized.
21. I recognize that it is impossible to adopt a system which will provide a full assurance to the occupier that there is authority to search, even where the copy is provided. Mr. Beggs is right to say that the warrant could be a forgery or a different schedule might have been attached to that originally provided to the authorising judge (although this is more likely to be detected where the practice is to sign the schedule also). In this case some assurance was given to the householder that the search was lawful by the production of the first page. But the reductio ad absurdum of Mr. Beggs's argument is that since no complete assurance or guarantee of authenticity can be offered, there is no point in providing any. I do not accept that, and more importantly Parliament has not done so. It has stipulated what the householder should be told by way of assurance that the searchers have the authority they claim, and it has done so by requiring a copy of the warrant, not a copy of part only supplemented by further information provided by the executing officer, which is in essence what the current practice provides. Moreover, the fact that with an all premises warrant it will not necessarily be possible to satisfy the householder that the particular premises have been identified in the warrant does not invalidate the need to do so when the premises can be so identified. In any event, I would have thought that the identity of the person whose premises can be searched would then have to be provided and that would provide substantial comfort to those persons.
22. I stress that the officers in this case cannot be criticised for acting in accordance with the guidance, but in my judgment the guidance is wrong. I appreciate that it may cause some inconvenience to the police, although Latham LJ in the Redknapp case explained in the passage I have quoted how the problem could be alleviated by redaction or by having the properties separately identified in separate schedules. Operational requirements cannot justify re-writing the statute. It has been emphasised in the authorities time after time, at least since Lord Camden CJ's seminal speech in Entick v Carrington (1765) 2 Wils 275 that nobody should be allowed to enter uninvited into someone's home without very clear justification in law. Where conditions for the exercise of the power to search are imposed they must be properly and stringently complied with. There is no doubt that the searches here were made in good faith, that the breach was not grave in the sense that the police thought that they were acting lawfully, and that they, or those framing the relevant templates, thought that they were achieving in substance the objective of the statute. That does not, however, assist the police if in fact they were not acting lawfully, save perhaps with respect to the amount of compensation.
23. In my judgment, therefore, there is a clear breach of section 16(5). The question is what follows from this finding? The claimants submit that it necessarily follows that the entry, search and seizure are all thereby rendered unlawful. They rely upon section 15(1) of PACE which is as follows:

"This section and section 16 below have effect in relation to the issue to constables under any enactment, including an enactment ... 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."

24. The claimants' submission is a simple one. Since the warrant has not complied with the provision of section 16(5), the entry and search is rendered unlawful by section 16(5) and the property must be returned to them. They could have taken the alternative course of suing for unlawful trespass to goods, but judicial review is in the circumstances a more effective and appropriate remedy.
25. Mr. Beggs submits that matters are not quite that simple. First, he says that there is some dispute as to the proper meaning of section 15(1). In particular, there is ambiguity about the word "it" in the last sentence. Does that refer to the warrant or does it refer to the entry and search? If it refers only to the warrant, then, since the terms of the warrant complied with these sections, there is no reason to treat the entry or search as unlawful at all.
26. It is true that in the case of R v Longman [1988] 1 WLR 619, Lord Lane CJ and Boreham and Pill LJJ) giving the judgment of the Divisional Court expressed the view obiter and "with some hesitation" that the word "it" most probably referred to the warrant, albeit that this would appear to defeat the intention of the framers of the Act. Since then, however, there have been a series of cases which have not accepted that view. In the Parker case, to which I have made reference, Longman was not cited, but the court said this after citing section 15(1):

"We read 'it' as referring to the composite process of entering and searching under a warrant so that in order for that process to be lawful the application for and issue of the warrant has to have been in compliance with s 15 and its execution has to comply with s 16. This does no violence to the language of the subsection and gives effect to what seems to us to be its obvious legislative purpose."

27. That in turn was followed by the case of R v Chief Constable of The Warwickshire Constabulary, ex parte Fitzpatrick [1998] 1 All ER 65, a decision of the Divisional Court (Rose LJ and Jowitt J). When giving the judgment of the court Jowitt J referred specifically to the view expressed by Lord Lane CJ in Longman, but preferred the view expressed by Nolan LJ in the Parker case. Jowitt J, giving the judgment of the court, observed that:

"section 15 refers only to the application for and form of a search warrant whereas section 16 refers not to this but to its execution. Thus the two sections are mutually exclusive and it is difficult, therefore, to see how lawfulness can do other than require compliance with both sections."

28. Finally, in R v Chesterfield Justice, ex parte Bramley [2001] All ER 411, another judgment of this court(Kennedy LJ; Turner and Jowitt JJ), Lord Justice Kennedy clearly considered it the correct approach. He said this (page 422):

"I accept, of course, that any failure to comply with the requirements of either section 15 or section 16 renders the whole process of entry and search unlawful ..."

29. In my judgment, these authorities are, with all due respect to Lord Lane CJ plainly correct. In any event, they establish a clear line of authority from this court from which I would not be prepared to dissent.
30. An alternative argument was based upon certain observations of Roch LJ, giving the judgment of the Court of Appeal (Lord Woolf MR, Roch and Otton LJJ) in the case of Fisher v Chief Constable of the Cumbria Constabulary (unreported, ref CCRTF 96/0557/C). That was an appeal from the decision of a judge sitting with a jury at the Carlisle County Court who awarded £750 damages because of the failure of a police officer to leave a copy of a search warrant at the plaintiff's premises when carrying out a search of the premises. In that case the Chief Constable had accepted that the procedural irregularity rendered the entry and search unlawful. Roch LJ, giving the judgment of the court, left open the possibility that this may not always be the consequence of a breach of section 16(5). He said this:

"Before leaving this part of the appeal, I think it right to say something about the effect of the procedural irregularity which occurred. I accept the consequences of that procedural irregularity for the purposes of this appeal because the Chief Constable has not taken this point on this appeal. It must, however, be doubtful that the execution of a lawfully obtained warrant which will itself be lawful provided that the officer carrying out the search at the end of the search and before leaving the premises leaves a copy of the warrant in a prominent place on the premises is rendered unlawful 'ab initio' by an inadvertent failure to comply with this procedural requirement and that evidence of serious crime obtained by such a warrant is rendered inadmissible. These may be the results, but I would wish to hear the matter fully argued before reaching such conclusions. As I read the decision of the Divisional Court in R v Chief Constable of Lancashire ex p Parker and another (supra) the point was not argued, the Chief Constable of Lancashire conceding that the failure by the police to provide the owners of the premises being searched with an authentic copy of the search warrant rendered the search illegal 'ab initio'. In that case, unlike the present, there were never in existence valid copies of the search warrant. Consequently in that case the procedural error preceded the start of the search rather than coming at the end of it. As I have already indicated I would wish to reserve the effect of the procedural irregularity which actually occurred in this case to a future case ..."

31. Counsel have not been able to find any other case in which this passage has been cited. As the observations made plain, Roch J was in any event distinguishing his case from the facts which arose in Parker and which also occurs here, namely that there never was a valid copy in existence. In any event, with due respect I would not follow those obiter observations. It seems to me that the wording of section 15(1) is plain and non-compliance renders entry, search and seizure unlawful. Whether or not the property can be admitted in a criminal trial raises quite separate issues. It depends upon whether the property is available to the prosecution at that time and admissibility will be determined in the normal way, subject to section 78 of PACE.
32. It follows in my view that, as in the Parker case, the material obtained on the search has to be returned. Of course, it may be open to the police to obtain further warrants. There is also the question of damages but it is agreed that that matter will have to be remitted to a judge of the Queen's Bench Division to determine that question.
33. MR. JUSTICE CALVERT-SMITH: I agree.
34. MR BEGGS: I wonder if it would be possible to see a copy of the draft judgment before it is approved. There have been cases where mistakes have gone through and have been repeated time and time again. If we could see it before it is approved and sent out, it would be possible for us to make sure that it is absolutely correct. For instance, my Lord in his judgment said superintendent instead of inspector and I corrected it.
35. LORD JUSTICE ELIAS: I do not see a problem with that. I am happy to give you a copy but you would have to come back quickly with any amendments.
36. MR ALUN JONES: I am asking for costs. There is a dispute as to the costs below on the grounds upon which we did not get permission to appeal.
37. LORD JUSTICE ELIAS: If we say costs here and costs below insofar as it related to this issue, that will satisfy it.