QUEEN'S BENCH DIVISION
IN THE MATTER OF AN APPLICATION FOR JUDICIAL REVIEW
Strand, London, WC2A 2LL
B e f o r e :
MR JUSTICE OUSELEY
| THE QUEEN
ON THE APPLICATION OF
(1) DAVID MILLS AND (2) ALISON MILLS
|- and -
SOUTHWARK CROWN COURT
Mr Martin Downs (instructed by Sussex Police) for the First Defendant
Hearing date: 5 June 2014
Crown Copyright ©
Lord Justice Elias :
"There appears to have been no attempt to dissipate assets since the date of his arrest."
The statutory provisions
"(6) The requirements for the issue of a search and seizure warrant are —
(a) that a production order made in relation to material has not been complied with and there are reasonable grounds for believing that the material is on the premises specified in the application for the warrant, or
(b) that section 353 is satisfied in relation to the warrant."
"(1) This section is satisfied in relation to a search and seizure warrant if—
(a) subsection (2) applies, and
(b) either the first or the second set of conditions is complied with."
"(3) The first set of conditions is that there are reasonable grounds for believing that —
(a) any material on the premises specified in the application for the warrant is likely to be of substantial value (whether or not by itself) to the investigation for the purposes of which the warrant is sought,
(b) it is in the public interest for the material to be obtained, having regard to the benefit likely to accrue to the investigation if the material is obtained, and
(c) it would not be appropriate to make a production order for any one or more of the reasons in subsection (4).
(4) The reasons are —
(a) that it is not practicable to communicate with any person against whom the production order could be made;
(b) that it is not practicable to communicate with any person who would be required to comply with an order to grant entry to the premises;
(c) that the investigation might be seriously prejudiced unless an appropriate person is able to secure immediate access to the material."
"(5)The second set of conditions is that—
(a) there are reasonable grounds for believing that there is material on the premises specified in the application for the warrant and that the material falls within subsection (6), (7), (7A), (7B), (8) or (8A),
(b) there are reasonable grounds for believing that it is in the public interest for the material to be obtained, having regard to the benefit likely to accrue to the investigation if the material is obtained, and
(c) any one or more of the requirements in subsection (9) is met."
"(6) In the case of a confiscation investigation, material falls within this subsection if it cannot be identified at the time of the application but it—
(a) relates to the person specified in the application, the question whether he has benefited from his criminal conduct or any question as to the extent or whereabouts of his benefit from his criminal conduct, and
(b) is likely to be of substantial value (whether or not by itself) to the investigation for the purposes of which the warrant is sought."
"(a) that it is not practicable to communicate with any person entitled to grant entry to the premises;
(b) that entry to the premises will not be granted unless a warrant is produced;
(c) that the investigation might be seriously prejudiced unless an appropriate person arriving at the premises is able to secure immediate entry to them."
The relevant legal principles
i) The courts have frequently emphasised that search warrants confer a "draconian power": R (Faisaltex) v Preston Crown Court  1 WLR 1687 para 29 per Keene LJ. They were even described as a "nuclear weapon" in the court's armoury which, unless properly justified, involve a gross infringement of civil liberties: see R (Mercury Tax Group) v HMRC  EWHC 2721 at para 71 per Underhill J. It does not perhaps need the use of such hyperbolic language to emphasise they should only be sought as a last resort and should not be employed where other less draconian powers can achieve the relevant objective.
ii) Given that the warrant permits the interference with private property and is obtained ex parte, it is incumbent on the applicant to make full and frank disclosure to the court and to ensure in particular that any material which is potentially adverse to the application is brought to the attention of the judge: see, for example the observations of Bingham LJ in R v Crown Court at Lewes  93 Cr. App. Rep 60, 69. As Hughes LJ put it in In re Stanford International Bank Limited  3 WLR 941 at para 191, the applicant must:"put on his defence hat and ask himself, what, if he were representing the defendant or a third party with a relevant interest, he would be saying to the judge"
iii) This obligation of full and frank disclosure necessarily includes a duty not to mislead the judge in any material way: see the Mercury Tax Group case, para 48.
iv) The power to grant the warrant is conferred on a judge. He or she must bring a "rigorous and critical analysis" to the application and satisfy himself or herself that the material provided justifies the grant of the warrant: see R (Rawlinson & Hunter Trustees) v Central Criminal Court  EWHC 2254 (Admin);  1 WLR 1634, paras 83-84 per Sir John Thomas P, where earlier authorities are cited. The judge has the obligation to protect the subject of an application (who, of course, is not before the court) against speculative or unsubstantiated assertion: R (B Sky B) v Chelmsford Crown Court  EWHC 1295 (Admin)  2 Cr.App.R. 33, paras 33-34 per Moses LJ. It is critical, therefore, that the judge is provided with the information necessary to enable him to comply with that obligation and is given the time properly to discharge it: see Rawlinson paras.83-90.
v) The judge ought to give reasons for his decision. They need not be elaborate but they ought to be sufficient to enable the subject of the warrant to understand why the judge was satisfied that the evidence justified issuing it: see R v Lewes Crown Court ex parte Weller, unreported 12 May 1999 per Kennedy LJ, para 6; and more recently, R (Wood) v North Avon Magistrates' Court  EWHC 3614 (Admin) para 26, and Rawlinson, para 89.
vi) The application must be made in good faith and it must be for a purpose for which the power is granted. Using a statutory power for a collateral purpose involves a misuse of the power: see, specifically in the context of police powers, R v Inland Revenue Commissioners ex parte Preston  AC 835. These are well established principles of administrative law and are as applicable in this field as in any other.
Obtaining the Warrant
The principal grounds of challenge
What is the consequence of non-disclosure?
What is the test for setting the warrant aside?
"We therefore turn to the question we identified at paragraph 77 where there was debate between the parties as to the test to be applied in determining the effect of errors, misrepresentations and non-disclosure on the validity of the grant of the warrants.
In civil cases, the courts have made very clear that a failure to comply with the duty of disclosure on an ex parte or without notice application will often result in the setting aside of the order: see for example Brink's Mat Ltd v Elcombe  1 WLR 1350, Fitzgerald v Williams  QB 657. Although it was accepted there is a difference between a civil and a criminal case, it was submitted by RT, VT and the TFT and TDT companies that the test to be applied when considering whether to quash a warrant issued under s.2(4) of the CJA 1987 was whether the errors and non-disclosure might have made a difference to the grant of the warrant. Mr Eadie on behalf of the SFO submitted that the test was whether they would in fact have made a difference. We were referred to a number of decisions including, Jennings v CPS  1 WLR 182 at 52-8, R (Mercury Tax Group) v HMRC  EWHC 2721 at paragraph 48, R (Wood) v North Avon Magistrates Court  EWHC 3614 at paragraphs 34 and 37, R (Faisaltex) v Crown Court at Preston  EWHC 1687 at paragraph 81, Burgin and Purcell v Commissioner of Police for the Metropolis  EWHC 1835 at 66-71, Re Stanford (supra).
On the facts of this case, the difference is immaterial as we shall explain. It is therefore not necessary for us to reach a concluded view, but in a criminal case the authorities and consideration of public interest point, in our view, to the test being whether the errors and omissions would in fact have made a difference to the decision of the judge to grant the warrants."
If this view of the law is correct, if the court is uncertain what the outcome would have been, it should treat the warrant as lawfully issued.
"The proper approach is to consider whether the public interest does or does not call for the order to stand, now that the true position is known, and taking into account the previous failure of disclosure. Whether the non-disclosure was deliberate or accidental will be a material factor, although not necessarily determinative. These propositions emerge from a number of cases: see in particular Brink's Mat v Elcombe  1WLR 1350, and Jennings v CPS  EWCA Civ 746 at paragraphs 52–57 and 62–64. A similar approach to a different kind of without notice application in aid of a criminal investigation, namely one for the production of special procedure material, was taken in R v Crown Court at Lewes ex p Hill (1991) 93 Cr App R 60 at 69. Whilst it is appropriate to insist on strict compliance with the rule of disclosure, discharge of the order does not necessarily follow as a means of disciplining the applicant, at least absent what Longmore LJ in Jennings referred to as 'so appalling a failure' that that ultimate sanction should be applied."
"So far as the public interest is concerned, it seems to me that there may be a difference between applications for restraint orders and for search warrants. In the case of the former there will typically be a continuing need for the order to remain in place, whereas in the latter case the warrant will have been executed once and for all and the principal consequence of its being quashed will be to open the way to a claim for damages."
I would add that it is a particularly draconian order to allow an organ of the state to invade private property. The restraint order does not have that effect.
"The question for this court, in judicial review proceedings, is whether the information that it is alleged should have been given to the magistrate might reasonably have led him to refuse to issue the warrant."
Unfortunately this was not cited in Rawlinson. (In fact the court in Dulai held that if full disclosure had been made, the warrant would have been issued in any event.) Moreover, in the Mercury case Underhill J quashed a warrant because he was not satisfied that the order would have been the same had there been proper disclosure.
"What we would be doing would be permitting the SFO in effect to justify what it had done by adopting a proper and analytical approach in this court and doing what it had manifestly failed to do when it went to Judge Worsley"
Further grounds of appeal
Mr Justice Ouseley: