QUEEN'S BENCH DIVISION
Strand, London, WC2A 2LL
B e f o r e :
THE HON. MR JUSTICE CRANSTON
| JOHN HARALAMBOUS
|- and -
|ST ALBANS CROWN COURT
- and -
Alan Newman QC and David Matthew (instructed by the Legal Services Department, Hertfordshire) for the 2nd Defendant
Hearing date: 04/03/2016
Crown Copyright ©
Mr Justice Cranston:
"I adopted the starting point that the applicant was entitled to see the information that had persuaded the magistrate to grant the application, unless the public interest demanded that some or all of the material relied upon should not be disclosed. I conducted an enquiry as to the reasons provided for withholding the information sought and determined, after considering those reasons that it was in the public interest to withhold a substantial amount of information which had been before JL Grimsey JP when she granted the search warrant. I was satisfied that if much of the detail contained in the information were to be disclosed to the applicant at this juncture, there was a strong likelihood it would fundamentally compromise the police investigation that was in hand. Furthermore, full disclosure would inevitably reveal confidential sources which the police were relying upon at a critical stage in the investigation. I found no evidence to suggest that DC Skarratts had failed to make a full and frank disclosure at the time of laying his information nor that there was any apparent irregularity in the issuing of the warrant. I heard and accepted the evidence of 3 officers "in camera". I relied on the witnesses' expertise, their breadth and depth of knowledge of the investigation and whilst I accept it could not be tested in cross examination, I myself asked a number of questions in order to satisfy myself that the court was undertaking a proper balancing exercise when weighing up the conflict of public interest in withholding information and the public interest in the open and transparent need for the administration of justice."
"…Having considered the various authorities to which I have been referred, it seems to me that the crucial feature of this case which distinguishes it from cases involving inter partes litigation is that the procedure for obtaining a warrant under section 8 PACE 1984 is an ex parte procedure, not an inter partes one. Under section 8 PACE 1984, a Justice of the Peace has to be satisfied that there are reasonable grounds for believing that the relevant conditions are met before issuing a search warrant. That belief can lawfully be based upon PII material. In my judgement, there is no requirement for full disclosure of the Information before the issue of the warrant can be lawful nor are the prosecution under any obligation to make full disclosure of the contents of it after the warrant has been executed. Support for this conclusion is to be found in the judgement of Lord Justice Gross in the case of Gittins v. Central Criminal Court  EWHC 131 at paragraphs 25 and 61-67 and in the judgement of Lord Justice Beatson in the case of Commissioner of Police for the Metropolis v. Bangs  EWHC 546 (Admin) at paragraphs 25-29.
I therefore rule that the Applicant in this case would be entitled to re-apply for a section 8 search warrant in reliance upon information which I have ruled it is not in the public interest to disclose. The issue of such a warrant by Magistrates in such circumstances would not be unlawful even though the redacted documents thereafter supplied to the Respondent contained insufficient material to enable him to judge whether the warrant in question was issued on a lawful basis…"
The court issued an order to this effect. Under it, the non-inspection undertakings were continued.
"8 (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");
(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."
"15 (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
(b) to specify the matters set out in subsection (2A) below; and
(c) to identify, so far as is practicable, the articles or persons to be sought.
(2A) The matters which must be specified pursuant to subsection (2)(b) above are –
(a) if the application relates to one or more sets of premises specified in the application, each set of premises which it is desired to enter and search;
(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.
(5) A warrant shall authorise an entry on one occasion only unless it specifies that it authorises multiple entries.
(6) 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 [re: "all premises warrants"]
(b) shall identify, so far as is practicable, the articles or persons to be sought.
(7) Two copies shall be made of a warrant which specifies only one set of premises and does not authorise multiple entries....
(8) The copies shall be clearly certified as copies…"
"59. (1) This section applies where anything has been seized in exercise, or purported exercise, of a relevant power of seizure.
(6) On any application under this section, the appropriate judicial authority may authorise the retention of any property which –
(a) has been seized in exercise, or purported exercise, of a relevant power of seizure, and
(b) would otherwise fall to be returned, if that authority is satisfied that the retention of the property is justified on grounds falling within subsection (7).
(7) Those grounds are that (if the property were returned) it would immediately become appropriate –
(a) to issue, on the application of the person who is in possession of the property at the time of the application under this section, a warrant in pursuance of which, or of the exercise of which, it would be lawful to seize the property…"
As indicated earlier in the judgment, the procedure for a section 59 application is now set out in the Criminal Procedure Rules 2015, rr. 47.35 – 47.39.
The claimant's case
"There is an obvious tension between these two public interests because crime could be most effectively investigated and prosecuted if the personal and property rights of citizens could be freely overridden and total protection of the personal and property rights of citizens would make investigation and prosecution of many crimes impossible or virtually so" (at 66).