Crown Court for Northern Ireland Decisions

Neutral Citation no. (2002) NICC 10	Ref:	NICC 10
Judgment: approved by the Court for handing down	Delivered:	22/04/2002
(subject to editorial corrections)

Regina v Shaun Alexander Leighton

Belfast Crown Court

Monday 22^nd April 2002

Ruling-Abuse of Process-Article 76 Police and Criminal Evidence (NI) Order 1989-European Convention on Human Rights, Articles 2 and 8-legality of search under warrant-fairness of trial.

RULING

On 5th March 2001 a party of three policemen carried out a search of the home of the accused Shaun Alexander Leighton. He was not at home and access was obtained to the premises by the police presenting a search warrant, obtained under Article 10 of the Police and Criminal Evidence (Northern Ireland) Order 1989, to his wife.

Thirty one items were seized by Constable Greer, who comes from Ballycastle RUC Station. These included twenty nine items of Masonic and Orange regalia, a computer hard disk, and a floppy disk. Unlikely though it may seem, there had been a number of recent burglaries of Masonic and Orange institutions, and Constable Greer who gave evidence before me said that the police had received information that the accused might be in possession of items relating to these thefts. These premises were therefore being searched because the police had reasonable grounds to believe that the stolen property would be found on the premises and that the accused had committed an arrestable offence connected with the theft of the regalia.

There are outstanding charges against the accused, apparently, at the Petty Sessions relating to the Masonic and Orange regalia that had been seized. In his evidence before me the officer in charge of the search at the accused's home, Constable Greer, said that he saw a floppy disk sitting on top of the hard disk of a personal Daewoo computer. Since he had been briefed earlier on the day of the search that stolen items of regalia were being offered for sale on the Internet, and because the floppy disk was, unlike others, without a label, he believed, reasonably in my view, (if this is correct) that the disk and floppy disk might be connected to the offences that the police were investigating concerning the theft of regalia. As I have said, I am prepared to find that Constable Greer had reasonable grounds for so believing. If I did not, the seizure of the computer and the floppy disk would not have been lawful.

I am, however, of the view that, whilst these items are not specified in the warrant, the police are entitled to seize material which they, on reasonable grounds, believe to be directly relevant to the articles that they are authorised to seize and to the offence that they are investigating. A narrow interpretation of the authority of a warrant as restricting them to the seizure of items specified on the warrant would mean that a warrant authorising the search of premises, say for prohibited drugs, would not permit the police to seize evidence which they, on reasonable grounds, believed to be directly connected to drug dealing (for example, list of amounts of money and names), without the same being specifically named in the warrant. Constable Greer told me that he did not know much about computers but telephoned the CID office in Coleraine about the computer and was told to seize it. He can't remember the identity of the person who told him. As I said, I am prepared to hold that the seizure was authorised by the warrant and that the constable had a genuine belief that this was potentially connected with the offence that he was investigating, and in view of the briefing concerning the use of the Internet to sell stolen regalia I am prepared to find that such a belief was reasonable. When the floppy disk was later opened by the police it was found to contain details about persons in Northern Ireland with a Republican background. I have no doubt that the kind of information stored on this floppy disk would have been information of a kind likely to be useful to a person either preparing to or committing an act of terrorism.

I am also of the view that the details stored on the disk were such that the possession by an unauthorised person of this information would or could lead to a serious risk to the life or personal safety of those named individuals. This therefore was a disk which contained information that was not only indicative of a serious criminal offence but which also unquestionably could affect the right to life of the individuals concerned. Throughout my ruling I bear this in mind and, if it has added anything to the national law of the United Kingdom in this regard, to the provisions of Articles 2 and 8 of the European Convention for the Protection of Human Rights and Fundamental Freedoms.

Mr. Allister QC, who appears for Mr. Leighton, has applied to the court for the exclusion from evidence of the floppy disk and computer and therefore its contents under Article 76 of the Police and Criminal Evidence (Northern Ireland) Order 1989, and, generally, on the basis that the admission of such evidence would be an abuse of the process of the court. Mr. Allister argues that the search of 20 Mosside Gardens, because of significant breaches of the PACE Order authorising searches and the Code, was not a lawful search and that, in consequence, the evidence was unlawfully obtained. He accepts that I have a discretion which must be judicially exercised but argues in exercising this discretion I should have regard to the effect of the Human Rights Act 1998 and to the incorporation into our national law of Articles 8 (1) and (2) of the Convention which requires that there should be no interference "with the right to respect for home and correspondence, except in accordance with the law and so far as it is necessary for the prevention of disorder and crime in the protection of rights and freedom of others". This, of course, includes the Article 2 right to life.

I shall have regard to some specific objections Mr. Allister has to this evidence as I go through this ruling, but he has asked me to have regard to a number of breaches of the PACE (NI)Order 1989 and the Code it gives rise to, and also to the effects of Article 6 and 8 of the ECHR.

He has asked me not to take each breach separately but to look at the number of breaches and their nature, both breaches of the statute and breaches of the code, when I am conducting the balancing exercise that will be necessary before applying my discretion under Article 76 of the Order and generally.

In his reply Mr. Magill, who appears for the prosecution, has accepted that there are a number of breaches, both of the search warrant provisions of the PACE (N.I.)Order and also of the code. He has, however, urged that I should exercise my discretion to admit the evidence. In particular he has raised the existence of my discretion and has referred to those matters that I should take into account when deciding how to exercise it. These are the absence of any bad faith, by which Mr. Magill means trickery or cunning or deliberate manipulation of the law to undermine the rights and freedoms of the accused; the serious nature of the crime charged and the importance of this evidence to it; and, finally, to the existence of the duty upon the State recognised by Article 2 of the ECHR to protect the lives of all citizens.

I accept, in the exercise of my discretion under Article 76 and generally, I should not only examine and evaluate such individual breaches of the statute and the code it gives rise to but I also should, having done that, stand back and look at all these issues globally. I have done so in this case.

Having done so, I do not consider, with one exception which I will reserve to the end of this ruling, that all of the individual breaches of the Order and the Code, either taken singly or comprehensively together and identified by me, are such that I could exercise my discretion to exclude the floppy disk from evidence in the circumstances of this case. I will deal with these matters now. Some are in my view significant breaches, others are less so.

Article 10(1) of the Police and Criminal Evidence (Northern Ireland) Order 1989 in effect requires that a Justice of the Peace in this situation be satisfied of the existence of reasonable grounds that a serious arrestable offence has been committed, that there are reasonable grounds for believing that there is material likely to be of substantial value to the investigation of the serious offence, and that this is likely to be relevant evidence that is not privileged, excluded, or special material, and that entry to the premises will not be granted unless a warrant is produced.

I accept that there are deficiencies in the complaint laid before Mrs. Holmes, the Justice of the Peace. I also accept that Constable Greer said in evidence before me that he did not give an explanation to Mrs. Holmes over and beyond what was written in the complaint, although he did refer to what was disclosed in the complaint after an oath had been administered.

I am, however, satisfied that sufficient was written and said so that Mrs. Holmes' state of mind in fact was (i), a burglary had been committed involving the taking of Masonic and orange regalia; and (ii) the constable believed that these items were likely to be found in the home of Mr. Leighton. The warrant that Mrs. Holmes signed was already typed up and presented to her for signature and it contains the words:

"Whereas the offences for the application on oath of Samuel R Greer, a constable of the Royal Ulster Constabulary of Ballycastle, that there is reasonable cause to believe that certain articles, namely Masonic/Orange regalia sought in connection with the offence of burglary are on the premises of Sean Alexander Leighton situated at xxxxxxxxxxx, Ballycastle".

I am satisfied that Mrs. Holmes' state of mind was not simply that the constable had stated he had reasonable grounds for such belief but that the police had been told that such material was present on the premises of Mr. Leighton. I agree that the constable did not say that he told Mrs. Holmes this, but I am quite certain that this would have been an inevitable deduction that she would have made from her reading of the warrant already typed and from the complaint, and from the averral on oath of the constable.

The fact that, in breach of the Order and Code, the grounds of complaint were left blank does not alter my view. If the ground stated that an informant had told the police that items were on these premises or that Mr. Leighton had committed the burglary, this would not greatly have improved Mrs. Holmes' state of knowledge. These matters should have been filled in. That the section should have been left blank was a breach of the Order and the Code. I did not, however, in the circumstances of this case find it to be of great significance.

A further breach of the Order and Code occurred in that the power that constable was acting under, the Theft Order, was not included in either the warrant or the complaint. It is, however, perfectly clear that this was a burglary that was being investigated and that it was in pursuance of investigating this that the police were acting. I find the failure to insert in these documents the relevant part of the Theft Order is a breach of the Order and the Code. I regard this breach as a matter of form rather than substance, since the genuine nature of the police investigations, that of investigating burglary, was immediately apparent and would have been to a lay reader of the warrant.

I am satisfied that, although Constable Greer did not amplify what was in the complaint and what had been already typed on the warrant, Mrs. Holmes' state of mind was that the police believed a burglary had been committed and that Masonic and Orange regalia had been stolen and were likely to be found on the premises of Mr. Leighton. I am of the view that it must have been obvious to Mrs. Holmes that someone had told the police that. I concede that would have been more by deduction from the bald facts than from what was said. I believe that Mrs. Holmes was herself satisfied that there were reasonable grounds for the police to believe that a burglary had been committed, that Masonic and Orange regalia had been stolen, and it was likely that such items were to be found on Mr. Leighton's premises, and I so hold.

If I am wrong in that it then constitutes a clear breach of Article 10 of the Order. It does not, however, in any way affect the cogency or reliability of the actual evidence. In my view, a fair trial would not be adversely affected by Mrs. Holmes failure (if that is what it was) to be satisfied that reasonable grounds existed for the police suspicions.

While the absence of grounds in the complaint and the absence of the statutory power under which the police were acting both in the complaint and in the warrant were clear breaches of Article 17 of the Order, I do not feel that they are of the substance so that I should exercise my discretion to exclude evidence.

The reality is that, despite the paucity of what Constable Greer said to Mrs. Holmes and quite significant and clear deficiencies of the warrant 17(2)(a)(i) and (ii), and 17(6)(iii), these deficiencies have to be viewed in the overall light of what was disclosed and what was said. In particular I do not find that these deficiencies were intended in any way to misrepresent the actual situation when the warrant was presented to the occupier to gain admission to the house which was to be searched. It was clear that the police were searching for stolen property specified as Masonic and Orange regalia, and this had to have been taken in a burglary.

Does a warrant confine the police to the seizure of the articles specified in the warrant? I am of the view that the police can seize articles if they have a genuine belief that they are relevant to the offence in the warrant and that their belief is reasonable. In this regard, Constable Greer was entitled to seize the floppy disk and computer. It turned out that the floppy disk disclosed the possible commission of a completely different offence, but that is a separate matter.

To my mind to restrict the police to seizing those articles formally specified in a warrant would be unduly restrictive. I appreciate Article 18(2) allows a search under a warrant to a search "only to the extent required for the purpose for which the warrant is issued", but I hold that includes matters which, genuinely and reasonably, are believed to relate to the purpose for issuing the warrant. To hold otherwise would, as I have said, restrict officers from seizing under foot of a warrant to search premises searching for class A drugs from seizing list of names and articles the officers genuinely and reasonably believed to be connected with the offence of drug dealing.

There are, to my mind, other less significant breaches of the PACE Code. I do not refer to those parts of the Code that duplicate the provisions in the Order but I refer in particular to paragraphs 7(1), 7(2), 7(3) and 8(1) of the Code. It is clear that these matters were not done in compliance with the requirements of the Code. I hold that there were breaches of the Code but I do not exercise my discretion to exclude the receipt in evidence of the disks on this basis. I have not perhaps mentioned all the breaches of the Code that Mr. Allister found. It is sufficient to say that I have considered these individually and collectively and do not consider on any view that I should exercise my discretion to exclude the floppy disk from being evidence in this case as a result of these breaches, either individually or collectively.

The provision of a search register and of lodging these with Petty Sessions may be a counsel of perfection but they are part of a statutory Code designed to make sure that invasions of privacy done by force of law are recorded, regulated and strictly controlled. They should be followed.

However, as I have said, I do not feel that the failure to observe these provisions of the Code are such that I should exercise my discretion to exclude the evidence. I am not of the view that the failure to observe any of these provisions was in any respect as a result of bad faith. It is rather due to a lack of familiarity with practice, and to poor practice. There is ample authority that the approach of the court in these matters should not be to punish the police for their failings. The court should hold up to the forefront the idea of fairness of both the criminal process and the trial. In that regard, substance is more important than form. I do not, particularly in the absence of any conscious or deliberate failure to observe these provisions by Constable Greer or those responsible for him (Inspector Elliot), feel that I should exercise my discretion to exclude evidence, otherwise proper and relevant evidence that is essential to the trial and its cogency and integrity is not effected in any way.

I bear in mind the one matter that gives me concern. Mrs. Holmes issued a warrant identifying the premises to be searched as" the premises of Shaun Alexander Leighton, situated at xxxxxxxxxxx, Ballycastle". With the exception of the alteration of the spelling of Sean S-E-A-N, to Sean S-H-A-U-N, the description of the premises is typed. In fact the premises of Sean Leighton are at number 20 and not number xx. His parents live at xx, and Constable Greer found that at out when they called at xx and were told that Shaun Leighton lived at number 20 just up the street, but that he was at work.

It was perhaps a moot point as to whether such a description of the premises to be searched authorised a search at number 20 or number xx. Mrs. Holmes clearly intended the premises of Shaun Leighton to be searched and these were not the premises of his parents at xx. It was in fact on Shaun Leighton's premises that the property involved in the burglary was believed to be. If Constable Greer had simply gone to number 20 and made it clear that he had a warrant to search these premises as they were those of Shaun Leighton, that search might possibly have been authorised by the warrant despite the misdescription of the number. Such an error may not have gone to the substance of the warrant that Mrs. Holmes had directed at the premises of Shaun Leighton.

As Mr. Allister says, the warrant is specific to the premises for which it was issued and I believe that it was the intention of Mrs. Holmes to have the accused's home searched, not his parent's.

However Constable Greer did not do so, no doubt because he was faced with a difficult situation. In evidence he said that there was some local hostility in this small County Antrim village to the presence of three uniformed officers to carry out a search. He consciously and deliberately altered the xx to 20. It is correct that when he did so he initialled the alteration and there was no attempt to by him to conceal the fact that this alteration had been made. He used his own initials.

However, whilst there was an absence of male fides in that sense, the alteration was designed to correct the error on the warrant. I do not suppose that many occupiers when presented with a search warrant by the police look to see whether the premises are correctly described by number, but I suppose they can do so and by law they are clearly entitled to do so. I have little doubt that if this had happened the occupier of 20 Mosside Gardens would have been misled by this alteration, and it is difficult to see how Constable Greer could have intended otherwise. Mrs. Holmes has a warrant from the Lord Chancellor's Department which is her authority to issue search warrants. There is absolutely no scope whatsoever for a warrant, albeit typed by others in advance of being signed by her, being in any way altered after the event. It is a judicial document bearing the signature of a judicial officer. No constable has any authority to alter it for whatever purpose, even if he initials the alteration. I can appreciate why Constable Greer did this but he should not have done it. The warrant was either valid to search number 20 or it was not. If it was not Constable Greer had no alternative but to go back to Mrs. Holmes or to another Justice of the Peace.

In my view this was not simply a breach of the PACE Northern Ireland Order 1989 and the Code under it, it was a positive interference with a judicial document and therefore affected the integrity of the criminal process. The only person who has authority to alter the warrant was Mrs. Holmes or perhaps another JP. On this basis should I exercise my discretion? Having examined the nature of the act, the alteration of judicial authority, and I regard this as being in the scheme of things a matter of very considerable significance. It is correct that the actual alteration in my view did not alter what was intended by Mrs. Holmes, which was that the premises of Shaun Leighton should be searched, but any alteration of a judicial document is a serious matter. If Mrs. Holmes had been asked to correct the misdescription from xx to 20 she would have no doubt done so. However, any alteration by a person who knows the effect of that alteration is to make it appear that the authority and the alteration was signed and authorised by a Justice of the Peace is serious.

I considered whether, as Mr. Magill invites me to do, the serious nature of the crime charged and the inclusion on an electronic record of the personal details of persons whose lives might well be at risk should mean that I should exercise my discretion to admit the evidence and I turn to consider this.

The admissibility of evidence is dealt with in Article 76 of PACE Northern Ireland 1989 and by common law. Article 76, by the way it is cast, concentrates the court on the impact or adverse effect on the fairness of the proceedings and I quote:

"In any proceedings the court may refuse to allow evidence upon which the prosecution seeks to rely if it appears to the court that, having regard to all the circumstances, including the circumstances in which the evidence was obtained, the admission of the evidence would have such an adverse effect on the fairness of the proceedings that the court ought not to admit it".

This provision is a little awkward. Although it purports to give the court a discretion by the use of the word "may", the reality is that it would be a rare course for any court to admit evidence if the circumstances of its being obtained had any adverse effect impact on the fairness of the proceedings.

In one sense the breaches in this case of the Order and the Code, while they reflect effect adversely on the standards of those who applied for and executed the search warrant do not effect the integrity of the evidence itself or the cogency of that evidence. The circumstances whereby the police came into the possession of floppy disk can be criticised but they do not, certainly on one view of the way Article 76 should be applied, affect the ability of the court to ensure a fair trial.

As Auld LJ said in R-v- Chalkley and Jeffries 1998 2 CAR 107:

"The exercise for the judge under Section 78 (our Article 76) is not the marking of hid disapproval of the prosecution's breach, if any, of the law in the conduct of the investigation of the proceedings, by a discretionary decision to stay them, but an examination of the question whether it would be unfair to the defendant to admit that evidence".

In this case the illegality of the search did not affect the authenticity or content of the floppy disk. It was relevant and essential to the prosecution case against the accused. It does not result from incitement, any form of entrapment or inducement made by the police and none of the complaints by Mr. Allister about the unlawfulness of the search and the relevant breaches of the Order and Code affect the quality of the evidence. In my view it could not be said that the admission of this evidence would have an impact on the fairness of the trial against the accused.

On the other hand, it is clearly established that this court has a general discretion to exclude evidence obtained under an application to stay proceedings as an abuse of process. It is a power that should be used very sparingly, but I am satisfied that the court has power to stay proceedings not just where a fair trial is impossible but also where it would be contrary to the integrity of the criminal justice system that a trial should take place. I refer in particular to R-v-Mullan 1999 2 CAR 143 and R-v- Latif 1996 2 CAR 92, and I quote Lord Steyn:

"Here the evidence was obtained by a search that resulted after a warrant signed by a Justice of the Peace had been altered by a police officer ...abuse of process which amounts to an affront to the public conscience and requires the criminal proceedings to be stayed. Bennett was a case where the stay was appropriate because the defendant had been forcibly abducted and brought to this country to face trial in disregard of the extradition laws. The speeches in Bennett completely established that proceedings may be stayed in the exercise of the judges discretion, not only where a fair trial is impossible, but also where it would be contrary to the public interest in the integrity of the criminal law system that a trial should take place. An infinite variety of cases to happen could arise. General guidance as to how the discretion should be exercised in particular circumstances will not be useful but it is possible to say that in a case such as the present the judge must weigh in the balance the public interest in ensuring that those charged with a degree of crimes should be returned and compete with public interest and not conveying the impression that the court will adopt the approach that the end justifies the means".

This is very helpful in that it makes clear the balancing exercise that the court has to carry out.

Here evidence was obtained by a search that resulted after a warrant signed by a Justice of the Peace had been altered by a police officer. It is true that the officer initialled the alteration and in that sense did not seek to use trickery or cunning. However the alteration was, for whatever reason it was done, conscious and deliberate. It can only have the effect that anyone looking at the document would assume that the Justice of the Peace had signed the warrant after the alteration was made. The fact that this could be deduced even after the event from the fact that police went to xx does not change or alter matters.

I hold therefore that this court should balance the public interest in protecting the integrity of the criminal justice system with the public interest in the seriousness of the charge. I do not intend to equate the alteration of the judicial document with the unlawful abduction or extradition of an accused from another country. It does seem to me, however, that the public should have confidence in documents emanating from a judicial authority. They should not be altered in any way - to do so permits an attack on the very building blocks of the criminal process itself. I find that the balance falls in favour of staying this prosecution as an abuse of the process of the court.