Mr Justice Stuart-Smith:
Introduction
- On 8 May 2013 the First Defendant Magistrates' Court issued a specific premises warrant under s. 8 Police and Criminal Evidence Act 1984 ("PACE"). It was executed by officers of the Second Defendant's force on 13 and 22 May 2013, with another search taking place on 14 May 2013 in purported compliance with s. 18(1) of PACE. The premises searched are 46 M… Road, the home of the Claimants and other family members. The Claimants challenge the lawfulness of the issue of the warrant and the searches subsequently carried out.
- On 18 November 2013 Blake J directed a rolled-up permission hearing before the Divisional Court. The hearing took place on 12 March 2014. This is the judgment of the Court to which we have both contributed.
The Factual Background
- On 12 May 2002 a lethal house fire in Huddersfield took the lives of eight people ranging in age from 54 down to a babe of six months. When it was clear that the fire had been maliciously started, the police promptly arrested a number of people including Mohammed Shahid ("MS"). MS was bailed because there was then insufficient evidence to justify charging him; but by 21 May 2002 forensic evidence justified his re-arrest with a view to charging him (and others) with murder. When the police attempted to trace MS he had disappeared. He has been on the run ever since, wanted for the murder of the eight victims of the fire. It is thought that MS may have escaped to Pakistan. In 2003 other suspects who had been arrested along with MS were tried and convicted of murder. During the trial evidence was given that implicated MS.
- The Claimants are members of MS's family. The police applied for the warrant now under challenge because they had received information that leads them to believe that MS's family was actively involved in assisting him to leave the country and has continued to assist him in evading arrest. In addition to being members of MS's family, the Claimants are solicitors. They practise in criminal law and act as duty solicitors at police stations, as was well known to the police.
- The application for the warrant was made on a standard form signed by DC Martin Jarvis and authorised by DI Paul Smith. It is central to the present proceedings and stated as follows:
"Application is today made before me the undersigned by DC 4886 Martin Jarvis:
For the issue of a specific premises warrant under section 8 Police and Criminal Evidence Act 1984
The applicant says on oath that there are reasonable grounds for believing:
that an indictable offence, namely (perverting the course of public Justice (Common Law) and assisting an offender Contrary to section 4(1) and (3) of the Criminal Law Act 1967 has been committed:
(a) that there is on 46 M… Road …. The outhouses and vehicles within the curtilage of this property. material that is likely to be relevant evidence and be of substantial value to the investigation of the offence and does not consist of or include items subject to legal privilege excluded material or special procedure material, namely Computers/mobile telephones/media storage devices/identity documents/financial documents supporting the financing of Shahid Mohammed/Documents relating to premises in Pakistan belonging to/ in possession/control of the occupants of...
(b) …
(iii) that entry to the premises will not be granted unless a warrant is produced;
(iv) 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; AND
(d) that to achieve the purpose for which the warrant is being applied it is necessary that the warrant authorises entry to and search of each set of premises:
subject to any second and subsequent entry being authorised in writing by an inspector or above on an UNLIMITED number of occasions.
FURTHER INFORMATION:
1) All applications; explain why it is believed the material sought will be found on the premises to be searched.
At approximately 2am on Sunday 12th May 2002, emergency services were called to 40 Osbourne Road, Birky, Huddersfield to reports of a house fire. On their arrival the house was found to be totally engulfed in flames. Following its extinguish it was determined that seven people from the Christi family, ranging from 35 years to 6 months in age had perished within the address. A further female aged 54 years died a week later as a result injuries sustained in the fire. Sadly three generations of the Christi family perished as a result of the fire.
During the daytime of Sunday 12th May 2002 a number of individuals were arrested in relation to this matter. One of these individuals, Shahid Mohammed was interviewed at length in relation to the house fire, after extended detention, he was bailed to return to Huddersfield Police station in July 2002. At the time of release there was insufficient evidence to charge the suspects. Although forensic examinations were ongoing, it was not possible to conclude these during the detention period. On 21st May 2002 fresh forensic evidence was obtained, the evidence was enough to justify the re-arrest of all suspects including Shahid Mohammed but despite extensive enquiries he could not be traced. He was circulated as wanted for 8 offences of murder and remains at large to this date.
In June 2003 a trial was concluded at Leeds crown court in relation to the other defendants charged, this resulted in the other defendants giving evidence against their co-defendants including Shahid Mohammed.
The investigation has continued as a man hunt for the intervening period and despite lengthy and protracted enquiries the suspect remains outstanding.
As a result of enquiries made to establish the current location of Shahid Mohammed the investigation team have gathered information and intelligence that would lead them to believe that Shahid Mohammed's family were actively involved in assisting him to leave the country and have continued assisting him in evading the Police and frustrating the investigation. Mohammed's family live at 46 M… Road, …. This is where the investigation believes it will find evidence of this conspiracy that can help locate Shahid Mohammed.
2. If applicable, describe any person(s) to be authorised to accompany the officer executing the warrant.
Warrant will be executed by officers from the Homicide Major enquiry team and assisted by local Officers from the neighbourhood Policing team.
3. If the application is for an "all premises" warrant; explain;
(a) Why it is believed necessary to search premises occupied or controlled by the person in question that are not specified in the schedule; and
(b) Why it is not reasonable practicable to specify in the Schedule ALL the premises the person occupies or controls and which might need to be searched.
This application is for 46 M… Road … and to allow investigating officers multiple entries to that premises.
4. If authority to enter and search the premises on more than one occasion is needed, explain why, and how many, further entries are needed to achieve the purpose for which the warrant is to be issued.
The Investigating Officers will require entry to the premises on more than one occasion. This is because the investigation is dynamic and as a result of on going enquiries and interviews new lines of enquiry could be indentified that would give rise to further searches taking place at the address."
- The application came before Mr Brady. DC Jarvis attended with DS Brandon Greenwood. DS Greenwood took notes and recorded "What is the intelligence? Not sure of what the source". To similar effect, the clerk to the court noted:
"Intelligence - not too sure of its sources or reliability."
DC Jarvis' evidence is that he "could not disclose the provenance of all the intelligence because it came from many different strands. [He] told [the Magistrates] that enquiries made by the enquiry team had led to relevant material being obtained from multiple sources including Crime Stoppers, confidential sources and witnesses. It was the size and number of these reports that led [him] to being non-specific about the provenance of it all."
- It is common ground that the issuing court was not told that the Claimants are solicitors. It is also common ground that the Court was not told that the police expected to find significant quantities of items subject to legal privilege, excluded material or special procedure material within the meaning of ss. 10, 11 and 14 of PACE respectively. The Claimants' case is that this information should have been provided. The Second Defendant's case is that no such disclosure was required. First, the Claimants' occupation is said to have been irrelevant because (a) the warrant concerned their residential address and not their office; (b) the police were not looking for excluded material or special procedure material; and (c) the material sought had nothing whatsoever to do with the Claimants' occupation as solicitors or dealings with their clients. Second, for the reasons just identified, there were no reasonable grounds for the officers to believe that the material they were searching for would contain material subject to legal privilege or which was excluded material or special procedure material.
- The Magistrates' Court issued the warrant authorising entry to the premises and the search for:
"Computers/mobile telephones/media storage devices/identity documents/financial documents supporting the financing of Shahid Mohammed/Documents relating to premises in Pakistan belonging to/in possession/control of the occupants of 46 M…. Road, … ."
The warrant stated that the number of occasions that the premises may be entered and searched under it was two, subject to any second and subsequent entry being authorised in writing by an inspector or above.
- On 13 and 22 May 2013 the officers conducting the search were accompanied by independent counsel. The evidence of DI Smith, supported by that of counsel, is that independent counsel were instructed in case either Claimant had items subject to legal professional privilege at the premises and to ensure that, if they did, such items were not inspected by the police. DI Smith and counsel who attended on the first occasion say that, before the police commenced the search, the occupants were asked whether there were items on the premises to which legal privilege might apply. They were asked to indicate those to a Sergeant and each of the Claimants identified items.
- The Claimants were arrested on 13 and 22 May 2013, as were other family members. Counsel identified some materials that might be subject to legal privilege. On the basis of their descriptions of the exercise they carried out, they adopted a cautious approach and excluded anything that could possibly be privileged.
The Applicable Principles
- It is common ground that a person applying without notice for a warrant is under an obligation to make full and frank disclosure: "In an ex parte application the applicant should put on his defence hat": Re Stanford International Bank Ltd (in Receivership) [2010] 3 WLR 941 per Hughes LJ
- The warrant was sought and obtained relying upon the terms of ss. 8 and 15 of PACE. A warrant obtained under those sections does not authorise entry and search for legally privileged, excluded or special procedure material as defined: see ss. 9 & 16(8) of PACE. It is the duty of the person applying for the warrant to identify, as far as is practicable, the articles or persons to be sought: see s. 15(2)(c) of PACE. Likewise, the warrant itself "shall" identify, so far as is practicable, the articles or persons to be sought: see s. 15(6)(b). The need for precision within the terms of the warrant itself has been emphasised in a number of cases, most recently in PCJ Van der Pijl v Crown Court at Kingston [2013] 1 WLR 2706, [2012] EWHC 3745 (Admin) at [53], [61], and [65] per Wilkie J and R (S and others) v Chief Constable of the British Transport Police [2014] 1 All ER 268, [2013] EWHC 2189 (Admin) at [31].
- The parties' submissions referred us to a generous selection of the cases over the past few years where the courts have considered the legality of warrants. Most need not be individually cited in this judgment. However, it should by now be clearly appreciated by all who make or decide applications for the issuing of warrants that there is no part of the process that should be regarded as a formality. Each application must be carefully and precisely formulated so as to satisfy both the statutory requirements and the duty of full and frank disclosure; and a decision to issue may only be taken after that level of critical scrutiny that is required when the court is asked to sanction a substantial invasion of fundamental rights. The flow of the authorities tends towards requiring increasing rigour and precision at all stages of the process and nothing we say in this judgment should be taken or interpreted as going against that flow.
The Grounds of Challenge
Grounds 1a, b & d – Failure to disclose the fact that the Claimants were solicitors and its consequences
- The Second Defendant knew the Claimants were solicitors practising in criminal law, including acting as duty solicitors. It was also appreciated that there was at least some prospect that legally privileged material might be encountered: that is why independent counsel were instructed to attend. The Claimants were not under suspicion for any reason related to the exercise of their profession. To the contrary, MS was thought to have been assisted by his family acting as such. That was made clear by the terms of the information before the Magistrates Court and that the warrant was directed to the family's residential accommodation with no warrant being sought in order to search the Claimants' offices.
- The Claimants submit that the Second Defendant's instruction of independent counsel was inconsistent with the proper obtaining of a warrant under s. 8 of PACE because it demonstrates that there were no "reasonable grounds for believing ... that [the materials being sought] does not consist of or include items subject to legal privilege, excluded material or special procedure material." We disagree. The instruction of independent counsel is entirely consistent with a belief that the materials sought did not include privileged, excluded or special procedure material while prudently recognising the possibility of that belief proving to be wrong when the search was conducted.
- In support of their submissions the Claimants rely upon the recent decision of this court in Re S. However, the fundamental failing in Re S was a failure to express the true purpose of the warrant: the Claimants had acted in their professional capacity as lawyers for a client in relation to a criminal investigation, and there was direct evidence that one Claimant had acted dishonestly and in such a way as to assist the client in concealing evidence when accompanying him to a police station. The purpose of the warrant went far beyond what was expressly stated on it, and was to seek all documents held by the firms of solicitors that related to the client in all his activities. It therefore went to the heart of the solicitor/client relationship and the privileged documents that would have been generated in the course of that relationship. The failure of the information presented or the warrant itself to disclose or describe the true purpose of the warrant was fatal to the legality of the process. That is not the case here, and determination of cases such as these will always be fact sensitive.
- We do not understand Re S to establish a general and binding principle that full detail must be given of any possibility that legally privileged, excluded or special procedure materials might be encountered in a search where such material are neither the intended target of the search nor intrinsically likely to be a significant element of what will probably be encountered. It follows that we would not accept that it is always necessary to disclose that an occupant of premises to be searched happens to be a solicitor. The Claimants disclaimed the existence of such a broad rule or principle; but they submit that the facts known to the police about the nature of their practice as solicitors and the breadth of the categories of items authorised to be searched under the warrant means that, in the present case, that they were solicitors was material to be disclosed pursuant to the obligation of full and frank disclosure.
- While accepting that it was appreciated to be possible that material subject to legal professional privilege might be encountered, the Second Defendant submits that disclosure o such a possibility was not required. When pressed, Counsel for the Second Defendant realistically accepted that it was at least readily foreseeable that legally privileged material would be encountered because the Claimants are solicitors, but he maintained that such an outcome was not certain because it could not be assumed that solicitors such as the Claimants would take home their work computers or would have legally privileged materials on their personal phones.
- In our view this submission misses the point, for three main reasons. First, even if a solicitor were rigorous in maintaining separate phones and computers for home and work, there would be every likelihood he would take his work-based devices home: a solicitor who acts as duty solicitor needs to be readily contactable and to have ready access to work contacts and content at short notice and would therefore keep his work-based devices close at hand. Second, it is common knowledge that solicitors practising in the Claimants' field may keep both work and home content on one device rather than maintain separate devices for home and work. Third, the emphasis of this submission is misplaced: the question is not whether it were certain that the material within the ambit of the warrant would consist of or include items subject to legal privilege (whether on computers and other electronic devices or otherwise) but whether the applicant for the warrant had reasonable grounds for believing that the items included in the warrant would not consist of or include them: see s. 8(1)(e) of PACE. Once the question is rephrased in that way, it is obviously material to the answer to know that the computers or other devices may belong to solicitors practising in the Claimants' field.
- We are therefore persuaded on the facts of this case that the duty of full and frank disclosure clearly required that the Magistrates' Court be told that the Claimants were solicitors, with the consequence that it was not only foreseeable but highly likely that the terms of the warrant as drafted would include significant quantities of material that was legally privileged. The failure to give such disclosure is fatal to the Second Defendant's case.
- By Ground 1(d) the Claimants submit that the search terms of the warrant were unfocussed so that they permitted the seizure of material that would not be "relevant evidence" as defined by PACE nor be of substantial value to the investigation.
- The court has frequently emphasised the importance of the statutory obligation under s.15(6)(b) of PACE that a warrant should identify, so far as practicable, the articles or persons to be sought. What is more, it is clear that the warrant must be capable of being understood as a free-standing document. As was said in Van der Pijl at [57]:
"Section 15(6) … addresses not the process of the application but the warrant itself, which is the only document which provides lawful cover for what otherwise would be an unlawful act. Accordingly … the warrant must be judged by reference to its own terms exclusively and not to any other material source."
- Judging the warrant by reference to its own terms exclusively, it is immediately apparent (and the Second Defendant accepts) that it is unhappily drafted. The Court's first instinct is to look to see whether the warrant can reasonably be construed in a manner that is satisfactory rather than one that is not; but in doing so it is necessary to bear in mind that the pragmatic test is that the occupier who reads it should be able to understand the legitimate ambit of the search it authorises. We cannot identify any approach to construction by which this warrant passes that test.
- The warrant's basic defect is that nothing in it indicated that the articles sought were limited to those having a connection with activities tending to aid MS's disappearance or to provide him with support as a fugitive. The Second Defendant submitted that the list of items could be split in two, as if it had read:
"Computers, mobile telephones, media storage devices, identity documents, and other financial documents supporting the financing of Shahid Mohammed.
Documents relating to premises in Pakistan belonging to/in possession/control of the occupants of."
- We are unable to accept this submission. First, it does not reflect what the warrant in fact said and requires significant amendment by substituting commas for forward slashes and incorporating additional words: this is not a promising start for a document which must convey its meaning clearly to the occupant of the targeted premises. Second, the use of forward slashes indicates that the warrant contemplated a series of discrete categories, so that it is not possible to interpret the words "supporting the financing of Shahid Mohammed" as qualifying all that had gone before (particularly in the absence of the additional words "and other" included above). Third, when asked to identify any respect in which "identity documents" might be documents "supporting the financing of Shahid Mohammed", neither side was able to do so, which supports the conclusion that the categories of items are separate and discrete and not collectively governed by the words "supporting the financing of Shahid Mohammed". Fourth, the warrant did not split the categories of documents in two as we have done above. Fifth, even were the warrant construed as if set out above, there remains nothing to indicate that "supporting the financing of Shahid Mohammed" governed or limited the subsequent categories of documents. Sixth, there are no words at all indicating any limitation or qualification relating to assisting MS to escape or to remain at large.
- What is certain is that the description would not have disclosed to the occupants of 46 M… Road that the only articles sought were ones relating to the disappearance or support of MS.
- At an earlier oral hearing, the Claimants submitted that if the warrant had said "material relating to the financial support of [MS] and/or material casting light on [MS]'s whereabouts" then no complaint would have been made. The Second Defendant submits that the wording used was not materially different from that proposed. That submission is not sustainable. The substantial difference is that the Claimants' proposed wording expressly limits the scope of the search to articles relevant to the enquiry in support of which the warrant was sought, whereas the wording used does not limit it expressly or by implication. We would however sound a note of caution: while we accept it was necessary to limit the ambit of the search by words such as those proposed by the Claimants, we should not be taken as deciding that such proposed wording would without more have satisfied the statutory requirement that the warrant should "identify, so far as practicable, the articles … to be sought."
- This failure to limit by the express terms of the warrant the scope of the articles sought is crucial. For this reason, the warrant failed to comply with s. 15(6)(b) of PACE and was invalid: see R(ex parte Power-Hynes and anr) v . Norwich Magistrates' Court and the Chief Constable of Norfolk [2009] EWHC 1512 (Admin) at [23]-[25].
Ground 1c - There were no reasonable grounds for believing an indictable offence had been committed (section 8(1)(a) of PACE) because it was based on unreliable and uncorroborated intelligence
- There are three sources of information about whether there were grounds for believing that an indictable offence had been committed. The first is the information, which said under the heading "Further Information":
"As a result of enquiries made to establish the current location of Shahid Mohammed the investigation team have gathered information and intelligence that would lead them to believe that Shahid Mohammed's family were actively involved in assisting him to leave the country and have continued assisting him in evading the Police and frustrating the investigation."
The second is the notes of the hearing which provide evidence of the Court being told that the police were not sure of the source of the information or its reliability. The third is the witness statement of DC Jarvis, the material parts of which we have set out at [6] above.
- We were referred by the Claimants to R (Austen and others) v Chief Constable of Wilthire [2011] EWHC 3385 (Admin) where a similar point was taken. The facts of the two cases are different but we come to the same conclusion as the court in Austen. Although DC Jarvis' evidence does not fit comfortably with the notes taken at the hearing in the Magistrates' Court, we are not persuaded that there was inadequate disclosure as a result of which the Court could not properly form the belief that an indictable offence had been committed. We accept that it may be necessary for the police not to disclose the precise sources of their information. In addition, while paragraph B3.1 of the PACE Code of Practice states that, whenever the information appears to justify an application for a search warrant, the officer must take reasonable steps to check that the underlying information is accurate, we do not accept that those steps require anything approaching a full audit of the information or going back to the original sources. Nor does the wording of the paragraph suggest that the information be recited to the considering court. In our view, the purpose of paragraph B3.1 is to ensure that the officer applies his mind to the reliability and accuracy of the available information before launching an application. On the information available in the present case, we are not persuaded that this was not done.
- That does not necessarily determine this ground of challenge. What does determine it is that we are satisfied that there was material before the Magistrates' Court, as set out above, on the basis of which it was entitled to come to the reasonable belief that an indictable offence had been committed. Even if a question were raised during the hearing on reliability of sources, the response did not preclude such a belief in circumstances where the Court was told of multiple sources operating to the same effect.
Ground 1(e) – No reasons were given for issuing the warrant
- R (Cronin) v Sheffield Justices [2003] 1 WLR 752 establishes that, in the ordinary case, if justices accept that an information contains all the material they need to be satisfied that a warrant should be issued, it is unreasonable to require them to record their reasons for granting it: see [23], [25]. Subject to the issue of over-broad identification of the articles sought, the present case was ordinary in the sense that the information provided material on the basis of which the Magistrates' Court could be satisfied that a warrant should be issued. Accordingly, we do not consider that ground 1(e) succeeds as a separate and discrete ground of challenge.
Ground 2 – The execution of the warrant on 13 May 2013 did not comply with section 16(8) of PACE
- Section 16(8) of PACE provides:
"A search under a warrant may only be a search to the extent required for the purpose for which the warrant was issued."
- The Claimants allege breach of s. 16(8) in five respects:
i) Because the warrant was issued unlawfully, it was not open to the police to rely upon the contingent powers granted by s. 50 of the Criminal Justice and Police Act 2001 ("CJPA") and, in any event, the police did not purport to exercise those powers at the time;
ii) Photographs and video footage were taken, which was impermissible;
iii) Items are shown by the search record to have been taken which did not fall within the terms of the warrant;
iv) Items searched included cars within the curtilage of the premises, not permitted by the terms of the warrant; and
v) A car outside the curtilage was searched, not permitted by the terms of the warrant.
- We deal with these points in turn.
Reliance on s. 50 of CJPA
- We have held that the warrant was issued unlawfully so that it must be quashed. The effect of that decision is that the police were not lawfully on the premises when executing it on 13 May 2013. Section 50 of CJPA only applies where a person is lawfully on premises: see s. 50(1)(a). Accordingly, the powers conferred contingently by s. 50 were not available to the police on 13 May 2013. This objection is upheld.
The taking of photographs and video footage
- We were told by counsel for the Second Defendant, on instructions, that the video footage was limited to the Claimants being asked whether there were any items on the premises which may have contained material subject to legal privilege. Still photographs were taken of exhibits in situ so that, in a house of multiple occupation, there could be no subsequent argument about whether and where within the premises the items were found. While we have no reason to doubt Counsel's instructions, the absence of any evidence about these facts is regrettable, not least because the Claimants themselves do not and cannot know what was photographed or videoed and should not be dependent upon information provided through counsel at the hearing.
- The Claimants submit that the taking of still or moving images was not authorised by the warrant. That is correct: the warrant is silent on the point. They go on to submit that such taking of still or moving images within someone's home engages Article 8, and they rely upon R (ex parte Mengesha) v Commissioner of Police for the Metropolis [2013] EWHC 1695 (Admin) at [17]-[20]. If that is right, it is common ground that the burden then shifts to the Second Defendant to justify the infringement of the Claimants' Article 8 rights. As before, no evidence was advanced by the Second Defendant; but at the hearing we were told, again on instructions, that the purpose underlying was, at least in part, to provide protection for the occupants by reducing the scope for dispute about what had been said in response to the question about legally privileged material and about where items were found. Once again, while we have no reason to doubt what we were told, that this information emerged at the hearing and in this way is not satisfactory. It is an approach that should not be repeated unless made necessary by reasons beyond a party's control.
- On this narrowly advanced basis, we are satisfied that the taking of these images may be capable of engaging Article 8. However, in the light of our other determinations, it is not necessary for us to decide the point. For the future, were the issue raised, we are confident a court would expect a party in the position of the Second Defendant to engage fully and to be equipped to make comprehensive submissions.
The taking of items that did not fall within the terms of the warrant
- Neither the grounds of claim nor the written submissions for the Claimants identified which items were the subject of this complaint. Apart from a generalised assertion that the complaint was well founded, it was not developed in argument. We are not in a position to make the detailed findings necessary to resolve this point and we do not do so.
Cars within the curtilage
- The Claimants take the point that the information referred to outhouses and vehicles within the curtilage of the premises but that the warrant did not. It does not follow that cars within the curtilage cannot be searched. We see no difference in principle between the boot (or other part) of a car on the premises and a cupboard, bin, safe or other storage area within the curtilage. Each may be used for storage and each may be opened in the search for relevant material. We reject this ground.
Cars outside the curtilage
- The warrant was confined to the curtilage of the premises and did not authorise searching a car outside its limits. To the extent that the search included searching a car outside the curtilage without the owner's consent freely given, it was unlawful. If it were the Claimants' intention to submit that conducting an unlawful search beyond the curtilage would render unlawful an otherwise lawful search within the curtilage, we would reject that submission. The question is whether the search within the ambit of the warrant was lawfully authorised or executed. What happened outside the curtilage was, at least on the facts of this case, irrelevant to that question.
- We conclude that the execution of the search on 13 May 2013 was unlawful for the reasons set out at [36] above. We do not decide the points summarised at [34(ii) and (iii)] above. We reject the submissions summarised at [34(iv) and (v)] above.
Ground 3 – The search under section 18 of PACE on 14 May 2013 was unlawful
- Section 18(1) of PACE provides:
"Subject to the following provisions of this section, a constable may enter and search any premises occupied or controlled by a person who is under arrest for an indictable offence, if he has reasonable grounds for suspecting that there is on the premises evidence, other than items subject to legal privilege, that relates (a) to that offence; or (b) to some other indictable offence which is connected with or similar to that offence."
- The search on 14 May 2013 was authorised in writing as is required by s. 18(4). The person under arrest was identified as ZH. There is no evidence that ZH lived or regularly stayed at the premises. He stayed there on the night of 12/13 May 2013 having travelled there that day from London in order to surrender voluntarily to the police on 13 May 2013. Those being the known facts, the Claimants submit that ZH did not either occupy or control the premises within the meaning of s. 18(1) of PACE, so that the requirements of the sub-section were not satisfied and the entry and search on 14 May 2013 was not lawfully authorised.
- There is, so far as we are aware, no statutory definition and no authoritative determination of what may amount to occupation for the purposes of s. 18(1). In our view, the facts as summarised above do not, without more, demonstrate that ZH occupied the premises within the meaning of the subsection. We reach this view by reference to the context in which the word "occupied" is used: the scheme established by PACE enables searches to be made of property where there are reasonable grounds for believing that evidence of an indictable offence will be found there. Section 18 specifically links the authorising of the search to the reasonable belief that there will be evidence on the premises of the indictable offence for which the arrested person has been arrested. The arrested person's occupation of the premises must therefore be such as to support the belief that it will have caused or contributed to the presence of such evidence.
- This approach suggests no fixed duration or quality of the arrested person's presence at the premises such as would allow a formulaic approach to the meaning of "occupied" in the subsection. We can imagine circumstances in which even a short stay might give rise to or support a reasonable belief that evidence relating to an arrested person's indictable offence may be there: drug offences or homicide are obvious examples. In the present case, however, nothing in the disclosed facts suggests that ZH's overnight stay would support a belief that evidence relating to the offence for which he was arrested would be found at the premises.
Ground 4 – The execution of the warrant on 22 May 2013 was unlawful
- In addition to their submissions under Ground 1, the Claimants have an independent ground of challenge to the lawfulness of the search on 22 May 2013.
- As we have said, the warrant permitted a second search of the premises provided that it was authorised in writing by an inspector or above. That reflected the requirement of s. 16(3B) of PACE that a second or subsequent entry must be authorised by "a police officer of at least the rank of inspector." The second search was authorised by DI Smith, whose rank satisfied the statutory requirement. But paragraph 6.3B of the PACE Code of Practice B requires the authorisation to be by an officer not involved in the investigation. DI Smith was the "Deputy Senior Investigating Officer" and was therefore closely involved in the investigation. His authorisation of the second search was therefore in breach of the Code.
- That there was a breach of Code B 6.3B is not dispositive of this head of complaint. It is common in contested matters that a breach is termed technical but of no practical import, or more than technical but falling short of fatal to the submissions of the party under attack. This breach is one such. That DI Smith was involved in the investigation is far from fatal to the position as advanced by the Second Defendant.
- We were invited by the Claimants to give guidance on how the process of authorisation under s. 16(3B) should be approached. We decline, leaving it to a court where the issue may make a difference to the outcome.
Anonymity
- By an application indicated at the time of the hearing and made in writing shortly after, the Claimants requested the Court to make an order pursuant to CPR 39.2(4) that the Claimants' identify must not be disclosed on the basis that non-disclosure is necessary in order to protect their interests.
- The application is not opposed but we are obliged to consider it on its merits. Having done so we consider that an order should be made. A number of factors all point in the same direction. First, the Claimants are professional people who have not courted publicity in any way. Second, they continue to practise in the same area of law and the same locality as before. Third, they are not subject to regulatory or criminal proceedings as a result of the matters that are the subject of this judgment. Fourth, despite that, there is a real risk that if the judgment were published with the Claimants being identified it might have an adverse effect upon their professional practice and, hence, their private life. Fifth, if and to the extent that this judgment is of public interest, that interest is not affected by anonymising the Claimants or shortening the full address of the premises (as we have done). Sixth, we note that the Court of Appeal in Re S made an order anonymising the proceedings in similar circumstances, though its reasons for doing so were not explained: see [3] of the Judgment.
- We therefore direct that all orders of the Court in these proceedings shall henceforth refer to the Claimant as AB and CD and that the identity of the Claimants must not be disclosed.
Conclusion
- For the reasons set out above:
i) we give permission, quash the warrant and invite submissions on the relief that should follow our decision; and
ii) direct that the identity of the Claimants must not be disclosed.
ANNEXE A
SECTIONS 8 AND 15 OF PACE
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,
he may issue a warrant authorising a constable to enter and search the premises in relation to each set of premises specified in the application.
(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
…
(1C) The warrant may authorise entry to and search of premises on more than one occasion if, on the application, the justice of the peace is satisfied that it is necessary to authorise multiple entries in order to achieve the purpose for which he issues the warrant. "
(1D) If it authorises multiple entries, the number of entries authorised may be unlimited, or limited to a maximum.
(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) ...
(b) ...
(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.
…
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
(iii) if the application is for a warrant authorising entry and search on more than one occasion, the ground on which he applies for such a warrant, and whether he seeks a warrant authorising an unlimited number of entries, or (if not) the maximum number of entries desired;
(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.
…
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.
(5A) If it specifies that it authorises multiple entries, it must also specify whether the number of entries authorised is unlimited, or limited to a specified maximum.
(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 (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 which can be specified and which are to be searched; and
(b) shall identify, so far as is practicable, the articles or persons to be sought.
