Warrants - A Changing Landscape
COURT WARRANTS - A CHANGING LANDSCAPE
Peter Doyle QC - 25 Bedford Row - Called 1975 - Silk 2002
A Criminal defence practitioner highly proficient in defending Serious Crime, Complex Fraud & Confiscation proceedings. Peter Doyle QC has a phenomenal eye for detail and is unrivalled in his thorough preparation of cases. He is recommended as a leading Silk in Fraud in the Legal 500 2013 and Chambers & Partners 2014.
- For some time practitioners have expressed serious concerns as to the way in which search warrants have been applied for and granted and the inability to obtain a copy of the Information relied on in order to assess the merits or legality of the warrant.
- Cases have identified a number of significant failings both on the part of applicants as well as the judiciary. This is so notwithstanding that statutory and procedural requirements are clearly identified in PACE and buttressed by established common law principles requiring full disclosure and the need for rigorous scrutiny given that if granted a warrant will encroach on the Article 8 right to private life.
- Failings have included (i) ignoring or not even considering alternative remedies such as a Production Order (ii) applications failing to properly identify the nature of the alleged offending and/or justifying the application on the basis that an offence is “suspected” whereas it is a requirement that there must be “reasonable grounds for believing” that the offence has been committed (iii)inadequate disclosure of material (iv) a failure to identify information in the possession of the applicant that might militate against granting the relief sought (v) confusion between Special Procedure and Excluded Material as defined (vi) unilateral widening of the terms of the warrant after it has been granted (vii) failing to identify material that might be the subject of legal privilege and putting in place adequate search and sift procedures to ensure that such material is not seized and (viii) insufficient time given to such applications by the judiciary sometimes aggravated by a failure to give reasons for granting the order and/or making a transcript of the hearing.
- The above is by no means an exhaustive list but it can be seen that such failures demonstrate how the applicants and the judiciary have in many cases collectively failed to honour their respective obligations and duties.
- It is clear that in many cases applications are prepared by officers with little if any experience. As for the judiciary the applications are often placed before judges with a heavy workload and who have not taken the time to apply the rigour and scrutiny required. In Re S and the Chief Constable of The British Transport Police and The Southwark Crown Court (2013)EWHC 2189 (Admin) a warrant issued against a solicitor’s home engaged the judge for no more than three minutes and (along with warrants granted by another judge to search his professional premises as well as those of another firm) were eventually set aside by the Administrative Court a year later following a catalogue of errors. It is noteworthy that unlike an Anton Pillar order in civil proceedings there exists no inter- parties procedure to challenge the grant of a warrant either before or after the event. Nor can a magistrate or judge review the decision to grant a warrant. The challenge remedy is still confined to the High Court despite past overtures for reform. Thus, ex parte applications demand rigorous scrutiny if individual rights are to be properly protected.
- It was the recent case of R (on the application of Rawlinson and Hunter Trustees and Ors v (1) Central Criminal Court (2) the Director of the Serious Fraud Office and Ors (2012) EWHC 2254- “the Tchenguiz case” that eventually led to the then President of the Queen’s Bench Division (now Lord Chief Justice) to invite the Criminal Procedure Rules Committee to consider the appropriate procedures in cases of serious fraud and in particular whether the then current practice of presenting an Information without the relevant underlying material called for change. His Lordship noted that these were difficult issues that justified that level of review. He also identified the need for the Senior Presiding Judge to consider how such cases might be listed so as to provide the judicial time and scrutiny that such applications demanded.
- As a result the Committee formulated new procedural rules. This is a piecemeal reform. Further Rules and Forms are being formulated to govern practice in relation to other categories of warrants and orders. The new Part 5 and 6 Rules came into force on 7 October 2013 and govern procedures where an application for a s.8 warrant is made and the means by which if granted a party can gain access to the Information relied on.
- The new rules are clearly designed to recognise and mitigate the effect of three central problems. The first is the lack of knowledge on the part of applicants (many being junior officers) as to the statutory requirements to be met and the need for full and frank disclosure. The second is the inadequate time given by the judiciary to such applications and the consequent impact on levels of scrutiny. The third is to provide a simple mechanism by which an effected party may apply for a copy of the Information relied on in support of the application. No Rules or Forms will be a cure-all but it is to be hoped that they may go some way to limit toxic applications.
- Part 5 enables a party against whom a search warrant has been granted ex parte to apply to the court for the Information upon which the application was founded. Part 6 applies to warrants and other investigatory orders. There are currently three new Forms approved by the Lord Chief Justice in relation to rules 6.30, 6.31 and 6.32. The Lord Chief Justice promotes these Forms through the Practice Direction regime. They take time to formulate. As stated others are in the process of being prepared and approved. They are intended to provide clear and comprehensive procedures governing the seeking of such orders before magistrates and judges alike and are designed to provide a consistent approach. They do not invite a “tick box” mentality but it remains to be seen whether any such mentality creeps into the procedure and if so the extent to which the courts are prepared to stamp it out.
- Rule 6.30 relates to S.8 warrants. You will note from the front of the Form that not only does it identify the requirements of the application but also it recognises that in may be appropriate to use a live-link facility. Instead of an officer travelling some distance to court it will now be possible to arrange in an appropriate case a face to face application on a timelier basis so that proper consideration can be given to its merits.
- Boxes 1-4 on pages 1-3 of the Form are to be used to set out the details of the requirements that must be present before the court can consider the application. To grant an application without these details is a recipe for costly judicial review procedures and if the applicant fails to satisfy a court that the details have been included then time and money is wasted as a new application will have to be prepared. These requirements should go some way to focusing the mind of the applicant in terms of his duties and obligations both to the court, the defendant and any party affected by the order.
- Boxes 8 and 9 are of fundamental importance. They govern the duty of full disclosure and require the applicant to declare that there has been disclosure of everything that should have been disclosed. There is clear authority that where an ex parte application is made the applicant should ask himself what the party against whom the order is sought might say in response to the application and then say it.
- Box 10 is designed to avoid errors on the part of an inexperienced and or over enthusiastic applicant. It requires that a senior officer review the application and having done so authorise it. This may not always cure a defect. In Re S and inexperienced officer asked his Inspector to approve his application. It was approved by his senior officer but was still fundamentally flawed. It is to be hoped that in order to provide an effective check on such applications that officers will be properly trained in this important area of responsibility.
- The court, if it grants the application, is required on page 5 of the Form to give reasons for doing so. The process of doing so should identify any misgivings. In Re S the Administrative Court expressed the view that if the judge who granted the first warrant to search the solicitor’s premises had in fact considered his reasoning for doing so he may well have identified why it would have been wrong.
- Part 5 introduces a new rule 5.7(1)(b). In the past it has proved extremely difficult to persuade applicants to provide a copy of the Information upon which a warrant was granted. Often one is met by assertions that it contains sensitive material. In other cases the Information may be provided but so heavily redacted as to rob it of any real value. In many cases there is simply a blanket refusal.
- It is to be noted that the right to apply to the magistrate or judge for sight of the Information is not limited to a party to criminal proceedings. Any person who is affected by the order is entitled to apply. This clearly comprises a broad category of potentially interested parties.
- The application to see the Information must be in writing and served on the court and on the individual who first obtained the warrant. The latter has 14 days in which to lodge objection to the application and the court cannot adjudge the matter until that period has expired. The application can be dealt with on paper but in those cases where a hearing is considered appropriate the presumption is that it will be heard in private.
- There may be cases where the applicant who obtained the warrant asserts that the Information is so sensitive that the detailed reasons for not providing a copy cannot be disclosed to the relevant party but only to the court. In such cases the court will have to adopt the familiar procedure when considering issues of public interest immunity and reach its decision accordingly.
- These procedural rules do not confer any jurisdiction on the courts. However, is is clear from decided cases (eg R (on the application of Cronin )(2003) 1WLR 752 and Austin v Wiltshire Police (2011) ECHW 3385) that save where PII considerations apply a person should be able to access and thus evaluate the merits of the material presented to the court and upon which the warrant was granted.
- The procedural rules now provide a clear means by which this right may be exercised. The procedure requires the individual to identify why the material is sought. Clearly if it is suspected that the order was acquired unlawfully it would suffice to say so. There may be cases where it is thought that the Information may be relevant to preparing a defence and or enabling a defendant to make proper enquiries with that end in mind. A party effected by the order may have concerns about issues of confidentiality and seek some assurance from the Information as to the propriety of handing over third party material. However, whatever the stated reason, there is clear and established case law recognising a right in principle to such disclosure in the absence of any public interest immunity issues.
- The new rules are but a start in the fight against toxic applications. New Forms are in the process of being devised to govern the application of other warrants and orders. It is to be hoped that the new procedures will not only provide a cheap and effective means by which disclosable material in support of a warrant can be obtained but also focus the applicant on the need to properly prepare and justify an application and in doing so pay more than mere lip service to the interests of those effected. The judiciary will now have a clear template against which to evaluate competing interests. That procedure needs to be supported by appropriate listing arrangement of cases so that sufficient time can be given to the judiciary to read the application, to scrutinise it with rigour, to decide where the merits lie and provide clear reasons for the decision taken.
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This document is provided for information purposes only and does not constitute legal advice. Professional legal advice should be obtained before taking or refraining from any action as a result of its content.