A mistake of fact giving rise to unfairness is not available as a ground of judicial review of decisions made in relation to the grant of search warrants. Accordingly, a subsequently established material mistake of fact cannot invalidate a warrant otherwise properly obtained. Provided that the police have not misled the court, have made full and frank disclosure, highlighting to the judge any material which is potentially adverse to the application in any material way, and have taken reasonable steps along the lines identified in Code of Practice B, made under the Police and Criminal Evidence Act 1984, the warrant is intended to provide protection for the police in the absence of proof of malice (paras 27–33).
Where, therefore, the defendant commissioner’s officer applied for a search warrant pursuant to section 23(3) of the Misuse of Drugs Act 1971 in respect of residential premises based on evidence including aerial thermal imaging showing high heat emissions from the property, which was said to indicate a likelihood that cannabis was being cultivated on the premises, and a district judge in the magistrates’ court granted the warrant, but the subsequent search proved negative, and the claimant sought judicial review challenging the lawfulness of the warrant on the ground that the information put before the district judge in support of the warrant application had been inaccurate—
Held, claim dismissed. In circumstances where malice had not been established and the defendant had presented reasonable grounds to the district judge, who had properly granted the warrant, the claim for judicial review was misconceived (paras 34, 37–38, 39).
Henry Gow (instructed by Higgs Newton Kenyon, Liverpool) for the claimant.
Pravin Fernando (instructed by Director of Legal Services, Metropolitan Police) for the commissioner.
The interested party, South East Magistrates’ Court, did not appear and was not represented.