The police searched the claimant’s home and premises and seized some of his property pursuant to two warrants issued on an ex parte application to a justice of the peace under sections 8 and 15(3) of the Police and Criminal Evidence Act 1984. The claimant sought disclosure of the written application for the warrants but was provided with a redacted copy only. The magistrates’ court refused his application for an unredacted copy, upholding the chief constable’s claim for public interest immunity. Subsequently, the claimant’s claim for judicial review of the issue and execution of the warrants was compromised by a consent order between the claimant and the chief constable pursuant to which the warrants were quashed but, prior to consenting, the chief constable made an application under section 59 of the Criminal Justice and Police Act 2001 for retention of the seized property. The Crown Court ruled that the police were entitled to rely on the withheld information in support of its section 59 application and the application was granted. The Divisional Court of the Queen’s Bench Division dismissed the claimant’s claim for judicial review of that decision, holding that it was open to a magistrates’ court issuing a search and seizure warrant and the Crown Court in deciding an application under section 59 to consider material which had in the public interest to be withheld from disclosure.
On the claimant’s appeal—
Held, appeal dismissed. The statutory scheme of sections 8 and 15(3) of the Police and Criminal Evidence Act 1984 entitled a magistrates’ court, on an ex parte application for a search and seizure warrant, to rely on information which in the public interest could not be disclosed to a person affected by the warrant, even if that information was likely to be decisive for consideration of the legitimacy of the issue of the warrant. A Crown Court, on an inter partes application under section 59 of the Criminal Justice and Police Act 2001, was required to put itself in the shoes of a hypothetical magistrates’ court being asked, immediately after the return of the property, to issue a fresh warrant with a view to seizure of that property. The statutory scheme of the 1984 and 2001 Acts had to have been intended to be coherent and, therefore, Parliament had to be taken to have contemplated that the Crown Court, on such an application, could have regard to information which for public interest reasons was not disclosable. On a subsequent claim for judicial review it would be unsatisfactory, and productive potentially of injustice and absurdity, if the High Court were bound to address the matter on a different basis from the magistrates’ court or the Crown Court, and, if it quashed the order, to remit the matter for determination by the lower court on a basis different from that which the lower court had been required to adopt when first considering the matter. Accordingly, the High Court, on a claim for judicial review of a magistrates’ court’s order for a warrant or disclosure or a Crown Court judge’s order under section 59 of the 2001 Act, could also have regard to evidence upon which the order was based which was not disclosable for public interest reasons. Whilst open justice should prevail to the maximum extent possible and every case had to be considered in the light of its particular circumstances, it was not axiomatic that even the gist of the relevant information had to be supplied to any person claiming to be affected by, and wishing to object to, the warrant or the search and seizure (paras 22, 25–27, 37, 40–43, 57, 59, 61, 64-67).
Mark Summers QC and Jessica Jones (instructed by Stokoe Partnership Solicitors) for the claimant.
Martin Chamberlain QC and David Matthew (instructed by Head of Legal Services Department, Hertfordshire Constabulary, Welwyn Garden City) for the chief constable.
James Eadie QC and Melanie Cumberland (instructed by Treasury Solicitor) for the Secretary of State for the Home Department, intervening.
The Crown Court was not represented.