Search Warrants - Sperrin Law

The ethos at Sperrin Law is one of total defence. In other words if our client, whether it is a person or a corporate, instructs us to defend then we do more than just look at the facts of the case and ask the client for instructions. We are dynamic. We do not expect our clients to settle for anything less than a full and comprehensive battle-plan if that is what is called for. We are passionate about delivering a service that engages our skill and experience in an imaginative and bespoke fashion so that we can bring the battle to the other side.

For many of our clients that combative approach means starting at the very beginning. Why was our client’s home/business searched? Was the search lawful? There will of course be times when the search was unpleasant but perfectly lawful, but nonetheless the questions asked and pressure brought to bear produces results for the client in other ways. For example, pinning the investigators down to making commitments to the return of seized digital material, getting early disclosure of the prosecution’s suspicions, reminding the police of their duties under the various Codes of Practice and Protocols so that they are forced to co-operate with the defence over the analysis of seized laptops and phones. This is way we defend.

The majority of search warrants are issued under the Police and Criminal Evidence Act 1984 (PACE) or the Proceeds of Crime Act 2002. The applications are usually made to a Magistrates Court and of course the suspect is not informed about the hearing. Applicants must state the object of the search and provide sufficient information to satisfy the court that it is necessary. There must be reasonable grounds for believing that an offence has been committed and that there is material on the premises likely to be of substantial value to the investigation. There are other procedural rules that must be followed regarding both the application and the conduct of the search. These rules are important, if you get it wrong the warrant may be quashed and/or the property returned because the proper procedure was not adhered to. If that happens that may be the end of any chance of the prosecution using the product of the searches in any subsequent prosecution.

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Duty of Applicants

It has long been the case that the courts must control the invasion of privacy that is involved when the State seeks to search the premises of an individual or a company; an individual’s right to privacy is protected under Art 8 of the European Convention on Human Rights, as well the right to his/her peaceable enjoyment of their own property; article 1 of the 1st protocol of the Convention. A search warrant may seem routine, but it is rightly regarded as a serious infringements of a citizen’s fundamental rights.

The fact that the application is made without the defence being aware of it means that the there is also a very high duty on the police/HMRC/NCA etc to tell the court all that the defence might be expected to argue if they were there; Lord Justice Hughes in a case called re Standford [2010] 1 WLR 941, 191, said that the presenting advocate must in effect ‘put on his defence hat’. Time and again we see cases where that does not seem to be happening.

What was the Court Told?

If you, or your company, have been the subject of a search then you have an absolute right to know what was said to the court in order to secure that warrant. There is also a right to reasons from the court. These rights appear to be rarely exercised. However, at Sperrin Law it is our policy to always discuss with the client the circumstances of any premises search and consider seeking the background information leading to the granting of the warrant – even if no challenge to the warrant is expected.

When we first meet the client he/she will often have hardly any information and may only have the barest information and a copy of the search warrant left by the police. In order to assess whether the court was given a full accurate and fair picture when granting the warrant it is necessary to get hold of the information that the police/HMRC/NCA put before the court. We will get that material from the police and if there is any objection we will remind them of the case law in this area to the effect that a note of the Magistrates’ findings, together with any Skeleton Arguments etc should to be disclosed; see e.g. R (Goode) Crown Court at Nottingham [2013] EWHC 1726 (Admin). At the same time we will make demands of the court itself under the Criminal Procedure Rules r5.7.

Once we have the information then a challenge can be considered, depending of course on what was (or wean not) said in court. But in any event for the client there is the reassurance of a glimpse behind the warrant – an insight into the tin king of the investigators.
If the court was misled, or if the execution of the warrant went further than that which was anticipated in the application, then there is the potential for a High Court Judicial Review claim seeking the quashing of the warrant – which may mean the end of the investigation. That is not always the outcome of a successful application to quash a warrant, but it is rarely bad news for a client to be told the search or the execution of the search was in fact unlawful.

Section 59 of the Criminal Justice and Police Act 2001

Once a warrant is quashed then under s59 of this 2001 Act the police can apply to the High Court for permission to retain the material for a short time whilst it re-applies to the Crown Court for, in effect a new Order justifying the old seizure; see generally R (Panesar) v Central Criminal Court [2015] 1 WLR 2577. In those circumstances, the Crown Court has a discretion to authorise the retention of the material seized, despite the unlawfulness of the original search, if, were the material to be returned, it would be immediately appropriate to issue a warrant under which it would be lawful to seize the property; i.e. they get the application right the second time round!

Legally Privileged Material and Confidential/ Business Documents

Documents containing material that attracts legal professional privilege cannot be seized – no warrant can authorise that. In R (Tchenguiz & anor) v SFO and Ors [2013] 1 WLR 1634 the High Court said (para 264) that it was clear that; “from R v HM Customs and Excise, Ex p Popely [1999] STC 1016 and R v Middlesex Guildhall Crown Court, Ex p Tamosius & Partners [2000] 1 WLR 453 that the proper procedure is that an independent lawyer should be present to assess claims made for legal professional privilege, without prejudice to the right of the person being searched to go to the court.”

Often, where there is an obvious danger that documents attracting LPP might be inadvertently seized, the warrant will allow for the agency to bring with them an independent lawyer to review material in situ. Your own lawyer present at the scene can demand that documents are assessed for LPP – or that they are bagged separately for later independent investigation.

Special Procedure Material (SPM) also cannot be seized under a search warrant. SPM is defined at s14 PACE. It is a sweeping up category of material meriting special protection but falling outside of LPP and Excluded Material (journalistic material). This includes material in possession of a person who acquired or created it in the course of any trade, business, profession or other occupation, or for the purpose of any paid or unpaid office (s14(2)) and is held by that person subject to an express or implied undertaking to hold it in confidence. That sounds far reaching but in effect it applies to confidential information such as medical or welfare records of individuals or very sensitive business documents such as confidential contract negations or perhaps staff disciplinary records. Where SPM might be seized then the warrant has to be authorised by a Judge of the Crown Court, not a Magistrate.

Digital Seizure

This is one area where corporate clients often feel aggrieved – the seizure of computers that then disappear off with the officers. This is especially damaging where it is a business that has been raided.

There is a special process for electronic data (see s19(4) of PACE) – the searching officer can demand printouts of documents. Sometimes officers arrive with equipment that enables an image to be taken of a computer’s hard disk – this means the image can be searched later and the business is not inconvenienced by the disruption of losing the computer. Where the officers want to remove company computers it is worthwhile asking them instead to image the drive and note that you have made that request. The Attorney General’s Guidelines on Disclosure, which provides guidance to investigators, specially provides that “where it is not possible or reasonably practicable to image the computer or hard drive, it will need to be removed from the location or premises for examination elsewhere.” This allows the investigator to “seize and sift” material under sections 50-51 of the Criminal Justice and Police Act 2001 for the purpose of identifying material that which meets the tests for retention in accordance with PACE.

Our experience is that officers need to be reminded about these provisions or else there is a real risk that digital material will simply stay with the investigators for months without any attempt at imaging.

Terms of the Warrant

Just because there is a warrant does not mean the officers have carte blanche – the warrant can and should be inspected and objection made where items are to be seized which the occupier considers irrelevant to the search If the warrant is wide – then perhaps it is too wide. In R (F, J and K) v Blackfriars Crown Court and Commissioner of Police of the Metropolis [2014] EWHC 1541 (Admin) is instructive. The company concerned provided services to solicitors firms. A search warrant was granted. The seizure authorised by the warrant included: “any computer hard-drive or other information storage device capable of storing” the information lawfully sought for the police investigation. The High Court held that this was too wide. There was no guarantee that the hard-drive or devices present would contain the information sought, and they could have contained files for unconnected legal cases. The warrant was quashed.

Retention

Where material is seized retention is limited to evidence and relevant material (as defined in the Code of Practice issued under the Criminal Procedure and Investigations Act 1996). Where either evidence or relevant material is inextricably linked to non-relevant material which is not reasonably practicable to separate, that material can also be retained. Inextricably linked material is material that is not reasonably practicable to separate from other linked material without prejudicing the use of that other material in any investigation or proceedings. However, inextricably linked material must not be examined, imaged, copied or used for any purpose other than for providing the source of or the integrity of the linked material.

There are further rules about what may be retained – particularly in the case of seizure of digital material. Again the issues are too long for this article but the point is that that ‘steel’ which is required – the nerve to ‘police the police’ should continue past the initial search and seizure.

Conclusion

Not all errors by police/prosecutors will lead to a search warrant being quashed. The test is a high one. That said there is an increasing tendency for the courts to come down heavily on the prosecution where they can be shown to have presented the Judge with a misleading picture. Some might think that because of s59 of the 2001 Act it is not worth challenging search warrants. We disagree; if a Warrant has been obtained unlawfully it can be quashed; that sends a signal to the investigators on how to behave – permission to stay the quashing of the warrant might not be sought by the police – or if sought refused, and of course the Crown Court, second time round, will be a lot less likely to grant a warrant where it has got it wrong once already and the defence are now there to argue against it. All in all s59 should not stop litigants challenging warrants where appropriate.