Behind closed doors – open justice and challenging search warrants

When faced with the potential infringement of a fundamental right  as a result of a criminal investigation, open justice demands that the allegations and the evidence upon which it is based are made known, so that an effective defence can be mounted. However, this principle is not inviolable and there are some instances where the law permits the denial of such protections. The Supreme Court’s first judgment of 2018 (Haramlambous[1]) confirms that the search and seizure of property is one such example. 

Mr Haramlambous (‘H’) was suspected by Hertfordshire police of fraud by false representation. Two warrants were granted under section 8 of the Police and Criminal Evidence Act 1984 (‘s8 applications’ and ‘PACE’) in order to search his home and business premises. The warrants were executed and property seized, following which H was arrested and interviewed. H requested a copy of the information upon which the applications were based and further details of the court’s reasoning. He was provided with a redacted version of the information, which provided little insight, and so applied for disclosure of the unredacted information and supporting evidence. The magistrates’ court carried out a public interest immunity (‘PII’) inquiry in camera and concluded that nothing further needed to be disclosed to H.

H made an application for judicial review, seeking to have the warrants declared unlawful, on the basis that (inter alia) the police were unable to provide sufficient disclosable information for him to know their lawful basis. H argued that the effect of the warrants being granted in such circumstances was to sanction a closed evidence procedure which could only be provided by express Parliamentary authorisation as per Al Rawi[2].

The parties subsequently agreed that the judicial review application would be abandoned, the warrants quashed and the material returned, subject to the outcome of an application by the police for its retention under section 59 of the Criminal Justice and Police Act 2001 (‘s59 application’). The Crown Court authorised the retention, concluding that the police were entitled to rely on the withheld information.

H judicially reviewed the Crown Court’s decision, again claiming that the redaction of the information constituted a closed evidence procedure. Alternatively, that the police had an obligation in the s59 proceedings to disclose sufficient information for him to know and refute the allegations against him.

The High Court refused to interfere with the Crown Court’s decision, and so the matter came before the Supreme Court in November 2017 to address the following issues:

1. How far can a magistrates’ court on an ex parte s8 application rely on information which cannot be disclosed to the subject of the warrant on PII grounds?
2. In a judicial review of an s8 search warrant:
   (a)  Can the High Court consider evidence (upon the strength of which the s8 warrant was issued) which was not disclosed to the subject?
   (b)  If it was permissible for the magistrates’ court to consider such evidence, but not the High Court, does it follow that the underlying warrant must be quashed if the disclosable evidence is insufficient in itself to justify the warrant?

3.  Can the Crown Court rely on evidence not disclosable to the subject of a warrant when considering an s59 application to retain material?
4.  In a judicial review of an s59 order, can the High Court consider evidence (upon the strength of which the underlying warrant was issued) which was not disclosed to the subject?
5.  Do the principles concerning irreducible minimum disclosure apply to proceedings concerning search warrants? In other words, at the very least, are subjects entitled to the ‘gist’ of the information relied upon against them?

The Supreme Court found unanimously against H on all issues, and in doing so noted:

1. S8 procedures were designed for speed and simplicity, hence being permitted on an ex parte There is nothing in the statute which restricts the information (subject to PII or otherwise) which magistrates’ court may take into account. It would significantly undermine the efficacy of police investigations if only material which could be revealed to the subject of the warrant could be relied upon.
2. The Crown Court on an s59 application is expected to put itself in the position of a magistrates’ court considering a fresh s8 application immediately after the hypothetical return of seized property. It would be inconsistent for a different approach to be adopted with regards to the evidence which could be considered.
3. It would be absurd for the High Court in considering judicial review of either application to take a different approach from that which the lower court had been required to adopt. The general principle expressed in Al Rawi against closed material procedures in judicial review had not considered this ’very special situation’[3]. Rather, the approach in Bank Mellat[4] should be followed, in which the Supreme Court concluded that it was appropriate to apply a closed material procedure, despite the absence of Parliamentary approval, as this was expressly permitted for the lower courts whose judgment the Supreme Court was considering.
4. Open justice should prevail wherever possible. However, this did not equate to a minimum level of disclosure which was required in all cases concerning search warrants.

In support of its position, particularly the final issue, the Supreme Court noted that the execution of a search warrant and seizure of property is only a limited infringement of an individual’s rights. It does not amount to the deprivation of liberty, nor does it in itself prevent a fair trial, because any evidence to be relied upon in a prosecution will be revealed during disclosure and because of the safeguards under s78 PACE allowing evidence to be excluded.

Whilst this is correct, the execution of a search warrant still represents a significant intrusion by the state. It involves entering private premises and seizing property in circumstances where either (i) there are insufficient grounds to arrest the suspect (which would permit the search of any premises occupied or controlled by him or her under s18 PACE) or (ii) where those premises are controlled by an third party against whom there may be no evidence of wrongdoing. As such, it is right that there are procedural safeguards in place to prevent the powers of search and seizure being used speculatively or oppressively. Furthermore, the erosion of those safeguards should not be taken lightly.

Ultimately, it is of little surprise that the Supreme Court decided against Mr Haramlambous. As the judgment observed, had it done so, it would have hugely undermined the investigative powers which Parliament had plainly intended to allow. Even if the duty to disclose had been widened only in s59 or judicial review proceedings, this would still have restricted the use of PII material at the s8 stage, given that this would have to be revealed in the event of challenge.

However, whilst it affirms the will of Parliament, Haramlambous also creates a new danger. Although unintentionally and probably unavoidably, the Supreme Court have given the police an advantage (perhaps not legal but certainly psychological) in obtaining search warrants and retaining the product. There will doubtless be future applications which seek to take the general principle and convert it into a presumption which needs to be rebutted, whilst we can only hope that its effect in practice is not to increase the likelihood of an information being heavily redacted before being supplied to the subject. One disappointing aspect of Haramlambous is that it places no responsibility on the police to ensure that as much evidence as possible can be disclosed to the subject. Rather, it creates a perverse incentive to rely on potential PII material wherever possible, in order to limit the subject’s ability to challenge.

Magistrates’ courts can do little more in the light of Haramlambous, on the basis that s8 applications will remain ex parte and on short notice, although there is no reason why the police cannot be tested by the Court at this stage as to what steps have and will be taken to ensure the maximum amount of information is available to the subject.  It is therefore the senior courts which must now take extra care and effort to scrutinise and challenge PII claims, to ensure that a subject’s ability to argue his or her case is only restricted where genuinely in the public interest, rather than that of convenience or investigative expedience.

This danger is particularly acute where a court is minded to rule in favour of the warrant or retention. If the evidence appears strong, it may seem unnecessary or even fruitless to press the police on the necessity or extent of the PII restriction. These are the cases where the High Court must resist the temptation or invitation to treat Haramlambous as a presumption. Furthermore, they must ensure that the subjects of search warrants have the opportunity to deploy their own knowledge of the case (which will include facts not known to the police or Court) against potentially unlawful searches by being permitted to see as much as possible of the information upon which an application is based, save where actually in the public interest.

[1] R v Haramlambous [2018] UKSC 1

[2] Al Rawi v Security Service [2011] UKSC 34

[3] R v Haramlambous [2018] UKSC 1 at para 59

[4] Bank Mellat v HM Treasury [2013] UKSC 38

This article was originally published in Fraud Intelligence and can be accessed here, behind a paywall.