Bates & Anor v Chief Constable of the Avon and Somerset Police & Anor

A search warrant under Police and Criminal Evidence Act 1984 section 8 cannot lawfully authorise the seizure of computers where the issuing justice could not reasonably be satisfied that they contained no legally privileged or special procedure material. The applicant must make full and frank disclosure, including matters militating against the warrant. Where computers may contain both relevant evidence and protected material, the police may need to rely on the additional seizure powers in sections 50–52 of the Criminal Justice and Police Act 2001. A warrant unlawfully issued under section 8 cannot subsequently be extended under section 19.

The claimants sought judicial review of a search warrant issued by Bristol Magistrates’ Court under section 8 of the Police and Criminal Evidence Act 1984. The warrant related to a suspected conspiracy to possess indecent images of children and authorised the seizure of, among other things, computers and electronic storage devices from the claimants’ premises.

The claimants advanced six grounds. To avoid preliminary disputes concerning disclosure and the appropriateness of judicial review, the parties proceeded on grounds concerning protected material and excessive search and seizure. The central question was whether the justice had jurisdiction to issue the warrant in the form sought.

1. The claim succeeded. The warrant was quashed, and declarations were granted that the entry, search and seizures were unlawful.
2. Section 8(1)(d) of the Police and Criminal Evidence Act 1984 required reasonable grounds for believing that the material sought did not consist of or include legally privileged, excluded or special procedure material. The description of the property sought included “computers”. Accordingly, the justice had to be capable of being satisfied that the computers at the premises would not contain such protected material.
3. The applicant for a search warrant must give the issuing justice full assistance and draw attention to anything militating against the warrant. The officers knew that the first claimant had acted as a computer-forensics expert over many years, including for the prosecution, and that the CPS had previously considered his status and suitability as a witness. There was no evidence that they or the justice considered whether the computers might contain protected material from other cases.
4. The officers’ assumption that the claimant could not lawfully act as an expert witness was erroneous. A judge may exclude evidence from a person lacking the necessary expertise, but the fact that a witness has been discredited ordinarily concerns the weight of the evidence, not its admissibility.
5. The possibility that computers contained communications relevant to the suspected conspiracy did not cure the defect. Sections 50–52 of the Criminal Justice and Police Act 2001 provided an alternative seizure mechanism for material which might contain evidence for which a search was authorised.
6. Because the warrant was not lawfully issued, it could not validly be extended under section 19 of the Police and Criminal Evidence Act 1984. The seizures made pursuant to the purported extension were therefore unlawful.