Sher & Ors v Chief Constable of Greater Manchester Police & Ors

Fact-sensitive claims concerning arrest, detention, searches and seizures ordinarily belong in private law proceedings where an adequate remedy exists. Judicial review is unsuitable where resolution depends on contested evidence and nuanced questions of fact and degree.

Under the Terrorism Act 2000, a suspect need not be given information equivalent to an indictment at the outset. The information must, however, be provided promptly and sufficiently to enable the detainee to understand and challenge the lawfulness of detention. The Schedule 8 procedure for further detention, including appropriately managed closed hearings, was compatible with Article 5(4). A search warrant authorising entry and search on one occasion may authorise a continuous search lasting several days.

Three Pakistani nationals arrested under section 41 of the Terrorism Act 2000 sought permission to bring judicial review proceedings concerning their arrest, detention without charge, search warrants, searches and seizures, and warrants extending detention.

They also challenged the compatibility of the Schedule 8 procedure for further detention with Article 5(4) of the Convention, contending that closed material could be considered without a special advocate. The court considered whether judicial review was the appropriate forum, whether the claims were arguable, and whether the statutory safeguards had been properly applied.

1. Forum. The claims concerning arrest, initial detention, the conduct of searches and seizures were unsuitable for judicial review. They involved an adequate private law remedy, historic events, and potentially complex disputes of fact, including what information was given and when. Judicial review should not become a costs-free civil jurisdiction. The possibility of related public law issues did not alter that conclusion.
2. Arrest and detention. A person arrested under section 41 could initially be told that he was suspected of being a terrorist. Article 5.2 did not require indictment-level detail at that moment. Further information had to be supplied promptly, judged by the facts and circumstances of the case. The briefing documents, interviews, open hearings and information supplied to the claimants sufficiently explained that they were suspected of involvement in a terrorist bombing conspiracy and enabled them to challenge detention. The proposed judicial review claims were therefore unarguable.
3. Search warrants. The width of a warrant depended on the factual context. In an urgent terrorism investigation, a relatively broad list of potentially relevant items was not irrational merely because it included ordinary household materials. The phrase “on one occasion” authorised one continuous search, even though it lasted several calendar days. Complaints about individual seizures remained matters for private law proceedings.
4. Further detention. Ward v Police Service of Northern Ireland [2007] UKHL 50 established that the Schedule 8 procedure, including exclusion from part of a hearing where necessary for proper judicial scrutiny, was compatible with Convention rights. The control-order cases A and Others v United Kingdom and AF and Others v Secretary of State for the Home Department did not require a special advocate in this materially different statutory scheme. The hearings were not wholly closed, and sufficient open information was provided.
5. Reasons. The District Judges gave adequate, if concise, reasons. A decision-maker need not address every point or produce a detailed judgment where the stated reasons provide a cogent explanation, particularly during an ongoing terrorism investigation.
6. The application for permission to bring judicial review proceedings was refused. Any private law claims could theoretically be transferred to the Queen’s Bench Division.

First-instance decision. The Divisional Court refused permission to bring judicial review proceedings.