Gittins v Central Criminal Court

A search warrant must be construed strictly but fairly and as a whole. It must identify the material sought with sufficient precision, but need not expressly exclude legally privileged material if that exclusion is implicit in its proper construction. The possible presence of privileged material on premises does not itself invalidate a warrant. Statutory safeguards governing seizure operate during execution and do not determine whether the warrant should have been issued.

Warrants are intrusive measures of last resort. The statutory preconditions must be carefully and individually considered. In judicial review proceedings, a person challenging a warrant should ordinarily receive the basis on which it was obtained. Continuing criminal investigations may justify redaction or non-disclosure, but a general policy of withholding all information is insufficient.

Mr Gittins sought permission to challenge the issue by HHJ Stephens QC of the Central Criminal Court of two warrants under the Police and Criminal Evidence Act 1984 authorising searches of business and residential premises. The warrants related to an HMRC criminal investigation into four tax-planning schemes and suspected fraud against the Public Revenue.

The challenge alleged that the warrants were excessively wide, authorised the seizure of legally privileged material, failed to satisfy statutory conditions, and were obtained without adequate disclosure. HMRC also sought discharge of an interim injunction preventing examination of seized material. The central issues were whether the warrants satisfied the statutory requirements and whether sufficient information had been disclosed to permit an effective challenge.

1. Outcome. Permission to apply for judicial review was refused. The interim injunction was discharged. The application was dismissed.
2. Construction and precision. Warrants are to be construed strictly but fairly and as a whole. Under section 15(6)(b) of the Police and Criminal Evidence Act 1984, the warrant must identify, so far as practicable, the articles or persons sought. The warrants were limited by time, subject matter and the four specified tax plans. They sufficiently identified the documents sought and were not impermissibly wide.
3. Legal professional privilege. A warrant cannot authorise seizure of legally privileged items. If, on its true construction, it extends to material for which there are no reasonable grounds for believing that it excludes privileged items, it will be quashed unless the offending wording can be severed. The mere possibility that privileged material may be found on the premises does not invalidate an otherwise properly drafted warrant. Section 19(6) of the 1984 Act governs the exercise of seizure powers after entry; it does not determine whether a warrant should issue. An express exclusion is desirable but is not essential where the exclusion is implicit.
4. Statutory preconditions. Warrants should not be routine or a first resort. The cumulative conditions in Schedule 1, including the failure or likely failure of other methods and the risk of prejudice from notice, were satisfied. The reviewing court could not conclude that the experienced Crown Court judge’s decision was unlawful, irrational or perverse. The inclusion of banking documents was justifiable and, in any event, could have been severed.
5. Disclosure. HMRC must give full assistance to the judge applying for a warrant. Following a challenge, disclosure should ordinarily include, in a timely manner, a redacted copy, note or summary of the information and hearing, supported where appropriate by affidavit. Non-disclosure may be justified by the facts of the individual investigation, but HMRC must not rely on a general policy of total non-disclosure. The assessment must be fact-sensitive and individually justified. The court considered that Whiston-Dew did not approve such a general policy.
6. The court disregarded matters improperly introduced in a late draft affidavit which went beyond verification of the agreed gist document.