Burgin & Anor v Commission of Police for the Metropolis & Ors

A failure by a magistrate to give reasons for issuing a search warrant does not automatically invalidate the warrant. The reviewing court may infer the reasons from the information, the surrounding material and the hearing record, but will scrutinise that inference anxiously. Search warrants must satisfy the statutory conditions and be sufficiently precise, assessed with proportion to the scale of the investigation and by reading the warrant as a whole. For arrest under PACE, the officer must subjectively suspect the person’s guilt, and the information actually in that officer’s mind must provide objectively reasonable grounds. The threshold for reasonable suspicion is low and does not require a prima facie case.

The claimants sought permission to pursue two judicial reviews arising from an investigation by the Serious Fraud Office into suspected bribery, corruption, false accounting and money laundering within the Alstom group.

The first claim challenged the application for and issue of search warrants under section 2(4) of the Criminal Justice Act 1987, including alleged failures to establish the statutory access conditions, disclose relevant information, and specify the documents sought. The second challenged the claimants’ arrests under section 24 of the Police and Criminal Evidence Act 1984, and one claimant’s bail. The central issues were whether the challenges were reasonably arguable.

1. Search warrants and reasons. The failure of the District Judge to record reasons was regrettable and contrary to established practice, but it was not automatically fatal. The reviewing court could examine the information, the agreed note of the hearing and the warrants to determine whether the reasons were clearly discernible. Here, the information identified reliance on section 2(4)(a)(iii) and section 2(4)(b), explained the evidential chain, and was supplemented by the District Judge’s questions and answers. The judge was therefore to be taken to have accepted and endorsed the reasoning in the information. The challenge was not reasonably arguable.
2. Reasonable grounds. The evidence went well beyond the claimants’ formal status as company directors. It identified the central role of Network UK, the scale and duration of suspected payments, the disparity between turnover and payments, the claimants’ roles, and evidence of documents being moved to frustrate earlier searches. Those matters provided reasonable grounds for believing that service of a section 2(3) notice might seriously prejudice the investigation.
3. Disclosure and breadth. The claimants’ good character was arguably relevant, but the evidence was so compelling that disclosure could not realistically have altered the decision. The first three document categories in the warrants were sufficiently specific. The fourth category had to be read with the whole warrant and the detailed categories preceding it. In an investigation of this scale, the warrants were not impermissibly broad.
4. Arrests. Under section 24 of PACE, the arresting officer must actually suspect that the person is guilty, and the information in that officer’s mind must provide objectively reasonable grounds. The threshold is low and does not require admissible evidence or a prima facie case. The briefing documents, read against their context and the claimants’ roles, satisfied that test.
5. Permission was refused for the challenges to the search warrants and arrests. The additional arguments concerning the necessity of arrest and bail did not require determination.

First-instance judicial review applications. Permission to proceed was refused on the challenged grounds.