G v Commissioner of Police for the Metropolis

A search or seizure warrant is a serious interference with individual liberty. The applicant must make full, complete and frank disclosure to the magistrate, including material weaknesses, inaccuracies and exculpatory information. The magistrate must consider the whole case with mature and careful attention. A warrant under Protection of Children Act 1978, section 4, must be based on reasonable grounds for suspecting that indecent images are on the premises; it cannot be justified by recasting the suspected conduct as an attempt to access such material. Statutory requirements governing the contents of a warrant must also be complied with strictly.

The claimant sought judicial review of the Metropolitan Police Commissioner's application for, and the City of Westminster Magistrates' Court's issue of, a warrant authorising the search of his home and seizure of electronic devices. The application relied on intelligence linking a credit-card transaction and an email address to access to a website hosting indecent images of children.

The information was inaccurate in several respects. It implied payment and access, although there was no evidence of payment, the credit-card use had been reported as fraudulent, and the email address was unconnected with the claimant. The issues were whether the police had breached their duty of candour, whether the warrant complied with the statutory requirements, and whether the search violated article 8 of the Convention.

1. Relief granted. The court declared that the application for the warrant was unlawfully made and that the warrant was unlawfully granted. The claimant was awarded his costs, subject to detailed assessment if not agreed.
2. The issue of a search or seizure warrant is a serious interference with the liberty of the subject. The officer applying for it must provide full, complete and frank disclosure so that the magistrate can decide the application on the fullest possible information. The court issuing the warrant must give mature and careful consideration to all the facts. These requirements apply with particular force where the proposed search interferes with the privacy and security of a person's home.
3. The police failed to meet that standard. They had no evidence of payment, although payment was ordinarily an essential ingredient in proving access to the relevant websites. They failed to disclose that evidential weakness, investigate the credit-card fraud, or explain the connection with the email address. The information therefore materially misled the magistrates' court.
4. The defect could not be cured by asserting that the evidence supported an inchoate offence. Section 4 of the Protection of Children Act 1978 required reasonable grounds for suspecting that indecent images were on the premises. A warrant directed instead to computers used in an attempted access would have required a different statutory basis.
5. The article 8 ground added nothing. If the common-law requirements had been satisfied, the warrant would have been justified under article 8(2) for the prevention of crime. The warrant also failed strictly to identify the person who applied for it and to specify the enactment under which it was issued, contrary to section 15(6)A(1) and (2) of the Police and Criminal Evidence Act 1984.

This was a first-instance judicial review claim. Permission had been granted by Rafferty J on 1 October 2010. The Divisional Court granted declaratory relief.