Van Der Pijl & Anor v The Crown Court At Kingston

A search warrant must identify, so far as practicable, the articles or persons to be sought from the terms of the warrant itself. The warrant must be sufficiently clear for officers executing it and persons affected by it to understand the limits of the authority granted. Information supplied to the issuing judge, or briefing given to officers, cannot cure a material failure to identify the subject matter in the warrant. A warrant which fails this safeguard is unlawful, and searches conducted under it are unlawful. Orders retaining material seized pursuant to the warrant may also be quashed. However, the material may be retained temporarily if the police promptly apply to the Crown Court under section 59 of the Criminal Justice and Police Act 2001 and the statutory conditions for retention are met.

The claimants, Dutch nationals resident in England, challenged a search warrant granted by Kingston Crown Court on 12 April 2011 under section 16 of the Crime International Cooperation Act 2003 and section 9(1) and Schedule 1 of the Police and Criminal Evidence Act 1984. The warrant supported a Dutch request for mutual legal assistance concerning alleged tax fraud and money laundering.

The claimants also challenged orders made by Kingston Crown Court on 6 July 2011 under section 59 of the Criminal Justice and Police Act 2001, permitting retention of seized material. The central issues were whether the warrant satisfied the statutory safeguards, whether the retention orders could stand, and what consequential relief should be granted.

The Divisional Court quashed both the search warrant and the section 59 retention orders.

1. Statutory conditions for the warrant. Looking at the Dutch request together with the supporting Information, there were reasonable grounds for believing that the Schedule 1 access conditions were satisfied, including that an indictable offence had been committed, that the material was likely to be of substantial value, and that it was likely to be relevant evidence. This ground of challenge therefore failed.
2. Specificity of the warrant. Section 15(6)(b) required the warrant itself to identify, so far as practicable, the articles or persons to be sought. Five categories referred only to “the suspects”, without identifying the claimants or Mr Ritsema. Even read as a whole, the warrant did not enable the persons executing it, or those whose premises were searched, to determine precisely what it authorised. The Information and Dutch request could not cure that defect.
3. The court followed the approach requiring search warrants to be clear and precise, particularly the principles stated in McGrath v Chief Constable of the Royal Ulster Constabulary, [2001] UKHL 39, and R(Energy Financing Team Ltd) v Director of the SFO, [2005] EWHC 1626. It declined, with respect, to follow the contrary approach in R(Fitzpatrick) v Chief Constable of Warwickshire, [1999] 1 WLR 564.
4. Because the retention orders depended on a valid warrant, they also had to be quashed. Independently, the section 59 applications should have been made on notice, absent urgency, because the claimants had relevant interests in the property and fairness, or article 6 of the ECHR, required an inter partes process.
5. The MPS was ordered to return material and copies in its possession within 14 days, unless it made a prompt section 59(5) application for retention under section 59(6) on the grounds in section 59(7). The authorities were to inform the Dutch authorities of the order and use their best endeavours to secure the return of material already transferred.

The claim was brought by judicial review. Permission was initially refused on the papers by Mr Justice Burnett on 20 January 2012, but Mr Justice Owen granted permission on 29 May 2012 on the search-warrant ground and consequential basis concerning the retention orders. The Divisional Court allowed the claim and granted consequential relief.