S & Ors, R (on the application of) v British Transport Police & Anor (Rev 1)

Applications for special-procedure search warrants under Police and Criminal Evidence Act 1984 require rigorous compliance with the statutory safeguards. The information must identify the statutory route relied on, set out the facts supporting each requirement, address legal professional privilege and excluded material, and make full and frank disclosure. The issuing judge must independently scrutinise the application and give reasons. A warrant must identify the articles sought with as much precision as practicable, and execution must remain within its authorised purpose. A production order should be used unless there is evidence that notice may seriously prejudice the investigation. These safeguards apply with particular force where solicitors’ premises or client material are concerned.

The claimants were a solicitor, his firm and another solicitors’ firm. They sought judicial review and the quashing of three warrants issued by circuit judges at Southwark Crown Court under section 9 and Schedule 1 of the Police and Criminal Evidence Act 1984. The warrants concerned a solicitor’s home, the first firm’s premises and the second firm’s premises.

The warrants related to an investigation into alleged attempts to pervert the course of justice and conceal criminal property following a solicitor’s temporary possession of a client’s mobile telephone. The issues included whether the statutory access conditions were satisfied, whether the warrants covered privileged or excluded material, whether the searches exceeded their authorised purpose, whether a production order should have been sought, and whether the issuing judges were properly informed.

1. All three warrants quashed. The first warrant was properly conceded to be unlawful. The mobile telephone and laptop were likely to contain excluded material and material subject to legal professional privilege. The first access condition therefore could not properly be used without addressing those categories and the statutory requirements were not established.
2. An information supporting a special-procedure warrant must identify the particular statutory route relied on and explain, by reference to the facts, how every requirement is satisfied. Bare repetition of statutory language is insufficient. The applicant must address the distinction between special-procedure material, excluded material and privileged material, the substantial-value and relevant-evidence requirements, the failure or likely failure of other methods, and the public-interest balance.
3. The applicant must make full, complete and frank disclosure, including matters militating against the warrant. This includes the risk that the proposed search will capture privileged or excluded material and any facts relied on to justify dispensing with notice. The judge must conduct an independent assessment, and the hearing should be recorded. Reasons should be given for the decision.
4. The warrants concerning firm F were unlawful because the police intended to seek the entire client file and associated documents, although that wider purpose was not disclosed to the judge or stated in the warrant. Sections 15 and 16 required the articles sought to be identified as far as practicable and confined execution to the warrant’s purpose.
5. The first access condition was not satisfied in relation to F. The police gave no proper basis for believing that the solicitor’s notes or related documents would be of substantial value to the investigation, or that the search was in the public interest. Removal of the whole client file without using the statutory seize-and-sift powers was also unlawful.
6. The warrant concerning firm L was unlawful. There was no evidence providing a rational basis for concluding that notice of a production-order application might seriously prejudice the investigation. A solicitor is not to be treated as tainted or unreliable merely because he acts for a person charged with or suspected of crime. The stated condition requiring the search of F first had not been fulfilled when L was searched.
7. The court added that police or investigating authorities must not unilaterally redact disclosed informations or hearing transcripts. If public-interest immunity is claimed, the proper procedure under CPR Part 31.19 must be followed.

This was a first-instance judicial review decision. Blake J had granted permission to L but refused permission to S and F; permission for S and F was renewed and granted by this court.