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

This case concerned judicial review of three search warrants obtained under section 9 and Schedule 1 of the Police and Criminal Evidence Act 1984 (PACE) to search the home and professional premises of solicitors for material on laptops and mobile phones. The court held that the Informations and hearings authorising the warrants failed to comply with the statutory scheme in PACE (notably sections 9, 10, 11, 14, 15 and 16 and the access conditions in Schedule 1) and the common law duties of full and frank disclosure to the authorising judge. The police had failed to explain why other means of obtaining the material were impracticable, had not shown reasonable grounds to believe the requisite statutory conditions were met, and had not made proper arrangements for handling material subject to legal professional privilege (LPP) or excluded material. The warrants were quashed because they were issued and executed contrary to the statutory safeguards and went beyond what the authorising judge had been asked to approve.

Background and parties: The claimants were a practising solicitor (S) and two solicitor firms (F and L). The Chief Constable of the British Transport Police (BTP) applied to circuit judges at Southwark Crown Court for special-procedure search warrants seeking laptops, mobile phones and solicitors' custody notes in relation to an investigation into thefts of rail track and a later suspected offence of perverting the course of justice/ concealment of criminal property. Blake J had earlier granted permission for one claimant and refused others; permission to renew parts of the applications was given to the High Court judges who decided the substantive judicial review.

(i) Nature of the claim / relief sought: The claimants sought quashing of three search warrants issued on 15 May 2012 and 1 June 2012 and associated relief on grounds that the warrants and their execution breached PACE and common-law safeguards (including unlawful authorisation, inadequate Informations, failure to identify material sought, failure to respect LPP and unlawful extension of the search).

(ii) Issues framed by the court:

• Whether the judge(s) could properly be satisfied that the Schedule 1 access conditions (paragraph 2) and the paragraph 14 conditions were met given the Informations before them;
• whether the Informations complied with the duty of full and frank disclosure and the statutory requirements in sections 15 and 16 of PACE to identify articles to be sought;
• whether the warrants authorised seizure of material subject to legal professional privilege or excluded material and whether execution of the warrants complied with PACE and the Criminal Justice and Police Act 2001 (sections 50–51); and
• whether the execution went beyond the purpose for which the warrants were issued.

(iii) Court’s reasoning (concise): The court analysed the statutory definitions and procedure in PACE (in particular the distinction between "special procedure material" and "excluded material" and the statutory definition of items subject to legal privilege). It concluded the Informations failed to set out the factual basis for the requisite "reasonable grounds" (often using mere suspicion), improperly pleaded both alternative access conditions without focusing on the relevant route, and omitted necessary factual justification for assertions that alternative methods had been tried or were bound to fail. The court emphasised the statutory duty to identify, so far as practicable, the articles sought and the need for full and frank disclosure (including anything militating against issue of a warrant). It found that in relation to F and L the police documentation shown at execution (the "Details of Request") extended the ambit of the warrant beyond what the judge had been asked to authorise, and that client files were removed for off-site sifting without reliance on the CJPA seize-and-sift powers. Where appropriate, judges had not been given reasons or sufficient information to permit proper judicial scrutiny. The material was therefore obtained and handled unlawfully and the warrants were quashed.

Wider context noted: The court stressed the constitutional importance of careful judicial scrutiny before issuing search warrants, particularly where solicitors’ material and LPP are at issue, and advised that police should obtain legal advice before drafting Informations in such cases.

At first instance the court quashed each of the three warrants. The judges concluded the Informations and the judicial authorisations did not satisfy the statutory conditions in Schedule 1 and sections 15–16 of PACE, failed the duty of full and frank disclosure, authorised or risked seizure of material subject to legal professional privilege and/or excluded material, and in execution the police exceeded the warrant's proper ambit and did not follow appropriate seize-and-sift procedures. Those defects justified quashing the warrants.

Blake J granted permission for the claimant L to pursue judicial review but refused permission to S and F; parts of those applications were renewed before the High Court (Administrative Court) where permission was granted and final relief was determined in this judgment ([2013] EWHC 2189 (Admin)).