van der Pijl, R (On the Application Of) v The Commissioner of the Metropolitan Police

Where legislation permits retention of unlawfully seized material, the court deciding the retention application may permit the foreign prosecutor who understands the investigation to inspect the material and assist with evidence concerning its relevance and value. There is no jurisdictional requirement that the explanation come only from domestic police officers or independent counsel.

Independent counsel may provide valuable assistance, particularly on privilege, but that role does not replace the Crown Court judge’s decision-making function and does not restrict the judge’s case-management choices. A challenge to postponing a separate relevance issue will ordinarily require proof that the approach was irrational.

The claimant challenged interim arrangements made by Kingston Crown Court in applications by the Metropolitan Police to retain material seized under an invalid search warrant. The applications were made under section 59 of the Criminal Justice and Police Act 2003, following mutual legal assistance requests from the Dutch authorities.

The Crown Court permitted the Dutch prosecutor to inspect the seized documents and assist the judge in assessing, document by document, whether they were relevant evidence and of substantial value to the investigation. The claimant sought continuation of an injunction preventing that access and permission to seek judicial review. The central issue was whether the Crown Court had jurisdiction to adopt that procedure.

1. The application for continuation of interim relief was refused, the injunction was discharged, and permission to apply for judicial review was refused.

2. Section 59 of the Criminal Justice and Police Act 2003 creates a lawful procedure by which unlawfully seized material may be retained in defined circumstances. The proper application may require examination of the material actually seized, including assessment of each document’s relevance and substantial value in light of what the material shows.

3. There was no statutory or jurisdictional bar to the Crown Court permitting the Dutch prosecutor to inspect the material and provide assistance or evidence concerning its relevance. It would be impracticable and unfair to require the domestic police to explain the significance of material relating to an investigation they did not conduct, relying only on an unrefreshed memory or a general case summary.

4. The existence of independent counsel did not alter that conclusion. Independent counsel could assist the parties and the judge, including on privilege or relevance, but the jurisdiction remained judicial and the Crown Court judge remained the decision-maker. Independent counsel was not a mandatory substitute for assistance from the prosecutor and did not create a jurisdictional bar to the procedure adopted.

5. The argument that the Crown Court should first have determined whether documents omitted from the Dutch dossier were irrelevant raised, at most, a rationality challenge. The material before the judge did not establish that it was irrational to decide first how the document-by-document examination should proceed.

The judgment records earlier proceedings concerning the search warrant and retention applications:

• Divisional Court — the background challenge was addressed in [2012] EWHC 3745 (Admin).
• High Court (Administrative Court) — interim relief granted by Lewis J on 26 July 2013 was discharged; permission for judicial review was refused.