F & Ors, R (On the Application Of) v Blackfriars Crown Court & Anor

A search warrant issued under Police and Criminal Evidence Act 1984 must identify, so far as practicable, the material which may be seized. If its terms permit seizure of irrelevant material, excluded material or legally privileged material, the defect may render the warrant and the resulting entry, search and seizure unlawful. An execution protocol cannot generally cure an invalid warrant. A warrant cannot be severed so as to preserve a valid core where the defect invalidates the authority to enter and search. The breadth of a category of documents must be assessed in context. Broad categories may be justified where the investigation requires examination of the underlying work, rather than billing records alone.

The claimants sought judicial review of a warrant issued by the Blackfriars Crown Court under section 9 and Schedule 1 of the Police and Criminal Evidence Act 1984. The warrant authorised a search of premises associated with a company suspected of involvement in fraudulent defence-cost claims.

The warrant identified correspondence, documents and case files relating to specified criminal cases and any other Defence Costs Order case. It also authorised seizure of any computer hard-drive or other storage device capable of storing that information. The claimants challenged the warrant on the grounds that it was too wide, failed to exclude protected material, and was unsupported by sufficiently focused information.

1. The claim succeeded and the warrant was quashed. The police conceded that the reference to any computer hard-drive or other storage device capable of storing the specified information permitted seizure whether or not the device contained relevant evidence. The phrase was therefore too wide.
2. Section 15 required the articles to be sought to be identified so far as practicable. Section 15(1) made entry, search and seizure under the warrant unlawful unless the statutory requirements were complied with. The court rejected the submission that the offending wording could be severed from the remainder of the warrant. The defect was not confined to particular items: it invalidated the authority to enter the premises.
3. The powers in sections 50 and 52 of the Criminal Justice and Police Act 2001 could in some circumstances permit connected material to be removed for later separation. They did not assist here because the officers had not purported to rely on section 50, had not given the notice required by section 52, and had not observed the associated safeguards.
4. The court also held that the warrant, on its face, authorised seizure of excluded material and legally privileged material. The information itself anticipated that substantial privileged material would be encountered. The authorities indicated that such categories must be expressly excluded where the warrant would otherwise extend to them. Protective arrangements involving independent counsel did not make the warrant lawful, although they might affect the appropriate relief in another case.
5. The broad reference to documents relating to the identified cases was not intrinsically unlawful. In the particular investigation, the underlying work had to be examined to assess whether the claimed legal charges were proper. A narrower description confined to billing or taxation documents would not necessarily have served that purpose.
6. The parties were directed to make written submissions on the consequences of quashing the warrant, pursuant to an agreed timetable.

Not stated in the judgment.