Mills & Anor, R (on the application of) v Sussex Police & Anor

A search warrant obtained without full and frank disclosure of material facts is unlawfully issued where the undisclosed information might reasonably have led the issuing judge to refuse the warrant. The reviewing court need not be satisfied that the warrant would certainly have been refused. Search warrants are a draconian interference with private property and must be treated as a last resort. The applicant must disclose matters adverse to the application and explain why less intrusive powers, including a production order or consensual entry, would not suffice. The issuing judge must conduct rigorous scrutiny and give sufficient reasons. Quashing a warrant does not necessarily require immediate return of seized property, since statutory retention powers may protect the public interest.

The claimants faced charges relating to alleged corruption, fraudulent trading and money laundering. A confiscation investigation was conducted alongside the criminal investigation. After an earlier search, restraint orders and extensive voluntary disclosure, responsibility for the confiscation investigation passed to Sussex Police.

Sussex Police obtained a warrant under sections 352 and 353 of the Proceeds of Crime Act 2002 and seized material from the claimants’ home and business premises. The claimants sought judicial review, arguing that the application failed to disclose their co-operation, relied on the wrong statutory conditions and did not justify dispensing with a production order or consensual entry. The central issue was the consequence of material non-disclosure and the proper test for setting aside the warrant.

1. Disposition. The warrant was set aside. Sussex Police had seriously failed to provide full and frank disclosure. The judge had not been told of the claimants’ extensive co-operation, voluntary disclosure, the limited nature of the restraint order, or the absence of any suggestion that information had been concealed or destroyed.
2. Statutory conditions. The second set of conditions under section 353 was not shown to be applicable. It was unclear whether the documents sought could have been identified sufficiently to support a production order. The police had also failed to explain why consensual entry or a production order would not suffice. The history of co-operation made section 353(9)(b) difficult to establish. The statutory distinction between material that can be specified and material that cannot be identified should be treated as interchangeable concepts, so that either the first or second set of conditions applies.
3. Non-disclosure test. The court rejected the obiter approach in R (Rawlinson & Hunter Trustees) v Central Criminal Court, [2012] EWHC 2254 (Admin), that a warrant should be quashed only if the reviewing court was satisfied that full disclosure would in fact have produced a different decision. The proper question was whether the information that should have been disclosed might reasonably have led the issuing judge to refuse the warrant. There was a substantial likelihood that proper disclosure would have led to refusal or required further explanation.
4. Other grounds. The failure to give reasons did not alone invalidate the warrant. There was no bad faith or collateral purpose. The objections concerning seizure of electronic devices and execution safeguards, including legal professional privilege, did not independently justify quashing.
5. Quashing did not necessarily require immediate return of all seized material. Section 59 of the Criminal Justice and Police Act 2001 could permit continued retention in an appropriate case. Mr Justice Ouseley agreed with the judgment.

First-instance judicial review proceedings. The judgment records the issue of a warrant by the Southwark Crown Court but does not state a prior appellate decision.