Commissioner of Police for the Metropolis v Bangs (Rev 1)

After execution of a search warrant, the Magistrates’ Court retains jurisdiction to determine an application for disclosure of the Information supporting it. The ordinary starting point is disclosure, subject to public interest immunity. The court must balance the public interest in withholding material against the public interest in the administration of justice and the subject’s interest in assessing whether the warrant was justified. Any non-disclosure must be the minimum necessary, and any gist must be accurate and non-misleading. The court must assess whether disclosure creates a real risk of serious harm and give proper weight to informed police evidence. The fact that intelligence came from an informer does not remove the balancing exercise. On the facts, withholding the Information and legal adviser’s notes was justified.

The Commissioner appealed by case stated under Magistrates Court Act 1980 against an order made by District Judge Crane at Highbury Corner Magistrates’ Court on 26 March 2013. The order required disclosure of the Information supporting a search warrant issued under section 23 of the Misuse of Drugs Act 1971, together with the legal adviser’s notes.

Dawn Bangs sought disclosure to assess a possible challenge to the warrant and a potential civil claim. The Commissioner claimed public interest immunity, principally because disclosure might reveal the nature or identity of the intelligence source. The questions concerned jurisdiction, procedure, the applicable balancing test, and whether disclosure had properly been ordered.

Beatson LJ gave the leading judgment, with Griffith Williams J agreeing. The appeal was allowed.

1. Jurisdiction. The Magistrates’ Court retained jurisdiction after execution of the warrant. Subject to public interest immunity, the property owner was entitled to see the Information and any additional material relied upon to justify the warrant. That entitlement supplied the jurisdiction to determine the disclosure application. Treating the court as functus officio would defeat the entitlement and encourage speculative judicial review proceedings. The approach in EastEnders Cash & Carry v South Western Magistrates Court [2011] EWHC 937 (Admin) and the reasoning in R (Cronin) v Sheffield JJ [2002] EWHC 2568 (Admin) were applied.
2. Procedure. It was permissible to exclude the person seeking disclosure while the court heard confidential police evidence and submissions. The safeguards identified in Davies, Johnson and Rowe (1993) 97 Cr App R 110, Rowe and Davies v UK (2000) 20 EHRR 1 and R v H [2004] UKHL 3 had to be observed. By analogy with Part 22 of the Criminal Procedure Rules, legal submissions capable of being made in public should be heard before the closed hearing. The open judgment should state the result and as much of the reasoning and closed material as could properly be disclosed, following the guidance in Bank Mellat v HM Treasury [2013] UKSC 38 and R (Mohammed) v Secretary of State for Foreign and Commonwealth Affairs (No. 2) [2009] EWHC 152 (Admin).
3. Public interest immunity. The court had to balance the public interest in withholding the material against the public interest in the administration of justice and the subject’s interest in assessing the lawfulness of the warrant. Informer material attracts a strong general protection, but the source of the intelligence does not make non-disclosure automatic. The civil context may reduce the weight of the disclosure interest compared with criminal proceedings involving liberty, but an intrusive search of the home and person remains a significant consideration. The balancing approach in Conway v Rimmer [1968] AC 910, Powell v Chief Constable of North Wales Constabulary (16 December 1999), Chief Constable of the Greater Manchester Police v McNally [2002] EWCA Civ 14 and Al Rawi v Security Service [2011] UKSC 34 was followed.
4. Risk and minimum disclosure. Derogation from full disclosure had to be the minimum necessary. If the complete document could not be disclosed, the court had to consider relevant extracts or an accurate summary. A gist must not mislead. Disclosure could nevertheless be withheld where it created a real risk of substantial or serious harm to an important public interest and non-disclosure was necessary for the proper functioning of that interest. The court also had to give proper weight to informed evidence from the responsible police officer, particularly where the risk concerned covert surveillance or informers.
5. Application and order. The District Judge had applied the wrong test by asking whether disclosure would cause the identified harm rather than whether there was a real risk of it. She had failed to give appropriate weight to the police evidence and had not conducted the required balancing exercise. On the High Court’s assessment, disclosure of the temporal and contextual material, particularly with the legal adviser’s notes, would compromise the protected public interest. That interest clearly outweighed the interests favouring disclosure. The District Judge’s order was set aside. The revised gist, amended to include that Ms Bangs was buying and selling drugs from the address, was to be disclosed.

• High Court (Administrative Court): On the case stated appeal, the court allowed the appeal and set aside the order requiring disclosure of the Information and the legal adviser’s notes: [2014] EWHC 546 (Admin).
• Highbury Corner Magistrates’ Court: District Judge Crane ordered full disclosure on 26 March 2013 after rejecting the Commissioner’s public interest immunity claim.