Chatwani & Ors, R (on the application of) v The National Crime Agency & Anor

An arrest under section 24 of the Police and Criminal Evidence Act 1984 is assessed by reference to the facts known or information given to the arresting officer. Apparently reliable information may establish reasonable grounds even if another investigator knowingly supplied incomplete or misleading information.

A court considering a without-notice search-warrant application must itself be satisfied that every statutory condition is met. The applicant owes a stringent duty of full and accurate disclosure. A warrant must identify the articles sought with sufficient particularity and its execution must remain within its scope.

Material unlawfully seized will normally be addressed through the statutory retention procedure. Exceptionally, egregious disregard of the warrant safeguards may justify depriving the investigating authority of every benefit derived from the unlawful search, even without bad faith.

The National Crime Agency arrested five businessmen during a money-laundering investigation and searched their business and residential premises under warrants issued by Birmingham Magistrates’ Court. The operational plan used the arrests to facilitate covert surveillance and to provoke conversations after release. The claimants challenged the lawfulness of the arrests.

The NCA conceded that the warrants and the resulting searches and seizures were unlawful. The applications had failed to provide the magistrates with the evidence required to assess the statutory conditions, the warrants inadequately described the articles sought, and officers seized material outside their scope. The remaining remedial issue was whether the NCA could retain the seized material and derived work product pending an application under section 59 of the Criminal Justice and Police Act 2001.

1. The challenge to the arrests was refused. Under section 24 of the Police and Criminal Evidence Act 1984, reasonable suspicion and necessity are assessed by applying an objective standard to the facts known or information given to the arresting officer. The arresting officers had received information capable of supporting reasonable suspicion of money laundering and a belief that arrest was necessary for a prompt and effective investigation. They were not required to check the investigating team’s information. The existence of collateral operational purposes did not itself invalidate the arrests. The claimants were also given sufficient legal and factual information about the suspected offences.
2. The challenge to the search warrants succeeded. On a without-notice warrant application, the issuing court must itself determine whether the statutory requirements are established. The applicant must provide comprehensive material and disclose anything that might affect the decision. The NCA instead treated the magistrates’ role as one of approval or rubber-stamping. Its applications did not permit the required rigorous assessment.
3. The warrants also failed to identify the articles sought with sufficient particularity. The operational instructions authorised searches and seizures extending beyond the warrants, contrary to sections 15 and 16 of the Police and Criminal Evidence Act 1984. The NCA ought also to have anticipated legally privileged material and proceeded under section 9 and Schedule 1. Although installing authorised surveillance equipment while lawfully present would not itself have been an improper use of a warrant whose dominant purpose was evidential search, the intended use of that opportunity was material information which should have been disclosed to the magistrates.
4. The NCA was denied every benefit of the unlawful searches. Section 59 of the Criminal Justice and Police Act 2001 normally provides the procedure for deciding whether unlawfully seized property may be retained. The Administrative Court nevertheless retains a discretion to order delivery up and destruction without permitting reliance on that procedure. Bad faith is not essential. Here, the profound, systemic and egregious disregard of the statutory safeguards justified exceptional relief.
5. The warrants were declared unlawful. The NCA was ordered to deliver up the seized material and to deliver up or destroy every copy, schedule and other derived work product. Subject to further order, it was prohibited from using that material or its derivatives for the investigation or any other purpose.

This was a first-instance judicial review. Rose J had refused interim relief on the papers. Lang J subsequently granted permission and ordered that copying cease and that originals and copies be placed in third-party storage. The Divisional Court refused the challenge to the arrests but allowed the challenge to the search warrants and granted final relief requiring delivery up or destruction.