HS & 15 Ors, R (on the application of) v NLR Solicitors

Challenges to the validity of search warrants belong in the High Court, but that jurisdiction does not necessarily prevent the Crown Court from considering an application under section 59 of the Criminal Justice and Police Act 2001. The two jurisdictions may operate concurrently where the interests of justice require it.

On a section 59 application, the Crown Court must decide whether retention is justified by the public interest in the investigation and whether, if the property were returned, a lawful warrant could immediately be issued. It must weigh those interests against the importance of legal safeguards governing searches of private property. Bad faith, misleading the issuing court and an unscrupulous approach to drafting or executing warrants weigh heavily against retention.

Four related judicial review claims arose from police searches conducted under warrants issued by Cheshire magistrates’ courts. The claimants challenged the warrants and sought declarations, quashing orders and return of seized material. The police accepted that some warrants were unlawful and sought, or intended to seek, orders under section 59 of the Criminal Justice and Police Act 2001 permitting retention and examination of the material.

The Divisional Court allowed the police to make a section 59 application before all issues in the judicial review proceedings had been finally determined. The Crown Court then heard evidence and exercised its discretion in favour of retention. The central issues were whether the Crown Court had acted without jurisdiction, whether permission should be granted for the remaining judicial review claims, and how the High Court and Crown Court jurisdictions should interact.

1. Jurisdiction and concurrent proceedings. The essential validity of search warrants is for the High Court, not the Crown Court. The Crown Court nevertheless has a remedial jurisdiction under section 59 of the Criminal Justice and Police Act 2001 to consider retention of property seized under a warrant acknowledged to be invalid or quashed. The existence of pending judicial review proceedings does not automatically prevent a section 59 application.
2. Section 59 discretion. The Crown Court must be satisfied that, if the property were returned, it would immediately be appropriate to issue a lawful warrant. It must then balance the public interest in retaining material for a criminal investigation against the public interest in maintaining proper legal safeguards for entry, search and seizure. The enquiry is fact-sensitive. Bad faith, misleading the magistrates and a less than rigorous or scrupulous approach weigh heavily against retention, although defects may not necessarily make retention wholly unconscionable.
3. Review of the Crown Court decision. The Crown Court’s section 59 decision was amenable to judicial review. The High Court’s task was to apply conventional public law principles while recognising the Crown Court’s broad discretion and its advantage in having heard live evidence and examined the material.
4. Disposition. The warrants in claim 254 were quashed, with submissions invited on outstanding relief. Permission was granted in claim 4133, but that claim was dismissed. Permission was granted in claim 2749, with similar relief in relation to the warrants and suspension of return pending a section 59 application. Permission was refused in claim 3461 because of unexplained and substantial delay. Stewart J agreed.

The judgment itself records no prior appellate decision in the present litigation. It describes earlier interlocutory orders of the Administrative Court and Divisional Court, including the order permitting a section 59 application, and reviews the subsequent Crown Court ruling.