Holman Fenwick Willan LLP, R (On the Application Of) v City Of London Police & Ors

Permission to bring judicial review should be granted where substantial and plainly arguable issues arise concerning the English endorsement and execution of a warrant issued in another part of the United Kingdom, particularly where legal professional privilege is engaged. The court should not finally determine the merits or jurisdiction at the permission stage where the issues are fact-sensitive, constitutionally significant and legally complex. The operation of section 4 of the Summary Jurisdiction (Process) Act 1881, including its compatibility with the Human Rights Act, required full argument at a substantive hearing.

The claimant, a firm of solicitors, sought judicial review of the endorsement by the City of London Magistrates’ Court of a warrant issued by the Sheriff Court of Glasgow. The warrant authorised a search at the claimant’s London offices in a Scottish criminal investigation. Documents were seized, including material over which legal professional privilege was claimed.

The Scottish Appeal Court subsequently suspended the warrant. The claimant nevertheless pursued challenges concerning the English endorsement, the lawfulness of the execution in England, privilege safeguards, jurisdiction and possible declaratory relief. The principal issue at this stage was whether the claim was sufficiently arguable to proceed, or whether R v Manchester Stipendiary Magistrate, Ex parte Granada Television Ltd [2001] 1 AC 300 required the English court to decline jurisdiction.

1. Permission granted. The claim raised substantial and plainly arguable issues and should proceed. The court refused both the claimant’s invitation to determine the claim finally in its favour and the defendants’ submission that the court had no jurisdiction.
2. The issues included how cross-border arrangements for executing a Scottish warrant in England should operate without prejudicing legal professional privilege. They also included whether a warrant should acknowledge or provide for privilege safeguards, or be accompanied by an independent procedure for determining whether seized material was privileged.
3. The court considered that the defendants’ position disclosed matters of difficulty and complexity. The subsequent Scottish decision suspending the warrant and criticising the manner in which it had been obtained reinforced the need for careful consideration, but did not resolve the English judicial review issues.
4. Granada Television [2001] 1 AC 300 was relied on as a jurisdictional bar. The court did not accept that it justified an immediate ruling that the English court lacked jurisdiction. Whether it applied to an unlawful warrant, legally privileged material, or the English endorsement required determination at the final hearing.
5. The court identified the interpretation and operation of section 4 of the Summary Jurisdiction (Process) Act 1881, and its reconciliation with the Human Rights Act, as matters requiring further submissions. Questions concerning quashing the endorsement, declaratory relief, damages, costs and the procedural form of the claim also remained.
6. The injunction was to be discharged so that the documents held at the claimant’s offices could be released unconditionally. Costs to date were reserved to the final hearing.

The judgment does not state an appellate history for this claim. It records that the Scottish Appeal Court suspended the warrant on 5 February 2016, but that decision was not an appeal from the present judicial review proceedings.