Haralambous v St Albans Crown Court & Anor

The statutory scheme for search warrants permits the issuing court to consider information which cannot be disclosed to the person affected where withholding it is required in the public interest. The common-law right to information supporting a warrant is subject to that qualification. A person may therefore be unable to assess from the disclosed material whether the statutory conditions were met. The same approach applies to an application under section 59 of the Criminal Justice and Police Act 2001 to retain property seized under an unlawful or vulnerable warrant. The Crown Court may consider the undisclosed material when undertaking the notional reconsideration of a fresh warrant application.

Police obtained search warrants under section 8 of the Police and Criminal Evidence Act 1984 in relation to the claimant’s home and business premises. Property was seized, but much of the supporting information was withheld on public-interest-immunity grounds. The original warrants were later quashed by consent and the police applied under section 59 of the Criminal Justice and Police Act 2001 for authority to retain the seized property.

The Crown Court considered the unredacted information and authorised retention, while disclosing only the redacted material. The central issue was whether that procedure unlawfully involved reliance on closed material without statutory authority.

1. Judicial review refused. The court held that the procedure adopted by the Crown Court under section 59 of the Criminal Justice and Police Act 2001 was lawful.

2. Section 15(3) of the Police and Criminal Evidence Act 1984 expressly provides for an ex parte application for a search warrant. This contrasts with the inter partes procedure Parliament prescribed for production orders under section 9 and Schedule 1. The statutory scheme contains substantial safeguards, including the requirement that the justice of the peace independently assess whether the section 8 conditions are satisfied.

3. The common-law right of a person affected by a search warrant to obtain information supporting it must be understood against that statutory scheme. The court issuing or reviewing the warrant must consider both the legality of the warrant and what information can properly be disclosed. Public-interest considerations may justify withholding some or all of the information, even where the disclosed material is insufficient by itself to demonstrate legality.

4. Al-Rawi v Security Service [2011] UKSC 34 did not govern this context. The relevant right to information arises in the warrant-challenge procedure or in a section 59 application, where the magistrate or judge must also determine the appropriate extent of disclosure.

5. A section 59 application is inter partes, and the person affected should be able to oppose it. Nevertheless, its substance is the notional reconsideration of a fresh section 8 application. It would defeat the statutory purpose if the Crown Court were restricted to material which could be disclosed, where further material would properly be considered by a magistrate on a fresh application. The Crown Court may therefore consider undisclosed material and restrict disclosure on public-interest grounds.

6. The court did not decide whether the Crown Court’s decision should be quashed on the separate ground that the open material could not sustain it, because that issue was outside the scope of the claim.

This was a judicial review claim in the Administrative Court. The court refused judicial review of the Crown Court’s order authorising retention of material under section 59 of the Criminal Justice and Police Act 2001.