A & Anor, (On the Application Of) v The Central Criminal Court & Anor

A search warrant may identify a mobile phone or computer as the article to be seized, even where it may contain irrelevant, legally privileged or excluded material. The warrant must clearly exclude material which cannot lawfully be seized, particularly legally privileged material, and must satisfy the statutory access and identification requirements. Sections 50 onwards of the CJPA may authorise removal and subsequent sifting where it is not reasonably practicable to separate protected material on the premises. The application must nevertheless provide the issuing judge with adequate disclosure and the warrant must be clear and practical to execute. Failure to produce a warrant to an occupier before seizure may make the execution unlawful, but does not necessarily invalidate the warrant itself.

The claimants challenged search warrants obtained by the Chief Constable of West Midlands Police under section 9 and paragraph 12 of Schedule 1 to the Police and Criminal Evidence Act. The warrants concerned specified mobile phones and arose from investigations into conspiracies to pervert the course of justice and to transmit communications from a prison.

The claimants sought to quash the warrants, declarations concerning the entries, searches and seizures, and return of the phones. They argued that the statutory access conditions were not met, that the warrants were insufficiently specific, that protected material had not been adequately addressed, that relevant information had not been disclosed to the issuing judge, and that the execution of the warrants was unlawful.

1. Warrants and protected material. A mobile phone is a single item, analogous in this respect to a computer or hard disk rather than a filing cabinet. It may therefore be specified as the article sought under section 9 and Schedule 1, even though it contains irrelevant material. The same applies where legally privileged material may be present, provided the warrant clearly excludes that material.
2. The warrants expressly excluded legally privileged material and sufficiently identified the phones under section 15(6)(b). There were reasonable grounds for believing that indictable offences had been committed, that service of a notice to produce would seriously prejudice the investigation, and that relevant special procedure material would be found. The warrants therefore did not fail the first access conditions.
3. Sifting after seizure. Sections 50 onwards of the CJPA apply where a phone or computer is seized pursuant to a warrant and it is not reasonably practicable to determine or separate protected material on the premises. Those provisions provide a practical regime for examination, separation, retention and return. They do not relieve an applicant of the obligation to draft the warrant lawfully and precisely.
4. The absence of an express exclusion for excluded material was undesirable, but an implied exclusion may in some circumstances suffice. It was unnecessary to reach a concluded view because the subsequent CJPA regime provided the appropriate mechanism for dealing with any such material.
5. Execution and disclosure. Entry and seizure were lawful in the cases of A and B. In the cases of D and E, the police failed to produce the warrants before seizure, contrary to section 16(5)(b), and declaratory relief was granted. The police also failed to disclose their intended use of arrests and section 32 searches, but that non-disclosure was immaterial because it would not have affected the issuing judge’s decision.
6. The claimants were refused the substantive relief sought. Counsel were directed to exchange proposals for an order governing the examination and sifting of the phones, with independent counsel where necessary.

Not stated in the judgment. The decision was a first-instance judgment of the Administrative Court on conjoined judicial review claims.