Virdee & Anor, R (On the Application Of) v The National Crime Agency

Where legislation provides both a search-warrant procedure and post-arrest powers of search and seizure, neither procedure generally has priority. The powers are distinct and may be used where their respective statutory criteria are met. Planned arrests, complex investigations and lengthy investigations do not themselves require a warrant. Bad faith or an improper motive may produce a different result.

On a without-notice application for a production order, the applicant must fairly disclose material facts and the likely defence. Non-disclosure is material only if the omitted information might reasonably have led the court to refuse the order.

Two judicial review claims concerned an investigation by the National Crime Agency into suspected bribery and corruption involving the claimants and Caribbean public officials.

The first claim challenged the NCA’s use of post-arrest powers under the Police and Criminal Evidence Act 1984 to search premises and seize material instead of obtaining search warrants. The arrests themselves were not challenged as unlawful.

The second claim challenged three production orders made by judges at the Central Criminal Court under section 9 of PACE and Schedule 1. The claimants alleged that the NCA had failed to make full and frank disclosure, including by inadequately describing their likely defence.

1. First claim dismissed. The statutory scheme permits both search warrants and post-arrest powers. They are distinct powers with distinct criteria. Neither PACE nor authority establishes a fixed priority requiring a warrant whenever an arrest is planned, or in complex or lengthy investigations.
2. The post-arrest powers can be used only after a lawful arrest and remain subject to statutory limits and later legal challenge. The absence of advance judicial scrutiny does not make them unlawful. In the absence of bad faith or an improper motive, an agency may choose either procedure when both are lawfully available.
3. Second claim dismissed. The description of the intercept material as sensitive reliable intelligence was accurate, and the applications did not need to exhibit the full transcripts. However, the likely defence should have been described more fully. The German lawyers’ case was that the claimants had refused to pay any bribe and that no payment had been made.
4. That omission was not material. Applying the test in R (Mills and another) v Sussex Police and another, the question was whether the omitted information might reasonably have led the judge to refuse the production orders. The transcripts contained passages capable of supporting a reasonable inference that the claimants were willing in principle to make corrupt gifts or pay bribes. The orders would inevitably have been made.