Brook & Ors, R (On the Application Of) v Preston Crown Court

Applicants for search warrants must make full and fair disclosure of material facts, including information that might reasonably lead the issuing court to refuse the warrant. The duty extends to facts that proper enquiries would have revealed, judged in context.

Under Police and Criminal Evidence Act 1984, s.15(6)(b), a warrant must identify the articles or persons sought as precisely and intelligibly as practicable. Descriptions such as all communications or financial documentation, without limits of subject matter or time, are unlawfully broad. A warrant based on a material factual error must be quashed where the court cannot be confident that it would otherwise have been issued.

Two conjoined judicial review claims challenged search warrants obtained during a Lancashire Police investigation into suspected bribery and money laundering. Martin and Matthew Brook challenged warrants issued by Preston Crown Court on 25 July 2017, including a warrant concerning Calderbrook Construction. Oliver Garthwaite challenged a warrant issued by Preston Magistrates’ Court on 23 August 2017.

The claims alleged material non-disclosure or misrepresentation, excessive breadth in the description of material sought, and, in Garthwaite’s case, inadequate grounds and failure to satisfy the statutory access condition. The central issues were whether the applications and warrants met the requirements of candour, precision and statutory justification, and whether seized material should be retained after the searches were found unlawful.

1. Disclosure. An officer applying without notice for a search warrant owes a duty of full and fair disclosure. Materiality is assessed by asking whether the information might reasonably lead the judge to refuse the warrant. The duty includes facts that would have been known had proper enquiries been made, with the scope of enquiries depending on the investigation, information available and urgency.
2. The asserted failures concerning Calderbrook’s earlier business history and the description of the email advocating its appointment as a direct supplier did not materially undermine the first application. The allegation of bad faith was unsupported and had not been fairly advanced. The first claim therefore failed on misrepresentation and non-disclosure.
3. Precision of warrants. The requirement in Police and Criminal Evidence Act 1984, s.15(6)(b), requires terms that enable persons affected by execution to understand the limits of the search and challenge the seizure of particular items. The principles stated in Lee & Ors v Solihull Magistrates Court & Anor [2013] EWHC 3779 (Admin) and Superior Import/Export Ltd & Ors, R (on the Application of) v Revenue and Customs & Anor [2017] EWHC 3172 (Admin) were accepted. Although a balance may be required in a large or urgent investigation, the warrants here were deficient. Unrestricted references to communications and financial documentation were incapable of defining the limits of lawful seizure.
4. Garthwaite warrant. The written application gave only a bare assertion that material examined implicated Garthwaite. The critical document was wrongly described as minutes of a meeting when it was a preparatory note. The magistrate also proceeded on the material error that Garthwaite was living beyond his means. The applicable question was whether, absent those errors and with a fair presentation, the court could be confident that the warrant would have been issued. Since the magistrate might well have reached a different decision, the warrant was unlawful and quashed.
5. The failure to mention Garthwaite’s cooperation with an earlier search did not invalidate the access-condition ground. It would have been preferable to disclose it, but it did not materially undermine the belief that he would not permit a search of his private premises without a warrant.
6. Applying the approach in R (on the application of Chatwani & Ors) v The National Crime Agency & Anor [2015] EWHC 1283 (Admin), the court refused permission to retain seized material for a statutory retention application. The repeated refusal to disclose the critical note was a serious breach of candour. Taken with the other errors, it justified denying the police the benefit of the unlawful search.

The relevant searches were declared unlawful. The Garthwaite warrant was quashed, and retention of seized material for a s.59 application was refused.