R v Crown Court at St Albans and another

The Supreme Court considered whether magistrates issuing search and seizure warrants under sections 8 and 15 of the Police and Criminal Evidence Act 1984 and Crown Court judges deciding applications under section 59 of the Criminal Justice and Police Act 2001 may have regard to information that cannot be disclosed to the person affected on public interest grounds. The Court examined the interaction of that scheme with the principle in Al Rawi v Security Service concerning closed material procedures and with ancillary rules and caselaw (including Rossminster and Bank Mellat).

The Court held that the statutory scheme permits a magistrates’ court on an ex parte section 8 application to rely on information which for public interest reasons cannot be disclosed to persons affected, and that a Crown Court hearing a section 59 retention application may, where necessary, operate a closed procedure to consider such material. It further held that the High Court, on judicial review of a magistrate’s or Crown Court’s decision in this context, can and should accommodate a closed material procedure to enable effective review. Finally, the Court held that there is no absolute rule that the gist of closed material must always be disclosed in such proceedings; gisting is not automatically required and disclosure questions depend on the particular circumstances.

Background and facts:

• On 16 June 2014 two ex parte search and seizure warrants under section 8 PACE were issued by St Albans Magistrates’ Court and executed on 26 June 2014, with items seized and the appellant arrested and bailed. The appellant sought disclosure of the application for the warrants but was supplied only with a redacted copy; the police withheld material on public interest grounds.
• The appellant brought judicial review proceedings seeking return of seized property and quashing of the warrants. The chief constable later consented to quash the warrants but sought to retain the seized material under section 59 CJPA. HHJ Bright QC authorised retention, relying on withheld material.
• The appellant challenged the section 59 order by judicial review; the Divisional Court dismissed his claim. The case reached the Supreme Court on five agreed issues about reliance on and review of material withheld on public interest grounds at the warrant, section 59 and judicial review stages.

Nature of the applications and issues framed:

• The proceedings concerned (i) lawfulness of magistrates using undisclosed information in ex parte section 8 PACE applications, (ii) whether the High Court on judicial review may have regard to undisclosed material relied on to obtain a warrant, (iii) whether the Crown Court on an inter partes section 59 CJPA application may rely on undisclosed material, (iv) whether the High Court on judicial review of a section 59 order may have regard to such material, and (v) whether minimum disclosure or "gisting" principles apply to proceedings concerning search warrants.

Court’s reasoning and conclusions:

• On section 8 PACE: the statutory scheme contemplates a speedy ex parte process directed at premises, operating on information provided by the constable; nothing in the statute requires that all material relied on be disclosable to persons affected. The Court relied on authorities (including Rossminster and later cases) and procedural safeguards (Criminal Procedure Rules) to conclude magistrates may rely on material that cannot be disclosed.
• On section 59 CJPA: because the Crown Court, when considering retention, must hypothetically assess whether a fresh magistrates’ warrant could lawfully be obtained on return of the property, the Crown Court must be able to consider the same closed material as the hypothetical magistrate. By analogy with Bank Mellat, the Court concluded the Crown Court may operate a closed procedure where necessary.
• On judicial review: the Court rejected the submission that Al Rawi precludes any closed material procedure in judicial review of these specialist criminal-procedure decisions. Having regard to statutory provisions governing judicial review, the need for coherent review, and analogies in Bank Mellat, the High Court can and must accommodate a closed material procedure when reviewing magistrates’ or Crown Court decisions made on the basis of closed material.
• On gisting/minimum disclosure: article 6 and related authorities do not require automatic gisting in this context. Given the comparatively limited and investigative nature of search-and-seizure warrants, there is no general rule that the gist must always be supplied; disclosure questions depend on the balance of interests in each case.

Procedural posture and outcome:

• The Supreme Court dismissed the appellant’s appeal, concluding that the statutory scheme and principles permit the use of closed material procedures in the magistrates’ court, Crown Court under section 59, and, where necessary, on judicial review of those decisions, and that gisting is not invariably required.

The appeal is dismissed. The Court held that: (1) a magistrates’ court on an ex parte application under sections 8 and 15 PACE may rely on information which for public interest reasons cannot be disclosed to persons affected; (2) a Crown Court hearing an inter partes application under section 59 CJPA may operate a closed procedure to consider such material because it must put itself in the hypothetical position of a magistrates’ court; (3) the High Court, on judicial review of such magistrates’ or Crown Court decisions, can accommodate a closed material procedure to permit an effective review; and (4) there is no absolute rule requiring gisting of closed material in these contexts — disclosure depends on the circumstances.

On appeal from the Administrative Court ([2016] EWHC 916 (Admin); reported [2016] 1 WLR 3073). Earlier layers included HHJ Bright QC’s decision in the Crown Court (St Albans) authorising retention under section 59 (9-11 June 2015) and earlier magistrates’ court decisions on issue and disclosure of the warrants (St Albans Magistrates’ Court and Luton Magistrates’ Court directions). The Divisional Court dismissed the appellant’s judicial review challenge and the matter proceeded to the Supreme Court for final determination.