R v Crown Court at St Albans and another

A magistrates’ court may rely on information which cannot be disclosed in the public interest when deciding an ex parte application for a search warrant under sections 8 and 15 of the Police and Criminal Evidence Act 1984. A Crown Court considering retention under section 59 of the Criminal Justice and Police Act 2001 may use a closed material procedure where necessary.

Judicial review can and must accommodate the same procedure when Parliament has authorised it in the court under review. Open justice should nevertheless prevail as far as possible, and closed material must be restricted to what is essential. There is no general requirement to disclose even the gist of the withheld information in proceedings concerning search warrants. Whether disclosure is required depends on the circumstances.

Police obtained ex parte warrants under section 8 of the Police and Criminal Evidence Act 1984 to search two premises associated with the appellant. After executing the warrants, they disclosed only a redacted version of the written application. The warrants were later quashed by consent. The Crown Court then authorised retention of the seized material under section 59 of the Criminal Justice and Police Act 2001, having ruled that the police could rely on information withheld in the public interest.

The appellant sought judicial review of the retention order. The Divisional Court dismissed the claim in [2016] EWHC 916 (Admin); [2016] 1 WLR 3073. The appeal concerned whether the magistrates’ court, Crown Court and High Court on judicial review could consider undisclosed material without express statutory provision for a closed material procedure, and whether minimum disclosure by way of a gist was required.

Appeal dismissed unanimously. Lord Mance gave the judgment, with which Lord Kerr, Lord Hughes, Lady Black and Lord Lloyd-Jones agreed.

1. Sections 8 and 15 of the Police and Criminal Evidence Act 1984 create a speedy, ex parte process directed to premises. Nothing restricts the nature of the information on which the magistrate may act or requires its later disclosure. The magistrate may therefore rely on all relevant information, although some may never be disclosed because of the public interest. The police owe a duty of candour and must present the circumstances fairly and in a balanced way.

2. Section 59(7) of the Criminal Justice and Police Act 2001 requires the Crown Court to ask whether, upon return of unlawfully seized property, it would immediately be appropriate to issue a fresh warrant permitting its lawful seizure. The Crown Court must place itself in the position of that hypothetical magistrates’ court. It may therefore use a closed material procedure so far as necessary to consider information which the hypothetical magistrate could consider but could not disclose.

3. The High Court can and must accommodate a closed material procedure when judicially reviewing either decision. The statutory scheme must operate coherently. Review on a different evidential basis would risk injustice and absurdity and could make the statutory remedial powers ineffective. The general restriction stated in Al Rawi v Security Service [2011] UKSC 34 did not address this special situation, in which Parliament authorised the lower court’s procedure and contemplated effective judicial review of it.

4. Open justice remains the starting point. A closed procedure is permissible only when essential after inspection of the material and should be restricted as far as possible. Minimum disclosure of the gist may be indispensable where liberty or an equivalent interest is affected. A search warrant ordinarily entails only a short-term interference with property pending an investigation and does not alter substantive rights. There is consequently no invariable requirement to provide even a gist. Each case depends on its circumstances.

1. United Kingdom Supreme Court: Dismissed the appellant’s appeal in R v Crown Court at St Albans and another [2018] UKSC 1.
2. Divisional Court of the High Court: Dismissed the claim for judicial review of the Crown Court retention order in [2016] EWHC 916 (Admin); [2016] 1 WLR 3073. It held that undisclosed material could be considered when issuing a warrant and deciding an application under section 59 of the Criminal Justice and Police Act 2001.
3. St Albans Crown Court: Ruled that the police could rely on withheld information and authorised retention of the seized material under section 59.
4. Magistrates’ Court: Issued two search warrants under section 8 of the Police and Criminal Evidence Act 1984. The warrants were later quashed by consent.