Terra Services Ltd, R (On the Application Of) v The National Crime Agency & Ors

The appointment of a special advocate in closed material proceedings is fact-sensitive and ordinarily requires an exceptional case. Challenges to search and seizure warrants generally fall towards the lower end of the hierarchy of cases requiring procedural safeguards because the warrant concerns premises, is preparatory to any prosecution, and does not itself adjudicate directly on rights or liberty. The statutory safeguards governing the warrant procedure may justify the court considering undisclosed evidence, but they do not make a special advocate automatic. The court must assess whether the particular case demonstrates a real need for one. Complexity, legal professional privilege, and challenges to matters preceding the warrant will usually be insufficient where the legal arguments can be advanced openly and the closed material is limited and readily analysed.

The claimant sought judicial review concerning a search and seizure warrant and applied for the appointment of a special advocate in closed material proceedings. The warrant had been issued in the context of an ongoing investigation, and the claimant wished to challenge matters including disclosure to the warrant judge, an earlier covert search, and the seizure of potentially privileged material.

The defendants opposed the application. They submitted that the issues were straightforward, the closed material was limited, and the relevant arguments could be made in open court. The court therefore had to determine whether the circumstances justified appointing a special advocate before the rolled-up judicial review hearing.

1. Application refused. The court held that the claimant had not shown an effective or real need for the appointment of a special advocate.
2. The High Court’s power to consider closed evidence in judicial review arose from the statutory power of the Crown Court to determine warrant applications ex parte under Police and Criminal Evidence Act 1984 (PACE), particularly sections 8 and 9, together with section 15 and Schedule 1. The safeguards in that statutory scheme necessitated and justified the closed procedure.
3. The court adopted a contextual and focused approach. Challenges to search and seizure warrants generally lie towards the lower end of any hierarchy of cases requiring safeguards. A warrant is directed to premises, is preparatory to any criminal prosecution, and does not itself determine liberty or directly adjudicate rights. The circumstances would therefore ordinarily need to be exceptional before a special advocate was required.
4. The hierarchy was not definitive. The facts of each case remained decisive. Relevant considerations included the nature and impact of the decision, the scope and complexity of the closed material, and whether the claimant could formulate and advance the legal arguments in open proceedings.
5. Here, the claimant’s proposed arguments concerning full and frank disclosure, earlier investigative steps, and legally privileged documents could be explored in open court. The court could cross-check those submissions against the material before it. The closed material was limited and presented no difficulty of analysis or interpretation. The claimant’s concern that the warrant involved a substantive interference with property and privacy rights did not alter the conclusion.
6. The court distinguished the exceptional circumstances in R (Privacy International) v Investigatory Powers Tribunal, where the claimant could not meaningfully formulate a judicial review application without assistance. The present application was refused.