Jordan, R (On the Application Of) v Chief Constable of Merseyside Police & Anor

On an application for a search warrant, the police must disclose all matters relevant to the statutory test, including points which may count against issuing the warrant and any proper answer to those points. Materiality is assessed by asking whether the information that should have been disclosed might reasonably have led the issuing justice to refuse the warrant. The reviewing court must assess the likely effect on the issuing justice, not substitute its own assessment. A breach may nevertheless be immaterial where the warrant would clearly have been issued on the remaining information. The statutory test requiring it to be highly likely that the outcome would not have been substantially different remains relevant, but ordinarily will not rescue a warrant once material non-disclosure is established.

The claimant sought judicial review of a warrant issued by a justice of the peace under Misuse of Drugs Act 1971, section 23, authorising a search of his home. The police application referred to intelligence about drugs and cash, including the finding of cash and alleged cannabis during an earlier search. It did not explain the cash or fully describe the circumstances concerning the substance found. It also omitted three later police visits which produced no relevant findings.

The issue was whether the police had breached their duty of full and frank disclosure and, if so, whether the non-disclosure was material. The court also considered the effect of section 31(2A) of the Senior Courts Act 1981.

1. Claim dismissed. The police breached their duty to disclose relevant matters, but the non-disclosure was not material.
2. Section 23 of the Misuse of Drugs Act 1971 requires reasonable grounds for suspecting that controlled drugs are unlawfully in the possession of a person on premises. Reasonable suspicion is an initial state of conjecture or surmise, not prima facie proof. The threshold is therefore not exacting.
3. The court stated a two-stage approach. First, ask whether the applicant failed to disclose something legally relevant to the statutory test. Secondly, ask whether the information that should have been given might reasonably have led the issuing justice to refuse the warrant. The disclosure must present a fair and accurate summary of the known information, including adverse matters and any answer properly available to the applicant.
4. The reviewing court must assess the likely effect on the issuing justice. It must not decide whether it would itself have issued the warrant. Properly applied, that approach does not usurp the statutory function of the issuing authority.
5. The police should have disclosed that the claimant had explained the cash, that the explanation was disputed and that forfeiture proceedings were pending. They should also have fairly qualified the reference to cannabis and disclosed the later visits, while explaining that those visits were not searches for drugs. These matters were relevant, but the application contained substantial independent intelligence post-dating the earlier search and visits.
6. Having considered the closed material, the court concluded that, even without the earlier search evidence, the magistrate could not reasonably have refused the warrant. The non-disclosure therefore could not reasonably have affected the outcome. Section 31(2A) was considered, but the court did not need to rely on it.
7. The court left open whether deliberate attempts to mislead might justify quashing a warrant even without material non-disclosure. That issue did not arise because the error was an honest mistake about relevance.