JOB FOLAYEMI DUROJAIYE (R on the application of) v THE CROWN COURT AT CROYDON

On a without-notice application for a search and seizure warrant, the applicant must disclose material that might reasonably lead the judge to refuse the warrant. A recent communication from the suspect’s solicitors setting out the suspect’s case should normally be placed before the judge, together with any police response. Non-disclosure does not invalidate the warrant where the court can conclude that the omitted material would not reasonably have affected the decision. A judge should give brief reasons for granting such an intrusive warrant, but the omission is not fatal where the court can draw an obvious inference as to the judge’s reasoning. Any proposed redaction of material placed before the warrant judge requires a prompt application to the court, supported by appropriate senior evidence, and court sanction.

The claimant sought judicial review of a search and seizure warrant issued by the Crown Court at Croydon under the Proceeds of Crime Act 2002. The warrant concerned a police investigation into suspected money laundering after the claimant was stopped entering the country with precious metals worth about £200,000.

The claimant alleged that the police had failed to disclose material including his later cooperation, correspondence through solicitors, explanations for the source of funds and evidence concerning the precious metals. He also challenged the use of redacted material in the judicial review proceedings. The central issues were whether the non-disclosure was material and whether the warrant was otherwise unlawful.

1. Application dismissed. The court dismissed the claim for judicial review. The claimant accepted that the information contained in the warrant application was sufficient to justify issuing a warrant.

2. A judge granting a search and seizure warrant should give brief reasons because the remedy is particularly intrusive. However, failure to give reasons does not invalidate the warrant if, on a challenge, the court can draw an obvious inference as to the reason for the decision. Here, the obvious inference was that the judge accepted the risk that digital material would be deleted before a production order could be complied with, following R (Newcastle United Football Club Ltd) v HMRC [2017] 4 WLR 187 at [55].

3. The police applicant owed a duty of candour. They had to put before the warrant judge material which might reasonably have led the judge to refuse the warrant. The applicable question was whether the omitted information might reasonably have led the judge to refuse the warrant, adopting the formulation in R (Jordan) v Chief Constable of Merseyside [2020] EWHC 2408 (Admin).

4. The claimant’s solicitors’ letter of 5 July 2021 should have been placed before the judge, although its appendices did not need to be provided because the letter fairly summarised them. The police’s omission was not in bad faith. On the evidence, however, disclosure of the letter would not reasonably have led the judge to refuse the warrant and might have strengthened the police case. The non-disclosure was therefore not material.

5. Cooperation by a suspect may be material where the warrant application portrays him as obstructive, as illustrated by Columbia Picture Industries Inc v Robinson [1987] Ch 38. In this case the claimant’s cooperation was limited and spasmodic, while the wider financial evidence continued to support suspicion of money laundering.

6. Where material placed before a warrant judge is redacted, the party obtaining the warrant must promptly apply to the court for permission to withhold it on public interest immunity or other proper grounds, supported by evidence from the Chief Constable, Commissioner of Police or an appropriately authorised senior officer. The court must sanction withholding. The police had failed to follow that procedure, but the material disclosed later did not weaken the case for the warrant and did not affect the outcome.

The judgment does not state a prior appellate history. The claim was a first-instance judicial review application in the Divisional Court of the Queen’s Bench Division.