Diogo Santos-Coelho, R (on the application of) v Carlisle Magistrates Court & Anor

Where material has been seized under an unlawful search warrant, the High Court retains discretion over the relief to grant. It may permit the law-enforcement agency to retain the material pending an application under section 59 of the Criminal Justice and Police Act 2001, particularly where there was no bad faith and the agency acted frankly after recognising its error.

That discretion does not ordinarily extend to permitting the agency to inspect unlawfully seized electronic material which it has not previously examined, merely to formulate the section 59 application. The agency must identify the object of the proposed notional warrant with sufficient particularity. Any further examination, retention or use is for the Crown Court.

The claimant sought judicial review of a search warrant issued by Carlisle Magistrates’ Court and executed by the National Crime Agency. The warrant authorised seizure of a laptop and mobile phone under section 8 of the Police and Criminal Evidence Act 1984 and section 16 of the Crime (International Co-operation) Act 2003.

The parties accepted that the warrant was unlawful because the statutory legal-professional privilege requirement had not been satisfied. The remaining issues were whether the hearing should be adjourned, whether the Agency could inspect the seized material to prepare an application under section 59 of the Criminal Justice and Police Act 2001, and whether it could retain the material pending that application.

1. Adjournment. The application to adjourn was refused. The claimant and his solicitors had been given opportunities to attend or resolve the funding difficulties. The recent consent to extradition did not demonstrate how the issues before the court had materially changed.
2. Unlawful warrant and relief. The warrant was unlawful because the material was known to include items subject to legal privilege, contrary to section 8(1)(d) of the Police and Criminal Evidence Act 1984. The warrant was quashed and the entry, search and seizures were declared unlawful.
3. Inspection pending section 59 application. The court distinguished Van der Pijl (No.2) and Cheema. Those decisions depended on particular circumstances, including prior inspection, agreed document-by-document relevance review, or the inability to identify the seized items meaningfully. They did not justify allowing the Agency to inspect unexamined electronic devices where the proposed search could be described with particularity.
4. The court therefore refused permission for the Agency to image or investigate the laptop, phone or existing image for the purpose of preparing its application. Allowing such inspection would permit the Agency to benefit from its own unlawful conduct.
5. Retention. The Agency was permitted to retain the laptop, phone and existing image pending an application under section 59. This was the normal course identified in Chatwani. The absence of bad faith, the officer’s error, and the Agency’s frank admission of the unlawfulness justified allowing the Crown Court to determine the further retention or use of the material.
6. The claim for damages was transferred to the Central London County Court. The defendants were ordered to pay the claimant’s costs to 31 March 2023, subject to detailed assessment, and a Legal Aid assessment was ordered.

• High Court (King’s Bench Division), Administrative Court: permission to apply for judicial review was granted by Farbey J on 24 November 2023. Cavanagh J subsequently refused an application on the papers to adjourn the substantive hearing. The Divisional Court refused a further adjournment, quashed the warrant, declared the searches and seizures unlawful, and permitted limited retention pending a section 59 application.