GSX, R (on the application of) v The Crown Court at Southwark

A warrant issued under Police and Criminal Evidence Act 1984 must be sought under the correct statutory procedure where the material is reasonably expected to include legally privileged or special procedure material. Material defects will make the warrant unlawful.

That does not necessarily require the immediate return or destruction of seized material. Where Parliament has provided a statutory mechanism for authorising retention, the Administrative Court should ordinarily exercise restraint. Exceptional relief may be justified by bad faith or egregious disregard for statutory safeguards. Serious carelessness, without more, may be insufficient where the statutory process remains available and the unlawful search has conferred no investigative advantage.

The claimant, a practising barrister, challenged a search warrant issued by the Crown Court at Southwark on an application by the police acting for the Financial Conduct Authority. The warrant was executed and material was seized.

The parties accepted that the warrant, and the entry, search and seizures, were unlawful because the wrong procedure and access condition had been used, and because the warrant lacked sufficient precision. The FCA had applied under section 59(6) of the Criminal Justice and Police Act 2001 for authorisation to retain the material. The central issue was whether the court should prevent that statutory process by ordering immediate return or destruction of the material and prohibiting its use.

1. Unlawful warrant. The warrant was quashed and declarations were made that the entry, search and seizures were unlawful. The application should have proceeded under section 9 and Schedule 1 of the Police and Criminal Evidence Act 1984, because the premises of a practising barrister would inevitably contain legally privileged and special procedure material. The findings that it was practicable to communicate with the claimant and that no such material was sought were not open on the presented case. The warrant also breached section 15(6)(b) because it did not identify the articles sought with sufficient clarity.
2. Relevant approach to relief. Under R (Chatwani) v National Crime Agency [2015] EWHC 1283 (Admin), the usual course is for retention to be determined by the Crown Court under section 59 of the Criminal Justice and Police Act 2001. That statutory allocation of responsibility is a powerful reason for restraint. Relief preventing a section 59 application may nevertheless be appropriate where the agency acted in bad faith or with egregious disregard for constitutional safeguards, although such cases are rare.
3. Conduct in this case. The FCA’s legal errors were materially mitigated by specialist advice on which it was reasonable to rely. The failures concerning the sensitive information form were serious. It should not have been placed before the judge in a potentially misleading form, and the FCA should promptly have sought judicial approval before withholding it. Those failings showed insufficient rigour, but not bad faith or the egregious disregard identified in Chatwani.
4. The evidential basis for suspicion came from other material, not the sensitive information form. The interested parties had not examined the seized material and therefore gained no investigative advantage from the unlawful search. The claimant could make representations in the section 59 process, which was not bound to succeed. The exceptional additional relief was therefore refused. Retention was remitted to the Crown Court process under section 59.

Mr Justice Griffiths agreed.

This was a judicial review at first instance in the Administrative Court. The judgment states that the warrant had been issued by HHJ Baumgartner at Southwark Crown Court on 9 September 2024. The High Court quashed it and directed that retention be determined under the statutory section 59 procedure.