Court sets aside warrant as not all material facts were disclosed during application


Re: Mills & Anor, R (on the application of) v Sussex Police & Anor [2014] EWHC 2523 (Admin)

The claimants sought an order setting aside a warrant that was used to search their premises and seize a number of items.

The Court accepted that when the police made their ex parte application to the Crown Court they had failed to disclose a number of material facts. However, the Court could not be satisfied that even if all the material facts had been disclosed the warrant would not have been issued.

Following an examination of the Authorities, the Court understood the law to be that if the Reviewing Court is uncertain what the outcome would have been if all the facts were disclosed, it should treat the warrant as lawfully issued.

However, the Court declined to follow this position. The Court cited the judgment of Stanley Burton LJ in R (Dulai) v Chelmsford Magistrates Court [2012] EWHC 1055 (Admin) as the correct position, namely that a warrant ought to be set aside where the undisclosed information might reasonably have led the Court not to issue the warrant, i.e. there was no need for certainty.

The Court gave four reasons for its decision; the previous position offended the principle that the common law did not recognise interests of the state as a justification for allowing what would otherwise be an unlawful search, it would mean the police are in incentivised in not making a full disclosure, the Reviewing Court is rarely in a good position to judge the merits of an application and it leads to an absurdity.

Accordingly the Court set aside the warrant.

Tim Owen QC and Mark Summers QC were involved in this case.