This appeal considered whether, in proceedings for judicial review of the legality of a search warrant issued ex parte, it is permissible for the High Court to have regard to evidence that is not disclosed to the subject of the warrant, and if so, whether the same applies to judicial review proceedings regarding the legality of an order made inter parties for retention of unlawfully seized material under the Criminal Justice and Police Act 2001, s 59. If the answers to these questions were yes, the appeal also considered whether the principles in Tariq v Home Office concerning irreducible minimum disclosure apply to proceedings concerning search warrants.
The Supreme Court unanimously dismissed the appeal. The statutory scheme of PACE 1984, ss 8 and 15, permits a Magistrates’ Court in an ex parte application for a search and seizure warrant to have regard to material which cannot on public interest grounds be disclosed to a person affected by the warrant or order, even where this material is decisive for the legitimacy of the warrant. The Court held that the statutory procedure under s 8 and the Criminal Procedure Rules provide protections to persons affected by a warrant and the Rules themselves contemplate that the magistrate or Crown Court will see and rely on information not disclosable for PII reasons. Requiring the police in these cases to refrain from seeking a warrant would limit important sources of information and the efficacy of police investigations and as such, a Magistrates’ Court is entitled in an ex parte application to have regard to information which cannot be disclosed for PII reasons. The Supreme Court considered that the Crown Court can in the same way operate a closed material procedure on PII grounds on an inter partes application under the CJPA, s 59(7) and that the High Court can conduct a closed material procedure on judicial review of a magistrate’s order for a warrant under PACE, s 8 or a magistrate’s order for disclosure or a Crown Court’s order under CJPA, s 59(7). The Court concluded that open justice should prevail to the maximum extent possible but that it cannot be axiomatic that even the gist of the relevant information must be supplied to any person claiming to be affected and seeking to object to the warrant, search or seizure.
Mark Summers QC and Jessica Jones were involved in this case.
Court’s Press Summaryhttps://www.supremecourt.uk/cases/docs/uksc-2016-0130-press-summary.pdf