29 November 2013
Partner David Corker published in New Law Journal – “Are warrants worth the paper they’re written on?”
Unwarranted behaviour – Are warrants worth the paper they’re written on, asks David Corker
The judgment of the Admin Court in R v Chief Constable of the British Transport Police  EWHC 2189 is a disturbing read for those concerned with upholding the quality of our justice system. This case concerns two firms of London-based criminal defence solicitors against whom in mid-2012, the British Transport Police (BTP) obtained and executed search warrants under s 9 and Sch 1 of the Police and Criminal Evidence Act 1984. Both firms subsequently sought a judicial review and succeeded in having the warrants quashed.
Searching for sleepers
The story begins with the decision of the police to apply to search the home address of a defence solicitor who was representing a client suspected of stealing railway sleepers. Their suspicion that the solicitor had sought to pervert the course of justice and was conspiring with his client to conceal criminal property was based upon the following exchange between a police officer and the solicitor concerning the whereabouts of the client’s mobile phone:
“While putting on a pair of search gloves, DC Collins had the following exchange with S:
‘DC: Do you have your client’s mobile phone?
S: I have my phone officer.
DC: I wasn’t asking if you had your phone, do you have your client’s phone?
S: Again, I have my phone officer.
DC: Do you have [MS]’s phone?
S: I do.’
At the end of the conversation, S handed DC Collins a mobile phone from his briefcase.”
Six weeks later DC Collins made an ex parte application for a warrant before a circuit judge sitting at Southwark Crown Court. At the end of a “less than” five minute hearing the application was granted. The judge gave no reasons despite the apparently flimsy basis for the application. The solicitor’s home was then raided and a phone and computer seized. The solicitor was also arrested and when asked about the whereabouts of his notes made at the time of the above fateful conversation replied that they were in the client’s file located either at his office or that of the new firm which had recently commenced acting for the client. For reasons which are unclear the officer was determined to locate these notes and so within a week of this arrest returned to Southwark with a fresh application. This time he applied for warrants to search the offices of both firms in order to seize these notes.
This second application came before a different judge. This hearing lasted 20 minutes. This judge was vexed about being asked to approve raids of this kind but was somehow persuaded that they were essential; he held “and for the life of me I cannot see how else you could get hold of this material”. Owing to an error on the face of one of the two warrants the officer had to return to court a third time and a third judge reheard his application and again granted it. Both warrants were then executed.
The court began its consideration of whether the trio of circuit judges had been correct to grant these applications by examining whether the officer had in any of his written applications satisfied the relevant conditions prescribed by the Act. The court was deeply unimpressed by what it surveyed. Its judgment is an excoriating critique of the BTP. It is replete with comments such as “a total disregard for the statutory requirements”, “a complete failure to appreciate” and “a most unfortunate and cavalier disregard of the carefully worked out statutory scheme.” The officer had utterly failed to act even-handedly and provide the judges with adequate information.
While refraining from similarly trenchant criticism of the judges who had heard and granted the applications, bearing this catalogue of errors in mind the court must also have been satisfied that they had failed to provide the adequate scrutiny which the law requires. In this context the court held that the judges were remiss in not giving reasons for granting the applications. Moreover the court speculated that if the judges had delivered a judgment they might have then realised how defective the applications for them were.
The court then considered the officer’s justification concerning why there were reasonable grounds to suspect that the solicitor and the two firms would if put on notice of his investigation destroy the phone, computer and the notes. The court found that his purported justification was no more than a bare assertion and in the absence of any evidence the judges could not possibly have been properly satisfied that the solicitors would react as the police feared. The court added: “A further matter of concern is that the judge may have been left with the view that the officers of the first defendant [the BTP] had some suspicions about the honesty of the firm L simply because it had been instructed to act for MS. But, as Keene LJ said in the Faisaltex case (at para 47) ‘A solicitor is not to be regarded as someone tainted and unreliable because, for example, he acts for someone charged with or convicted of a criminal offence.’”
It is unfortunate that the situation justified the court needing to repeat such an elementary proposition. This admonition was surely not only meant to be addressed to the BTP officers but also to the judges who in the second and third of these applications allowed two firms of reputable solicitors’ offices to be raided in a quest by one officer to uncover a conspiracy the evidence for which was a solicitor’s initial reluctance to hand over his client’s phone.
This case should be treated as containing a number of salutary warnings. First to defence solicitors; never agree to take possession of the client’s phone if it is foreseeable that the client may be searched. It seems that if the police want the phone and discover that the solicitor has custody of it this may lead them to suspect a conspiracy to pervert exists. Second to the police; that applications for warrants especially against defence solicitors are matters which require considerable care and as the Serious Fraud Office has learnt to its cost in the litigation brought against it by the Tchenguiz brothers, need rigorous compliance with the proper procedures. Third to circuit judges hearing ex parte applications for warrants; that warrants are a serious inroad upon a person’s liberty and the responsibility for ensuring the procedure is not abused lies with the judge.
But the most important effect of this case should be to puncture any aura of invincibility concerning the legality or propriety of a warrant signed by a judge. Perhaps regrettably, a presumption that a judge must have given their anxious scrutiny to the application for a warrant before granting it should be abandoned. A lawyer advising a client whose premises are the target of the warrant should now always consider whether there is potential for having it quashed because of the applicant’s or the judge’s misdemeanour.
Finally, while the judges who granted the applications should have paid greater attention to this responsibility part of the problem may be that in a major and busy court like Southwark their daily lists and workloads have probably become too great and so their working environment inhibits the contemplation and scrutiny which the court in this case demands of them. It is surely in the interests of justice to increase their number. NLJ