Jean-Yves Gilg

Editor, Solicitors Journal

No change of PACE for search warrants

No change of PACE for search warrants


Vivien Cochrane and Irene McMillan look at search warrants, the police recording of comments following caution, and recent updates to Codes C, D, and H

In John Haralambous v St Albans Crown Court and Hertfordshire Constabulary [2016] EWHC 916 (Admin), Hertfordshire police applied
for two search warrants in relation to an
offence of conspiracy to commit fraud by false misrepresentation. The investigation concerned the handling of stolen artwork and other valuable artefacts, resulting in a number of suspects, including the claimant. The police had indicated that if fake or stolen artwork was found at his premises, it would help prove conspiracy between the suspects. The warrants were issued on 14 June 2014 and executed ten days later.

Following a request from the claimant's solicitors for a copy of the information, a redacted copy was received and the claimant applied for disclosure. This was refused on public interest grounds as it would compromise the police investigation and reveal confidential sources.

The claimant applied for judicial review on the basis that the application for and issuance of the search warrants was unlawful. Among other things, he claimed that the information did not contain sufficient material to support that there were reasonable grounds to suspect that an offence had been committed. The claimant suggested that even had the warrants been lawfully issued, they should still be quashed as unlawful because the police could not provide sufficient information to show
the warrants were justified.

The police lodged an application under section 59 of the Criminal Justice and Police Act 2001. This, together with negotiations between the parties, resulted in a consent order being made and
the warrants being quashed (subject to the
section 59 application). The section 59 application acknowledged that the claimant's judicial review application would succeed but that an ex parte hearing, disclosing the unredacted information, would result in an order that the property seized could be retained as if it had been originally seized under lawful warrants. The Crown Court agreed that the redactions were in the public interest and that no further disclosure was necessary.

The claimant then issued a claim for judicial review on the basis that the retention of the seized property was unlawful. The claimant's grounds were that the police could not justify retention of the property in the section 59 proceedings when it had done so on a basis which had not been disclosed
to him, and that the redaction of the information constituted a closed evidence procedure for
which there is no parliamentary approval. In the alternative, even if a closed evidence procedure was possible, the claimant submitted that the police should disclose sufficient information to enable
an understanding of the allegations that he faced,
in order that he may refute them.

Dismissing the judicial review, the court set out the statutory conditions underpinning the issue of search warrants under sections 8 and 15(3) of the Police and Criminal Evidence Act (PACE) 1984, contrasting ex parte and inter partes applications for production orders under section 9. Additionally, the court made clear that there are significant statutory safeguards built in and these are interposed with the independent scrutiny of the judiciary.

This was set against the issue in the case, namely whether the common law right to information after a warrant had been issued required sufficient information to be provided to the subject of the warrant, so as to assess its legality against this statutory framework. The proposition that the subject of a warrant should always contain sufficient information to understand the nature
of the evidence against them would frustrate parliament's intention in establishing a simple system for issuing search warrants. On making an application in such circumstances, an officer
would have to determine that there was sufficient disclosable material, together with the material which may be seized during a search. Further, what can be considered to be disclosable in the public interest is subject to change over the course of an investigation and so, should there be a challenge,
it would be a matter of chance whether the warrant was lawful.

The court also said that the claimant's argument was at odds with the public interest in the investigation and prosecution of crime. An example was set out where the police would be very unlikely to disclose the identity of a source where that source may be a member of a criminal gang, the abused partner of an offender, or a family member of someone planning to engage in an act of terrorism. A challenge could result in the police having to disclose that information.

The court concluded that the claimant's argument did not succeed in the context of a warrant issued under section 8 and that the approach was no different under section 59.

Comments following caution

In R (on the application of Vijay Karia) v The Chief Constable of Hampshire Constabulary [2015] EWHC 4083 (Admin),the claimant sought judicial review of the dismissal of his complaint against a police officer in the Hampshire constabulary. The complaint concerned the officer's failure to comply with paragraph 11.13 of code C of the PACE Codes of Practice in not recording the claimant's comments
in response to being cautioned. The claimant was suspected of driving while using a mobile phone and otherwise than in accordance with a licence, and the officer intended that the claimant should
be reported for summons.

The claimant was subsequently prosecuted and the charges were proved in his absence after he failed to attend court on three separate occasions.
A year after the event the claimant filed a formal complaint against the PC who had stopped him, stating that in failing to record the claimant's full detailed reply in his notebook, the officer had breached paragraph 11.13 of code C.

The complaint was investigated but not upheld by Hampshire constabulary on the basis that paragraph 11.13 of code C did not apply, as the PC who stopped the complainant was not conducting
a formal interview. The claimant appealed but his appeal was not upheld. He then applied for a judicial review of this decision.

Paragraph 11.13 of code C states: 'A written record shall be made of any comments made by a suspect, including unsolicited comments, which are outside the context of an interview but which might be relevant to the offence. Any such record must be timed and signed by the maker. When practicable the suspect shall be given the opportunity to read that record and to sign it as correct or to indicate how they consider it inaccurate.'

In the Administrative Court, the Hampshire constabulary argued that paragraph 11.13 did
not apply outside the context of an interview; however, this was held to be incorrect. Mrs Justice Lang stated that it was plain from the express
words of paragraph 11.13 that it is intended to
apply to comments made outside the context of
an interview, and that the purpose of the provision was to ensure that informal comments are recorded and checked with the suspect to reduce the risk of 'verballing' and later disputes in court about what was or was not said outside of an interview.

Paragraph 11.13 is limited in scope to the extent that it only applies where the comments made might be relevant to the offence, so irrelevant comments need not be recorded. The duty to record applies both to incriminating and exculpatory comments. It was further noted that 'comments which might be relevant to the offence' is wider in scope than 'significant statements' as noted in paragraphs 11.4 and 11.4A.

Updates to codes C, D, and H

A consultation on the revision of PACE codes C, D, and H closed on 17 May 2016. The main changes
to code C (detention) are mirrored in code H (detention in relation to terrorist offences). These primarily relate to live-link interpretation and
allow interpretation services to be provided by interpreters based at remote locations using live-link communication technology.

Other updates to codes C and H generally ensure consistency between the two codes and include amendments to reflect that the term 'juvenile' now includes 17-year-olds, the enabling of electronic recording and reporting of information, and the need to check all relevant sources of information in establishing a detainee's identity. There is also an amendment to clarify the persons who should not act as appropriate adults by virtue of their roles, and one to reiterate the statutory requirements to keep detained children and adults separate, and an additional requirement added that female detainees must be under the care of a woman.

Code D (identification) has been amended to make it consistent with changes to codes C and H,
as outlined above. Additionally, there have been changes to reflect that the code does not authorise samples or fingerprints to be taken from a person detained solely for the purposes of an assessment under section 136 of the Mental Health Act 1983, and changes to the video identification procedure to take into account identification in relation to allegations of historic offences in which the suspect's appearance may have altered due to physical changes or ageing.

Vivien Cochrane and Irene McMillan are solicitors in the criminal litigation team at Kingsley Napley @kingsleynapley