Police and criminal evidence update

A number of cases challenging the legality of search warrants have come before the courts recently. One of the primary issues identified is the need for carefully drafting the warrant itself.

In both R (on the application of Lees and others) v Solihull Magistrates’ Court and Anr and Cheema and Ors v Nottingham and Newark Magistrates Court and Anr, the court found that the warrants (both applied for by HMRC) did not identify with sufficient precision the property that could be seized under them.

Additionally, in Cheema the court found that where the warrant concerned a number of premises, the details of how those premises were connected to the investigation, or why relevant evidence would be found there, were not made clear in the application for the search warrant. The warrant being issued by the magistrates’ court
was rendered unlawful.

These cases make clear that search warrants will be open to challenge should their terms lack clarity and precision.

However, the provisions of section 59 of the Criminal Justice and Police Act 2001 (CJPA) make the arguments, to an extent, academic. The court found in each case that the claimants were entitled to a declaration of unlawfulness, costs and damages, but the return of seized property would depend on the outcome of the HMRC’s application to retain the property under section 59 of the CJPA.

Excluded material

The decision in R (on the application of British Sky Broadcasting Ltd) (respondent) v the Commissioner of Police of the Metropolis (appellant) will be of some reassurance to journalists and media organisations.

The Supreme Court considered the proper procedure for an application to access excluded
or special procedure material. The material was sought by the police in connection with an investigation into alleged breaches of the Official Secrets Act by security officers suspected of leaking information to a BSkyB journalist.

At the Crown Court, the judge allowed an application for part of the evidence to be heard ex parte and subsequently made a production order. The Administrative Court quashed the order, finding that the procedure adopted at the Crown Court was unlawful. The fundamental principle was that BSkyB should have access to the evidence on which the case against it was based, and an opportunity to comment on and challenge it.

The Supreme Court agreed with the Administrative Court’s decision that it was not permissible for the judge to have adopted
the course set out above and dismissed the Commissioner’s appeal.

However, the court noted that this ruling
would not prevent a court from hearing a PII application ex parte.

Frank disclosure

The decision in R (on the application of AB and CD)
v Huddersfield Magistrates’ Court and the Chief Commissioner of West Yorkshire turns slightly on its own facts but reinforces the principle that each warrant application must be carefully and precisely drafted to satisfy the statutory requirements and the duty of full and frank disclosure.

The case related to a search warrant executed at the home address of a criminal duty solicitor. The police suspected that the claimants had been involved in helping a member of their family suspected of murder to flee the jurisdiction.

An application for a search warrant was made
on the basis that the material sought under the warrant had nothing to do with the claimants’ occupation. Accordingly, the magistrates’ court was not told that the claimants were solicitors, or that in executing the warrant, the police expected to find significant quantities of material subject
to legal professional privilege.

The Divisional Court found that the duty of
full and frank disclosure required this information to be disclosed to the magistrates’ court. The Divisional Court reiterated that the question is
not whether the material sought would consist
>> of or include items subject to legal privilege
but whether the applicant had reasonable
grounds for believing as such.

Accordingly, the court held that the warrant
was issued unlawfully and should be quashed.

Terrorism Act

In R (on the application of Miranda) v Secretary of State for the Home Department [2014], the court dismissed Mr Miranda’s appeal against a decision that his arrest under schedule 7 of the Terrorism Act 2002 had been lawful.

Miranda was the partner of Glenn Greenwald, a Guardian journalist, who had received a vast quantity of encrypted US and UK intelligence from Edward Snowden, including documents GCHQ had supplied to the NSA. Miranda was travelling with the encrypted material when he was stopped, detained, questioned and searched at Heathrow for nine hours under schedule 7.

The appeal court upheld the decision that his detention was lawful. First, the decision to detain him had been made by a detective inspector and a detective superintendent, both concluding there was a risk that Miranda was carrying material that threatened national security, therefore fulfilling the requirements of schedule 7.

Second, the detention was not considered a disproportionate infringement of his article 10 right to freedom of expression because there
was evidence of the threat and no risk of sources being revealed.

Finally, the court concluded that schedule 7 itself is compatible with freedom of expression.

So, this judgment confirms that police
powers under schedule 7 will take precedence where there is evidence that national security
is threatened.

Pre-emptive arrest

In R (on the application of Hicks) v Commissioner
of the Metropolitan Police [2014], the court considered whether, around the time of the
royal wedding, the commissioner operated a policy or practice that involved impermissibly
low thresholds of tolerance for public protest, resulting in unlawful arrests of individuals considered likely to express anti-monarchist views.

The Court of Appeal upheld the Divisional Court’s decision that the police had acted lawfully by arresting individuals where they considered that a breach of the peace was about to occur.

The Court of Appeal also determined that the actions of the police were compliant with the individuals’ rights to liberty under article 5(1)(c)
of the European Convention on Human Rights because the arrests were necessary to prevent breaches of the peace and, at the time of the arrests, the officers planned to bring them before the relevant judicial authority, albeit that they ultimately did not.

This decision is supportive of pre-emptive policing. However, it reinforces the requirement for the police to demonstrate that, at the time of the arrest, there is an intention to bring the individual before the relevant judicial authority.

Recording conversations

In R v Khan and Ors [2013] EWCA, the appellants challenged their convictions for attempted murder on the basis that the trial judge had
erred by admitting into evidence unauthorised recordings of conversations between defendants.

On arrest, there had been strong circumstantial evidence against the defendants but little direct evidence. Pre-charge authorisation was granted, pursuant to the Regulation of Investigatory Powers Act 2000, for surveillance equipment to be installed in two marked police vans used to convey the suspects to court for what was anticipated to be the application for a warrant for further detention. Unknown to the officers, a charging decision had already been made.

The Crown relied on comments made by
the defendants during the journey, which implicated them in the offence, and made reference to using ‘Bana’, Khan’s nickname.

On appeal, it was accepted that the recordings exceeded the police’s authorisation, and accordingly there had been a breach of the defendants’ rights under article 8 of the ECHR.

However, it was held that the trial was not
unfair. The police had simply used the opportunity of the defendants talking to each other and
they still had a right to challenge the evidence.
So, there was no reason to exclude the evidence under section 78 of the Police and Criminal Evidence Act 1984.

A further hearsay application by Khan for the exclusion of references to Bana was also refused as it was considered to be just one element tending to demonstrate an association with Khan.

This decision emphasises the importance of advising clients of the risks associated with non-privileged conversations pre-charge and advising against such conversations. SJ

Rebecca Connell and Vivien Cochrane are solicitors at Kingsley Napley