What's wrong with the warrant?

A search warrant is granted by a magistrate or a judge on the basis of an information put before the court. There must be reasonable grounds for believing an indictable offence has been committed and that there is material on the premises to be searched which is likely to be of substantial value to the investigation of the offence. Searches of premises and the seizure of property found there must be conducted in accordance with section 8 of the Police and Criminal Evidence Act 1984 (PACE).

Breaches of this legislation by the prosecuting authorities may lead to applications for judicial review and warrants being quashed and declared illegal by the Administrative Court. A warrant must be executed within three months of its grant and applications for leave for judicial review are likewise required to be made within three months.

Section 15(6) of PACE requires a warrant to specify the name of the person who applied for it, the date on which it is issued, the enactment under which it is issued, each set of premises to be searched and 'shall identify, so far as is practicable, the articles or persons to be sought'.

In Cronin v Sheffield Justices [2002] EWHC 2568 (admin) the claimant's home was searched, the claimant was asked for a copy of the information in support of the application and it was confirmed there should be no objection to this being provided, subject to considerations of public interest immunity, because the citizen should be entitled to be able to assess whether an information contains the material which justifies the issue of a warrant.

A search warrant is by its nature intrusive and the court must be satisfied that the rigorous criteria for the issue of this serious inroad into the liberty of the subject is justified.

The following cases illustrate where the police sometimes get it wrong.

(1) Where the warrant and application fail accurately to state the premises

R v South Western Magistrates' Court ex parte Cofie [1997] 1 WLR 885 is a case where the court quashed a warrant for failure to comply with section 15(6) of PACE, in that the warrant failed in explicit terms to specify the premises to be searched. The police wished to search a flat and the common parts of a multiple occupancy block in which the flat was situated. The warrant was defective because it covered the whole building.

(2) Where the warrant is issued for special procedure material

Special procedure material is material in the possession of a person who acquired or created it in the course of any trade, business, profession, or other occupation or for the purposes of any paid or unpaid office; or who holds it subject to an express or implied undertaking to hold it in confidence.

Professional service firms (lawyers and accountants), financial institutions and banks hold customer information under a duty of confidence. A warrant for special procedure material cannot be issued by a magistrate and must be obtained from a circuit judge.

R v Guildhall Magistrates' Court ex parte Primlaks Holdings [1990] 1QB 261 determined that a justice should refuse an application for a warrant where he cannot be satisfied that there are reasonable grounds for believing that the material sought does not include special procedure material.

(3) Where the warrant is too broad or imprecise

In R (Energy Financing Team) v Bow Street Magistrates Court [2006] 1316, Kennedy LJ explained that 'the warrant needs to be drafted with sufficient precision to enable both those who execute it and those whose property is affected by it to know whether any individual document or class of document falls within it'.

In Power-Hynes v Norwich Magistrates' Court [2009] EWHC 1512 (admin) a search warrant to search the residential and office premises of an accountant, with over 100 clients, was quashed and declared illegal, because, although the investigation related to only one company and one individual, warrant was issued for 'documents and records (electronic or otherwise) relating to high-value transactions', irrespective of the client and without limitation in time.

(4) Where there is no evidence a production order would not be complied with

'The grant and execution of a warrant to search and seize is a serious infringement of the liberty of the subject, which needs to be clearly justified and before seeking or granting a warrant it is always necessary to consider whether some lesser measure'¦will suffice' (per Kennedy LJ, Energy Financing).

A production order is the appropriate manner to secure material in the hands of a professional or financial services firm where the investigation is unlikely to be compromised.

(5) Where there is a failure to comply with the duty of full and frank disclosure

There was, it was held, a failure to make full and frank disclosure in the case of Redknapp v Commissioner of the City of London Police and another [2008] EWHC 1177 (admin) and R (on the application of Mercury Tax Group) v HMRC [2008] EWHC 2721 (admin), where it was held incumbent upon HMRC to put its case with scrupulous accuracy.

Practitioners in every case should consider whether the search warrant was regularly obtained or susceptible to challenge.