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CHALLENGING SEARCH WARRANTS – IS THIS THE END?

challenging-search-warrants-is-this-the-endJonathan Fisher QC considers whether the recent judgment in R (on the application of Panesar & Ors) v Central Criminal Court, and the Government’s reform of judicial review signal the end of challenges to warrants on technical points.

SPEED READ

The recent decision in R (on the application of Panesar & Ors) v Central Criminal Court, when considered alongside the proposed reform of judicial review contained in clause 70 of the Criminal Justice and Courts Bill 2014-15, may signal the end of challenges to warrants on technical points.

COMMENTARY

The application in R (on the application of Panesar & Ors) v Central Criminal Court [2014] EWHC 2821arose in the context of an investigation by HM Revenue & Customs into a substantial alleged alcohol diversion fraud. HMRC had obtained a number of search warrants but following their execution the warrants were quashed for technical reasons. However, after the warrants were quashed HMRC applied under section 59 of the Criminal Justice and Police Act 2001 to retain the property which it had acquired when the warrants had been executed. It was in these circumstances that the question came before the High Court whether, in a situation where a search warrant has been quashed, the Crown Court had jurisdiction to permit an application for retention of property pursuant to section 59.

Section 59(1) makes clear that the section applies “...where anything has been seized in exercise, or purported exercise, of a relevant power of seizure”, with section 59(5)(b) anticipating that an application would be made “by the person for the time being having possession of anything in consequence of its seizure under a relevant power of seizure.” HMRC’s claim was resisted on the basis that section 59(5)(b) omitted to include the phrase “...purported exercise, of a relevant power of seizure...” whereas the phrase has been included in other sub-sections. The argument was that the absence of this phrase from section 59(5)(b) evidenced Parliament’s intention that section 59(5)(b) should not apply to a situation where there had been a purported exercise of a power of seizure, such as where a search warrant had been quashed.

Mr. Justice Foskett rejected this submission for four reasons. Firstly, the intention of Parliament was clear from the explanatory notes to the provision. Secondly, the consequence of constructing the provision in the manner advanced would be to grant those accused of criminal behaviour disproportionately advantageous rights. Thirdly, the subjects of the search warrants were protected by the fact that the investigating authority would have to prove that they were entitled to a fresh warrant, and fourthly, the jurisdiction of the Court to entertain applications to retain evidence where a search warrant had been quashed had been upheld on numerous previous occasions.

The Panesar decision is indicative of a contemporary judicial trend to apply a purposive interpretation to the construction of statutory provisions, focusing upon the statutory objective even where the subject-matter of the statute is criminal and touches upon the liberty of the individual. The numbers of cases where the courts will accede to technical arguments are reducing, especially where the facts of the case are perceived to be unmeritorious and the outcome of the case would hinder the progress of a criminal investigation.

This judicial trend runs in parallel with the legislative shift which underpins clause 70 of the Criminal Justice and Courts Bill2014-15.Clause 70 will amend section 31 of the Senior Courts Act 1981 by expressly providing that in judicial review cases a judge may refuse to grant a remedy where “...there would have inevitably been no difference to the outcome even if the reason for bringing the judicial review had not occurred...” (see Criminal Justice and Courts Bill 2014-15: Explanatory Notes at paragraphs 72 and 490). More significantly, clause 70(2A) provides that the High Court “...must refuse to grant relief on an application for judicial review...” and “...may not make an award...” “...if it appears to the Court to be highly likely that the outcome for the applicant would not have been substantially different if the conduct complained of had not occurred.”

The Government claims that this provision is intended to rebalance the respective interests of the State and the individual. The extent to which it achieves this aim will, to a large extent, depend on the way in which the word “outcome” is interpreted by the Courts. If the word is construed to include the substantive outcome, which in a search warrant case will be the retention by the investigating authority of the evidence obtained when the search warrant was executed, — then clause 70 will also spell the end of challenges to warrants on technical grounds.

In these circumstances, practitioners need to think carefully before launching a challenge to the legality of search warrants which have been executed. The Panesar decision, together with the application of the new clause 70, may deal a double whammy to search warrant challenges. If it does, it will allow the investigatory authorities to escape the consequences of their careless errors in cases where all the technicalities pertaining to the issue and /or execution of a search warrant have not been satisfied. This is something which should cause some concern, since in the context of civil liberty technical requirements are imposed for a reason.

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The views expressed in this article represent those of the author and not Bright Line Law.

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