The Supreme Court held that courts dealing with search and seizure warrants under the Police and Criminal Evidence Act 1984 and retention orders under the Criminal Justice and Police Act 2001 may consider information withheld from affected persons on public interest grounds, including by using a closed material procedure on judicial review. There is no general requirement to disclose even the gist of that information. Mr Haralambous’s appeal was dismissed.
Facts and proceedings below
On 16 June 2014 St Albans Magistrates’ Court issued two search and seizure warrants under section 8 of the Police and Criminal Evidence Act 1984 relating to premises associated with the appellant, Mr John Haralambous. The warrants were executed on 26 June 2014 and property was seized. Mr Haralambous was arrested and bailed; further investigation was suspended pending the proceedings.
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He was given a redacted copy of the warrant application. A district judge refused his application for disclosure of the remaining material, providing open reasons and a closed judgment. He issued a judicial review claim seeking return of the seized property on the basis that the warrants were unlawful and that the withheld information could not lawfully be relied upon. The warrants were quashed by consent. The Chief Constable of Hertfordshire Constabulary then applied under section 59 of the Criminal Justice and Police Act 2001 for authority to retain the property. HHJ Bright QC ruled that the withheld information could be relied upon and made a retention order. A further judicial review claim sought to quash that order on the ground that reliance on the withheld information was impermissible. The Divisional Court dismissed the claim, holding that both the magistrate and the Crown Court could consider material which had to be withheld in the public interest.
The Supreme Court’s reasoning
Lord Mance, with whom Lord Kerr, Lord Hughes, Lady Black and Lord Lloyd-Jones agreed, addressed five issues agreed by the parties. The Court proceeded on the common ground that the Justice and Security Act 2013 did not authorise a closed material procedure in these proceedings.
On the issue of a warrant, the statutory language of sections 8 and 15 requires only that the magistrate be satisfied that there are reasonable grounds for believing the specified matters. The application is expressly ex parte. Nothing limits the information that may be placed before the magistrate. The scheme is intended to be operated speedily at an early stage of an investigation. It must have been contemplated that a warrant might be issued on information which could not, in the public interest, be disclosed to a person affected, for example information identifying an informer or revealing methods of investigation. Ancillary protections developed by the courts are qualified by reference to the public interest. This conclusion is consistent with the approach taken to a comparable power in Inland Revenue Commissioners v Rossminster Ltd.
Section 59 permits retention where, if the property were returned, it would immediately become appropriate to issue a fresh warrant under which the property could lawfully be seized. The Crown Court must therefore place itself in the position of a magistrate considering that hypothetical application. Such a magistrate could take account of information that could not be disclosed. The Crown Court can fulfil that role only if it too can consider the information without disclosing it. The statutory scheme must be read as permitting the Crown Court to use a closed procedure for that purpose.
On judicial review, the High Court can and must be able to adopt a closed material procedure when reviewing a decision that was itself reached by reference to closed material. Otherwise it could not examine the decision on the same basis, and provisions such as section 31(5) and (5A) of the Senior Courts Act 1981, which allow the High Court in defined circumstances to substitute the only decision the lower court could lawfully have reached, would not operate. The general exclusion of closed material procedures stated in Al Rawi v Security Service was not directed to this situation. Deciding the review without the closed material, or simply presuming that the lower court had acted regularly, would risk injustice and would not provide an effective review.
Finally, neither the common law nor article 6 requires that a person affected must in every case be given the gist of the closed material. A minimum of disclosure, by way of a gist, has been required where liberty or a closely equivalent interest is at stake. A search and seizure warrant involves a limited and temporary interference with property. It does not alter substantive rights. If a prosecution follows, the material can be used at trial only if disclosed, subject to any conventional public interest immunity ruling, and its admissibility can be challenged. While disclosure should be given to the greatest extent possible, and the needs of each case must be considered individually, there is no general rule that the gist must be supplied.
The Court concluded that these answers produce a coherent and workable scheme consistent with Parliament’s intentions.
Verdict: The Court unanimously dismissed the appeal. In this statutory scheme, information withheld on public interest grounds could be considered when issuing a warrant, authorising retention or reviewing either decision. There was no general duty to disclose a summary of the material in every case.
Source: R (Haralambous) v Crown Court at St Albans and another [2018] UKSC 1
