Case Comment: R (Haralambous) v Crown Court at St Albans [2018] UKSC 1
02 Friday Feb 2018
CLARE MONTGOMERY QC, MATRIX Case Comments
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In its judgment, the Supreme Court confirmed that it is implicit in statutory schemes that 
contemplate ex parte hearings, that is court hearings without notice held in the absence of interested parties, (in this case a Magistrates’ Court warrant granted under the Police and Criminal Evidence Act 1984, s 8), that the court may rely on information that is not disclosed to any interested party after the event, even if that information is vital to explain how and why the court made its order.
Lord Mance, who gave the only judgment, considered that any other result would render impracticable a statutory scheme in support of criminal investigations that was intended to operate speedily and simply in circumstances where the public interest required decisions to be taken on the basis of potentially sensitive sources of information [28].
Lord Mance considered that there were a number of protections, including the involvement of a judicial figure, the duty of candour and the fact that there was no issue directly between the police or prosecution and any person at issue in the application; he considered that an application under s 8 was concerned with premises and materials but not directly with persons [34, 36].
The Supreme Court held that it was implicit that any subsequent proceedings under the Criminal Justice and Police Act 2001, s 59 that might be concerned with a review of the search and seizure process, although ostensibly inter partes, that is on notice and in the presence of interested parties, could contain a closed material procedure in which material was considered by the court and withheld from disclosure to the interested parties.
The approach of the Supreme Court to the question of judicial review of any search warrant followed a similar pattern of reasoning. The Court recognized that judicial review would lack any real teeth if the Administrative Court could not hold a closed material procedure and, in the absence of any grounds for review on the face of the open material, would be bound to dismiss any application. Accordingly Lord Mance held that the only sensible conclusion was that judicial review can and must accommodate a closed material procedure, where that is the procedure which Parliament has authorised in the lower court or tribunal whose decision is under review [59].
This approach requires a degree of confidence in the operation of the statutory schemes in the magistrates’ and Crown Courts that may not always be reflected in practice in courts around the country. It is also difficult to understand how the operation of the duty of candour can be policed, even on closed material review given the range of material that will, of necessity, remain undisclosed on the strength of this decision. In modern circumstances where even core duties of disclosure are not observed due to lack of police or prosecution resources, it is hard to be confident that a more extensive duty of candour will be allocated sufficient resourcing to ensure it is complied with in the absence of any scrutiny by any interested party.
Although Lord Mance expressed the view that open justice should continue to prevail to the maximum extent possible and that as a minimum a case may require the disclosure of the gist of closed material in order for persons affected to understand the essence of the case against them where very significant personal interests, including liberty and important proprietary rights were engaged [61- 63], he went on to observe that the short term invasion of property involved in the execution of search warrants did not require gisting in cases where prejudice to national interests might result.
Whether intended or not, these observations may encourage greater secrecy in relation to the processing of search warrants and other intrusive investigative orders. Questions will also remain about the effectiveness of judicial review in criminal causes or matters where PII is claimed since there must be real doubts as to whether a closed material procedure will be available at the permission stage so as to secure proper scrutiny of the legality of the decision where the application for judicial review lacks proof. Even in cases where permission is granted it is not clear whether the procedural protections available will be equivalent to those that are available in civil cases under the Justice and Security Act 2013, s 6.
The Supreme Court took some comfort from the fact that persons affected, if they were ultimately charged with a criminal offence, would be protected by fair and open criminal proceedings [64]. However this does not provide any certainty that any irregularities in the investigative processes will be identified or acted upon at that stage in the criminal process. The powers of the criminal courts under of PACE, s 78 are limited in cases where the defence is not able to establish any irregularities in the investigative processes.
2 comments
Pat Wallwork said:
26/04/2018 at 13:52
Interesting, but the greater miscarriage of justice occurs in relation to animal welfare cases, where the overwhelming majority of prosecutions are brought by the RSPCA.
The pattern is that the charity have no legal powers whatsoever, and rely on police presence. frequently, the police enter with the RSPCA, on the basis of section 19(1) of the AWA 2006, that is supposed to be used for the immediate relief for an animal in distress. Used correctly, for rescuing animals from floods or burning buildings,it is a sensible provision.
Used incorrectly, an undisclosed but anecdotally substantial number of entries are made WITHOUT WARRANT, under the guise of section 19(1).
The police then forget that PACE Code B was ever written,or that it governs their working practices in respect to entry search and seizure.
The police are unfamiliar with animal welfare law, and agree to effect a seizure under PACE section 19(1). At this point the police – assuming they entered premises with the occupiers valid permission – could not be lawfully on the premises once the purpose of the search was achieved.
THAT purpose was to find an animal alleged to be in distress. Entry might be considered to be akin to the the PACE section 17 provision “to save life or limb” applicable to humans. There is no offence around entry under section 19(1) entry for animals in distress.
The police have disregarded PACE code B section 6.9 and 6.9A, search to end when purpose achieved, section 7.1(a), Seize anything covered by a warrant – no warrant,no lawful seizure, section 7.11, duty to secure evidence seized, noting that the police in these circumstances then ,at the RSPCA’s request, hand the evidence -usually animals – over to the RSPCA.
NB, the RSPCA may enjoy prosecuting but they are just a charity, and as such,are not legally entitled to “use” the evidence for their own purposes, unless and until there is a court order to that effect, Rule established in Marcel v Commissioner of police for the Metropololis,CA,1992, embodied statutorily in Code B 7.11.
There is no disclosure by the RSPCA to the owner’s requests for information. Despite the RSPCA being “other investigators” under the CPIA practice directions.
There is no compliance with PACE sections 19 and 22, as animals in the physical possession of the RSPCA are in secret locations at some distance to the owner. They are not examined, photographed,forensic tests performed and returned. They are boarded, the costs of which the RSPCA demand as a cost of ‘prosecution’ at the magistrates court.
As the police are the only authority empowered to seize evidence, this would normally be a ‘police cost’…..
The catalogue of impropriety by those entrusted with the most intrusive invasion into their private lives, and deprivation of their property before a “PRIVATE” summons falls through the letterbox just on the six month deadline,does not end there/
The suspect only has the benefit of a free duty solicitor if interviewed at a police station, where he can keep a copy of the recorded interview. Usually, the interview in conducted in the accused’s home, an intrusion in itself.
This is the tip of an injustice iceberg,
I am currently assisting on live cases, two where, without a warrant – bearing in mind ‘others’ can only accompany the police onto premises if referred to on the warrant (PACE 16(2)), animals were removed in the absence of any occupier or owner, in both cases the police did not know where they were taken by the RSPCA.
Two were refused permission to State a Case for the opinion of the High Court. Both on errors of law made by the Recorders, including sentencing powers.
Another -where the occupier has been told the warrant application paperwork cannot ‘be found’ – where animals were removed without any prior examination of neglect or abuse – not “sorted and sifted” – itself an abuse of the provision – occupier not allowed to have a person present, despite knowledge that classed as ‘vulnerable’, having phone removed and police officer present with occupier at all times. The irony, less than a couple of weeks before, the owner’s vets had health checked all the animals following a visit by the RSPCA, and had no concerns.
The 2 refusals to state a case are likely to be the subjects for permission for judicial review.
Any experienced barrister prepared to work pro bono could have a landmark case on these issues, that basically centre around ensuring that the police do their job lawfully.
NOBODY should tolerate animal abuse, but equally our society must have those charged with the legal processes act within the framework in place to protect the public from any capricious application of the law.
PS, on the facts of the cases I am involved in, non supported the guilty verdict. But strict and vicarious liability are other issues.
This response was intended to show that there are wider issues than secrecy over warrant applications, where seizures are happening without warrants,and the police washing their hands of their part in it.
PW,26/04/18
Kim Hayes said:
03/10/2019 at 09:26
my comments are on rspca cases if the police have obtained a warrant this legally makes the police responsible. police obtaining warrants in the first place needs to be from what i have now found out is the granting of any warrant in the first place can be challenged. judicial reviews is one way to go governing police warrants and obtainment. but the other way to go is the warrants being granted in the first place can be challenged via statutory appeals. its a fact police do not know awa 2006 act welfare law. police can be easily persuaded to go and get a warrant. police are known to write down sec 23 on their search warrant applications from a police officer themselves not granted any power under the animal welfare act to be an inspector under the animal welfare act. imagine a police officer is responsible for causing a warrant application statement to exist with predominately malicious slander such as unkempt and actually writes on the warrant application statement rspca say short of offences isnt that disgraceful so u get raided and detained by police and rspca steal animals then all want to say let in and gave animals away as no one has the warrant then 1 police officer of 4 lies about what happened on the raid and says let in and gave property away then this lying police officer is contacted to use this warrant for a non statutory ticket to use the same warrant again without the non statutory ticket on the warrant application statement this is malicious usage of a warrant and malicious obtainment and in the end there is no charges. so imagine u get an injunction to stop dog thieves rspca selling property and fight hard for it then then raise an n244 saying unlawful warrant usage but then the police put all their documents of lies on a case and not pass any of their documents so only this 1 police liar is on the case then they make a civil lower court judge think the warrant is valid used a 2nd tme when its not been validated and you get called a liar about what happened due to the 1 police liar and all police are blocked from testifying or producing statements and pocketbooks. then imagine you file another civil case requesting warrant validity check as its done the rule of law must be complied with legally the civil courts must communicate the search warrant was put upon a magistrate court with offences not just sit there and say its valid failing to comply with the rule of law. imagine that for injustice. imagine you file specifically to get a warrant validated but the lower court judge district judge capon says he strikes out the ability to get a warrant validity check and says refuses permission to appeal imagine that deliberate breaking the rule of law by a district judge in a civil court. the civil courts are there for civil justice and if they do not use the rule of law in a civil court on a warrant used to steal your fur babies of no offences civil justice is denied. the united kingdom is corrupt in all courts of so called justice whether civil courts magistrate courts or judicial review courts. i point out that judicial review courts wont turn over police lies