On 8 November 2017, the Supreme Court will hear the appeal of John Haralambous (“JH”) in the case of R (Haralambous) v Crown Court at St Albans.   It is a case that will test whether a person has any effective right Montgomery_C_7_4_145779_rtto use judicial review to challenge the ex parte issue of a warrant to search premises.

The factual background

JH’s home and offices were searched in the course of a police enquiry into stolen artwork and artefacts on the strength of warrants issued by a justice of the peace under section 8 of the Police and Criminal Evidence Act 1984 (PACE). After the searches JH asked to be shown the evidence in support of the warrants and to be told of the reasons for their grant.

As the result of a successful claim by the police to public interest immunity (PII), JH was not given any information that would have justified the searches and was given no explanation for the magistrate’s decision.

JH applied for judicial review of the issue and execution of the warrants. His claim was compromised by consent and the warrants were quashed, the seizures under them declared unlawful and the property ordered to be returned to the claimant, however this was done subject to a police application for authority to retain the documents under section 59 of the Criminal Justice and Police Act 2001.

The St Albans Crown Court authorized their retention at the section 59 hearing. JH was told nothing in the course of the hearing of the application that would have justified an order for retention since the Crown Court also upheld the police claim to PII in respect of evidence heard in a closed Crown Court hearing. The Administrative Court held that these procedures were lawful even though they meant that JH was never given any information that provided any lawful basis for the grant of the warrants or the retention of his property.

The judgments below

Cranston J sitting with Burnett LJ gave judgment against JH: [2016] EWHC 916 (Admin), [2016] 1WLR 3073. Cranston J refused to consider the PII material, holding that the issue before the Administrative Court was a question of law; whether the Crown Court Judge was entitled to consider PII material on a section 59 application. The Court took as its starting point the proposition that the statutory safeguards in PACE were sufficient to protect the rights of citizens [29-30] and that the independent judicial scrutiny required under PACE were adequate to safeguard the position of persons affected.

Although Cranston J accepted that the public interest might require persons to be given access to a court of the purpose of challenging the issue and execution of a search warrant and the retention of material (either in the Administrative Court or the Crown Court under section 59) given the relative weakness of the individual rights at stake and the relatively trivial interference with those rights, it was legitimate for the courts to permit the withholding of PII material in the wider public interest [33, 41]. Cranston J held that Al Rawi v Security Service [2011] UKSC 24, [2012] 1 AC 531 had no application to the judicial review of search warrants as the common law right to information does not arise fro consideration [39].

Cranston J pointed out that the statutory framework provided for an ex parte application to be made to magistrates under section 8, in contrast to some forms of the special procedures under Schedule 1 of PACE [27-28]. He concluded that since a section 59 hearing amounted to a notional reconsideration of a section 8 application there must equally be power to hear a PII application in a closed court on a section 59 application. The Court drew comfort from the decision in R (AHK) v Secretary of State for the Home Department  [2012] EWHC 1117 (Admin),  [2012] ACD 66  in which Ouseley J held that the fact that  the open material in an immigration judicial review did not provide a sustainable reason for the decisions in question  in AHK would not lead to the decisions being quashed. By parity of reasoning Cranston J concluded that the absence of a public reason for sustaining the warrants in JH’s case should not lead to them being quashed.

The Court did not grapple with the point that the decision in AHK had been overtaken by the enactment of section 6 of the Justice and Security Act 2013 which provides for a closed material procedure in judicial review proceedings (CMP). However a statutory CMP is not available in cases involving a criminal cause or matter.

Please see Part Two here.