Police Law Blog European Decisions Statutory Materials

When warrants go wrong

  • Section 59 of the Criminal Justice and Police Act 2001 empowers the Crown Court to authorise continued detention of property seized pursuant to a warrant that is, or might be, unlawful.
  • The High Court has recently confirmed that an application pursuant to section 59 may be made notwithstanding that there may be outstanding judicial review proceedings challenging the legality of the warrant.

Further to the ‘seize and sift’ powers set out in sections 50 and 51 of the Criminal Justice and Police Act 2001, section 59 is a little-known ‘remedial’ provision that permits an application to be made to the Crown Court for authority to retain seized property. Such an application may be made where there is concern that a warrant may have been unlawfully obtained or unlawfully executed and that property seized under the warrant could be being held unlawfully. To rectify such a situation the Crown Court may authorise continued, lawful detention when satisfied that if the property were to be returned it would be immediately appropriate to issue a warrant authorising its seizure.

In the recent case of HS and Ors v South Cheshire Magistrates’ Court and Chief Constable of Cheshire and Ors [2015] EWHC 3415 (Admin) the Claimants argued that the police could only make a section 59 application after the High Court had quashed a warrant. However, the High Court confirmed that there is no general rule preventing the police from making a section 59 application to the Crown Court when judicial review proceedings have been issued but yet to be resolved. In deciding whether section 59 applications should be permitted, the guiding principle was that the public interest in preventing the misuse of police powers should be weighed against the public interest that the interests of justice should not be defeated by technical issues in relation to warrants.

Interestingly, these cases concerned “fairly elementary errors” with warrants that arise again and again. Issues that are easily preventable “are made due to lack of care, skill or understanding” and are potentially fatal to the legality of the warrant. Sections 15 and 16 of PACE must be complied with because otherwise the entry and search will be unlawful. Those applying for warrants must remember, in particular, that section 15(6)(b) of PACE requires particularisation, so far as practicable, of the articles sought. Warrants cannot be expressed too broadly, thus:

  • “Documents and records (Electronic or otherwise) relating to high value financial transactions” was found to be too broad because “high value” is imprecise and vague – one person’s definition of ‘high value’ is very likely be different to another’s definition: (R (Power-Hynes) v Norwich Magistrates’ Court [2009] EWHC 1512 (Admin)).
  • “All business records, including sales and purchase invoices, accounting documents and any such material used or relied upon to administer and manage the business including communication devices” was found to be too broad because it didn’t specify in respect of which business or investigation the articles were sought: (R (Anand) v HMRC [2012] EWHC 2989 (Admin)).
  • “Evidence of money laundering” was found to be too broad when particulars of persons, dates and transactions were known to the investigators. There must be “sufficient particularity so that anyone interested in the execution of the warrant (but particularly the officers involved in the search and seizure operation, and the holder of the articles) may ascertain whether a particular article fell within, or outside, the scope of the warrant”: (R (Chatwani) v National Crime Agency [2015] EWHC 1283 (Admin)).

Those drawing up applications for search warrants must describe, so far as possible, precisely what articles are being sought so that everyone (the court, the executing officers and the householder) are all clear about what items fall within the ambit of the warrant and those that don’t. Warrants that are drafted too widely risk being found unlawful for failure to comply with section 15(6)(b).