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Officers cannot remove items for sifting - Fishing expeditions not permitted when exercising a search warrant.



R V Chesterfield Justices and Others, Ex parte Bramley QBD



(1999) The Times, November 10



Search Warrants - Law & Practice.



The issue was what might in law, and should in practice, be done during a police search of premises when any question arose as to whether documents on the premises were subject to legal professional privilege.



The Statute



The statutory framework was provided by the Police and Criminal Evidence Act 1984. On a police constable's application, a search warrant could be issued by a magistrate under section 8(1) of that Act, provided that, among other things, the magistrate was satisfied that there were reasonable grounds for believing that the material to be searched for did not consist of or include items subject to legal privilege.

Except where there was no doubt as to which items were privileged, nothing useful would be achieved by an express condition in the warrant excluding privileged items.

The warrant provided police with the authority to enter and search the premises, and section 8(2) of the Act empowered them to seize and retain anything for which a search had been authorised in the warrant.

His Lordship noted that in R V Chief Constable of the Warwickshire Constabulary, ex parte Fitzpatrick [1999] 1 WLR 564 it had been said that the criteria which a magistrate had to be satisfied of in section 8(1) had to be satisfied in respect of material that was seized.

The Court could not accept that; the criteria set out in section 8(1) were directed to the state of mind of the magistrate when he was being asked to issue the warrant.

The police were not, for example, required by section 8(1) to be satisfied that there were reasonable grounds for believing that the material sought did not consist of or include items subject to privilege.

However, section 19(6) prevented a police officer from seizing an item which he had reasonable grounds for believing to be subject to legal professional privilege.

In the Court's judgment, the searchers would have to look at documents in order to decide how much of the available material fell within the scope of the warrant.

But what was to be done if there was a lot of material, and it was not possible to sort reasonably quickly and easily the relevant material?

Common sense suggested that the police should be entitled to do a preliminary sift at the premises, and then take all, or a large part of the material away to sort it out properly elsewhere; but that was not what the 1984 Act said.

If material was taken from the premises other than by agreement then it was "seized".

If a police officer seized items which he had no power to seize, either under section 8(2) or under section 19, which provided powers to seize items not included in the warrant, then even if he acted in good faith, there was no defence in the Act to an action for trespass to goods based on that unjustified seizure.

The Court noted the Court of Appeal judgment in Reynolds v Commissioner of Police of the Metropolis (1985) QB 881, which held that when executing a warrant issued under section 16(1) of the Forgery Act 1913 police could remove from the premises not only items which in fact came within the terms of the warrant, but also items which they reasonably believed came within its terms.

However, the 1913 Act procedure differed from the 1984 Act procedure in that the material seized was carried before a magistrate, and so there was a quick and effective remedy if the police went beyond their powers.

It seemed to the court that if in a democratic society it was necessary for the prevention of crime to invade privacy to a greater extent than was spelt out in the 1984 Act then the limits of the invasion must be spelt out in the statute, or some regulations or code made thereunder, and there must be a convenient forum available for dealing with disputes.

Meanwhile, there was no escape from the proposition that the words of the 1984 Act should be strictly applied.

Next was the question of the searchers sorting out material which came within the scope of the warrant, but which might be privileged.

Whether or not an officer had reasonable grounds for believing an item to be privileged, under section 19(6), was a question of fact. It would help to avoid difficulties later if agreement could be reached at the time of the search as to what was and what was not privileged.

If that was not possible the constable conducting the search would be wise to package separately for later examination items which were relevant, but which he believed might be privileged. A constable was not bound to accept at face value a claim to privilege.

lf after a search, a constable later obtained reasonable grounds for believing that a seized item was privileged then he had to return the item forthwith without further examination; but his seizure of it would not have been illegal because he did not have those grounds at the time of seizure.

In that respect the court differed from the decision in Gross V Southwark Crown Court (unreported, July 24, 1998.)

If a difference of opinion as to the relevance or privileged status of an item persisted, as the law stood, those issues could only be ventilated by means of an action for trespass to goods, and in some cases by means of judicial review proceedings.

But there was a need for a special inter partes procedure to bring the matter speedily before a circuit judge, for which legislation was required.

What was the consequence if an item was taken which fell outside the scope of the warrant, or in respect of which the constable seizing it had reasonable grounds for believing it to be privileged?

In the case of R v Southwark Crown Court, ex parte Sorsky Defries The Times July 21, 1995;[1996] Crim LR 195, it was said that the search and the seizure of any documents covered by the warrant would be rendered unlawful.

The authority offered for that proposition was section 16(8), which limited a search to the extent required for the purpose for which the warrant was issued; but in the court's judgment section 16(8) was irrelevant to the question of seizure.

In the court's judgment, the search would remain valid for those documents within the scope of the warrant, but documents which should not have been seized had to be returned and there might be a liability for trespass to goods arising out of their seizure.


The Decision

When exercising a search warrant issued under section 8(1) of the police and Criminal Evidence Act 1984 a police officer was not entitled to remove items from the premises in order to sift through them for the purpose of deciding whether they fell within the scope of the warrant.

There was no absolute prohibition on seizing an item which was in fact subject to legal professional privilege provided that the police officer who seized the item did not have reasonable grounds for believing that it was so privileged.

If there was no lawful authority for seizing some of the items which were seized during a search, those items had to be returned, but the search remained valid for the items which were properly seized.

There was a need for legislation establishing a procedure for the speedy resolution of disputes regarding the lawfulness of the seizure of items during such searches.

The Queen's Bench Divisional Court so held when dismissing an application by Bramley for judicial review of:

(i)The decision of Chesterfield Justices on January 7, 1999 to issue search warrants in respect of certain premises pursuant to section 26 of the Theft Act 1968;

(ii)The decision of police officers on January 8, 1999 to seize from those premises documents which were the subject of legal professional privilege. Justices issued search warrants under section 26 of the 1968 Act in respect of two premises authorising police to search for documents as part of an investigation into an alleged fraud. Purportedly acting in accordance with the warrants, police entered and searched the premises and seized documents which the applicant alleged were subject to legal professional privilege.

Comment


R v Chief Constable of the Warwickshire Constabulary, ex parte Fitzpatrick and Others is mentioned in the judgement, in that case the police were investigating a conspiracy to defraud and obtained six warrants under s 8 of PACE. The applicants were persons connected with the management of nine limited companies belonging to the Venture Group which was concerned with business loans. The companies were also applicants. Other than describing the stated offence as conspiracy to defraud, no further details were given in the warrants. The police officers executing the warrants seized containers and files which they believed might contain relevant evidence with the intention of conducting a detailed examination elsewhere. Substantial amounts of material seized from the second applicant's home from which the tenth applicant traded concerned a housing association unconnected with the other applicants. It was submitted that there was a breach of S 15(6)(b) of the Act, in that the warrants failed to identify with sufficient particularity the articles sought and were not limited in time. Thus the search was rendered unlawful by virtue of S 16(8).

HELD, on application for judicial review, allowing the application of the second and tenth applicants but refusing the other applications, S15(6) was imprecise and it may be impossible to draw a clear line between what is and what is not practicable. In the present case it was not possible to define each company's role in the conspiracy alleged or to have set a timetable for the extent of the fraud they were investigating. There was no need to give details of the offence in the warrants. The offence had been stated to the magistrate and it was accepted tat there were reasonable grounds for believing the offence had been committed. Lawfulness of the search requires compliance with both ss 15 and 16. The criteria which have to be satisfied are that there are reasonable grounds for believing that the material is likely:

  1. To be of substantial value to the investigation;
  2. To be relevant;
  3. Not to consist of items subject to legal privilege, excluded material or special procedure material. A likelihood is less than a probability. In deciding whether it has been shown that a particular seizure was unlawful it is necessary to take as a starting point, the fact that one is examining the propriety of the judgment of the officer executing the warrant made in circumstances in which he found himself and on the basis of what was or should have been known to him.
 

It was necessary to bear in mind that :

  1. the assertion that virtually all documents were seized does not necessarily demonstrate to the 'Wednesbury' standard that there was excessive seizure;
  3. some innocuous material may be relevant as setting the context in which dishonesty had been practiced;
  1. legitimate documents may be relevant to the question of whether the advertised track record was fact or fiction. Judicial review is not a fact finding exercise and is an extremely unsatisfactory tool by which to determine in all but the clearest cases whether there has been excessive seizure. The applications in all cases except that of the second and tenth applicant were refused. In view of the fact that the respondent has made no attempt to justify the seizure of material relating the housing association and that such material was not de minimis, the applications of the second and tenth applicant would be allowed.

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