Administrative Court refuses permission to challenge the validity of search warrants in judicial review proceedings on account of excessive delay and a purely technical breach.
In R (on the application of Matthew Goode) v The Crown Court at Nottingham and the Chief Constable of Nottinghamshire Police, the Administrative Court refused to grant the claimant permission to challenge the lawfulness of two search warrants in judicial review proceedings brought 21 months after the execution of the warrants.
Pitchford LJ (with whom Burnett J agreed) held that the claim had been brought “grossly out of time” and that the claimant had not advanced an adequate explanation for the delay. He observed that “good administration requires that if a challenge is made to the validity of a search warrant it should be made promptly in order that the parties may know where they stand and that any criminal investigation for which the search is required it not hindered.” Despite the excessive delay, Pitchford LJ accepted that it was necessary for the court to examine the merits of the claim in determining whether or not to grant an extension of time. The judge also reiterated that the question of delay was a relevant consideration in determining whether or not the court would exercise its discretion to grant relief.
The claimant’s substantive challenge to the validity of the warrants was based on grounds of unfairness and non-compliance with the statutory conditions prescribed by PACE. It was not disputed that the evidence of the police officer who applied for the warrants was, in one narrow respect, mistakenly inaccurate. However, the court confirmed that the proper approach was to establish whether or not the error or omission would in fact have made a difference to the decision to grant the warrants. Pitchford LJ was satisfied, on the basis of other evidence before the judge who issued the warrants, that the error or non-disclosure would not have altered his decision.
The court rejected the claimant’s contention that the warrants were invalid on the basis that they authorised search for and seizure of items which by their very nature were bound to include material subject to legal professional privilege. Pitchford LJ found this argument to be untenable in light of the express statutory prohibition against seizure of legally privileged material (section 19(6) of PACE). Further, the warrants were specifically confined to material which did not attract legal privilege as the material was believed to be held with the intention of furthering a criminal purpose.
Although the court refused to accept that the terms of the warrants were too broad in their scope, it held that there had been a breach of section 15(6) of PACE, namely in the failure to name the officer who applied for the warrants. Pitchford LJ characterised this omission as a purely technical breach and observed that the claimant had suffered no prejudice as a result. Bearing in mind the discretionary nature of the relief sought by the claimant, he considered it highly unlikely that a court would grant the claimant’s application on this very narrow basis.
Samantha Leek QC appeared for the Chief Constable of Nottinghamshire Police. Samantha is recommended for Police law by Chambers UK 2013 which comments: “Steeped in police law,” Samantha Leek QC is “a charming silk who has a thorough understanding of the police service and the needs of the client.” “Impressive in conference,” she has the “ability to set clients’ minds at rest in difficult circumstances.”