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	England and Wales High Court (Administrative Court) Decisions
You are here: BAILII >> Databases >> England and Wales High Court (Administrative Court) Decisions >> HS & 15 Ors, R (on the application of) v NLR Solicitors [2015] EWHC 3415 (Admin) (30 November 2015) URL: http://www.bailii.org/ew/cases/EWHC/Admin/2015/3415.html Cite as: [2016] 4 WLR 74, [2015] EWHC 3415 (Admin), [2016] Lloyd's Rep FC 400, [2015] WLR(D) 500

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IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
DIVISIONAL COURT

		Leeds Combined Court Centre 1 Oxford Road, LS1 3BG
		30/11/2015

Lord Justice Simon:

Introduction and issues

1. This case, involving four different claims, concerns the interrelationship between (a) claims for Judicial Review where the complaint is about the legality of the issue and execution of search warrants and the relief sought is the return of material seized by the police under those warrants, and (b) applications or potential applications by the Police to the Crown Court under s.59 of the Criminal Justice and Police Act 2001 ('the CJPA 2001') for retention of the property which has been seized.
2. In order to identify the particular issues which arise in these claims it is convenient to set out a chronological history.

Facts and chronology

3. On 27 November 2014 search warrants were issued by the South Cheshire Magistrates' Court that are the subject of the challenge in the first claim (Claim 254). On 2 December the warrants were executed; and on 9 December a letter was written on behalf of the Claimants asserting legal professional privilege ('LPP') over material that had been seized under the warrants. This was followed by email correspondence between Solicitors acting for the Claimants and the senior officer in charge of the investigation DI Andrew Large, some of which was forwarded by DI Large to the Crown Prosecution Service. In the course of the correspondence the Claimants' solicitors sought an assurance that the Police would not look at material seized in hard copy or digital form until the LPP issue had been resolved.
4. On 11 December an email was sent by the Claimants' Solicitors indicating that a letter of claim would be sent and in the meantime seeking confirmation that there would be no examination of material.
5. On 16 December a letter of claim was sent to the 2nd Defendant ('the Chief Constable') requiring an undertaking that none of the material which had been seized under the warrants would be examined or copied. Following consideration of this issue, DI Large concluded on 17 December that it was unlikely that the seized material (in particular, computers) would contain LPP material and the decision was made by the Police to continue examining the material.
6. By 18 December the Police had adopted a different approach in correspondence. They now asserted that the letter of claim did not comply with the Pre-action Protocol for Judicial Review proceedings. It remains unclear why this view was taken, since it was not justified and was soon abandoned.
7. On 22 December the Chief Constable was invited to explain what it was that was unclear about the Claimants' case.
8. On 22 December there was a conversation between DI Large and Mr Phillip Kenyon (Deputy Force Solicitor for the Cheshire Constabulary) during which Mr Kenyon appears to have understood from DI Large that there would be limited opportunity for the Police to carry out further reviews or to copy the seized material until after the Christmas break. Mr Kenyon was mistaken in this understanding since the Police continued to examine the material, notwithstanding the previous request for an undertaking not to do so.
9. The conduct of the Police has formed the basis of a complaint in the present hearing. Mr Bowers QC submitted that the Police had failed to conduct themselves in a way which was to be expected of a public body. They had failed to respond to the letter of claim, they had failed to give an undertaking not to inspect material about which they had been informed there was an issue, and they had allowed the Claimants' Solicitors to believe that nothing would be done to prejudice their clients' rights over the Christmas break.
10. On 8 January 2015 a letter was written on the Chief Constable's behalf saying that he had reviewed the matter and accepted that the warrants in relation to two of the premises were open to challenge, and that he proposed to make an application under s.59 of the CJPA 2001 'out of an abundance of caution'. It is clear that the Police were considering an application to the Crown Court for retention of the property seized, notwithstanding the complaints about the warrants.
11. On 9 January the Claimants' solicitors wrote to the Police complaining that their 8 January letter was not a substantive response to the issues that had been raised, and that it had failed to comply with the practice direction under CPR Part 54. The letter noted that it seemed that seized material had been examined despite earlier indications that it would not, and that the implicit representation which had led to the Claimants not applying for an injunction appeared to be false.
12. On 12 January the Police responded by email indicating that the claims for Judicial Review would not be contested. The Claimants complain that by this stage the examination and copying of material which had continued over the Christmas period had effectively been completed.
13. On the same day the Claimants' Solicitors wrote to the Police stating that, since the warrants had been conceded to be unlawful, the appropriate relief was an order of the High Court quashing them. It was suggested that proceedings be issued together with a consent order in these terms.
14. On 12 January the Chief Constable sent a 'formal response' to the letter of claim. The response indicated that the claim was not contested, presumably on the basis that the breaches of ss15 and 16 of PACE rendered the searches and seizures unlawful. Under the heading 'Settlement', he stated an intention to issue a s.59 application forthwith. There was also an assurance that the material in dispute would not be viewed or examined by independent counsel assessing LPP 'unless and until' an order was made under s.59.
15. The Claimants are entitled to point out that it was only at this point that the Chief Constable effectively gave the undertaking that had been sought on 16 December 2014. No explanation was given as to why it had not been provided earlier or why examination and copying had continued during the period when the Chief Constable did not engage with the points made on the Claimants' behalf.
16. On 20 January the Claim 254 was issued, seeking (a) a declaration that entries, searches and seizures made pursuant to the warrants were all unlawful, (b) an order quashing the warrants, (c) a mandatory order for the return of all seized items and any copies which had been made, (d) damages, and (e) costs. Five grounds were relied on. (1) There was no power under s.8 of the Police and Criminal Evidence Act 1984 ('PACE') to search for a person. (2) The warrant was too broadly expressed and failed to comply with the requirements of s.15(6)(b) of PACE to particularise, so far as practicable, the material actually sought. (3) The warrants were not executed in accordance with s.16(8) of PACE, thereby rendering the entry and search under the warrant unlawful by virtue of s.15(1). (4) The warrants unlawfully delegated satisfaction of the statutory criteria to the Police Officers executing them. (5) The Chief Constable had failed in his duty of full and frank disclosure.
17. On 28 January a warrant was issued by North Cheshire Magistrates' Court in respect of the premises of MU, which was executed on the following day.
18. On 6 February the Chief Constable served his Acknowledgement of Service containing Summary Grounds of Defence. The Summary Grounds conceded that the warrants should be quashed although it contested the relief claimed, and there was a restatement of the intention to make applications under s.59.
19. On 13 March a warrant was issued for the premises of AR, which was executed at his premises on 19 March. It is a matter of complaint that the North Cheshire Magistrates were not told that the Police had conceded that the earlier warrants (the subject of Claim 254) were unlawful.
20. On 20 March the Police indicated that they no longer intended to make a s.59 application in relation to the warrants which were the subject of Claim 254, and now intended to make an application to the Crown Court for production orders in relation to material already in their possession. The Claimants' solicitors replied that production orders could not be obtained for property already held by the Police, and that the question of relief in Claim 254 was a matter for the High Court. On 24 March the Police informed the Claimants' Solicitors that the applications had been withdrawn.
21. On 25 March there was further correspondence in relation Claim 254. The Claimants' solicitors asked for information as to the nature and extent of any examination carried out by the Police, and suggestions were made as to how the High Court proceedings might be disposed of by a Consent Order.
22. On 30 March a letter was sent by solicitors acting on behalf of MU and AR which raised challenges as to the issue and execution of the search warrants in their cases. Information was sought about the circumstances in which the warrants were obtained, the reasons given by the Court for issuing the warrants and a note of the evidence given at the hearings.
23. In the light of a lack of response to these questions, the Claimants' solicitors wrote again to the Chief Constable repeating the request for the disclosure of the information in relation to the warrants concerning MU and AR, and again proposing the disposal of Claim 254 by a Consent Order.
24. The correspondence shows that the Police were at the very least failing to engage with pertinent points being made by the Claimants' Solicitors.
25. On 13 April HHJ Belcher (sitting as a Judge of a High Court) made an order in Claim 254, granting permission to bring Judicial Review proceedings. She noted on her order:

The sole issue remaining for determination in the substantive hearing is whether the Court should grant a mandatory order for the return of all seized items and any copies made thereof (all other relief sought being agreed).

26. She gave directions for the hearing of any outstanding matters in relation to Claim 254, with a time estimate of 2½ hours. These directions included provision for the filing of evidence.
27. On 1 June (somewhat belatedly) the Chief Constable filed submissions in relation to the relief sought in Claim 254.
28. This was followed by Claim 2749 (issued on behalf of MU and AR) on 11 June. Three grounds were relied on. (1) The warrants were too broadly drawn and failed to comply with s.15(6)(b) of PACE, permitting the seizure of material to which the Police were not entitled. (2) There had been a failure to make full and frank disclosure: it being said that the warrants would not have been issued if the Magistrates' Court had been told about the matters conceded in Claim 254. (3) The warrant relating to MU's premises could not be comprehended within the terms of the warrant without reference to a schedule and a copy of that schedule had not been provided with the warrant.
29. On 19 June a hearing in the criminal trial took place before HHJ Henshall at Manchester Crown Court.
30. On 2 July the Chief Constable served Summary Grounds for resisting Claim 2749 which dealt with each point. Attached to the Grounds was a witness statement from DC Ahmed dealing with what had been said to the Magistrates.
31. By the beginning of July, both sides recognised the need to deal with the outstanding issues in relation to Claim 254 and for directions in relation to Claim 2749: the Claimants because they wished to have a declaration that the warrants were unlawful and the Police because they wished to make the s.59 application to the Crown Court which had been foreshadowed in January.
32. On 21 July, Patterson J adjourned the applications for directions in Claim 254 into open court to be listed as soon as practicable and no later than 14 August. She also refused permission in Claim 2749 (MU and AR). Her reasons were: (1) the claim of MU was out of time and no explanation for the delay had been given; (2) in the terms of s.31(3D) if the Senior Courts Act 1981 (as amended) 'it was highly likely that the outcome for the Claimants would not have been substantially different if the conduct complained of had not occurred', and there was no reason of exceptional public interest to disregard the fact.
33. On 23 July, a new claim (Claim 3461) was issued by AM. The form of the warrant in his case was in the same terms as those in Claim 254. He was the subject of a warrant issued on 27 November 2014 and executed on 2 December 2014. His complaint was substantially the same as that made in Claim 254, and there was an application to extend time and to join his claim with Claims 254 and 2749.
34. On 29 July a hearing in Claim 254 took place before the Divisional Court (Burnett LJ and Holroyd J). The applications were for expedition in relation to the hearing of the outstanding issues in Claim 254 and for the claim to be consolidated with Claim 2749. The Court was plainly troubled about the delays in determining the outstanding issues in the Administrative Court and their impact on the trial at Manchester Crown Court which was due to be heard in the Autumn. Some of the defendants in the criminal trial were Claimants in Claim 254 but others were not.
35. The Court concluded that there was nothing in the terms of s.59 which required that the powers could not be exercised until a final decision had been reached in a Judicial Review claim, and that it was in the interests of justice that the Police should be able to make such an application in the present case.
36. The Court made an order in the following terms.

1. Until the final determination of the question of relief in [Claim 254] or further order of the Crown Court relating to the material seized, [the Chief Constable] … may retain and examine, copy and use the material seized under the warrants subject to this claim which were executed on 2 December 2015 ('the unlawful warrants') on the following terms only:

a. for the purpose of the making of an application to the Crown Court to use the material, or any part thereof, to be retained pursuant to s.59(5)(b) and (7) of the Criminal Justice and Police Act 2001;

b. that the application referred to in paragraph 1.a be filed with the Crown Court within 48 hours of the date of this order.

37. The renewed application for permission to apply for Judicial Review in Claim 2749 (MU and AR) was directed to be heard as a rolled up hearing at the same time as the relief hearing in Claim 254, with both hearings to take place before a Divisional Court on 22 October 2015.
38. Following the hearing on 29 July, the Chief Constable applied for an order under s.59 of 2001 Act. On 11 August, HHJ Field QC heard a cross-application by the Respondents to that application (some of the Claimants in Claim 254) that he should not hear the s.59 application since there were still live issues to be determined by the Divisional Court in relation to the warrants and the Crown Court could not deal with the complaints that the warrants had been obtained and maintained in bad faith. In short, it was submitted that the Crown Court could not properly consider all the matters relevant to a s.59 application until the Divisional Court had determined the nature and extent of the unlawful conduct by the Police in respect of the various warrants, including the Claimants in Claim 2749 (MU and AR).
39. HHJ Field QC refused the cross-application in a ruling of 11 August. He accepted that as a judge of the Crown Court he could not rule on the validity of the warrants. However, he considered that the Divisional Court's 29 July Order made clear that it was appropriate for the Crown Court to consider the Chief Constable's application under s.59 notwithstanding that there were outstanding issues in relation to the warrants which had to be heard by the Divisional Court. He added:

I find that I am able to consider and rigorously examine the circumstances leading up to and surrounding the initial seizure of property and the allegations of bad faith or the adoption of a less than scrupulous approach to the drawing up of the initial warrants … without stepping outside the limits of my jurisdiction and determining the validity of the warrants … There is nothing, in my judgment, in the statutory scheme of s.59 … that prevents me from proceeding where there are extant Judicial Review proceedings, anymore than preventing me from proceeding where there are no extant Judicial Review proceedings. It is … an entirely separate jurisdiction.

40. The hearing of the Chief Constable's s.59 application took place over a period of 4 days during which HHJ Field QC heard oral evidence from DI Large (as the Senior Investigating Officer) and Mr Kenyon, both of whom were cross-examined at some length by Mr James Pickup QC on behalf of the respondents to the application.
41. The Judge's ruling on the s.59 application was thorough and carefully structured. He set out the background of the investigation and identified the material to which the application related. He posed two questions. First, if the property were to be returned, would it be appropriate to issue fresh warrants; and secondly, was it appropriate to exercise his discretion in favour of the Chief Constable, notwithstanding that the original warrants and the subsequent execution of them were unlawful? On the second question the Judge was referred to a number of authorities to which I will refer later in this judgment.
42. At §59 the Judge noted that the exercise of discretion was likely to be fact sensitive and accordingly he was unlikely to be assisted by considering what other courts had done in other cases. Importantly in the present context, having heard Mr Large and Mr Kenyon give evidence he accepted their evidence.
43. He was invited to refuse to exercise his discretion in favour of the Chief Constable for nine reasons. (1) The applications and the warrants themselves were 'shoddily' drafted with no, or no proper regard, for the statutory safeguards provided for in PACE. (2) The conduct of the Police in relation to the drafting, the application before the Magistrates and the execution of the warrants reflected poorly on the Police and demonstrated a lax approach. (3) The conduct of the Chief Constable between 9 December 2014 (when the Respondents first challenged the warrants) and 12 January 2015 (when he conceded that the warrants were unlawful and offered an insufficient undertaking), indicated bad faith or at least conduct not far short of bad faith. (4) There was then delay and prevarication in pursuing the applications under s.59. (5) There was a failure to inform AM (the Claimant in Claim 3461) that the warrant in his case was unlawful. (6) The application for production orders was wholly misconceived. (7) In the subsequent applications (MU and AR) the Chief Constable had acted in bad faith. He had procured the issue and execution of plainly unlawful warrants demonstrating defects similar to those in Claim 254. (8) He had acted discreditably in the course of the High Court litigation. (9) He had misled the Crown Court and/or the High Court.
44. The Judge dealt with each of these points.
45. So far as point (1) was concerned, he was careful to make clear that it was not for the Crown Court to declare the warrants unlawful. Nevertheless, he had to consider the points made in relation to drafting errors, and he accepted that the drafting was poor and that the failures in drafting weighed against the s.59 application. He was, however, far from convinced that they should weigh heavily or in any event so heavily as to justify refusal of the orders sought, giving five carefully articulated reasons for reaching that conclusion.
46. In relation to point (2), the Judge noted the deficiencies in record-keeping, which had been acknowledged by the Chief Constable and accepted that this was a significant failing since it deprived the Court of any evidence as to what the Magistrates had been told, what questions they had asked and what responses they had been given. However, he rejected the suggestion that this was a deliberate failure and declined to draw the inference that the failure to take notes was designed to conceal wrongdoing.
47. So far as point (3) was concerned, he identified the matters of complaint but noted other matters which tended to militate against allegations of bad faith and egregious bad behaviour. In this context he noted that Mr Kenyon was unfamiliar with the law relating to warrants and found implicitly that he was out of his depth. He specifically dealt with Mr Kenyon's email of 22 December in which the assurance had been given that material seized under the warrants would not be further reviewed or copied until 5 January 2015, and concluded that Mr Kenyon had misunderstood what DI Large had told him at a meeting on 22 December. He acknowledged that the Claimants' Solicitor would have had an earlier opportunity to seek interim relief so as to put a stop to the examination of material if he had not been misled by what Mr Kenyan told him; but found, for reasons that he set out, that there was no resulting prejudice. At §88 he said this:

For the avoidance of doubt, I acquit Mr Large and Mr Kenyon of acting in bad faith throughout this period. Furthermore, whilst they clearly accept some criticism for their actions, their failures do not, in my judgment, amount to reprehensible or egregious bad behaviour. I reject the Respondents' submissions in this regard.

48. As to point (4), the delay in instituting a s.59 application, he rejected the respondents' complaint that it was part of 'an unedifying catalogue of failure, procrastination and delay'. The Judge referred to the case of Panesar, to which I will come later in this judgment. He accepted that the s.59 application could have been issued on 18 May 2015 when the Supreme Court refused permission to appeal from the decision of the Divisional Court in Panesar, but noted that there would have been little purpose in doing so given that, until the 29 July hearing before the Divisional Court, all parties to the Judicial Review had been of the opinion that any s.59 application had to follow the final determination in the Judicial Review proceedings.
49. As to point (5), the Judge rejected the submission that once he was aware that the warrants were unlawful the Chief Constable should have informed others who were, or might be, affected. In his view there was no obligation to invite a challenge to the warrants from those who had hitherto raised no complaint.
50. So far as point (6) was concerned, he noted that there was authority which supported the making of such applications and that, if there had been cooperation, the application might have succeeded. However, and in any event, he rejected the submission that the application for production orders amounted to significant wrongdoing for the purposes of the s.59 application.
51. On point (7), (MU and AR) the Judge again noted that it was not for him to determine whether the warrants were unlawful. He rejected the contention that there was bad faith in failing to mention the earlier warrants, and noted that the allegation of bad faith was significantly diminished in the light of the evidence relating to the steps taken to improve the drafting of the warrants.
52. As to the complaint in point (8), that Mr Kenyon had failed to respond to correspondence, the Judge considered it and acknowledged that there was a justifiable complaint that Mr Kenyon had been slow to respond, and that this must be given due weight when considering whether to exercise his discretion.
53. So far as point (9) was concerned, the Judge rejected the submission that the Chief Constable had misled HHJ Henshall as alleged. At §109 of the Ruling the Judge set out his conclusions, adding:

As was said in El Kurd the provisions of s.59(6) of the 2001 Act are bulwark against abuses by the Police and the dilution of the courts' pronouncements relating to the need for a scrupulous and rigorous approach in the drafting of warrants. It would be inappropriate for an application under s.59 to be used as an excuse for a more lax approach to applying for executing search warrants. My task, however, having determined that there could be a proper basis for the issue of lawful notional warrants is to take account of all the circumstances and to decide whether I should exercise my discretion in favour of the applicant who wishes to retain the material seized under the original warrants. In this exercise the public interest weighs heavily.

54. At §110 the Judge ruled:

The applicant succeeds in establishing that the initial unlawfulness was not such as to displace the public interest in allowing the [Chief Constable] to retain the material. In the circumstances of this case I do not consider that such a finding amounts to a dilution of existing judicial principle. Furthermore, when considered together with the other failings I similarly conclude that I should exercise my discretion in favour of the [Chief Constable]: he has discharged the burden upon him of satisfying me that it would be just so to do. The respondents to both the first and second applications have fallen well short of establishing that it would be wholly unconscionable to grant these applications.

55. The Judge then made directions in relation to particular identified materials, and these directions were, after some disagreement as to the terms, eventually embodied in an order.
56. Claim 4133 was commenced on 28 August 2015 and the relief sought was that the rulings made by HHJ Field QC on 11 and 24 August should be quashed on three bases: first, because he had no jurisdiction to determine the issues between the parties; secondly because he was wrong to conclude that there was no obligation on the Chief Constable to inform all other persons against whom warrants were issued that the warrants which were the subject of claim 254 were defective; and thirdly because those acting for the Chief Constable had misconducted themselves in relation to the drawing up of HHJ Field's Order.

The present issues for the Court

57. Permission to bring Judicial Review proceedings was granted in relation to claim 254. Permission was refused in relation to claim 2749 (MU and AR) and is renewed. Permission in 3461 (AM) was adjourned for consideration at an oral hearing. Permission was refused in relation to claim 4133 and is renewed.

The Claimants' case

58. It is convenient to start with claim 4133. Mr Bowers's preliminary complaint is that the process by which the Crown Court considered the s.59 application was fundamentally flawed, since the relevant warrants which had been challenged in claim 254 had not been quashed and there were still ongoing issues in relation to the Judicial Review claim. He submitted that the quashing of the warrants was a necessary step before the Crown Court could exercise its powers under s.59. He expressed the point in §43 of his skeleton argument.

When there are issues between the parties still to be litigated in extant High Court proceedings, a Judge of the Crown Court cannot properly exercise the power and discretion conferred pursuant to s.59, because he has no jurisdiction to determine the matters still to be litigated in the High Court.

59. While reserving his position on the point, he nevertheless recognised that the Divisional Court had made the order of 29 July, the Crown Court had given full reasons for refusing an application that it should not hear the s.59 application on 11 August and had made its ruling in favour of the Chief Constable on 24 August. It followed that even if the relief which had been sought in claim 254 were granted, it would be open to this Court (in the light of the known findings of Judge Field QC) to allow the Police to make an application to the Crown Court which would be very likely, if not bound, to reach the same conclusion on the merits. As he expressed it colloquially, if discontentedly, 'we are where we are'.
60. Nevertheless, he submitted that the matter did not end there since there had been Police misconduct in the course of the litigation: first, during the early stages when they tried to buy time, which enabled them to continue examining material seized unlawfully; secondly, by failing to accept that the concession in relation to the Claim 254 Claimants necessarily impacted on the lawfulness of the warrants obtained and executed against others; thirdly, in failing to make full and frank disclosure to the Court in relation to the warrants which were the subject of Claim 2749; and fourthly, following the ruling of HHJ Field QC on 24 August 2015, by examining and copying material notwithstanding an embargo on doing so until the present hearing.

Interaction of Judicial Review and the operation of s.59 of the CJPA 2001 Act

61. Section 59 of the CJPA 2001 Act provides:

(5) The appropriate judicial authority -

…

(b) on an application made by the person for the time being having possession of anything in consequence of its seizure under a relevant power of seizure

…

may give such directions as the authority thinks fit as to the examination, retention, separation or return of the whole or any part of the seized property.

(6) On any application under this section, the appropriate judicial authority may authorise the retention of any property which -

(a) has been seized in exercise, or purported exercise, of a relevant power of seizure, and

(b) would otherwise fall to be returned,

if that authority is satisfied that the retention of the property is justified on grounds falling within subsection (7).

(7) Those grounds are that (if the property were returned) it would immediately become appropriate –

(a) to issue, on the application of the person who is possession of the property at the time of the application under this section, a warrant in pursuance of which, or in the exercise of which, it would be lawful to seize the property ...

62. In the skeleton arguments and during the course of argument the Court was referred to a number of cases which I set out in the chronological order in which they were decided, identifying the member of the Court who gave the leading judgment: R (Cook and anor) v SOCA [2011] 1 WLR 144, Leveson LJ; R (El Kurd) v. Winchester Crown Court [2011] EWHC 1283 (Admin), Stadlen J; R (Anand) v. HMRC [2012] EWHC 2989 (Admin), Pitchford LJ; Van der Pijl and anor v. Kingston Crown Court and others [2012] EWHC 3745 (Admin), Wilkie J; R (AC) v. Nottingham and Newark Magistrates Court [2013] EWHC 3790 (Admin), King J; R (Goode) v. Nottingham Crown Court [2013] EWHC 1726 (Admin), Pitchford LJ; R ((Golfrate Property Management Ltd and anor) v. Southwark Crown Court and others [2014] Cr App R.12, a judgment of the Court (the Lord Chief Justice and Foskett J); R (Panesar and ors) v. The Central Criminal Court and anor [2014] EWHC 2821 (Admin), the Lord Chief Justice; R (Kouyoumjian) v. Hammersmith Magistrates Court [2014] EWHC 4028, Aikens LJ; Chaudhary v. Bristol Crown Court [2015] 1 Cr App R.18, Fulford LJ; and R (Chatwani) v. National Crime Agency [2015] EWHC 1283 (Admin), Hickinbottom J.
63. It is unnecessary to embark on extensive citations from these authorities, which largely turned on their own facts. However certain broad themes emerge from the cases.

(1) Issues relating to the essential validity of search warrants are to be determined in the High Court and not the Crown Court. The Crown Court cannot decide whether a warrant is valid, see for example, Chaudhary at [61]. Although this is one of the more recent decisions, the principle has been often restated, see for example, Goode at [51].

(2) The Crown Court has a remedial jurisdiction to entertain an application by the Police, or other investigating authority, to retain material seized pursuant to a warrant which is either acknowledged to be invalid or has been quashed by the court, see for example, Panesar at [35], [38] and [48].

(3) Where a warrant is acknowledged to be invalid or is quashed, the High Court may permit or it may refuse an application to be made to the Crown Court under s.59. In AC at [77] and in Panesar at [49] the Court permitted the application to be made, while in Kouyoumjian it refused permission, see Aikens LJ at [41] and Mitting J at [43].

(4) Nothing said in these cases can be regarded as eroding the general principle that very great care should be taken when drafting, applying for and executing search warrants, see Cook at [15]. Despite the constant reiterations of these warnings, the Court is still faced with warrants where fairly elementary errors are made due to lack of care, skill or understanding by those who are responsible, see in this context the observations of Davis LJ in Chatwani at [148-149].

(5) In deciding whether to permit a s.59 application to be made, the Court will weigh the public interest in preventing the misuse of important powers which are conferred on state agencies against the public interest (reflected in the wording of the statute) that the overall interests of justice should not be defeated by what may be technical issues in relation to warrants. The reasons for refusing permission to make a s.59 application will be fact-specific. In Kouyoumjian the Divisional Court identified a number of failings at [34]-[39] which it considered militated against permitting an application to be made. The Court came to a similar conclusion in Chatwani, see [140]-[143] and [154].

(6) If the High Court permits a s.59 application to be made, the form of the order may direct that the material seized under the impugned warrants be returned subject to the outcome of a s.59 application to be made by the Police (or other body in possession of the property) within a stipulated timescale, see for example Panesar at [20].

(7) If, following such permission, an application is made, the Crown Court exercises a discretion under s.59 which will involve weighing the public interest in the retention of property for the purposes of a criminal investigation against the countervailing public interest in the due legal process in the grant and execution of warrants to enter and search private property. Since the Crown Court must be satisfied that it would be appropriate to issue a new warrant, it follows that all the criteria for issuing such a warrant must be satisfied. Bad faith and an unscrupulous approach to the drawing up and execution of warrants will plainly weigh heavily against the exercise of the Court's discretion in favouring retention, see El-Kurd at [65] and Chatwani at [139].

(8) Once the Crown Court has made a decision under s.59, the appropriate route for challenging that decision is by way of Judicial Review proceedings. It is the High Court rather than the Court of Appeal (Criminal Division) which has jurisdiction because, provided no issue between prosecution and defence formulated by the indictment has been decided, the Crown Court has exercised a jurisdiction 'other than its jurisdiction in matters relating to trial on indictment', see s.29(3) of the Supreme Court Act 1981 and R v Manchester Crown Court, ex p. DPP [1993] 1 WLR 1524 (HL), Lord Browne-Wilkinson at 1530E.

(9) The High Court will then consider whether the decision should be set aside on conventional public law grounds, while recognising the ambit of the Crown Court's discretion and the advantage it may have had in hearing live evidence and seeing the relevant material. Since the decision of the High Court is in 'a criminal cause or matter' an appeal will lie from the High Court to the Supreme Court and not the Court of Appeal (Civil Division), see Panesar in the Court of Appeal, [2014] EWCA Civ 1613.

64. These general themes were not in substantial dispute before us. However, Mr Bowers developed an argument that what occurred in the present case cut across certain basic principles. In short, the Divisional Court permitted a s.59 application to be made to the Crown Court despite there being outstanding issues to be determined in relation to the Claim 254 warrants, and before the Divisional Court had had an opportunity to consider the criticisms of the Police conduct that had been made in claim 254, in particular the criticisms of bad faith. He relied on the passages from the judgment of King J in R (AC) v. Nottingham and Newark Magistrates Court.

40. In my judgment, however, notwithstanding the acceptance by the Second Defendant of the unlawfulness of the seizure in this case, and the existence of the pending s.59 application, there continues to be a need for further consideration by this court of the entirety of the grounds by which the Claimants have sought to challenge both the legality of the warrant and the lawfulness of the entries, searches and seizures. This is because the outcome of such consideration and any consequential relief granted by this court will be matters which any court hearing the section 59 application will need to take into account when determining whether to exercise the discretionary power to authorise retention. These will inform the section 59 court in the exercise of the discretion.

41. As this court in El-Kurd emphasised, the power to authorise the retention of property which has been unlawfully seized and which would otherwise fall to be returned is a discretionary one which necessarily impinges upon the liberty of the subject and the hitherto existing legal safeguards governing the grant and execution of entry/search warrants in relation to private property. The s.59 court will need to look to the extent and nature of the illegality giving rise to the fact that the property would otherwise fall to be returned. The full circumstances of the illegality requires rigorous examination to determine, for example, whether this is a case of mere technicality or one involving more serious default on the part of the Applicant, involving, for example, bad faith or the misleading of the Magistrates Court which issued the warrant, or a 'less than rigorous and scrupulous approach to the drawing up and execution of the initial warrant'. See the observations of Stadlen J in El-Kurd at paragraph 65. The court will need to consider whether any illegality concerned only the way in which the warrant was drawn up, and if so the extent of any non compliance with the statutory requirements, or whether it went also to the grounds for the grant of the warrant and hence the legality of the warrant itself, and whether this court has for example quashed the warrant.

65. He also relied on the observation at [44].

In so far as this court were to consider that the terms of the warrant fell foul of the statutory requirement of specificity under section 15(6)(b) to an extent greater than that conceded by the Second Defendant, then the extent of the default as found by this court must necessarily be a relevant matter to which the s.59 court should have regard.

66. I am doubtful whether King J was intending to lay down a general rule that there could be no application to the Crown Court under s.59 until every issue raised in a Judicial Review claim had been resolved by a decision of the High Court, although it is clear that on the facts of the case he considered that the nature and form of declaratory relief would assist the claimants in any s.59 application made by the Police, see [74]. The approach of the High Court is likely to depend on the particular facts; and the invocation of one jurisdiction will not necessarily be regarded as excluding the application of another.

The present case

Claims 254 and 4133

67. In relation to claim 254 there has been no real issue between the parties about the invalidity of the warrants from about mid-January 2015. The Claimants' grounds were effectively conceded, although outstanding issues in relation to the return of the documents and the question of damages were not. It follows that HHJ Belcher could have declared that the warrants were invalid and quashed them on 13 April 2015, when she made her order.
68. Although it is clear that only the High Court has the power to declare warrants to be unlawful and the power to quash them, a claimant cannot insist on a case remaining in the Administrative Court until every issue is either conceded in its favour or resolved by a decision. Although it is heavily burdened with cases, and delays to criminal trials will inevitably occur if cases remain locked into the Administrative Court, this is not a matter of expediency, nor, although the Administrative Court is confined to considering the issues on paper while the Crown Court can hear evidence, is it a matter of practicality. It will involve a fact-sensitive enquiry in the context of inter-related jurisdictions and considerations of the overall interests of justice, which may involve considerations of the interests of those who may not be the immediate parties to the litigation: in the present case, defendants in the Crown Court.
69. A claimant is not necessarily entitled to a determination of the Administrative Court of the particular reasons why a warrant is said by a claimant to be invalid or why it is accepted as being invalid by a defendant, nor, perhaps more importantly, must the determination of such issues necessarily preclude the making of an order which leads to an application under s.59.
70. In the present case there were issues in relation to claim 254 which had not been decided, but they were not such that it was in the interests of justice that their determination should prevent the hearing of a s.59 application.
71. In so far as it is a matter for this Court, it is my view that Divisional Court was entitled on 29 July, in the circumstances which it faced, to cut the forensic Gordian knot, and to make the order that it did. It is, however, unnecessary to say anything further since the Divisional Court made its decision and this Court is not here to review it.
72. HHJ Field QC carried out a full and careful analysis over 4 days in which he heard oral evidence in a way which could not have happened in the Administrative Court, where hearings in relation to the legality and propriety of warrants are conducted entirely by reference to witness statements (with all the implicit disadvantages), and considered the material documents. While scrupulously refraining from making any finding in relation to the validity of the warrants, which he recognised was not a matter for the Crown Court, he rejected the allegations of bad faith made against the Police and attributed the matters of complaint to inefficiency, which he accepted counted against the application. Having reviewed and weighed all the circumstances, he decided, in the exercise of his undoubted discretion, to make an order under s.59.
73. In my view there are no legitimate grounds for challenging that decision. Although Mr Bowers QC made further detailed criticisms about the way in which the Chief Constable then dealt with drawing up the terms of the order and the way in which he purported to comply with it, I am very far from persuaded that the criticisms were justified (at least in the terms he made them), that they demonstrate bad faith or that they bear materially upon the application for relief in Claim 4133.
74. It follows that I reject the Claimants' arguments in relation to Claim 4133.

Claim 2749

75. Following the issue and execution of the warrants which were the subject of Claim 254, MU and AR were the subject of further warrants. As noted above, in the case of MU, these were issued on 28 January 2015 and executed on 29 January; and, in the case of AR, they were issued on 13 March and executed on 19 March 2015. Claim 2749 was issued on 11 June. Their complaints are similar to those made in Claim 254; but there are also two further points: first, that there was bad faith by the Police in relation to the application for the warrants since they were made to a different Magistrates' Court (although this point was not pursued at the hearing before us); and secondly because that Court was not told of the proceedings in respect of the earlier warrants (Claim 254).
76. The latter point was raised by the respondents in the s.59 hearing, as reinforcing their arguments as to why an order should not be made under s.59. As noted above, HHJ Field QC considered this matter under point (7). Although MU and AR were not parties to the s.59 application the respondents deployed the relevant material before the Judge and he considered it at §§99-101. His conclusion was that there was no bad faith in failing to mention the earlier warrants. It would not, in his view, have been relevant for the Magistrates to know that there was an improved draft prepared by a different police officer in a different part of the investigation acting on legal advice.
77. Nevertheless, since the warrants are in substantially similar form to the warrants in claim 254, in my view a similar result should follow: namely, that the warrants should be quashed, but an order for the documents to be returned should be suspended pending an application to the Crown Court under s.59. I note without further comment that Judge Field QC has already considered the arguments that have been raised in relation to bad faith in his ruling of 24 August.
78. Finally I should record the Chief Constable's argument that permission to bring the claim should be refused first, because (in the case of MU) it was issued out of time and secondly because he was entitled to rely on, and the Court was bound to apply, the provisions of s.31 of the Senior Courts Act 1981 as amended.
79. So far as the first point is concerned, I would not refuse permission on the basis of the delay in issuing the claim in view of the correspondence between the parties to which I have already referred.
80. So far as the second point is concerned, since I would grant permission to bring the Judicial Review claim, it is unnecessary to say anything about it.

Claim 3461

81. AM was the subject of a warrant issued on 27 November and executed on 2 December 2014. The claim was not issued until 23 July 2015, when it was issued in similar terms to the earlier claims: namely, that the warrant was drawn incorrectly and was in breach of ss.15 and 16 of PACE.
82. In addition, Mr Bowers argued that the Police (as a State body) were under an obligation to inform others affected by their concession that warrants in identical (or at least similar) form were invalid. He relied on their failure to do so as both a complete answer to the time point and further evidence of bad faith. It is sufficient for present purposes to note that, although I do not accept that it proves bad faith, I was not attracted by Mr Wells's answer that the Police was not under any obligation to inform others about its concession as to the invalidity of a warrant in substantially similar terms.
83. I would refuse permission in his case. AM was arrested and dealt with at the same time as the Claimants in Claim 254. It is highly unlikely that he was unaware of the challenge being made by his co-accused and there is cogent evidence that he was made aware of the illegality arguments at the time. There is no explanation of the reasons for the delay even though evidence on the point was ordered to be filed by 7 August 2015.

Conclusion

84. (1) In relation to claim 254 I would quash the warrants and invite the parties to make short written submissions on the form of an order which addresses the determination of any outstanding issues.

(2) I would grant permission to bring Judicial review proceedings in claim 4133, but would dismiss the claim.

(3) I would refuse permission in Claim 3461.

(4) I would grant permission in Claim 2749, and invite the parties to make written submissions on how any outstanding issues in relation to the claim can conveniently and sensibly be resolved.

Stewart J

85. I agree.