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You are here: BAILII >> Databases >> England and Wales High Court (Administrative Court) Decisions >> C, R (on the application of) v "A" Magistrates' Court [2006] EWHC 2352 (Admin) (26 September 2006) URL: https://www.bailii.org/ew/cases/EWHC/Admin/2006/2352.html Cite as: [2008] Po LR 23, [2006] EWHC 2352 (Admin) |
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QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Strand, London, WC2A 2LL |
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B e f o r e :
____________________
The Queen on the application of "C" |
Claimant |
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- and - |
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The Chief Constable of "A" Police |
First Defendant |
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-and- |
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"A" Magistrates' Court |
Second Defendant |
____________________
Mr Alun Jones QC & Mr Hugo Lodge (instructed by Jeffrey Green Russell) for the Claimant
Mr Edmund Lawson QC & Mr Jason Beer (instructed by The Legal Services Department of "A" Police) for the First Defendant
Hearing dates: 19th, 20th September 2006
____________________
Crown Copyright ©
Mr Justice Underhill:
(a) The likeliest explanation for his details having been found on the Landslide system is "identity theft" that is, that a stranger had obtained them dishonestly and had used them to generate a bogus purchase and divert all or part of the money. It is common ground that there is material in the public domain, of which I need not give the details here, showing that stolen details have at least sometimes been used in this way in connection with the Landslide sites including information published by the Sussex police acknowledging that this had occurred specifically in the case of Operation Ore suspects. The Claimant says that there are strong objective indications that this is what happened in his case. Again, I need not give the details, but they include the facts (i) that he had challenged two other unauthorised transactions on his card in the course of 1999 (though admittedly not these particular ones); (ii) that, as noted above, no indecent images were found on any of the seized computers; and (iii) that there is no evidence that Landslide ever sent the purchaser the return e-mail, giving the password allowing access to the sites, which would have automatically been generated if there had been an actual purchase. The Claimant says that most of the indications that he was the victim of identity theft were either known to the police, or could have been ascertained by them by proper enquiries, before the decision to seek a search warrant was made.
(b) Even if, contrary to the foregoing, there are good grounds to believe that the sites were accessed by someone at the Claimant's home, all the signs clearly point not to the Claimant himself but to his son, P, who was in 1999 a teenager living at home and who had authority from the Claimant to use his credit card. In particular, a person purchasing access to Landslide sites had to give an e-mail address and a password. The e-mail address which was given by the apparent purchaser in this case was, as has now been established, an address of P's: the Claimant says that this could have been ascertained at any time from the ISP which hosted the e-mail service (or indeed somewhat surprisingly - from a simple Google search). Likewise the password is one which has now been found from the examination of one of the seized computers to be a password used on at least one other (innocent) occasion by P but with no connection to the Claimant.
(A) THE LAWFULNESS OF THE WARRANT
The Statutory Basis
(1) If on an application made by a constable a justice of the peace is satisfied that there are reasonable grounds for believing
(a) that an indictable offence has been committed; and
(b) that there is material on premises mentioned in subsection (1A) below which is likely to be of substantial value (whether by itself or together with other material) to the investigation of the offence; and
(c) that the material is likely to be relevant evidence; and
(d) that it does not consist of or include items subject to legal privilege, excluded material or special procedure material; and
(e) that any of the conditions specified in subsection (3) below applies in relation to each set of premises specified in the application,
he may issue a warrant authorising a constable to enter and search the premises.
(1A) The premises referred to in subsection (1)(b) above are
(a) one or more sets of premises specified in the application (in which case the application is for a "specific premises warrant"); or
(b) any premises occupied or controlled by a person specified in the application, including such sets of premises as are so specified (in which case the application is for an "all premises warrant").
(1B)
(1C) The warrant may authorise entry to and search of premises on more than one occasion if, on the application, the justice of the peace is satisfied that it is necessary to authorise multiple entries in order to achieve the purpose for which he issues the warrant.
(1D) If it authorises multiple entries, the number of entries authorised may be unlimited, or limited to a maximum.
(2) A constable may seize and retain anything for which a search has been authorised under subsection (1) above.
(3) The conditions mentioned in subsection (1)(e) above are
(a) that it is not practicable to communicate with any person entitled to grant entry to the premises;
(b) that it is practicable to communicate with a person entitled to grant entry to the premises but it is not practicable to communicate with any person entitled to grant access to the evidence;
(c) that entry to the premises will not be granted unless a warrant is produced;
(d) that the purpose of a search may be frustrated or seriously prejudiced unless a constable arriving at the premises can secure immediate entry to them.
(4)-(6) .
Generations of justices have, or I would hope have, been brought up to recognise that the issue of a search warrant is a very serious interference with the liberty of the subject, and a step which would only be taken after the most mature careful consideration of all the facts of the case.
That observation was repeated with approval by Bingham J. in R v. Crown Court at Lewes, ex p. Hill (1991) 93 Cr App R 60 (at p. 66).
The Exercise of the Powers in the Present Case
(1) At an early stage of Operation Ore decisions were taken about prioritisation. After some very limited initial enquiries by NCIS, the Claimant appears to have been regarded as falling into the medium-risk category not being a person who worked with children - and accordingly was not made the subject of immediate investigation. That explains, though views may differ about whether it wholly excuses, the fact that no steps were taken in his case until this year. The initial enquiries established the identity of the Claimant's then employer, which could readily have been identified as a financial institution by a simple Google search if it had not been otherwise recognised.
(2) When the A police finally came in 2005 to consider the Claimant's case, together with that of a number of other medium-risk names, they carried out various preliminary enquiries, principally but not solely intended to "house" the Claimant that is, to establish that he was still to be found at the address given to Landslide. These included enquiries with the local authority council tax department, the Land Registry, the electoral register - which simply confirmed that the Claimant and his wife still lived at the address given in 1999 and with DVLA, which revealed that five cars (including two Mercedes saloons) were registered there. Other enquiries included
- informal approaches to the bank which had issued the credit card in question, in order to obtain statements covering the period of the payment: the police were apparently told, wrongly, that such statements were no longer available;
- a search at Companies House: this is said to have produced a nil return, though that is frankly inexplicable if a proper search was done, since the Claimant was a director of his current employer and of various associated companies and another institution with which he had a charitable connection;
- enquiries with the Inland Revenue designed to identify his employer: these however again inexplicably if the enquiries were done properly - revealed only the name of a tax-shelter company in which the Claimant had invested, from which the police concluded, entirely wrongly, that he worked in the film industry;
- enquiries with the Department of Work and Pensions designed to establish whether he had children: they were told that he had none.
The uniform inaccuracy of the results of these latter enquiries is unimpressive, and does not suggest that they were carried out with real rigour though it may also reflect the fact that they were carried out on an informal basis, without resort to statutory powers, which may have affected the care with which they were dealt with by the persons enquired of. It does not appear that the A police had available to them the information obtained by NCIS in 2002, which would at least have revealed the identity of the Claimant's previous employer and thus potentially the nature of his occupation. The information was brought together in an "Intelligence Profile".
(3) Sometime prior to 18th May the decision was made to seek search warrants for some eighteen Operation Ore suspects. "Packs" were prepared relating to each suspect. These included, in addition to the formal papers required to obtain the warrant, a "briefing sheet" for each suspect and the Intelligence Profile. The briefing sheet in the Claimant's case rehearsed the original Landslide information, together with information from the Intelligence Profile, but it also included some information about the premises to be searched, which was described as "a very large building with believed 6+ bedrooms". It also covered two other points of some importance:
(a) It referred expressly to the possibility that the Claimant's credit card details may have been used by another member of the household.
(b) It stated " it is intended to arrest the alleged offender, any arrests will be directed in the Officer in the Case whilst on the scene"; and it provided for the "Arresting Officer" to be identified. Although the contents of the briefing sheet were specific to the Claimant, the general lay-out clearly followed a standard pattern; and it can, I think, reasonably be inferred that similar wording appeared in relation to all eighteen cases and reflected a general policy determined by someone with overall responsibility for the exercise.
(4) On the morning of 18th May D.C. S, who was an officer in the team within the A police dealing with "computer-generated paedophile activity" but who had had no previous involvement in preparing the applications, received the eighteen packs. He familiarised himself with the contents and amended them in one respect to which I refer below. He then obtained from a Detective Inspector authority to make the applications and drove to the magistrates' court, where arrangements had been made for a justice to consider the applications before the morning list: the magistrate in question was a justice of the peace of 24 years' experience. D.C. S gave him a short general explanation of the background and then took him through the eighteen applications, giving the essential "Landslide details" in each case by reference to the material in the packs. The magistrate issued warrants in all the cases. The entire exercise, on the evidence, lasted not much more than an hour an average of about three minutes per application. It has been suggested that this indicates that the magistrate performed his task perfunctorily, but I do not think that that can fairly be inferred simply from the time taken. However conscientiously the magistrate approached his task, the applications will have followed a standard pattern and each individual case will not (subject to the issues which I consider below) have required long consideration.
(5) The essential document placed before the magistrate by D.C. S in each case was a form bearing the title "Warrant to enter and search premises for evidence of an indictable offence (Section 15 of the Police and Criminal Evidence Act 1984)". Despite its title, this is not in fact a warrant but an information supporting the application for a warrant, as required by s. 15 (3) of PACE: I will refer to it as "the Information". Its function is to set out the grounds on which the constable applying for a warrant relies (and certain other matters): see s. 15 (2). The form used in the A Magistrates Court took the form of an affidavit/affirmation. The printed parts state that "there are reasonable grounds for believing" four matters, listed as (a)-(d), correlating to the statutory requirements set out above. (There is a head (e), but it does not despite the structure of the form appear to be a matter on which the constable is required to state reasonable grounds for belief, and it is in any event irrelevant for present purposes.) Taking them in turn:
- The first (a) - is that an indictable offence had been committed. The offences specified by whoever completed the form were offences under s. 160 of the Criminal Justice Act 1988 - namely possession of an indecent photograph of a child and s. 1 of the Protection of Children Act 1978 namely taking an indecent photograph of a child.
- The second (b) - is that there was at the specified premises "material that is likely to be relevant evidence and be of substantial value in the investigation of the offence and does not consist of or include items subject to legal privilege, excluded material or special procedure material, namely ". The material in question was specified by a printed label, which had been prepared for use in all eighteen cases and was in the following terms (reproducing the precise punctuation):
Computer Hardware, Peripherals, Associated Software & Media (suspected Containing Indecent Images
Printed, Written, Published or Other Items Connected or Associated With Child Indecent Images and/or Sexual Offending
Any other material written or otherwise associated with the abuse of children
- The third (c) lists the alternative statutory grounds for the issue of a warrant under s. 8 (3) of PACE, with the rubric "delete whichever is NOT applicable". None are deleted. This was clearly carelessness on the part of the person completing the form: it cannot have been believed that all the specified alternatives applied.
- The fourth (d) provides for a choice between authorising a single entry or multiple entries. It too was carelessly left uncompleted.
There is then a heading "Further Information" setting out various matters on which further explanation should be given, including as 1. "why it is believed the material sought will be found on the premises to be searched". In the space provided a further standard-form label was fixed containing a brief statement that as a result of investigations in the U.S.A. into the Landslide websites "law enforcement agencies from around the world were supplied with details of suspects that had used their credit cards to purchase access to internet sites known to contain indecent images of children". This entirely general statement does not answer the question posed by the form because it does not say that the premises in question were the address of a card-holder whose details had been so supplied; but in the circumstances that could safely be inferred, and it was in any event intended that that information would be givenorally by the officer in each case. D.C. S appears nevertheless to have regarded the label as inadequate because he added in manuscript (on all eighteen forms) the words "Police believe that there are still images of children being held in the premises". This was misleading in so far as it suggested that the police had any specific information: all that D.C. S was in a position to say was that if, as there was reason to believe, a person at the premises had accessed one of the sites, it might reasonably be presumed that he had downloaded images from it and that those images might still, despite the passage of time, be held on a computer there.
(6) As will have appeared from the foregoing, the completion of the form of Information was shoddy. The warrant which the magistrate proceeded to issue was, regrettably, also carelessly completed. It referred to the Information, incorporating (by means of the same label) its specification of the material to be searched for, and gave authority for any constable to enter the premises "on the number of occasions specified below" in order to search for that material. The lower part of the form is intended to specify the number of searches authorised. It is badly designed, but on analysis there are two primary alternatives, the first being authorisation for a single search and the second being authorisation for multiple searches: the multiple search alternative starts with a line requiring (as per the statute) written authority for any second or subsequent search to be obtained from a police officer of the rank of inspector or above and then splits into sub-alternatives namely either a specified maximum number of searches or an unlimited number. The person completing the form left the first alternative - "on ONE occasion only" - undeleted. That must mean that only a single search was being authorised. But instead of deleting the remaining three lines, they deleted only the last two. On a careful reading it is clear that the undeleted second line adds nothing and is meaningless in view of the deletion of both two alternative forms of multiple search authority. But I can understand how it might have been read, as the Claimant says he read it, as authorising multiple searches. The form contains no express statement by the magistrate that he has been satisfied of the various matters of which he is required by statute to be satisfied. It is not necessary that it should: see Inland Revenue Commissioners v. Rossminster [1980] AC 952, per Lord Wilberforce at p. 1000. (However I should say that it is surprising that the form ignores Lord Wilberforce's comment that the inclusion of such a statement would be "wise": it is highly desirable that forms of this kind are drafted in such a way that the attention of the justices who have to make decisions is explicitly directed to each point that they have to consider.)
(7) The warrant was executed six days later, by a team led by a different officer from the same team as D.C. S, namely D.C. D. The officers arrived at the Claimant's home at 6.45 in the morning. He and his wife and two other members of the family who were staying were still asleep. The Claimant makes various allegations of unreasonable behaviour by the officers, which D.C. D denies: I need not form a view about these for the purpose of this application. Even if the officers behaved impeccably, it is easy to appreciate that the experience was deeply distressing to the Claimant and the others in the house. At a fairly early stage in the search D.C. D told the Claimant that he was being arrested on suspicion of downloading indecent photographs of children. He was taken to the local police station and kept in a cell for over three hours before giving an interview under caution, with a solicitor present. He was released in the early afternoon on police bail to return on 6th December, i.e. in some six-and-a-half months' time.
(8) As noted above, three computers were found as part of the search and were seized and taken for examination. The police have power under s. 20 of PACE to require computerised information found on the premises to be copied so that it can be taken away; but that power was not used. The reason, as explained to me on instructions though not covered by the evidence, was that in a search of this kind the police are not interested simply in a few readily-identifiable files but need to access and examine in detail the entire hard drive in order to find not only current files but also deleted or other vestigial material which may give clues to material that may once have existed. Although this can be, and generally is, done using a copy of the hard drive, obtaining that copy requires a much more elaborate exercise than can conveniently be done on site.
(9) It is common ground before me that one or more of the computers seized by the police had on the hard drive documents belonging to the Claimant or his employer which fell within the definition of special procedure material (specifically, to use my terminology, business confidential material). These were returned (in electronic form) reasonably promptly once identified.
The Claimant's Criticisms
(1) The grounds for believing that relevant material would be on the premises
(2) The grounds for believing that no special procedure material would be included in the search
(3) The grounds for believing that the conditions specified in s-s. (3) were satisfied
Conclusion
(b) THE DECISION TO ARREST THE CLAIMANT
(4) The requirement of Wednesbury reasonableness, given the burden on the claimant to establish that the arresting officer's exercise or non-exercise of discretion to arrest him was unlawful, may, depending on the circumstances of each case, be modified where appropriate by the human rights jurisprudence to some of which I have referred, so as to narrow, where appropriate, the traditionally generous ambit of Wednesbury discretion - Cumming, per Latham LJ at para 26. It is not, as a norm, to be equated with necessity; neither Article 5 nor section 24(6) so provide. The extent, if at all, of that narrowing of the ambit or lightening of the burden on the claimant will depend on the nature of the human right in play in this context one of the most fundamental, the Article 5 right to liberty. In my view, it will also depend on how substantial an interference with that right, in all or any of the senses mentioned in paragraph 82 above, an arrest in any particular circumstances constitutes. The more substantial the interference, the narrower the otherwise generous Wednesbury ambit of reasonableness becomes. See the principles laid down by the House of Lords in R v. SSHD, ex p Bugdaycay [1987] AC 514, and in R v SSHD, ex p Brind [1991] 1 AC 696, see e.g. per Lord Bridge of Harwich, at 748F-747B. Latham LJ had also to consider this aspect in Cumming, where, following Lord Diplock in Mohammed-Holgate, at 444G-445C, he said at paragraphs 43 and 44:
43. it seems to me that it is necessary to bear in mind that the right to liberty under Article 5 was engaged and that any decision to arrest had to take into account the importance of this right even though theHuman Rights Act was not in force at the time. The court must consider with care whether or not the decision to arrest was one which no police officer, applying his mind to the matter could reasonably take bearing in mind the effect on the appellants' right to liberty.
44. It has to be remembered that the protection provided by Article 5 is against arbitrary arrest. The European Court of Human Rights in Fox, Campbell and Hartley held that the protection required by the article was met by the requirement that there must be 'reasonable grounds' for the arrest. I do not therefore consider that Article 5 required the court to evaluate the exercise of discretion in any different way from the exercise of any other executive discretion, although it must do so in the light of the important right to liberty which was at stake.
(5) It is a legitimate, but not on that account necessarily Wednesbury reasonable use of the power, to arrest in order to interview and/or to seek further evidence section 37(2) and, Holgate-Mohammed, per Lord Diplock at 445E-G.
(6) It may be Wednesbury reasonable to use the section 24(6) power of arrest as a means of exercising some control over a suspect with a view to securing a confession or other information where there is a need to bring matters to a head speedily, for example to preserve evidence or to prevent the further commission of crime see e.g. Cumming, per Latham LJ at para 44.
(3) THE LAWFULNESS OF THE ONGOING INVESTIGATION
- They do not accept that the case that the transactions in question were the result of identity theft is in any way compelling. On present indications it is a possibility but not a probability. I need not rehearse their detailed reasons, but they include the facts
(a) that the person who accessed the Landslide sites used not only the Claimant's credit card details but also a password and an e-mail address (namely P's: see para. 3 above) which were independently associated with the Claimant's home an identity thief might have stolen those too, but it is much less likely; and
(b) importantly, that one of the seized computers (described on behalf of the Claimant as "the family computer", i.e. not one used primarily by him) was found to contain a five-page pornographic story about sex with children, apparently downloaded from the internet, together with records of two visits to internet sites with names suggesting a similar subject-matter: this, it is said, strongly suggests that there was someone at the Claimant's home with an interest in child sex, and it would be remarkable if the identity thief had by pure coincidence happened to access the Landslide sites in the name of a person who (or a member of whose family) had an active interest in child pornography.
However:
- They do accept that there are strong indications that the person responsible for the Landslide transactions was P and not the Claimant. Again, it is unnecessary to go into great detail, but the most telling points are simply that the e-mail and password given to Landslide were P's and have no association with the Claimant. Mr. Lawson accepted my formulation that "the focus of the enquiry had now shifted to P".
But the police are not at a stage in their enquiries where they are prepared to exclude the Claimant. They believe that it would be wrong to do so until they have interviewed P and heard what he has to say. Mr. Lawson was not prepared to commit to a timetable: indeed what he told the Court on instructions suggested that the matter was likely to remain open for several more weeks.
Conclusion