West Law Report

REDKNAPP v COMMISSIONER OF POLICE OF THE METROPOLIS & OTHERS

Posted in search order, Seizure, Westlaw Reports by mrkooenglish on June 18, 2008

Last Updated: 8:33PM BST 11/06/2008
Divisional Court Latham LJ, Underhill J May 23, 2008
Conspiracy to defraud – Defects – Execution – Powers of entry – Powers of search – Search and seizure – Search warrants – Lawfulness of issue and execution – Football clubs – s. 345 Proceeds of Crime Act 2002 – S. 9 Police and Criminal Evidence Act 1984 – Sch. 1 para. 12 Police and Criminal Evidence Act 1984 – S. 8 Police and Criminal Evidence Act 1984 – S. 8(3) Police and Criminal Evidence Act 1984 – S. 16(5) Police and Criminal Evidence Act 1984

FACTS

The first claimant football club manager (R) and his wife, applied for judicial review of the issue and execution of a warrant to search eight premises, including their property. The police had suspected that R and others might have conspired together to defraud, and to commit false accounting and money laundering offences over the transfer of football players at R’s club and elsewhere. The police were granted production orders under the Proceeds of Crime Act 2002 s. 345 but, not satisfied with the material they obtained, made a further application for warrants under the Police and Criminal Evidence Act 1984 s. 9 and sch. 1 para 12 to search business premises of the clubs concerned. On execution of the warrants, files containing correspondence between solicitors, the football club and R were taken. Thereafter, R made it clear that he was prepared to co-operate with the police but was anxious that every effort should be taken to ensure that publicity was kept to a minimum. A detective constable successfully applied ex parte for a warrant under s. 8 of the Act in order to search eight premises. The premises included R’s home address, where the police intended to arrest him when the warrant was executed, but he was in Germany at the time. The search of R’s home was witnessed by a number of reporters from a newspaper, and the resultant publicity was extensive and damaging. R submitted that (1) the warrant was issued unlawfully as it was defective for several reasons including that the statutory pre-conditions were not satisfied, it was drawn too widely, and that the justice of the peace had no power to grant a warrant that was for both “specific premises” and “all premises”; (2) he and his wife could properly complain about the circumstances of the warrant’s execution and the resultant publicity.

ISSUES

(1) Whether the warrant was issued unlawfully as it was defective for several reasons.

(2) Whether R and his wife could properly complain about the circumstances of the warrant’s execution and the resultant publicity.

HELD (application granted)

It was wholly unacceptable that the police had not properly completed the pro forma document that accompanied the warrant application. The obtaining of a warrant was never to be treated as a formality; it authorised the invasion of a person’s home. All the material necessary to justify its grant should have been in the information provided on the form. The police failed to delete the inapplicable alternatives, which meant that they failed to indicate which of the four conditions in s. 8(3) of the 1984 Act was applicable. The magistrate should have been informed, either in the information or orally, that material similarly described had been the subject matter of the earlier warrants. However, the police were justified in drawing the description of the material widely in the circumstances. Even if the magistrate had been properly informed, there would have been no justification for his refusing the warrant simply on the grounds that it was widely drawn, and there would have been a need to make provision for ensuring that material that should not be seized was not seized. Nowhere in the detective constable’s statement does he say that he identified to the magistrate which of the four s. 8(3) conditions was being relied on. As the validity of the warrant was in question, it was wholly unreliable to have been asked to rely on anything other than the application itself, and if necessary, a proper note or record of any further information given orally to the magistrate. As the conditions set out in s. 8(3) were not met, the warrant was unlawfully issued and would be quashed. Whilst the Act distinguished descriptively between a “specific premises warrant” and an “all premises warrant”, there was no indication in the Act itself that one warrant could not include both types. Parliament did not intend such a warrant to be unlawful and, provided the relevant information was given to the magistrate, there would be no vice in such a warrant.

(2) R’s complaint about publicity would only be relevant if there was material suggesting that the police had procured the presence of the journalists. That would require a detailed examination of the evidence, which could not be carried out on the instant application. There was no evidence that the search went beyond what was justified under the warrant. However, the copy of the warrant given to R’s wife failed to specify their home address, so the requirements of s. 16(5) of the 1984 Act were not met and the execution of the warrant was not valid.

Alun Jones QC and Rupert Bowers (instructed by Jeffery Green Russell) for the claimants. Tim Owen QC and Alex Bailin (instructed by City of London Corporation) for the first defendant

United States v. Ankeny

Posted in Amendment 4th, search order, sentence by mrkooenglish on May 15, 2008

Richard M. Re’s comment in Yale Law Journal, United States v. Ankeny: Remedying the Fourth Amendment’s Reasonable Manner Requirement.

Better read the case first:

A conviction and sentence for being a felon in possession of a firearm and possession of an unregistered sawed-off shotgun are affirmed in part where, even if knock-and-announce violation and other aspects of a search amounted to Fourth Amendment violations, suppression was not warranted. However, the judgment is reversed in part and vacated in part as to the sentence, as the convictions were multiplicitous and material errors were made at sentencing.

HOME SECRETARY v E & ANR

Last Updated: 1:26AM BST 07/06/2007
Court of Appeal (Civil Division)
Pill, Wall and Maurice Kay LJJ
May 17, 2007

May 17, 2007 Conditions precedent – Non-derogating control orders – Prosecutions – Restrictions – Right to liberty and security – Impact of control order on rights under Art. 5 European Convention on Human Rights 1950 – Secretary of state’s continuing duty to review prospects of prosecution – Art. 5 European Convention on Human Rights 1950 – Art. 3 European Convention on Human Rights 1950 – Art. 8 European Convention on Human Rights 1950 – s. 8(2) Prevention of Terrorism Act 2005
FACTS

The appellant (P) appealed against a decision ([2006] EWHC 1226, [2006] Ch 549) that highly objectionable images of children recovered from his computer following the execution of a search order made in intellectual property proceedings should be disclosed to the police. P had permitted the search of his premises to take place, but asserted that he would rely on his privilege against self-incrimination in respect of any material that the search might disclose. An employee of the company responsible for “imaging” the computer had discovered the offending material and applied to the court for directions. The judge below proceeded on the basis that, by reason of Rank Film Distributors Ltd v Video Information Centre [1982] AC 380, before the Human Rights Act 1998, the privilege against self-incrimination would have applied to permit a defendant in civil proceedings not only to refuse to answer questions or produce documents by way of discovery, but also to refuse to produce any incriminating article found in the course of a search of premises pursuant to a court order.

The judge held that since the 1998 Act and by reason of the decision in Saunders v United Kingdom (19187/91) [1997] BCC 872, the privilege did not apply in criminal proceedings in relation to pre-existing or “independent” evidence. Accordingly, the judge held that, since it was illogical for the privilege to be wider in civil proceedings than in criminal proceedings, the court could modify the common law doctrine as laid down in Rank and could rely on the partial exception to the doctrine of precedent set out in Kay v Lambeth LBC [2006] UKHL 10, [2006] 2 AC 465. The issue for determination was whether P could invoke the privilege to prevent disclosure of the material to the police. P submitted that it was not permissible for the court to use the 1998 Act when no human rights were engaged in order to justify departing from the law laid down by precedent. The Attorney General, intervening, submitted that, whilst the judge had ultimately made the right decision, there was never any difference between the civil law and the criminal law, and the rationale for the privilege had no application to independent evidence.

ISSUE

(i) Whether the restrictions in the control order did not constitute a breach of Art. 5. (ii) Whether the judge had been wrong to find that he had breached his duty to consider and review the prospects of prosecuting E.

HELD (appeal allowed)

(i) The degree of physical restraint on E’s liberty was far from a deprivation of liberty in terms of Art. 5, Guzzardi v Italy (A/39) [1981] 3 EHRR 333, Engel v Netherlands (A/22) (1979-80) 1 EHRR 647 and Trijonis v Lithuania (Admissibility) (2333/02) considered. E lived in his own home with his family, and was able to leave his home for 12 hours a day with no geographical restriction on where he could go. E had ample opportunity to engage in everyday activities and make a wide range of social contacts, Secretary of State for the Home Department v JJ [2006] EWCA Civ 1141, [2006] 3 WLR 866 distinguished. While the state of a controlled person’s health, and possibly other “person-specific” characteristics, might have an impact on the severity of the effect of the restrictions imposed, the judge below was correct in finding that, in the instant case, only very limited weight could be given to that factor. The judge had been right to conclude that the control order was likely to be renewed on expiry of the relevant 12-month period and to consider the restrictions on that basis. The judge had not erred in considering matters relevant to arguments under Art. 3 and Art. 8 in his consideration of Art. 5.

(ii) When properly considered in its statutory context, the duty under s. 8(2) of the 2005 Act to consider and review the possibility of prosecution was not a condition precedent to the making or renewal of a control order. The judge below had been right to find that the secretary of state had breached his duty to keep the possibility of prosecuting E under review. It was incumbent upon him to provide the police with material in his possession which was or might be relevant to any reconsideration of prosecution. The duty extended to a duty to take reasonable steps to ensure that the prosecuting authorities were keeping the prospects of prosecution under review; it did not extend to the secretary of state becoming the prosecuting authority. The secretary of state had breached his continuing duty of review by omitting to provide the police with the Belgian judgments so as to prompt and facilitate a reconsideration, Secretary of State for the Home Department v MB [2006] EWCA Civ 1140, [2006] 3 WLR 839 applied.

(iii) The judge had erred in describing the Belgian judgments as “evidence” giving rise to a realistic possibility of prosecution. He had erred in law in holding that the secretary of state’s breach justified the quashing of the control order, and ought instead to have further analysed the consequences of the breach.

R Tam QC and A O’Connor (instructed by the Treasury Solicitor) for the appellant. K Starmer QC and H Southey (instructed by Birnberg Pierce & Partners) for the respondents. A McCullough (instructed by Special Advocate Support Office) for Special Advocate.