REDKNAPP v COMMISSIONER OF POLICE OF THE METROPOLIS & OTHERS

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

Reasonableness of Forcible Seizure and Fourth Amendment

A leading case summery of Harvard Law Review: Scott v. Harris (2007) (12 pages)

Fourth Amendment – Reasonableness of Forcible Seizure

The Supreme Court has long struggled to determine the circumstances under which public officers should be protected from civil liability. In 2001, Saucier v. Katz established a two-pronged test for resolving such qualified immunity claims. In the first step, a court asks if,
“[t]aken in the light most favorable to the party asserting the injury, . . . the facts alleged show the officer’s conduct violated a constitutional right.” Only if the plaintiff establishes a constitutional violation does a court then look to whether the officer is entitled to qualified immunity, determining “whether, at the time of the incident, every objectively reasonable [officer] would have realized the acts violated already clearly established federal law.”

Last Term, in Scott v. Harris, the Supreme Court held that an officer’s use of deadly force to terminate a car chase was not a violation of the suspect’s Fourth Amendment rights and thus did not satisfy the first prong of the Saucier test. The Court’s opinion rested on an unsatisfying constitutional holding, the result of its adherence to the problematic Saucier decision. A better approach would have been for the Court to decline to apply the Saucier standard in the prescribed sequence and instead to decide the case on qualified immunity grounds alone.