This week’s Digest considers two judgments of the Divisional Court. First, a judicial review challenge to a search warrant obtained under s. 23 of the Misuse of Drugs Act 1971, in which the court refused to extend the mistake of fact ground of review to search warrant cases. Second, an important case on the service by email of appeal notices in extradition cases.
R (on the application of Daly) v. The Commissioner of Police of the Metropolis and another [2018] EWHC 438 (Admin)
The judgment of the court, available here, was handed down by Sir Brian Leveson, President of the Queen’s Bench Division, on 07.03.18.
This judicial review claim sought to challenge the grant of a search warrant pursuant to s. 23 of the Misuse of Drugs Act 1971 on the basis that (i) the evidence relied on was misconceived and/or (ii) the facts of the case established the police acted with malice. The claim failed and the application for judicial review was dismissed; evidence proved subsequently to be misconceived by the police did not provide a reason for quashing the warrant and the facts disclosed no malice on the part of the police.
This judicial review claim challenged the application by the Metropolitan Police for a search warrant pursuant to s. 23 of the Misuse of Drugs Act 1971, addressed to a house occupied by the claimant (“the Premises”). The basis of the warrant was thermal imaging evidence which showed that the Premises was emitting a significantly greater amount of heat from the roof/chimney stack compared to surrounding buildings. The inference the police drew, based on experience, was that this level of heat was caused by use of hydroponic lighting, which accelerates the cultivation of cannabis plants. On the basis of further evidence, including an officer’s report of a smell of cannabis in the vicinity and blacked out windows, the district judge concluded that it was reasonable and proportionate to grant the warrant. Subsequently established material, however, suggested that the evidence that the police relied on to obtain the warrant was erroneous or, at least, misconceived. The claimant particularly sought to rely on expert evidence to establish the thermal imagery had been wrongly interpreted.
In Sir Brian Leveson’s view, however, such material could not invalidate a warrant otherwise properly obtained; the court refused to extend the mistake of fact ground of review to search warrants for the reason it would deprive search warrants of their potency. Further, quashing a search warrant by means of judicial review would leave the way open to civil action without proof of malice (which is otherwise required when the police act pursuant to a warrant properly obtained). That malice placed a difficult and often insuperable obstacle in the way of a claimant who sought to recover such damages was not a reason for removing it. Provided that the police have not misled the court, have made full and frank disclosure, and taken reasonable steps along the lines identified in the Code of Practice – as they had in this case – there was no grounds, in the absence of malice, for disturbing the warrant. Further, there was no hope of establishing malice on these facts.
The Public Prosecutor’s Office of the Appeal Court of Eastern Crete, Greece v. Andrew [2018] EWHC 441 (Admin)
The judgment of the court, available here, was handed down by Lord Justice Hickinbottom on 06.03.18.
This appeal was brought under s. 28 of the Extradition Act 2003 against the order of a District Judge discharging the respondent from a European Arrest Warrant on Article 8 ECHR grounds. The appeal, however, was dismissed; the appellant’s notice had been served out of time and, as such, the court had no jurisdiction to hear the appeal.
The issue in this appeal, brought under s. 28 of the Extradition Act 2003 (“the 2003 Act”), was whether the appellant’s notice had been served in time and thus whether the court had jurisdiction to hear the appeal. The appellant judicial authority sought the extradition of the respondent, whose European Arrest Warrant had been discharged by order of a DJ on 17 August 2017.
It was common ground that the appellant was, therefore, required to serve any notice of appeal on or before 23 August 2017 (see ss. 26(4) and 28(5) of the 2003 Act, confirmed by CrimPR r. 50.19(3)(a)). Although the appellant had purported to serve their notice by email on the morning of 22 August, it transpired that the emails were not actually received until after the permitted time for serving their appellant’s notice because of the size of the email files sent by the appellant. Hickinbottom LJ accordingly found that as at the end of 23 August the respondent had neither received any of the appellant’s documents nor notice of the appeal; the presumption of service had been rebutted (see CrimPR r. 4.11(1): “Unless something different is shown, a document… is served… (d) (i) on the day on which it is sent …, if that day is a business day and if it is sent no later than 2.30pm that day”).
The time limit in such cases is rigid and incapable of extension (Mucelli v. Albania [2009] UKHL 2; [2009] 1 WLR 276). The documents had been served out of time and the Divisional Court had no jurisdiction to hear the appeal.
In the News
Court closures affecting access to justice?
The government’s court closure program has seen the sale of 126 properties which has raised just £34m. Labour contends that the program has raised pitifully small sums while creating geographical gaps and causing access to justice concerns.
The full piece can be read here.
Isaiah Haastrup has died
After an unsuccessful appeal to the European Court of Human Rights, Isaiah Haastrup had his life-support removed and died.
The full piece can be read here.
FGM on the rise in the UK, yet still no successful prosecutions
Figures show nearly a five-fold increase in FGM in the UK, and still there has been no successful prosecution. According to figures published by City University, 114,000 girls are at risk of FGM in England and Wales, but next week will see the opening of only the third trial in the three decades since FGM was made illegal in the UK.
The full piece can be read here.