This week’s digest considers two Supreme Court cases and a decision of the Divisional Court. The Supreme Court, in the first case, considered the extent to which a court can rely on information which cannot be disclosed, for public interest reasons, to a person affected by a search and seizure warrant under s. 8 of the Police and Criminal Evidence Act 1984. In the second case, the court considered the correct starting point for calculating a reduction in the term imposed in default for a part payment in respect of a confiscation order. The Divisional Court quashed a decision of Birmingham Coroner not to include investigations into the identity of the perpetrators of the Birmingham pub bombings within the terms of the Inquests.
R (Haralambous) v. Crown Court at St Albans and another [2018] UKSC 1
The judgment, available here, was handed down by Lord Mance on 24.01.18.
The issue on this appeal was the extent to which courts can rely on information which cannot be disclosed to a person affect by a search and seizure warrant issued under s. 8 of the Police and Criminal Evidence Act 1984. There were five issues on this appeal, each of which received separate treatment. In essence, however, the Supreme Court decided that higher court seized of jurisdiction, either as a result of an appeal or application for judicial review, are entitled to rely on information not disclosed to the person affected by such a warrant or order.
Melanie Cumberland appeared for intervening party, the Secretary of State for the Home Department.
The issue in this appeal was the extent to which courts can rely on information which cannot be disclosed to a person affected by a search and seizure warrant issued under s. 8 of the Police and Criminal Evidence Act 1984 (“PACE”).
Search and seizure warrants were issued ex parte by the St Albans Magistrates’ Court on the 16 June 2014, and executed on 26 June 2014. The appellant was provided with a redacted version of the written application for the warrants and subsequently applied for disclosure of the unredacted materials. This was refused on the grounds of public interest immunity on 25 September 2014. On 26 September 2014, by an application for judicial review, the appellant sought return of the material seized on the basis the warrants, searches and seizures were illegal. By a consent order, signed by the Secretary of State for the Home Department (“SOSHD”), it was agreed that the warrant should be quashed. Prior to this, the SOSHD made a protective application under s. 59 of the Criminal Justice and Police Act 2001 (“CJPA”) for continued retention of the seized materials. That application was granted on 11 June 2015 and the appellant again sought judicial review, which was dismissed by the Divisional Court; they held it was open to a magistrate issuing a search and seizure warrant and a court deciding an application under s. 59 of the CJPA to consider material which was withheld from disclosure on public interest immunity grounds.
The Supreme Court addressed five issues on this appeal:
(i) how far a Magistrates’ Court can rely on information which, for the public interest, cannot be disclosed to the subject of the warrant on an ex parte application for a warranted under ss. 8 and 15(3) of PACE;
(ii)whether, when reviewing the legality of any warrant issued under ss. 8 and 15(3) of PACE,:
- it is permissible for the High Court to have regard to the evidence upon which the warrant was issued which has not been disclosed to its subject; and
- whether, where a Magistrates’ Court is permitted to consider evidence not disclosable, but the High Court is not, it follows that the warrant must be quashed if the disclosable material is insufficient on its own to substantiate the warrant;
(iii) whether there is jurisdiction in the Crown Court to rely on evidence not disclosable to the subject of the warrant in an application to retain unlawfully seized material under s. 59 of the CJPA in an inter partes hearing;
(iv) whether, in proceedings for judicial review of the decision to grant such an order, it is permissible for the High Court to have regard to evidence which is not disclosed;
(v) whether the principles concerning irreducible minimum disclosure apply to proceedings concerning search warrants.
Issue (i)
The statutory scheme of ss. 8 and 15 of PACE allows the Magistrates’ Court hearing an ex parte application to have regard to material which cannot be disclosed to a person affected by the warrant. This is the case even where the sensitive material is decisive for the legitimacy of the warrant. Indeed, the statutory scheme of ss. 8 and 15 PACE are intended to be ex parte and there is nothing therein restricting the information on which the magistrates may act. Further, the procedure under s. 8 PACE, and the Criminal Procedure Rules, provide protections for persons affected by a warrant and the Rules themselves contemplate that the Magistrates’ or the Crown Court will see and rely on information not disclosable, because of public interest immunity, to the subject of the warrant.
Issue (iii)
On an inter partes application under s. 59(7) of the CJPA, the Crown Court can operate a closed material procedure on grounds of public interest immunity. The Crown Court is required to act as though it were a Magistrates’ Court, being asked, immediately after the return of the property, to issue a fresh warrant with a view to its seizure. In view of this, and Issue (i) above, Parliament must have intended PACE and CJPA to operate coherently and contemplated the Crown Court being able to operate a closed material procedure on an application under s. 59 CJPA.
Issues (ii) and (iv)
These issues were taken together as raising essentially the same point.
The High Court can conduct a closed material procedure on judicial review of a magistrate’s order for a warrant pursuant to s. 8 PACE or a Crown Court order under s. 59 CJPA. An analysis whereby, in the absence of a closed material procedure, a court must assume that a public authority has acted properly was unworkable, given that this would effectively deprive judicial review of its efficacy. It would be absurd, and lead to absurd results, if the High Court, considering an application for judicial review, had to address a case on the basis of evidence other to that which formed the basis of the first instance decision giving rise to the application of judicial review.
Issue (v)
Although open justice should prevail, it cannot be the position that relevant information be supplied to any person claiming to be affected and seeking to object to a warrant, search or seizure. The decision whether to disclose such information is highly fact sensitive, but – in general terms – the question posed in (v) should be answered in the negative.
R (Gibson) v. Secretary of State for Justice [2018] UKSC 2
The judgment of the court, available here, was handed down by Lord Reed on 24.01.18.
The issue in the appeal was whether the basis for calculating any reduction from a sentence imposed in default of payment under a compensation order was the proportion of the part payment as against the sum at the time the order was made, or the net sum (i.e. including interest) at the time the payment was made. On a true construction of the applicable legislation (s. 79(2) of the Magistrates’ Courts Act 1980), the former was the correct basis.
David Perry QC and William Hays appeared for the respondent.
The appellant, who was convicted of drug trafficking offences, was the subject of a confiscation order made on 29 March 2000. He was ordered to pay a little over £5.4m. As is normal, the order fixed a sentence of six years’ imprisonment (“the term”) if the appellant failed to pay the amount within 12 months. On 4 May 2007, a receiver appointed to realise the appellant’s assets, paid £12,500 in respect of the sum ordered and the magistrates accordingly deducted seven days from the term. Interest had caused the net sum to be increased to £8.1m. Further payments were made by the appellant’s receiver, £12,500 and £63,750 in 2007 and 2011 respectively. The reductions to the term were calculated on the basis of the proportion of the sums paid to the inflated sum of £8.1m, not the original £5.4m. If the calculation had been made on the basis of the latter, a 35 day reduction would have been made. As the reduction was made on the basis of the inflated sum, the reduction was 24.
The question for determination on this appeal was whether interest should be included in the starting point under s. 79(2) of the Magistrates’ Courts Act 1980 (“MCA”) for the calculation of a reduction for part payment of a confiscation order. The Supreme Court answered this question unanimously in the negative, Lord Reed and Lord Hughes giving a joint judgment.
The difficulties in this case arose from the fact that the enforcement of confiscation order is achieved by applying statutory provisions to confiscation orders which were not designed for them. A confiscation order is treated as if it were a fine imposed by the magistrates and thus the provisions of s. 79 MCA apply to the enforcement of confiscation orders made by the Crown Court.
The operative words of s. 79(2) MCA expressly provide that the days to be deducted are to be the number which bear the same proportion to the total default term as the part payments bear “to so much of the said sum… as was due at the time the period of detention was imposed”. At the time the Crown Court imposed the default term, there was no interest accrued. Straining of the words could not be justified where it would adversely impact on the period of imprisonment to which a person is subject; penal legislation should be construed strictly. Thus, the starting point for the calculation of reduction of days of imprisonment is the sum outstanding at the time the order was made.
R (on the application of Hambleton) v Coroner for the Birmingham Inquests (1974) [2018] EWHC 56 (Admin)
The judgment, which is available here, was handed down by Simon LJ on 26 January 2018.
Each of the 10 claimants was a relative of a person who died in the Birmingham pub bombings in 1974. An Inquest was ordered, with Sir Peter Thornton QC, the Coroner, ruling that the Inquests would comply with the procedural requirements of Article 2 of the ECHR and would be held with a jury. The Coroner ruled that investigations into the identity of the suspected perpetrators would not be dealt with as part of the Inquests. The court concluded that the Coroner posed the wrong question when he considered whether the identity of the perpetrators ought to be included within the terms of the Inquests.
In quashing the Coroner’s decision, the court took the opportunity to provide guidance on how to determine the scope of an inquest:
- The fact that the jury is precluded by s.10(2)(b) of the Coroners and Justice Act 2009 from making a determination which is framed in a way that determines any question of criminal liability of a named person, and the fact that the primary responsibility for detecting and prosecuting individuals for crimes vests with the police and prosecuting authority, are not (at least without more) reasons for excluding the identification of perpetrators from the scope of the Inquests. However, the implicit inhibition in s.5(3) and the explicit prohibition in s.10(2)(a) highlight the difference between the proper ambit of an inquest on the one hand, and the role of police investigations and prosecutions in criminal trials on the other.
- It seemed to the court that it would be wholly inconsistent with the principle of finality in legal proceedings that those who have been acquitted of a homicide offence should then be the subject of a full enquiry as to whether they were in fact guilty, provided that no findings were in fact made.
- Although inquests should not become proxy criminal trials without the protections afforded to defendants, there may be inquests in which the identity of those involved in violent deaths may properly be within the scope of the inquest.
- As already indicated, issues of fairness and proportionality will be relevant. The court recognised that fairness in the process may involve fairness to those who have a profound and abiding interest as relatives of the deceased as well as to those who may be implicated in a homicide. The law does not recognise any time limits for the prosecution of defendants. However, it recognises the difficulties that witnesses may have in accurately recollecting events after a long passage of time; as it does the potential unreliability of hearsay and double-hearsay evidence from ‘confidential sources’ described in books and the press, whose provenance and reliability may be very difficult, if not impossible, to establish and which cannot easily be tested. Such considerations may go to the reasonableness and proportionality of the potential scope of an inquest.
- The size and complexity of an investigation into the criminal responsibility of individuals, 43 years after the event, in circumstances where police investigations and reviews have failed to identify the perpetrators, is a relevant factor. However, it was held that is not an overwhelming factor and the position may change if new information comes forward.
- It was submitted on behalf of the claimants that the availability of coronial resources was an irrelevant factor where there had been failure by the State to bring the perpetrators of murder to justice. As a statement of abstract principle, the court agreed. If the identity of the perpetrators is properly regarded as being within the scope of the Inquest, then the court stated that it would not expect limitations on financial resources to inhibit the inquiry. However, the fact that significant police resources have been deployed without leading to the identification of the perpetrators is a potentially relevant factor in deciding where the line is to be drawn.
- Proportionality is a material consideration.
- The court did not agree that the jury would be unable to identify an individual involved in the planning, planting, procuring or authorizing of the bombing without breaching the statutory prohibitions. The statutory regime would circumscribe certain aspects of an enquiry into potential perpetrators but s.10(2) applies to the conclusion not the investigation. A jury could plainly explore facts bearing on criminal and civil liability.
The court also concluded that neither the domestic nor the ECtHR authorities lead to the conclusion that the procedural requirement under article 2 required the Inquests to investigate the identity of the persons responsible for the Birmingham bombings. That is the role of the police who continue to investigate this issue in so far as they are able to do so.
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