The Queen on the application of v MARK CRONIN [2002] EWHC 2568 (Admin)

IN THE HIGH COURT OF JUSTICE

QUEEN'S BENCH DIVISION

DIVISIONAL COURT

[2002] EWHC 2568 (Admin)

Case No CO/1123/2002

Venue Royal Courts of Justice, The Strand, London

Between

The Queen on the application of

MARK CRONINClaimant

SHEFFIELD MAGISTRATES' COURTDefendant

CHIEF CONSTABLE OF SOUTH YORKSHIRE POLICE

Interested Party

Before

Lord Chief Justice of England

Lord Woolf of Barnes

Mrs Justice Hallett

Mr Justice Stanley Burnton

MR STEPHEN CRAGG (instructed by Messrs Howells, Sheffield S3 appeared on behalf of THE CLAIMANT

MISS FIONA BARTON (instructed by the Force Solicitor, South Yorkshire Police) appeared on behalf of THE INTERESTED PARTY

Date 20 November 2002

[1]Wednesday 20 November 2002 THE LORD CHIEF JUSTICE: The background to this application for judicial review, which is made with the permission of Sedley LJ and Poole J, is shortly as follows. Mr Mark Cronin is a perfectly law-abiding citizen whose home was entered by the police in circumstances which he could not understand, to search for evidence in relation to drugs. He naturally was deeply concerned that this should have happened and he wanted an explanation for it. As a result of his concerns, eventually an application for judicial review was made and it is that application which is before the court.

[2]Having stated that short summary of the background to this application it can be seen immediately that it raises a matter of public concern. A citizen's home should not be entered unless there is lawful justification for this being done or the citizen has given permission. In the absence of permission or lawful justification, it would clearly be an unlawful trespass in relation to which the citizen is entitled to damages.

[3]Against that picture I turn to the statutory provisions which are relevant to the present application for judicial review. Section 8 of the Police and Criminal Evidence Act 1984 provides:

"Power of justice of the peace to authorise entryand search of premises (1) If on an application made by a constable a justice of the peace is satisfied that there are reasonable grounds for believing -- .... he may issue a warrant authorising a constable to enter and search the premises."

There are then provisions relating to the seizure and retention of anything for which the search had been authorised, which are not relevant to the present application.

[4]Section 15 provides:

"Search warrants -- safeguards (1) This section and section 16 below have effect in relation to the issue to constables under any enactment, including an enactment contained in an Act passed after this Act, of warrants to enter and search premises; and an entry on or search of premises under a warrant is unlawful unless it complies with this section and section 16 below. (2) Where a constable applies for any such warrant, it shall be his duty -- (a) to state -- (i)the ground on which he makes the application; and (ii)the enactment under which the warrant would be issued; (b) to specify the premises which it is desired to enter and search; and (c) to identify, so far as is practicable, the articles or persons to be sought. (3) An application for such a warrant shall be made ex parte an supported by an information in writing. (4) A constable shall answer on oath any question that the justice of the peace or judge hearing the application asks him. (5) A warrant shall authorise an entry on one occasion only. (6) A warrant -- (a) shall specify -- (i)the name of the person who applies for it; (ii)the date on which it is issued; (iii)the enactment under which it is issued; and (iv)the premises to be searched; and (b) shall identify, so far as is practicable the articles or persons to be sought. (7) Two copies shall be made of a warrant. (8) The copies shall be clearly certified as copies."

[5]Section 16 deals with the execution of a warrant and sets out the requirements of what is to happen when the warrant is executed. I do not need to set out for the purposes of this judgment the contents of section 16 because there is no issue in this case as to the compliance with section 16 in respect of the execution of a warrant which was issued. It is, however, relevant to note that section 16 is specific and precise as to what can be done under a warrant. If section 15(1) is not complied with, then an entry on or a search of premises under a warrant would be unlawful.

[6]Section 23 of the Misuse of Drugs Act 1971 refers to the powers to search and obtain evidence. Subsection (2) provides:

"If a constable has reasonable grounds to suspect that any person is in possession of a controlled drug in contravention of this Act or any regulations made thereunder, the constable may -- (a) search that person, and detain him for the purpose of searching him; ..... .... (3) If a justice of the peace .... is satisfied by information on oath that there is reasonable grounds for suspecting -- (a) that any controlled drugs are, in contravention of this Act or any regulations made thereunder, in the possession of a person on any premises; or (b) that a document directly or indirectly relating to, or connected with, a transaction or dealing which was, or an intended transaction or dealing which would if carried out be, an offence under this Act, or in the case of a transaction or dealing carried out or intended to be carried out in a place outside the United Kingdom, an offence against the provisions of a corresponding law in force in that place, is in the possession of a person on any premises, he may grant a warrant authorising any constable acting for the police area in which the premises are situated at any time or times within one month from the date of the warrant, to enter, if need be by force, the premises named in the warrant, and to search the premises and any persons found therein and, if there is reasonable ground for suspecting that an offence under this Act has been committed in elation to any controlled drugs found on the premises, or in the possession of any such person, or that a document so found is such a document as is mentioned in paragraph (b) above, to seize and detain those drugs or the documents, as the case may be."

[7]Subsection (4) provides:

"A person commits an offence if he -- (a) intentionally obstructs a person in the exercise of his powers under this section; ...."

The police relied upon section 23(3)(a) to obtain a warrant in this case.

[8]The application for the warrant was made on 21 November 2001 by Police Constable Frost at the Sheffield Magistrates' Court. He applied for a search warrant in respect of 35 Coultas Avenue, which is the address of the claimant. The application was supported by an information and by oral evidence given by the police officer. The information gives a clear indication of the basis upon which the application was made. First, it refers to the Misuse of Drugs Act 1971, which I have just cited. It then goes on to refer to section 15 of the Police and Criminal Evidence Act 1984, to which I have already referred. It recites that the information on oath of PC 3089 Nina Frost, a constable in the South Yorkshire Police, states that she has reasonable cause to believe that the claimant, at his address, has in his custody or possession cannabis and items connected to the supply of the substance. Under the heading "Grounds of the application are", the information contained in a box reads:

"Please give consideration to the following points: What intelligence there is; What observations have been made; How reliable is the information received; Enquiries made to establish what is known about he likely occupier of the premises themselves; Enquiries made to corroborate the information; if the source is reliable, tried and tested; Sources contacted to ensure that this is the correct address."

Under that box appear the following statements:

"This address is occupied by Mark Cronin. In October/November 2001, the police were contacted by an anonymous [that word should be noted] male stating that they had witnessed various persons visiting the target address at all times of the day, both on foot and in vehicles. These persons were unknown to the source but only visited the target premise for a matter of minutes before leaving. It has been stated that the premises were involved in the supply of cannabis. The source has since contacted the Police and confirmed that the activity is constant. This same unregistered source had contacted the police on several occasions and has supplied reliable information. Enquiries with the council reveal that Cronin is the tenant of the semi-detached property and they have also received complaints in relation to vehicles visiting the address in the summer of 2001, by local residents. The vehicles which are visiting the address on a regular basis, are used by the local drug fraternity who have previous criminal convictions for possession of cannabis."

[9]Following the heading "Necessity/Proportionality" appears another box in which it is said:

"Please give consideration to the following points: Why it is necessary to secure a warrant; What other methods have been considered to gain entry; Is the execution of a search warrant proportional to the criminal activity under investigation? What would be the likely outcome if notification of the proposed search was given? The timing of the proposed search; The risks of unnecessary intrusion into the privacy of others not under investigation; What other occupants are likely to be on the premises."

[10]The information then states:

"Due to it being suspected that these premises contain drugs it is strongly suspected that access will not be permitted without a search warrant. Therefore evidence may be destroyed prior to the search being concluded. This is the least intrusive method of carrying out this enquiry. A search warrant is considered to be a proportionate response. It is anticipated that the sole occupant will be present at the search of the premises and there is no suggestion of any children being present. There will be no intrusion into the privacy of others due to the warrant being limited to the residential property of 35 Coultas Avenue."

It is then dated and signed by the officer, and the name of the officer making the application is included. There is a provision for "Comments by Officer authorising the application", but no comment is noted. However, the document is dated 20 November. It is signed by the officer authorising the inspection. His rank is that of inspector. There is then provision for "Comments by the Justice of the Peace". The document concludes: "This information laid before me on 21 November 2001", and it is signed by a justice of the peace.

[11]We are not told when this particular document came into use, but having regard to its terms it appears clear that it has been carefully drafted, having regard to the provisions of the legislation contained in the Misuse of Drugs Act 1971 and in sections 15 and 16 of the Police and Criminal Evidence Act 1984. It is clear that it has been drafted bearing in mind the requirements contained in the Human Rights Act to comply with Articles 6 and 8 of the European Convention on Human Rights. The reference in the document to "Necessity/ Proportionality" give that clear inference.

[12]The document also makes it clear that the officer who is seeking the warrant will have supported the application on oath before the magistrate. Consequently, having read the document the magistrate as well as the officer would be aware of the passages contained in the boxes.

[13]That Information having been presented to two magistrates, the warrant was issued and signed by one. It is perfectly appropriate for a warrant to be issued by only one. As it happens, there was a second magistrate who was present and, having heard the application, that magistrate took part in the consideration of this particular warrant.

[14]The warrant is headed "SHEFFIELD MAGISTRATES' COURT". It recites by whom the application for the warrant was made. It recites the fact that it was made under the Misuse of Drugs Act and under section 15 of the Police and Criminal Evidence Act 1984. It identifies the premises to be entered and searched. It specifies what is authorised to be searched for, namely "Cannabis, and items used in the supply of cannabis and drug paraphernalia". It goes on to say:

"Authority is hereby given for any constable accompanied by such person or persons as are necessary for the purpose of the search, to enter the said premises on one occasion only within one month from the date of issue of this warrant and to search for the articles or persons in respect of which the above application is made. A copy of this warrant should be left with the occupier of the premises or, in his absence, a person who appears to be in charge of the premises or, in no such person is present, in a prominent place on the premises."

It is dated, it gives the time that it issued and is signed by the justice of the peace.

[15]Pausing there, if the information to which I have referred is available together with the warrant, the obvious inference would be that the magistrate had granted the warrant on the basis of the material contained in the Information and had done so having been satisfied by that Information that the requirements of section 23(3) of the Misuse of Drugs Act 1971 had been complied with. On examination of the Information it would be possible to say, if the matter had to be reviewed by a court, whether there was material on which a magistrate could be so satisfied. Therefore, without any more, it would be possible for a court to scrutinise the question of whether this was a case where, prima facie, the warrant had or had been not been lawfully issued. If there was any further material which had to be shown in order to indicate whether the warrant had been properly and lawfully issued, it would be necessary for evidence to be given of that if it was sought to be relied upon in order to rebut a challenge as to the legality of what occurred.

[16]In this case there have been affidavits filed by the magistrates. They are three in number: two from the magistrates who were present and one from their legal adviser. One of the magistrates has a fairly clear recollection of what happened and can give details of what occurred. The other magistrate, not surprisingly, has no independent recollection and can only refer to the practice which is adopted by him in respect of applications for warrants which are made. In his affidavit the legal adviser also deals with the general practice. He points out that he has been in the Magistrates' Courts Service for 32 years, 21 of which he has been a legal adviser. He explains that the applications, the subject of this judicial review are normally dealt with in a designated applications court. He says that this particular application was not dealt with in that applications court; it was dealt with prior to a hearing of the day in question, together with two other applications for search warrants. From his records he is able to give certain information. He adds:

"In circumstances such as existed on that occasion it is usual to deal with search warrants in the privacy of the retiring room to recognise the sensitive nature of the applications."

The fact that a warrant is being sought is sensitive because if it came to the knowledge of the person whose premises were the subject of the search, the whole object of entering the premises under the warrant without warning could be defeated. The legal adviser adds:

"My invariable practice is to direct the justice of the peace to the relevant test to be applied for warrants sought under the relevant provision. For applications under section 23(3) Misuse of Drugs Act 1971 the magistrate must be satisfied that there is reasonable ground for suspecting any controlled drug is in contravention of that Act or any regulation made thereunder in the possession of a person on any premises. I would make particular reference to any statutory direction or requirements, including those safeguards set down in section 15 PACE 1984. I would draw to the attention of the justice relevant considerations under the Human Rights Act 1998, specifically whether it is necessary and proportional to the circumstances presented to issue a warrant. Considerations here would include why it is necessary too secure a warrant; what other methods have been considered to gain entry; whether the execution of a search warrant is proportional to the criminal activity under investigation; the timing and details of the proposed execution; the risks of unnecessary intrusion into the privacy of others not under investigation and whether other occupants are likely to be on the premises. I would proceed to draw the justice of the peace's attention to any factors which I consider to be relevant to the application acting within the terms of the Practice Direction: (Justices: Clerk to Court) 2000. Where relevant matters arise during the course of the application, as a result of directions given to the justice of the peace or as a result of enquiries made of the applicant and which do not otherwise appear within the body of the information, it is my invariable practice to direct the justice of the peach to endorse those matters by way of written comments in the relevant section of the information. If matters had arisen or enquiries revealed factors which have properly been taken into account on issuing the warrant, I would direct the justice to indicate those factors by marking the information accordingly."

[17]I remind myself that the Information contains space for such comments to be recorded. Under the heading "Conclusion" the legal adviser says:

"In furtherance of this application, I have reviewed the original information and search warrant documentation. Whilst I remain unable to recall specific detail of the application, I would respectfully suggest that no reasonable magistrate cold conclude that the tests set out above for he issue of the warrant have not been made out on the face of the information, irrespective of any additional relevant matters which may or may no have been elicited by the enquiries of [the two magistrates]."

He then makes certain important observations:

"It would appear that the applicant is seeking relief in the form of a direction that notes of evidence should be taken and reasons given for the grant of search warrants. On he applicant's interpretation, this would be the procedural safeguard to rebut any suggestion that such applications do not succumb to a process of sufficient scrutiny and judicial cognizance and are, in fact, a 'rubber stamping' exercise. The logical continuation and inference of this argument must be that, if notes and reasons are to be a requirement of this process, they should be available to those persons directly affected by the granting of search warrants )usually occupants of the target premises -- in this case the claimant). How otherwise could such person(s) be satisfied that a full and proper judicial process has been followed and that adequate scrutiny and consideration of the information has taken place? I would ask the court to find that notes of evidence are, in effect, taken. The information is confirmed on oath and becomes the written record of evidence received. Other additional matters elicited through direct enquiry of the applicant are recorded to the extent that they have a direct bearing upon the issue of the warrant are properly noted on the information under the provision marked 'comments by justice of the peace"

. Again such comments provide a written record of evidence received and evidence taken into account or discounted. For justices of the peace or legal adviser to take a full note of the evidence of an applicant would unreasonably protract applications and [serve] no useful purpose as it would invariably be a restatement of the facts contained in the written information. With regard to the recording of reasons, the information already the note of the evidence is the basis of any reasons the magistrate could give. Any formal reasons provided by the justice could only be a restatement of what is already contained within the information (to include additional matters where comments have been endorsed). There is no opportunity in these circumstances to make findings of fact. This is an ex parte application and not a trial situation, with no provision for the other party to present an alternative scenario. To pub any relevant party on notice would defeat the purpose of the application. Nothing is capable of being challenged by the magistrate's own enquiry. By signing the information the magistrate is accepting the prima facie truth of the matters stated on oath and contained within the information verified on oath. Matters with which the magistrate is not satisfied, following enquiry of the applicant, would be highlighted and endorsed within the 'comments' section of the information. I would also respectfully ask the court to consider the implications of disclosure of the information, notes of evidence or reasons for the grant of an ex parte application. Whether such disclosure would be in the public interest or interests of justice, having regard to the material potentially contained in such an information, notes of evidence or reasons, and the possibility that an investigation could be compromised or a source of information placed in jeopardy or danger, and the potential effect knowledge of such disclosure would have on the willingness of sources of information to provide criminal intelligence to the police."

[18]There is no need to refer to any other evidence or any other facts for the purpose of this application because Mr Cragg, who has appeared on behalf of the claimant, accepts, first of all, that the warrant in this case was a lawful warrant under which the police were entitled to act for the purposes of entering the premises in question. His argument is confined to submitting that, because of the Human Rights Act, it is now necessary for there to be kept a written record of the reasons for the grant of a warrant by the justices. On being pressed in the course of his submissions as to what precisely he meant by "reasons", Mr Cragg said, "A written record of the questions and answers which were asked of the police officer who was seeking the warrant". No written record was kept of the questions and answers in this case. Mr Cragg submits that there therefore arises a point of principle as to whether it is necessary for a record to be kept of the questions and answers that occurred between the witness seeking the warrant and the magistrates. No such requirement is expressly set out in the domestic statutory provisions to which I have made reference. If there is to be any such requirement it must arise out of either Article 6 (on which Mr Cragg does not rely) or

Article 8 of the European Convention on Human Rights

[19]

Article 8 of the Convention

provides as follows:

"1. Everyone has the right to respect for his private and family life, his home and his correspondence. 2. There shall be no interference by a public authority with the exercise of this right except such as in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others."

The provisions of Article 8 have to be considered in the light of the jurisprudence of the European Court of Human Rights. Mr Cragg relies on a number of authorities, but it is sufficient for our purposes to refer only to Funke v France

(1993) 16 EHRR 297

, which sets out the position generally in relation to Article 8. The facts in Funke v France are very different to the facts that are before us. There the search took place without any procedure such as is required by the United Kingdom domestic legislation to which reference has been made. The European Court came to the conclusion that there was no infringement of Article 6, but concluded that there was an infringement of Article 8.1 and, furthermore, that it was an infringement which was not justified by Article 8.2. Any search of premises made without the consent of the occupier will automatically be an interference with Article 8.1. If it is to be compatible with Article 8, it will be necessary for it to be shown that it falls within Article 8.2. For that to be the case, as paragraph 4 of the headnote points out, interference must be in accordance with the law; there must be a legitimate aim and it must be proportional. In that case the Court came to the conclusion that there was a violation of Article 8 for the following reasons:

"(i)the very wide powers the customs authorities possessed when undertaking searches and seizures; (ii)in the absence of any requirement of a judicial warrant the restrictions and conditions provided for in law were insufficient for the interferences in the applicant's right to have been strictly proportionate to the legitimate aim pursued; and (iii)the customs authorities never lodged a complaint against the applicant alleging an offence against the relevant financial dealings regulations."

[20]Paragraphs 56 and 57 of the judgment in that case clarify what appears in the headnote:

"56. .... the relevant legislation and practice must afford adequate and effective safeguards against abuse. 57. This was not so in the instant case. At the material time -- and the Court does not have to express an opinion on the legislative reforms of 1986 and 1989, which were designed to afford better protection for individuals -- the customs authorities had very wide powers; in particular, they had exclusive competence to assess the expediency, number, length and scale of inspections. Above all, in the absence of any requirement of a judicial warrant the restrictions and conditions provided for in law, which were emphasised by the government, appear too lax and full of loopholes for the interferences in the applicant's right to have been strictly proportionate to the legitimate aim pursued."

[21]I fully understand the force of the decision of the European Court in Funke v France and I would readily apply it to this case. However, when that is done the criticisms which the European Court made of the regime in that case cannot be applied to the regime which now exists in this jurisdiction, combining as it does the provisions of the legislation to which I have referred, the notes which are contained in the information which was used by the police force with which we are concerned here, combined as it is with the practice which the legal adviser to the magistrates indicated was adopted.

[22]The criticism made by Mr Cragg is limited. It is confined to the failure of keeping an appropriate record. The question of whether there is a need for more than is required at present under the regime which is adopted by these magistrates, having regard to the statutory provisions, has to be answered bearing in mind the practicalities to which the legal adviser referred. As is well known, sometimes applications for warrants are made not in court but to magistrates in their homes at weekends. Furthermore, if applications are made in a magistrates' court they are made in circumstances which frequently hold up the ordinary business of the courts. Whilst administrative convenience cannot justify a failure to adopt proper standards, the realities and practicalities of administering justice must be borne in mind.

[23]The evidence that exists in this case, as it seems to me, shows that the safeguards which the statute rightly requires and which Article 8 makes necessary, which would also be required in the appropriate circumstances by Article 6, were fully complied with. In considering compliance with Article 8 and Article 6 the facts of the particular case will in the end always be decisive. When magistrates accept an information as containing all the material upon which they rely as satisfying them, for the reasons given by the legal adviser it is unreasonable to require them to make a note. If a particular matter is elicited in the course of questioning the deponent who is seeking the warrant, then, as the legal adviser said, it would be desirable to make a note of that matter, not only for the benefit of any subsequent citizen who wished to challenge the legality of the warrant, but also to protect the magistrates and the police from unwarranted allegations.

[24]The desirability of keeping a note of matters relied upon outside the information is something which was recognised by this court in Marylebone Magistrates' Court and the Commissioner of the Metropolitan Police, ex parte Amdrell Ltd trading as 'Get Stuffed' Robert Sclare & Pauline Sclare (unreported, 31.7.98, BAILII:

[1998] EWHC Admin 822

). In the course of his judgment, at paragraph 22 Rose LJ said:

"In relation to the lack of a note of proceedings before the magistrate and the fact that he expressed no reasons for his decision, it would, in my judgment, have been preferable both for a note to have been made and for reasons to have been briefly expressed, in the particular circumstances of the present case. I have in mind both the comparative novelty of the proceedings and the substantial length of time spent on the application for warrants. Had a note been taken and reasons given some of the concerns expressed on the applicant's behalf might not have arisen. However, neither the absence of a note nor the lack of expressed reasons in my judgment invalidates the issue of the warrants."

The last sentence of that paragraph has to be considered in the context of it being in a judgment which was given before the Human Rights Act came into force. But as to the remainder of the paragraph, I strongly endorse what Rose LJ said.

[25]This application, however, was not one of the sort to which Rose LJ was referring. The material upon which the warrant was issued is clearly contained in the information and the basis on which the warrant was issued is obvious without any need for the magistrate merely to repeat that he is satisfied as required by section 23. To require the magistrate to set out that he was so satisfied would serve no purpose whatsoever.

[26]The only criticism which can be made of this information is that which is made by Mr Cragg as to the use of the word "anonymous" in the information. He submits that that is internally inconsistent with the other content of the warrant because of the fact that it is indicated that the police had been in contact with the same anonymous male on other occasions as well. In making that criticism Mr Cragg relies upon the judgment of Sedley LJ. It is fair to say that there is some support for Mr Cragg's criticism in that judgment. I would, however, point out that Sedley LJ did not have the advantage that we have of the affidavits from the magistrates and the legal adviser. Furthermore, it has to be remembered that that was an application for permission and not a full hearing.

[27]With the greatest diffidence, having regard to the comments of Sedley LJ, I would suggest that, read as a whole, this information sets out clearly and perfectly satisfactorily the basis upon which the warrant was being sought and it did not need any further clarification.

[28]Where the procedure which was adopted in this case is adopted by magistrates, bearing in mind what was said by the legal adviser in this case and what was said by Rose LJ, I consider that there is no question of any contravention of Article 8 or Article 6 because of the failure to have any other record of the proceedings. It would, in my judgment, be unreasonable to require such a further record in the ordinary case. Any exceptional circumstances have to be considered on their merits.

[29]A further point made by Mr Cragg is the fact that in this case a copy of the information was provided by the justices on request. Subsequently it was questioned whether it would be desirable to provide informations unless there was some legal justification for doing so. Information may contain details of an informer which it would be contrary to the public interest to reveal. The information may also contain other statements to which public interest immunity might apply. But, subject to that, if a person who is in the position of this claimant asks perfectly sensibly for a copy of the information, then speaking for myself I can see no objection to a copy of that information being provided. The citizen, in my judgment, should be entitled to be able to assess whether an information contains the material which justifies the issue of a warrant. This information contained the necessary evidence to justify issuing the warrant. Once this information had been disclosed, there was no issue here which justified this court being troubled by this case. The case was, as I recognise, one which was subject to permission by the full court; but, in my view, once the evidence of the legal adviser and the justices was available to the claimant, consideration should have been given to whether it was right to proceed. On any basis the issue was of a highly technical nature. It did not go to the merits of anything once Mr Cragg accepted that the warrant was a warrant under which the police could lawfully enter the premises. At most the point was technical as to whether sufficient information had been recorded. What information was recorded appeared on the face of the information.

[30]It is very important, in my judgment, that the limited resources which are available from public funds for testing points of principle are confined to cases where it is really necessary. If it is decided that a case justifies the expenditure of public funds, then in my judgment it is important that those who appear supported by public funds, if they are provided with additional information which makes it clear that the point is one which so far as the particular case is concerned is of very limited significance, then the question of proceeding should be reconsidered. In making those comments I am not criticising Mr Cragg or indeed those who are responsible for extending legal aid in this particular case. I fully recognise that they were encouraged to proceed by the judgement given by Sedley LJ, though, as I have already indicated, I doubt very much whether Sedley LJ would have said what he did if he had been aware of the additional information. Sedley LJ was doubtful as to whether judicial review was appropriate to resolve this particular issue, bearing in mind that it normally would be expected to be resolved in an action for damages for unlawful trespass. As it was not being suggested that there was any unlawful trespass in this case, that route was not open to the claimant. So what was being sought was a declaration as a supposed point of principle.

[31]I would dismiss this application.

MRS JUSTICE HALLETT: I agree.

MR JUSTICE STANLEY BURNTON: I entirely agree and I have nothing to add.

THE LORD CHIEF JUSTICE: Thank you, Mr Cragg. Thank you very much, Miss Barton, for your assistance.

[35]MR CRAGG: My Lord, I am conscious of what your Lordship has said, but I am formally instructed to apply for permission to appeal.

THE LORD CHIEF JUSTICE: Is this a criminal cause or matter or not? Probably not.

[37]MR CRAGG: My Lord, in my submission, it is not, so the route would be to the Court of Appeal.

THE LORD CHIEF JUSTICE: I think you probably know what my answer is going to be, but I will consult my Lady and my Lord. ( The court conferred )

THE LORD CHIEF JUSTICE: We do not give you permission.

[40]MR CRAGG: I am grateful. I need to apply for detailed assessment of the claimant's public funds costs.

THE LORD CHIEF JUSTICE: Yes, so be it.

[42]MR CRAGG: I am grateful.

THE LORD CHIEF JUSTICE: I hope that if an application is made to the Court of Appeal they are told of what I said in my judgment.

Cited in 11 later judgments

and 2 more of the most senior