G v Commissioner of Police for the Metropolis [2011] EWHC 3331 (Admin)

Case No CO/8833/2010

[2011] EWHC 3331 (Admin)

IN THE HIGH COURT OF JUSTICE

QUEEN'S BENCH DIVISION

DIVISIONAL COURT

Venue Royal Courts of Justice

Date Friday, 7th October 2011

Strand

London WC2A 2LL

B e f o r e:

LORD JUSTICE LAWS

MR JUSTICE SIMON

- - - - - - - -- - - - - - - - - - - - Between:

Claimant

COMMISSIONER OF POLICE FOR THE METROPOLIS

Defendant

- - - - - - - -- - - - - - - - - - - - Computer-Aided Transcript of the Stenograph Notes of

WordWave International Limited

A Merrill Communications Company

165 Fleet Street London EC4A 2DY

Tel No: 020 7404 1400 Fax No: 020 7404 1424

(Official Shorthand Writers to the Court)

- - - - - - - -- - - - - - - - - - - -

Mr R Horwell QC & Miss A Macdonald (instructed by Robin Booth/Duncan Hayes BCL Burton Copeland) appeared on behalf of the Claimant

Mr N Wilcox (instructed by Mark Davis MPS) appeared on behalf of the Defendant

- - - - - - - -- - - - - - - - - - - - J U D G M E N T

Between

GClaimant

Commissioner of Police for the MetropolisDefendant

LORD JUSTICE LAWS:

This

[1]is an application for relief by way of judicial review brought with permission granted by Rafferty J (as she then was) on 1st October 2010. The claim is directed to the Metropolitan Police Commissioner's application for an execution of a warrant of seizure and the decision of the city of Westminster Magistrates' Court to issue the warrant.

[2]The claimant, whose anonymity was ordered by Rafferty J when she granted judicial review permission and which we will preserve, is a businessman living in London.

[3]On 18th May 2009 the Metropolitan Police applied to the City of Westminster Magistrates' Court for a warrant to seize materials from his home. The application was made pursuant on section 4 of the Protection of Children Act 1978 which provides in part:

"(1)... It is an offence for a person— (a)to take, or permit to be taken [or to make], any indecent photograph [or pseudo-photograph] of a child..."

Section 4(1):

"The following applies where a justice of the peace is satisfied by information on oath, laid by or on behalf of the Director of Public Prosecutions or by a constable, that there is reasonable ground for suspecting that, in any premises...there [is an indecent photograph [or pseudo-photograph] of a child]. (2) The justice may issue a warrant under his hand authorising any constable to enter (if need be by force) and search the premises ... and to seize and remove any articles which he believes (with reasonable cause) to be or include indecent photographs [or pseudo-photographs]of children."

[4]The district judge granted the warrant on 18th May 2009 authorising the police to search the premises and remove indecent photographs or pseudo-photographs of children, together with any associated documentation and equipment capable of being used to produce, obtain and/or circulate such material.

[5]The warrant was executed on 29th July 2009. The police were led by DC Robert Duckworth of the "SCD 5 Special Crime Directorate." The claimant was present but was not questioned or arrested. The police seized a number of electronic and data storage devices.

[6]On 17th September 2009 the police informed the claimant's solicitors by telephone that they had found nothing untoward but had one more item to examine; and on 19th October 2009 they indicated that that too revealed nothing. Two days later, they returned items they had seized and stated that they were taking no further action and the investigation was closed.

[7]There followed a series of further communications between the solicitors and the police. The solicitors were concerned to discover the factual basis on which the search had been authorised and conducted, and how the high level of security arrangements for the Wi-fi technology at their client's home had been breached. The police turned down a request for a meeting. They provided some information, but at length, not being satisfied that they had been given the full picture, the solicitors on 25th January 2010 wrote to the police seeking a copy of the written information which had been placed before the Magistrates' Court when the warrant had been obtained. That was followed by an application by letter of 18th February 2010 to the Magistrates' Court for a copy of the information.

[8]The police, for their part, refused to provide it. In a badly drafted letter of 16th February 2010 they appeared to rely on a claim for public interest immunity. There were further communications with the court and an exchange of skeleton arguments prepared by counsel. The application for disclosure of the information was heard by District Judge Snow on 19th May 2010 and granted. At the hearing the district judge made it clear that no information had been provided to the court when the warrant was obtained beyond what was contained in the written information, save that an erroneous date had been corrected.

[9]The material part of the information reads as follows:

"Alleged offence: section 1(1)(a) Protection of Children Act 1978 making an indecent photograph of children. This deponent on oath says: information has been received by police interest Interpol Law Enforcement Agencies that on 23/7/1997 a person called [and then there appears the claimant's first and second names] with an email address of [a word]@yahoo.co.uk and supplying bank account details in the same name registered with and subscribed to a website called, 'IWEPAY'. This website provides access to a substantial number of websites hosting images of child pornography. Police intelligence checks have identified that Mr [and then the claimant's full name appears and a date given for his date of birth] now resides at the address subject to this warrant. There are reasonable grounds to believe that this person has access and downloaded indecent images of children."

[10]The date there given of 23rd July 1997 was wrong. It was corrected to 23rd July 2007.

[11]I turn to the claimant's grounds. I should say that the defendant takes no point as to time or delay, rightly in view of the claimant's efforts to resolve the matter without recourse to judicial review proceedings. The first and primary ground on which judicial review relief is sought is that the information supplied by the police in order to obtain the warrant was inaccurate, misleading and incomplete. The claimant has quite a number of points under this head. A major aspect is as follows. In order to access indecent images on a website in the ordinary way, you have to pay. So much is no doubt common sense; in any event the point has been addressed by this court in dealing with the facts of two other cases before it, O'Shea v Coventry Magistrates' Court

[2004] EWHC (Admin) 905

, per Gage J (as he then was) at paragraphs 8 and 12, and C v Chief Constable of A Police

[2006] EWHC (Admin) 2352

, per Underhill J at paragraphs 1, 10, 12 and 13.

[12]The defendant Commissioner accepts this point about payment. This is what was said at paragraph 3G of his grounds for contesting the claim:

"It is correct that actual payment is required before accessing any indecent images in the normal way that these operations work."

I should note that Mr Wilcox submits, however, that there are instances (and there is some evidence about this) in which access may be obtained without payment.

[13]The information placed before the Magistrates' Court in this case implies that the claimant had made payments for access to child pornography through IWEPAY website. That is in my judgment the plain implication of the reference to the "bank account details", the use of the word "subscribed" and the express allegation that the claimant had accessed and downloaded indecent images. The Magistrates' Court was effectively being told that the claimant had paid for access to child pornography and had downloaded it. In fact the claimant had not had, nor attempted to obtain, any access to a pornography website. The account details referred to in the information (not as stated details of the claimant's bank account but of his credit card) had been fraudulently deployed by someone else. The police knew as early as 23rd March 2009 that there had been a fraudulent use of this credit card on 23rd July 2007. The email address given in the information had nothing whatever to do with the claimant.

[14]The first complaint here is not so much that the police put forward a case of mistaken identity, but that they were deploying supposed facts supplied to them from Belarus. It is said, however, that they had no evidence of payment, nor evidence of anything more than (at most) an attempt to access pornography and the Metropolitan Police Commissioner, the defendant, appears to accept as much. This is what is said at paragraph 3I of the grounds for resistance:

"In the absence of evidence of an actual payment, the offence alleged prior to the search should not properly have been described in the substantive form. The evidence provided that the information does not affect the fact that a warrant would and should in any event have been granted in relation to an inchoate offence."

[15]I am afraid to say that in my judgment the application for the warrant in this case was made in a casual and slipshod manner. First, the police had no evidence of payment, although they well knew, and if they did not they should have done, that that was ordinarily an essential ingredient in the proof of access to a pornographic website. They failed altogether to draw this defect to the district judge's attention. They do not seem to have carried out any checks whatever material to the question of payment. Moreover, they took no steps to ascertain the true position concerning the user of the credit card, though that could readily have been done. It is well-known that credit card and identity fraud is very common, especially in relation to the use of credit cards to access services on the Internet. The police did not need the expert evidence of Dr Richard Clayton, now produced by the claimant, to know as much. In the information they referred to bank account details. That itself was inaccurate. There is nothing whatever to show why the police connected the claimant with the email address given in the information, which as I have said was nothing to do with him; and even more significant, perhaps of greater significance, is the fact that the police knew, by letter from the bank dated 23rd March 2009, that a use of the claimant's credit card on 23rd July 2009 had been fraudulent.

[16]It will not do to say that in any event the information might have justified the issue of a warrant in relation to an offence of attempt. Such a warrant could not have been applied for under the 1978 Act. Section 4, as I have shown, requires the court to be satisfied that there are indecent images on the premises. The application would have had to relate not to such images but presumably to computer or computers on the premises with a view to establishing whether they had been used to attempt to gain access to a pornography website.

[17]There is a large body of authority which establishes three important propositions: 1. The issue of a search warrant or a warrant for seizure is a very serious interference with the liberty of the subject. 2. The officer applying for such a warrant must give full, complete and frank disclosure to the magistrate so as to enable the latter to base his decision on the fullest possible information. 3: The court itself must give the most mature and careful consideration to all the facts of the case (see amongst many instances Williams v Somerfield

[1972] 2 QB 512

at 518 and Wood v North of England Magistrates' Court

[2009] EWHC (Admin) 3614

per Moses LJ at paragraph 29).

[18]The police duty of disclosure has received particular emphasis in Redknapp v Commissioner of City of London Police

[2009] 1 WLR 2091

per Latham LJ at paragraph 27 (see also paragraph 13)).

[19]Unhappily in this case the police have failed in the respects I have outlined to meet the high standard required if a warrant of search or seizure is to be lawfully sought and lawfully obtained.

[20]The maintenance of those standards is of the first importance, not only for obvious reasons concerned with the freedom of the citizen to enjoy his own home, but also for the sake of proper cooperation between the police and the courts. The courts must be in a position to trust the police to give full and accurate information when they seek a form of relief that interferes with the liberty of a subject in the cause of fighting crime. If they do not fulfil those high standards that cause is itself prejudiced.

[21]We understand the Metropolitan Police have revisited their procedures for this kind of application. That is to be welcomed. An oral apology has been given to the claimant - quite rightly. This judgment will no doubt be read and carefully considered within the Metropolitan Police Service.

[22]The second ground of judicial review is that the execution of the warrant constituted a violation of the claimant's right to respect for his private life and his home, under

Article 8 of the European Convention on Human Rights

. This adds nothing. If the application for the warrant had met the rigorous standards set by the common law, the warrants granting execution would have been justified under Article 8(2) for the prevention of crime. Nothing in the Strasbourg jurisprudence is to the contrary.

[23]The third and last ground is that the warrant does not name the person who applied for it and that is in breach of the section 15(6)A(1) of the Police and Criminal Evidence Act 1984. Nor does it specify the enactment under which it was to be issued as required by section 15(6)A(2). The warrant referred to SCD51 Paedophile Intelligence Unit; that is proper information to be given, but does not in my judgment strictly comply with the statute and as I see the matter, this is a context in which the statute must be complied with to the letter.

[24]In the circumstances I would for my part grant a declaration that the application for a warrant was unlawfully made and the warrant unlawfully granted.

[25]MR JUSTICE SIMON: I agree, I would add only this: it ought to have become clear some time ago that was there no sustainable answer to the claim that the first defendant had been in serious breach of his duty in applying for the warrant in this case, both as to what was told and importantly what was not told to the magistrate. It is troubling that this was not frankly recognised and accepted, and that the claimant has had to come to court to vindicate his rights.

[26]MR HORWELL: My Lord, in view of those last comments especially, we apply for our costs, please.

[27]MR WILCOX: My Lord, I rise with some trepidation in the light of what has been said.

LORD JUSTICE LAWS: You be fearless Mr Wilcox.

[29]MR WILCOX: My Lord, I have already mentioned something of the background in an attempt to settle this matter and, to be perfectly fair to the claimant, he said as late as a letter of 2nd August 2010 that he did not wish to go to court or seek any damages or whatever. It is equally important in that letter of apology there was no acceptance and has not been an acceptance that the warrant was not lawfully granted and I accept those. All I pray in aid in these most difficult matters is the volume of correspondence that took place prior to that apology, some of which I have mentioned, is included attendance notes and letters, the 30th October, 8th November, 16th November, 23rd November, 15th October 2009 and various other correspondence. I need not go into it.

LORD JUSTICE LAWS: Mr Wilcox, on 16th February 2010 your clients would not even let them have a copy of the information and they gave extremely feeble reasons for refusing to do so.

[31]MR WILCOX: Which were not pursued -- other reasons were pursued in the skeleton.

LORD JUSTICE LAWS: You were relying on the correspondence, that is how it culminated.

[33]MR WILCOX: My Lord you are right, I merely make the point because this is a matter somewhat unusually you may think where a very senior officer has tendered an apology and that the Metropolitan Police perhaps have gone further than they have to--

LORD JUSTICE LAWS: The apology is welcomed and the Police rightly gave it. I entirely acknowledge that. Are you resisting the application for costs?

[35]MR WILCOX: My Lord, I would seek to, yes.

LORD JUSTICE LAWS: Very brave. Yes, you may have your costs Mr Horwell, to be subject to a detailed assessment, if not agreed.

[37]MR HORWELL: Thank you.