AB & Ors, R (On the Application Of) v Chief Constable of Wiltshire Police & Anor [2011] EWHC 3385 (Admin)

[2011] EWHC 3385 (Admin)Case No CO/10692/2010IN THE HIGH COURT OF JUSTICE QUEEN'S BENCH DIVISION ADMINISTRATIVE COURTVenue Royal Courts of Justice Strand, London, WC2A 2LLDate 20th December 2011B e f o r e :MR JUSTICE OUSELEY MR JUSTICE McCOMBE____________________
Between
(1) CHIEF CONSTABLE OF WILTSHIRE POLICEDefendants(2) SOUTH EAST WILTSHIRE MAGISTRATES' COURTDefendant____________________(Transcript of the Handed Down Judgment 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 Hugh Tomlinson QC and Miss Alison Macdonald (instructed by Morrison and Masters Solicitors) for Claimants Mr John Beggs QC and Mr James Berry (instructed by Force Solicitor Wiltshire Police) for the DefendantsHearing Hearing dates: 4th November 2011____________________

Crown Copyright ©

[1]The Claimants, AB, his wife and their son AM, brought two challenges at a rolled up hearing. The first was to the application by Wiltshire Police on 4 February 2010 under the Misuse of Drugs Act 1971, for search warrants in respect of business and domestic properties owned or occupied by one or more of the three Claimants. The warrants were executed on 24 February 2010, but nothing of any real note was found. This challenge alleged that the application was based on grounds which were inaccurate, misleading and incomplete, wholly insufficient for such an application and with inadequate disclosure to the Magistrate.[2]The second challenge was to the decision of the Magistrate herself on 4 February 2010 to issue the warrants. It alleged that she had no sufficient basis on which to issue the warrants, that she had failed to scrutinise the application adequately, that she had failed to make a note of any additional information she was given by the police at the hearing of the application, as had the police. She was advised by a Justices' Clerk who had assisted the police in more than simply technical ways as to how the warrants should be sought. This gave rise to an appearance of bias. The claim was also made on Article 8 ECHR grounds but this was pursued more as supporting the contentions under those other heads than as a free standing ground of challenge.[3]The Wiltshire Police defended the challenges on the basis that, though there were errors in procedure, there was a proper and sufficient case made to the Magistrate who did examine it properly. They contended that there was delay in the making of the claim. The South East Wiltshire Magistrates Court provided evidence but did not appear. Facts[4]Mr and Mrs A own properties on an industrial estate in Cricklade, Wiltshire, and a house; their son AM owns Pear Tree Farm in Cricklade. The police evidence to this court described something of the process which led to the applications being made. This was in part to refute the allegation by the As that the basis for the application had been a malicious allegation against them by another AM, AB's brother. AB had sought an injunction to prevent his brother trespassing and damaging property in January 2010; in response, his brother told AB on 4 February that unless the application were withdrawn, he would provide a signed statement to the police about his nephew AM's criminal activities.[5]Detective Constable Mark Stowell, an officer with 28 years service, gave most of the relevant evidence for the police, in a witness statement dated 12 October 2011. Detective Constable Le' Maire's statement was signed on the same day. Permission had been refused on paper in December 2010, the oral renewal had been adjourned in July 2011 to a rolled up hearing, and the Claimants' skeleton argument had been served on 3 October 2011.[6]In January 2010, Detective Chief Inspector Power of the Wiltshire Police had asked DC Stowell to commence planning for the execution of search warrants at the subject properties, which were suspected of being used by the two male Claimants in connection with criminal activity. DC Stowell's witness statement, paragraph 4, describes how he checked the intelligence database, graded for reliability on the "5x5x5" grading system:
"It rapidly became apparent that there was a substantial intelligence case that clearly showed that these locations and persons were linked to a number of differing areas of criminal activity."
He found 81 intelligence reports relating to AB going back to 2007, and 323 on his son going back to 2006. With the requirements for making a lawful application for search warrants in mind he focused "on the most current intelligence about the As, intelligence which I considered to be reliable by reason of its volume, consistency and grading. The intelligence related to differing criminal activity but in view of the significant amount of recent intelligence relating to drugs", he thought that an application under s23 of the 1971 Misuse of Drugs Act would be appropriate. Had he thought that there was insufficient material at that stage to justify applying for search warrants, he would have told his superior officer.[7]To help the process of evaluation, DC Stowell maintained a research folder containing certain documents and spreadsheets to help him recall important information. Among the documents it contained, as he listed them, was one headed "Draft Information". This was his attempt, as he described it, "to summarise the intelligence case down to the actual "information" form that would be laid before the Magistrate." This was intelligence which he considered reliable, and he used that document as an aide memoire in making the application. He listed a further six documents in his folder but, in respect of them, public interest immunity would be claimed if necessary; two were his spreadsheets of the criminal activity of AB and AM; two listed the intelligence linking each to criminal activity and to firearms. The other two were police "subject records" on each of the men.[8]With this he briefed Detective Inspector Hubbard, who asked him a number of questions, including questions about the intelligence case. It was DI Hubbard who signed and authorised the informations. DC Stowell saw DI Hubbard as a filter additional to himself, who had to be satisfied that the intelligence case was strong enough to support the applications. DC Stowell says that he was at all times satisfied that the police intelligence strongly supported the engagement of the male Claimants in criminal activity, including the supply of controlled drugs.[9]On 4 February 2010 he went with DC Le' Maire, not to the local Magistrates' Court but to Salisbury, where they met Mr Hope, the Deputy Justices' Clerk and another Clerk, Mrs Duff, now in Australia. The two police officers briefed the two clerks for two hours about the proposed applications for warrants, covering topics such as what the police wanted and why, the A family background, the intelligence case, the drug related information, the layout of the industrial estate, the areas controlled by the As and which would be searched, the use of the Misuse of Drugs Act, various technicalities in the applications and warrants such as wording, and photographs of the areas with various zones marked on them. This led to various changes being made to one of the applications; the amended applications was authorised by another officer, who also asked a number of questions about the case so as to be able to sign the authorisation and information. DCs Stowell and Le'Maire then returned with the amended application to the Salisbury Magistrates Court, where the applications for three search warrants was made on 4 February 2010 to a Magistrate, Mrs Pascoe, in the presence of the Clerk, Mrs Duff.[10]Mr Hope, in his statement dated 10 October 2011, explained the normal practice whereby a legal adviser to the Justices would check the application and supporting information so that the paperwork was correct, and any necessary technical advice had been given to the applicant and could then be given to the Magistrate. What he says is not at odds with what DC Stowell says, and he confirms that the information behind the applications was discussed, but his emphasis is more that the technical aspects were gone through, and that the suggestions he made about the applications were purely administrative. He instances an entirely unobjectionable point he made. None of this amounted to a reason in his view why he or, as it turned out, Mrs Duff should not advise the Magistrate to whom the application was made. They were satisfied that there were sufficient grounds for the application to proceed before the Magistrate.[11]DC Stowell explained the style of the informations, saying that the common practice in Wiltshire had been to type a brief summary of the intelligence on the information form, and to give a fuller oral briefing to the Magistrate.[12]Each information was in the same terms so far as is material to the claim:
"The grounds on which the application is made: intelligence states that AM and AB are actively engaged in the supply of large amounts of cocaine which are kept at the Chelworth trading estate site and that he and his father AB own and run a large number of business enterprises from that location. European convention of Human Rights The Warrant has been sought under legislation that is prescribed in Law. Its purpose is to gather or recover evidence in relation to a crime or criminal offence. Entry to the premises is the only means available to fulfil police obligations to investigate crime. The means employed will be proportionate to the circumstances and only to the extent, which is absolutely necessary to meet the legitimate aim."
[13]The application took 15 minutes. DC Stowell lists in his witness statement the points he made. They included an explanation of what the police wanted and why, the background of the A family, "the intelligence case, including the time period covered and the number of intelligence reports available to the police about the As, the fact that there was a significant amount of reliable drugs intelligence available to the police relating to the As", and the nature of the industrial estate and what parts were controlled by the As. He then says in paragraph 19 of his witness statement: "Mrs Pascoe asked me a number of questions which I answered, under oath, to the best of my ability. Had I not known the answer immediately from the knowledge I had gained through preparing for the warrant applications, I had with me my reference folder, containing all of the relevant information including the spreadsheets summarising the intelligence" on the male Claimants and the premises. The folder was not passed to the Magistrate.[14]The document in his folder, which was entitled "Draft Information for Search Warrants", explained the background to the operation; it was a direct response to criminal intelligence about the two male Claimants:
"… the A family run a large number of businesses in Wiltshire and are connected to the A [business] that is made up of a number of individually titled circuses"
. It stated the number of intelligence reports on AB and AM, junior. "They paint a picture of general criminal activity across a range of differing areas of that include drugs, firearms, money laundering, stolen plant and machinery, counterfeit mot's and vehicle excise licences', illegal immigration, counterfeit clothing, vat evasions, counterfeit clothing and the theft of motor vehicles. In particular intelligence states that AM is actively engaged in the supply of large amounts of cocaine which are kept at the Chelworth site, and that he and his father B run the As yard on the Chelworth trading estate."[15]Mrs Pascoe, in her witness statement dated 10 October 2011, said that she had but limited recollection of what was said but could remember that Mrs Duff told her that she was to hear an unusual application. She described her usual practice which was to let the officer making the application to "tell me the story" behind their belief that a warrant was necessary, and then to test their grounds for cogency and validity. She would ask the officer for the general source of the information, never rubber stamp the application and always ask questions of the officer. She had been trained in the human rights aspects of this.[16]She remembered the application because of the scale of the operation, and the meticulous plans she was shown. "Also, the fact that the police operation involved a family who ran a circus business was unique." She "was told that good information had been received from trustworthy sources that there were global connections through the itinerant nature of circus and fairground people". She could recall that the police wanted to search a farmhouse and industrial units, and that DC Stowell "did have a number of documents with him to which he referred during the course of his application". She is clearly referring to ones which were not passed to her. She was not surprised to hear that the police were acting on information received about drugs since it was common knowledge that there had been an increase in the drugs circulating in the area. She could recall DC Stowell explaining the difficulties of surveillance of the industrial units, and executing warrants in respect of them. Having heard the application, she was confident that there were reasonable grounds for suspecting that there were drugs or relevant evidence on the premises in question to justify the warrants being issued.[17]Mrs Pascoe also said that she had made no note of what was said at the hearing. She had heard many applications for search warrants over her 31 years as a Magistrate. "There has never been any practice of Magistrates making a note of such applications in all of my time sitting as a Magistrate. We have never been trained to do so."[18]Neither DC Stowell nor DC Le'Maire made a note of what was said at the application. This, he said, had never been the policy of Wiltshire Police, nor had he been trained to do so.[19]Mrs A's witness statement dated 21 October 2011 said that one of the family businesses was involved in running circuses, which in February 2010 included the Moscow and Chinese State Circuses, and a Berlin Circus, which travelled in the UK but not in Europe.[20]On 8 February 2010, the As say that they were informed "by a confidential source", never named, that AM senior had carried out his threat to make a statement to the police and that as a result there was to be a "raid" on their premises. AM junior rang the police to say that his family were aware of the planned raid, that the police were welcome to come when they wanted but asked them not "to kick the door down" as he had young children.[21]The search warrants were executed on 24 February, but not in the manner requested by AM. Mrs A described them as shocking and distressing; property was also damaged. The raid became known to her youngest son away at school where he suffered from the unpleasant notoriety created by the publicity given to the search. It created problems with the tenants on the industrial estate, and for her son and grandson who no longer feel able to live at the farm which was their home at the time of the search. It had had a long term effect on her psychological well being.[22]Nothing incriminating was found, except for 0.3 grams of cocaine in a jacket belonging to AM junior, which lead to his plea of guilty to possession. The legal framework[23]Most of the legal propositions were not at issue. S23 (3) of the Misuse of Drugs Act 1971 permits a justice of the peace to issue a search and seizure warrant if "satisfied by information on oath that there is reasonable ground for suspecting –(a) that any controlled drugs are…in the possession of a person on any premises; or(b) that a document…relating to… a transaction …which was, or intended transaction which would if carried out be, an offence under this Act…."[24]The grant and execution of a search and seizure warrant "is a serious infringement of the liberty of the subject, which needs to be clearly justified." See R (Energy Financing Team Ltd) v Bow Street Magistrates Court and Director of Serious Fraud Office [2005] EWHC 1626 (Admin) [2006] 1 WLR 1316, Kennedy LJ, Practice Note. This requires more than mere suspicion; reasonable grounds must support the suspicion. But suspicion falls short of belief, and reasonable grounds for suspicion fall short of reasonable grounds for a belief that a fact is true.[25]There was no dispute but that the police can rely on intelligence and intelligence alone as creating the necessary reasonable grounds for suspicion; O'Hara v RUC [1997] AC 286 at 293C. In James v Chief Constable of South Wales, Court of Appeal, 16 April 1991, Lord Donaldson MR said:
"It is not, and cannot be, the law that reasonable suspicion may not be based solely upon information derived from an informant and the learned judge did not suggest the contrary. That said, any police officer should treat such information with very considerable reserve and should hesitate before regarding it, without more, as a basis for reasonable suspicion."
[26]There was a duty on the applicant police to ensure that "full and complete and frank disclosure" was made to the magistrate "so that he can have the fullest possible information in determining whether the statutory criteria are satisfied." See Moses LJ in Wood v North Avon Magistrates' Court [2009] EWHC 3614 (Admin). This included drawing to his attention "anything which militates against the issue of a warrant"; Energy Financing Team Ltd, above. A failure in disclosure of known material facts or a failure in scrupulous accuracy may invalidate the warrant; Redknapp v Commissioner of the City of London Police [2008] EWHC 1177 (Admin) [2009] 1 WLR 2091 But, as Moses LJ pointed out in Wood, that depends on whether it would have made a difference to the outcome.[27]In Redknapp, Latham LJ also dealt with the content of the information, at paragraphs 13, and 16:
"13….The obtaining of a search warrant is never to be treated as a formality. It authorises the invasion of a person's home. All the material necessary to justify the grant of a warrant should be contained in the information provided on the form. If the magistrate, or the judge in the case of an application under section 9, does require any further information in order to satisfy himself that the warrant is justified, a note should be made of the additional information so that there is a proper record of the full basis upon which the warrant has been granted. 16….As I have already said, it is wholly unsatisfactory, where the validity of such a warrant is in issue, to be 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."
[28]In R v Marylebone Magistrates Court ex p Amdrell [1998] EWHC 822 (Admin), Rose LJ expressed the clear view that it would have been preferable for a note to have been kept of what was said, in view of the comparative novelty and length of the warrant proceedings in that case, but added "…neither the absence of a note nor the lack of expressed reasons in my judgment invalidates the issue of the warrant."[29]A three judge Divisional Court, presided over by Lord Woolf CJ in R (Cronin) v Sheffield Justices [2002] EWHC 2568 (Admin), [2003] 1 WLR 752, commented that that sentence in the judgement of Rose LJ was made before the coming into force of the Human Rights Act 1998, with the implication that it might have to be reconsidered. But the Court expressed no view that it was wrong. That case makes it clear, were there any doubt about it, that the Magistrate is entitled to receive information which goes beyond what is stated on the information. I would add that a Magistrate often will do so, if testing the basis for the application.[30]In Energy Financing Team Ltd, Kennedy LJ said this about notes of hearings, at paragraph 24(7):
"(7)…If the applicant supplements the material already provided, possibly in response to questions from the district judge, that should be noted, and the same applies to the decision of the district judge, which should be briefly reasoned. It seems that sometimes proceedings before the district judge are tape-recorded, and if that can be arranged that is clearly the best form of record, but if that is impracticable the party applying for a warrant must prepare a note which can be submitted to the judge for approval if any issue arises as to the way in which the warrant was obtained (10) Often it may not be appropriate, even after the warrant has been executed, to disclose to the person affected or his legal representatives all of the material laid before the district judge because to do so might alert others or frustrate the purposes of the overall inquiry, but the person affected has a right to be satisfied as to the legality of the procedure which led to the execution of the warrant, and if he or his representatives do ask to see what was laid before the district judge and to be told about what happened at the hearing, there should, so far as possible, be an accommodating response to that request. "
[31]He does not suggest that a failure in this process should invalidate the warrant. The Amdrell approach was adopted by the Divisional Court in Bhatti and Others v Croydon Magistrates Court and Others [2009] EWHC 3004 (Admin): it was regrettable that no record could be found of the written information presented and that no note had been kept by either Magistrate or police of any additional information which they provided, but it did not prevent the Court in that case drawing inferences from the material it had, that sufficient information had been provided to justify the issue of the warrants. Plainly the absence of a note did not invalidate the warrant.[32]After the conclusion of the hearing, Mr Beggs QC for the Wiltshire Police drew the Court's attention to the decision of the Divisional Court in Burgin and Purcell v Commissioner of Police for the Metropolis and Others [2011] EWHC1835 (Admin). There were no counter submissions from Mr Tomlinson QC for the Claimants. One of the issues in the case was whether or not a District Judge's failure to give reasons for the issue of search warrants meant that the Court should infer that there was no sufficient basis for the warrants to be issued. The Court concluded that it did not go to the validity of warrants but that sufficient practical sanction was afforded since a court should refuse to draw inferences which were not clearly justified on the facts. Submissions[33]Mr Tomlinson QC for the Claimants submitted that the police acted unlawfully in applying for the warrants based on the unspecified reference in the informations to intelligence. This was not sufficient to lay any evidential foundation for the assertion about the As, and was in substance of no more evidential value than a bare assertion itself would be about their drug related activity. It told the Magistrate nothing about the weight or reliability of the intelligence evidence, a source of very variable quality, so that she could assess it as she had to do. Public Interest Immunity could protect sensitive sources and material from further disclosure to a defendant; proper disclosure still would not require all the intelligence specifics to be disclosed. There was no assessment by the police for the court as to the nature or credibility of the intelligence, which Mr Beggs QC for the Wiltshire Police said was a task within the competence of trained police officers.[34]The Claimants were concerned that the source was in reality the erratic and vengeful brother AM, as a "confidential source" had told them, telling the police lies about the criminal activities of his nephew. The police were under a duty to carry out readily available enquiries to establish the reliability of the intelligence relied on, but had failed to do so, violating Article 8 ECHR.[35]DC Stowell failed to tell the Magistrate, as he should have done, that the claimants were of good character, never having been arrested, let alone charged or convicted for any cocaine offence, and that there was no independent or objective evidence that they had committed offences, in the form for example of seizures of drugs. The number of intelligence reports, if explained to the Magistrate, would have led her otherwise to the conclusion that the Claimant did have criminal records. In reality, the police had no reasonable grounds for suspecting that there was cocaine or relevant evidence at the premises, and gave no reasonable grounds to the Magistrate.[36]Mr Tomlinson submitted that the Magistrate herself had no reasonable grounds for suspicion in the light of the evidence as to what the police had told her, and failed to probe the information provided adequately in such a way as might make good the deficiencies on the face of the warrants. Her failure to keep a note of the hearing was of itself a sufficient basis for invalidating the warrants; the failure had become too common; it meant that the protection of the law required under Article 8 of the ECHR could not be provided since the Claimants could not know why their privacy had been breached. The entitlement of a person in respect of whom a search warrant has been executed to know the basis upon which it was sought and obtained, subject to PII, was reflected in what Kennedy LJ said in Energy Financing Team Ltd, above. Quashing the warrant was the only effective remedy.[37]The part played by the Justices' Clerks, as evidenced by what DC Stowell and Mr Hope said, showed apparent bias, or a further violation of Article 8, since for certain purposes, the clerk should be seen as part of the tribunal or as part of the ordinary functioning of the court, and was therefore subject to some degree to the requirements of independence and impartiality. The clerk's role was to advise on law and procedure; Clark v Kelly [2004] 1AC 68. That did not include giving advice to a party on how to draft its application or to give it advice on the facts. The District Judges Bench Book, from the JSB, told Magistrates that their clerk would check the form and content of a warrant before it came to them for consideration. Mr Tomlinson submitted that the involvement of Mr Hope and Mrs Duff, who was the clerk at the hearing, went beyond that, as a result of the long meeting and the specific advice about the drafting of the application.[38]Mr Beggs submitted that there was sufficient in the draft information, and in the statements of DC Stowell and the Magistrate to show that the police did have the necessary reasonable grounds, and that sufficient material was imparted to her. The police had received no statement from AM senior about criminal activities of his nephew. This was not a case in which obvious enquiries would have revealed that there was no substance to the intelligence; the fact that nothing apart from a very small amount of cocaine was found, especially after the Claimants were somehow alerted to the issue of the warrants, could not show that there had been some simple failure of enquiry. It was not comparable to a mistake as to the address where the suspected activities were being carried out, which a simple enquiry could have resolved; Keegan v UK (2007) 44 EHRR 33.[39]The absence of convictions or even arrests for drug offences should have been disclosed, but the Magistrate would not have assumed that the Claimants had relevant but undisclosed convictions. She would also have anticipated that objective evidence, if it existed, would have been relied on in addition to the intelligence. So it made no difference to the issue of the warrants. Underhill J in R (Mercury Tax Group) v HMRC [2008] EWHC 2721(Admin) at paragraph 54 , on the facts of that case, treated the non-disclosure of the good character of the subject of the application for a search warrant as of marginal significance in judging whether there were reasonable grounds to suspect dishonesty; and in Burgin and Powell, above, good character was treated as only arguably relevant, but its non-disclosure unarguably made no difference to the decision to issue search warrants.[40]The involvement of the Justices' Clerks did not go beyond technical and procedural suggestions of the sort permitted by the JSB Bench Book. It was Mr Hope who provided them and not Mrs Duff, who actually clerked the hearing. His suggestions led to minor changes to the warrant for the search of the industrial estate, and supporting photograph. It would have been quite unnecessary and a waste of time for these points to have been made in court for the first time. Conclusions[41]The starting point, in my judgment, is that I am satisfied that DC Stowell had reasonable grounds for suspecting that controlled drugs or relevant documents were on the premises to be searched. He was an experienced officer, who in January 2010, on the instructions of a senior officer, had started to examine the intelligence data on the male Claimants. He referred to the quantity over time of graded and quite recent intelligence reports on criminal activity, and in particular in relation to possible drugs offences. This was transferred on to spreadsheets, so it was not a quick glance and a hunch. It was then considered by another senior officer, and again when one of the informations and draft warrants was returned for amendment on 4 February 2010. It is not disputed that intelligence can by itself provide the necessary reasonable grounds for suspicion.[42]The timing of the start of the examination of the intelligence and the number of intelligence reports mean that whatever AM senior may or may not have told the police in February 2010, was irrelevant to the start of the operation and could not have formed more than a small proportion of the 81 and 323 reports on father and son respectively since 2007 and 2006. I say "may or may not" have told the police. The police deny that AM senior made any statement to them about AM junior, or about the threat which the family say he made. I was wholly unpersuaded to interpret that denial as pregnant with an implied admission that AM senior had in fact made a statement to the police about his own brother's alleged criminal activities; the language of the police denial reflects more readily a simple denial of the allegation actually made, which was that the brother had threatened to and had informed on his nephew.[43]While the source, nature and degree of reliability of the intelligence are not specifically referred to, I accept DC Stowell's evidence as showing in reality that it was sufficient to afford him and his senior officers reasonable grounds for the necessary suspicion. DC Stowell relied on its volume, consistency and grading. These three factors were taken together. A considerable volume of reports, consistent with each other and pointing to criminal activity including drugs, is important. Where a handful of reports, or inconsistent reports, might not afford reasonable grounds, the larger the number and the greater the consistency, the stronger the basis they afford for the necessary suspicion. DC Stowell's evidence about grading and reliability cannot sensibly be understood as meaning other than that the reports were overall reliable within the grading system. It would be perverse to read it as saying that there was a large volume of consistent reports, graded for reliability within the 5x5x5 system, but largely unreliable.[44]The "Draft Information" prepared by DC Stowell summarising the case, refers to the picture painted by the volume of the reports, with the obvious implication that the picture they paint, in his language, is the result of sensible inferences drawn from sources, overall assessed to have been reliable, and marked by consistency and number.[45]The fact that the searches found no evidence of the sort which the police suspected that they would, does not show that reasonable grounds for suspicion did not exist, nor does it show that there were reasonable enquiries which they should have made which would have avoided the search. The police can also point to the fact that the Claimants were alerted to their intentions by a "confidential source". The point loses its sting in this case anyway, once it is realised that AM senior was not the inspiration or basis for the applications; there was no need to examine any particular malign motive he might have had for telling the police anything which he may have told them. There was no obvious other alternative enquiry to be made.[46]On that basis, the next question is what information was given to the Magistrate. If the only information given to her had been what was set out on the face of the informations, it would not have been adequate, in my judgment, to justify the grant of a warrant. There is no significant difference between a mere assertion that reasonable grounds exist for suspicion, and an assertion that they exist because of intelligence, about which nothing more is said. That is in reality all that the informations themselves disclosed.[47]However, I am satisfied that the Magistrate was given enough evidence on oath by DC Stowell to provide the reasonable grounds for suspicion necessary for her to issue the warrants. Although the hearing lasted only fifteen minutes, that would have been enough time for him to provide information which clearly went beyond that which was in the informations themselves. I accept his evidence that he covered the intelligence case, the period and number of reports as set out in his "Draft Information", either as part of what he said in his initial evidence on oath or in response to questions from Mrs Pascoe. I accept that he conveyed the significant information in it, and included his assessment as an experienced police officer that, albeit without any greater specifics than its volume and consistency, the intelligence was reliable. It is clear that information from the "Draft Information" was given to the Magistrate because of her recollection of involvement of a circus. I also accept that she did ask some questions, as she says was her practice. It is not possible to say how far she probed the intelligence rather than the details of the premises in the warrants asked for, but I am satisfied that, one way or another, she received the relevant information in the "Draft Information." That in my judgment is sufficient to ground the necessary reasonable suspicion. It is not necessary to have fuller evidence, desirable though it might have been as to the extent to which the reliability of the intelligence was probed. I cannot attribute any significance to her comments about a recent upsurge in local drug seizures.[48]Mr Beggs accepted that DC Stowell should have told the Magistrate of the absence of convictions and arrests of the Claimants. It is scarcely positive good character in view of the allegations which were being made to justify the warrants. I agree with Mr Beggs, but I cannot see that this could have made a difference to the decision. The Magistrate would have been bound to have thought that they had no convictions, arrests, or cautions of any relevance if they were not mentioned, since she would have anticipated that she would have been told of any which supported the intelligence, which included quite broad allegations. I do not think that it was necessary for the police to point out that there was no "objective" evidence such as drug seizures; again the Magistrate would have anticipated that any such supporting "objective" facts would have been made known to her if they existed. The disclosure of this fact could not have affected the outcome of the applications. There is no basis for invalidating the warrants on the grounds of non-disclosure.[49]It is very surprising to read the Magistrate's evidence that she had not been trained to keep a note of proceedings and in particular of any additional information she was given. The necessary foundation for the issue of the warrants should be on the face of the information unless there are good reasons for not including it there. Police practice to the contrary should be changed forthwith. Since the proceedings are conducted in the absence of the party whose liberties and rights are to be infringed, it is incumbent on the applicant and the Court to be able to identify the basis for the grant of the warrant, subject to public interest immunity ("PII"). This does not even require all the available intelligence to be produced, nor the reliability and significance of each part to be assessed in the information. Where there is additional information, both the applicant and the Magistrate, must keep a record of it, so that, subject to PII, the basis can be explained to the subject of the warrant when he enquires as he is entitled to do. It would also enable Magistrates and applicants to be clear as to the basis for its issue, rather than having to remember eighteen months or more later, or to rely on what they would have said or done as a matter of general practice. This point has been made too often for its repetition here to be other than a matter of urgent concern for the police and Magistracy. I intend to send a copy of this judgment to the Senior Presiding Judge so that the point can be made clear once more to the Magistracy.[50]However, I am satisfied in this case that I can accept the evidence of DC Stowell and Mrs Pascoe as to what was said, for all the limitations which the passage of time created for the detail of their memories. That is sufficient for the issue of the warrants to have been lawfully based on reasonable suspicion.[51]I reject Mr Tomlinson's submission that the time has now come for failures of record keeping or note taking whether by the police or the Magistrate to invalidate the issue of the warrant. Of course, if a reviewing court concludes that what was provided on the face of the information did not support the lawful issue of the warrant, and is unwilling in the circumstances of the case to infer from the evidence that the Magistrate had any further or sufficient information, the warrant will be invalid. But I see no reason to refuse to consider and judge the evidence which is provided.[52]Although the decision of the Divisional Court in Amdrell preceded the Human Rights Act, there have been a number of subsequent Divisional Court decisions in which expressly or by necessary implication, the submission that failures of that sort should invalidate the issue of the warrant have been rejected. I see no sufficiently powerful reason to come to a different view, quite apart from the authority of R v Greater Manchester Coroner ex pTal [1985] QB 67. If the warrant is issued unlawfully on the evidence put forward to support it, it is invalid. If, on examination, the issue of the warrant is supported by sufficient evidence to show that reasonable grounds for suspicion existed, I see no reason to invalidate it, simply because the evidence was not provided on the face of the information. That would be a perverse sanction for a failure in judicial note taking. On that basis, the argument that this involves a breach of Article 8 ECHR fails. The rights are engaged, but the infringement is in accordance with the law; proportionality is not at issue. There is a basis, by no means as satisfactory as it should be but nonetheless real, upon which the basis for the action can be ascertained and its lawfulness can be tested. But even were Article 8 breached through the absence of a note, and the difficulties in ascertaining the basis for action, that should not in my judgement be remedied by invalidating the warrant.[53]I accept that in principle the actions of a Justices' Clerk can create an appearance of bias: an unduly close relationship to the applicant, the level of participation in the preparation of the information, the role played in advising the Magistrate. There is clearly a role which the Clerk can play without creating such a risk: technical assistance and advice so that issues such as the statutory provision relied on, the definition or identification of the premises to be covered, will not lead to an application failing before the Magistrate on the Clerk's advice, and having to be repeated with the attendant waste of applicant and judicial time. Where the evidential basis for the application is not adequate on the face of the information, I do not see that the Clerk would be doing other than what a Clerk is supposed to do for that to be pointed out to avoid a wasted hearing. The Clerk cannot advise on the presentation of the case, what are weak and what are strong points; the Clerk's role cannot diminish the requirement for judicial scrutiny and consideration on the basis that the Clerk will have checked that all is in order.[54]The duration of the meeting between Mr Hope, Mrs Duff and the two police officers, at two hours, seems very long for the giving of mere technical advice however complex the situation at the industrial estate. DC Stowell's evidence suggests that there was a rather fuller exposition to the Clerks of the basis upon which the warrants were being sought. Mr Hope does not quite say that the discussion was limited to technical matters, even if the advice ultimately given by him was only of a technical nature.[55]In the end I am not persuaded that an objective observer in full possession of the facts would have concluded that there was a real possibility of bias. There is something, though not a great deal in the fact that it was not Mr Hope but Mrs Duff who actually clerked the Magistrate's hearing. There is more in the fact that there is no evidence that the police made any changes to the information or warrants beyond the technical, in what I accept would have been quite a complicated search warrant at the industrial estate. There is no evidence at all, and the "Draft Information" is to the contrary, that the evidence required to support the case or the way in which the case for the issue of the warrants was prepared was affected in any way. There is no basis for supposing that at this Magistrates' Court, an over cosy relationship had grown up between the applicant officers and the Justices' Clerks, leading to undue assistance or an undermining of the duties of the Magistrate to examine carefully the grounds for the application. The police may have explained more of the background than may have been strictly necessary in order for technical advice to be given. But I conclude that this ground has not been made out on the facts. Delay[56]Mr Beggs argues that the commencement of the proceedings was not prompt or in any event within three months from 24 February 2010, the day of the searches. They were lodged on 12 October 2010. On the face of it, proceedings were not commenced within three months of the grounds first arising, CPR Part 54.5(1)(b), and cannot be brought unless time for doing so is extended. Disclosure of the informations as the supposed basis for the issue of the search warrants was not sought until 20 April 2010, and particularly in view of the fact that the claimants were aware of the intended search in advance, they were not acting promptly. The Claimants did not chase the unanswered request until towards the end of July. On 30 July 2010, the Claimants issued judicial review proceedings for the disclosure of the informations, which the Defendant police provided on 25 August 2010, and those proceedings were then compromised. Mr Beggs accepted that the Claimants could not have made all of their claims without that disclosure but contended that the Claimants could have brought some of the claims earlier, and then could have amended the proceedings. R (Faisaltex Ltd and Others) v Preston Crown Court [2008] EWHC 2832 (Admin) supported this approach. Much of the argument in this case turns on the evidence submitted after these proceedings were commenced, in response to the inadequacies of the informations. The Defendant police say that there has been a degree of prejudice in the delay since the memories of the witnesses has been damaged by the passage of time.[57]It is plain that the proceedings were not brought within three months of grounds first arising. But the Claimants did act reasonably in seeking disclosure before starting them. While the first claim itself could have been brought earlier, and while the police could and should have been chased, it does not really lie in the mouths of the police to complain of an inactive response to their own inaction. And the onus lay on them to produce, when requested, the basis for the warrants they had obtained. I do not regard the period which elapsed from the disclosure of the informations and the start of these proceedings as too long in itself.[58]I find the argument about prejudice impossible to accept here. It is the responsibility of the police and Magistrate to take proper notes of the hearings; any failing in memory through delay when they have not prepared any notes is their responsibility. The Defendant police still assert that the evidence they produced sufficed, as in my judgment it did. There was no significant prejudice from delay.[59]Had the claim been successful on the merits, it would have been wrong on the facts of this case to have refused the necessary extension of time so that it could be brought. I am prepared to extend time anyway. However, although the claim was arguable on the merits, I would dismiss it. Mr Justice McCombe[60]I agree.

Cited in 7 later judgments