Brook & Ors, R (On the Application Of) v Preston Crown Court [2018] EWHC 2024 (Admin)

[2018] EWHC 2024 (Admin)Case No CO/229/2018 AND CO/5880/2017
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate 11/07/2018
Before
LORD JUSTICE LEGGATTMR JUSTICE SOOLE
Between
The Queen on the application ofClaimants(1) Martin BrookClaimant(2) Matthew BrookClaimant(3) Oliver James GarthwaiteClaimant(1) Preston Crown CourtDefendants(2) Preston Magistrates CourtDefendant
Mr A Williamson QC (instructed by Brown Rudnick) for 1 st and 2 nd ClaimantsMr M Butt (instructed by Kingsley Napley) for 3 rd Claimant for The Defendants did not appear and were not representedMs B Collier (instructed by Lancashire Police Legal Service) for Interested PartyHearing Hearing date: 11 July 2018
Judgment Approved
[1]In these two conjoined actions the claimants are seeking judicial review of two decisions to issue search warrants. In the first action, the claimants are Mr Matthew Brook and his father, Mr Martin Brook. They challenge a decision of HHJ Lloyd sitting at Preston Crown Court on 25 July 2017 to issue warrants to search four addresses which included Matthew Brook's home address and the business address of a company called Calderbrook Construction Limited, of which he is a director.[2]In the second action, the claimant is Mr Oliver Garthwaite, who is also a director of Calderbrook. He challenges the decision of a magistrate on 23 August 2017 to issue a warrant to search his home address.[3]The Lancashire Police who, through their Chief Constable, appear as an interested party – with the defendants taking no active part in these proceedings – applied for the search warrants in the course of a criminal investigation into suspected offences of bribery and money laundering. The investigation was prompted by an intelligence report alleging that a company called Smith Electrical was paying someone called Mike Emms £1 million in cash over 5 years to obtain contracts with Nationwide Building Society.[4]Lancashire Police made enquiries of Nationwide, who confirmed that they had an employee named Michael Emms who was employed as a project manager and had worked for Nationwide for 35 years. The Police also established that, according to his employer, Mr Evans was in a position to influence the choice of subcontractors used by Nationwide.[5]Mr Emms' salary was some £63,000 a year but further enquiries showed that he owned three properties in Northampton and owned or had an interest in two further properties in South Africa; that he had many different bank accounts with a number of financial institutions; that, in addition to receiving rental income and his salary, he had been making numerous cash deposits into different bank accounts on a weekly basis; and that he had travelled extensively on holidays, travelling business class and staying in expensive hotels. In short, Mr Emms had wealth far beyond what he could reasonably be expected to have accrued from his salary.[6]Lancashire Police learned from Nationwide that the main contractor that it uses for maintenance and construction work is Carillion plc, a very substantial company. Carillion often uses subcontractors. One such subcontractor which previously used to carry out maintenance work for Nationwide had been a company based in Lancashire called "Smith Electrical UK Limited". One of the two directors of Smith Electrical from 2000 until shortly after the company was sold to the Imtech Group in 2011, or thereabouts, was Mr Martin Brook.[7]Subsequently, Carillion had used Calderbrook as a subcontractor. The police, through a company search, found out that Calderbrook had been set up in December 2013 by Matthew Brook and had started trading in January 2014. Mr Garthwaite later joined as a director in January 2016.[8]An email was uncovered by Nationwide which had been sent by Mr Emms to Nationwide's procurement manager in August 2014 and which contained a suggestion that Calderbrook should be authorised as a direct supplier of Nationwide. That request had not been granted but Calderbrook had continued to be used extensively as a subcontractor for Nationwide and there was evidence that, for the financial years 2016 and 2017, Calderbrook had carried out many contracts for Nationwide and that the value of the work undertaken in 2017 was approximately £14 million.[9]On the basis of the information obtained, Lancashire Police suspected that Mr Emms had used influence within Nationwide to procure lucrative work, first for Smith Electrical and then, after that company was taken over, for Calderbrook, in return for bribes paid by persons who were likely to have included Martin Brook and, more recently, Matthew Brook.[10]In July 2017, shortly after the investigation had commenced, Lancashire Police also received information that Mr Emms was planning to emigrate to New Zealand and was about to be made redundant by Nationwide.[11]On 25 July, they applied to Preston Crown Court for the four search warrants, three under s.8 of the Police and Criminal Evidence Act 1984 ("PACE") to search the home addresses of Michael Emms and Matthew Brook and the business premises of Calderbrook, and one special procedure warrant under s.9 to search an address which they believed to be the home address of Martin Brook, who is a chartered accountant.[12]It turned out that Martin Brook no longer lived at that address and that the property had been sold. That warrant, therefore, was never executed. Mr Martin Brook was in fact at the time living at the same address as his son. The other warrants were executed on 26 July 2017.[13]At that stage, no application was made for a warrant to search Mr Garthwaite's address but, as I have mentioned earlier, such an application was later made. It was made on 23 August 2017 at Preston Magistrates' Court under s.8 of PACE. The warrant was granted and it was executed on 4 October 2017.[14]I shall take the two claims in turn, starting with that of Matthew Brook and Martin Brook. They challenge the lawfulness of the warrants granted on 25 July 2017 in respect of Martin Brook's home address and Calderbrook's address. They do so on a variety of grounds. However, the essential grounds which have been developed by Mr Williamson QC today are, first, that the warrant was allegedly obtained on the strength of certain misleading assertions and the failure to disclose certain allegedly material facts and, second, that the application for the warrant was too widely drawn.[15]As on any application made without notice to a person who will be affected if an order is made – particularly an order of a draconian kind such as an order authorising a search of a person's private or business address – a police officer applying for a search warrant owes a duty to make full and fair disclosure to the judge of all facts which it is material for the judge to know. That includes, as the form that was used to make the applications in this case makes clear, any information that might reasonably be considered capable of undermining any of the grounds of the application. The test of materiality is whether the information might reasonably lead the judge to refuse to grant the warrant.[16]The duty extends not only to facts known to the officer but to facts which would have been known if proper enquiries had been made. The extent of enquiries that need to be made in order to satisfy that requirement must depend on all the circumstances including, amongst other things, the nature of the investigation, the information that has been obtained and the urgency of the application.[17]The first ground advanced on behalf of Matthew Brook and Martin Brook is that there was a breach of that duty in the way that the application to issue warrants was presented. The central complaint made is that the application gave the impression that Calderbrook was a newly established business which had not existed before the company was founded in 2013 and that the people running Calderbrook, in particular Mr Matthew Brook, had no previous dealings with Nationwide and Carillion and, in the case of Matthew Brook, little, if any, previous business experience. That is said to have been the impression given by statements in the application that Calderbrook was "a young company" and that it had been initially formed in December 2013, with no suggestion that there had been any previous business dealings with Nationwide and Carillion other than those dealings which had taken place between those entities and Smith Electrical.[18]It is said in that regard that, if the police had carried out a proper search, they would readily have established that the Calderbrook company which was founded at the end of 2013 was simply carrying on the business of a company which had previously carried on business under the same name; and if further enquiries had been made, those would have disclosed that that earlier incarnation of Calderbrook had a business relationship with Carillion and Nationwide going back to 2012, shortly after Smith Electrical was taken over by the Imtech Group. Furthermore, it would also have been discovered that Mr Matthew Brook was not a neophyte in this area but had previous experience, being involved also with other companies.[19]It is said that this was material because a point was made in the application that it was extraordinary that a company, Calderbrook, which had only begun trading in 2014 could already, in the financial years 2016 and 2017, have won contracts to do work for Nationwide to a value of £14 million other than by improper means.[20]Associated with that, complaint is made about the description of Calderbrook in the application as "effectively a two man band" and as a company which works out of a "shop front in Ansdell". It is said that this description gave the impression that the company was an entirely insubstantial business rather than, as was in fact the case, a company with a significant number of employees. The relevance and importance of this is again said to be that the impression was being given to the judge that Calderbrook was not a company of substance which could reasonably be expected to have won the amount of business that it had won to do work for Nationwide through Carillion other than by improper means, in particular the suspected means of having bribed Mr Emms.[21]In the grounds of claim served at the outset of this action, it was alleged that:
"No competent investigator and applicant for a search warrant acting in good faith could have failed to draw to the court's attention the fact that a company of the same name as Calderbrook had been in existence since 2001."
The same formula was used in other allegations made in the grounds of claim. For example, it was said that no competent investigator or applicant for a search warrant acting in good faith could have failed to conduct a search for all of Matthew Brook's directorships, thereby revealing that he had been a director of Calder since 2011 and that it became Calderbrook in 2013. Other allegations were made in similar terms.[22]In his skeleton argument for this hearing, Mr Williamson QC, who represents these two claimants, sought to elevate their case from one that no competent investigator acting in good faith could have failed to undertake these enquiries into an allegation of actual bad faith on the part of the interested party. Mr Williamson seemed not to appreciate for some time in the course of oral argument the importance of the difference between those two kinds of allegation. It ought to be elementary that an allegation of bad faith is an allegation of a serious nature which must not be made without a proper basis for it and without giving fair notice to the party accused of bad faith. Neither of those conditions, in my opinion, was satisfied in this case.[23]As to the notice given, as I say the allegation of bad faith was raised for the first time in the skeleton argument put forward for this hearing, and nothing that we were shown in terms of evidence in my view came close to supporting the suggestion that was bandied about in that skeleton argument that the investigators in this case had acted dishonestly in making the application for search warrants.[24]The most that could properly be alleged, as I see it, is that, if proper enquiries had been made, they would have included the matters to which I have referred, such as enquiries into previous companies with which Matthew Brook, in particular, had been associated.[25]For my part, I do not consider that even that allegation has been made out. In the light of the information which the Lancashire Police had obtained about Calderbrook, Matthew Brook, his father Martin Brook and the connections between, certainly, Martin Brook and Mr Emms and Smiths Electrical, and the other information to which I referred earlier, I do not consider that it was necessary for the police to carry out further investigations into other companies with which Mr Brooks had been connected before making this application. Certainly that was not necessary against the background where there was some urgency in making the application because of the information that Mr Emms was planning to emigrate to New Zealand.[26]Where I do consider that a criticism can fairly be made of the way in which the application was presented is that it seems to me that it did go too far in making a positive point of the fact that this was a young company and that there had been no prior connection with Nationwide and Carillion in circumstances where, at that stage of the investigation, the Lancashire Police were not actually in a position properly to make such an assertion. They had not, as they must have known, looked into other companies which the company search had shown, in particular the company that had previously carried on the business of "Calderbrook", of which Mr Matthew Brook had also been a director.[27]However, considered in the context of the presentation made to the court as a whole, I do not consider that that misrepresentation, to the extent that it was a misrepresentation, was material. I certainly do not consider that there is any realistic possibility that, if further investigations had been made and the Crown Court judge had been given fuller information about the business history of Calderbrook and those who controlled it, the outcome of the application would have been different.[28]In particular, what those enquiries would have shown, as Martin Brook and Matthew Brook have themselves explained in their witness statements made for the purpose of this claim, is that the predecessor company had started doing work for Nationwide through Carillion very shortly after Smith Electrical had been taken over by the Imtech Group. That is some 2 years earlier than 2014, which is when the connection of which the Lancashire Police were aware began. That would simply have shown that, instead of what might have appeared to have been an unexplained gap between the work being done by Smith Electrical (which there was evidence to suggest had been procured by bribing Mr Emms), there was in fact an almost seamless transition to work being done instead by the predecessor company of Calderbrook, which then flowed through into work being done by Calderbrook itself for Nationwide.[29]Nor do I think that knowing that there had been 2 years more connection with Nationwide than that of which the police were aware would have significantly altered the impact of the facts presented about the value of the work being done by Calderbrook, which was in fact understated in the application. The application stated that the "planned life cycle work for Nationwide in financial years 2016 and 2017 was approximately £14 million", when it appears that that was in fact the value of the work undertaken in 2017 alone, not including other valuable work undertaken in the previous year.[30]Moreover, although the phrase "two man band" could, if taken on its own, have given a misleading impression, in the context of the document as a whole I do not consider that it would. There was no suggestion in the application that the business being done by Calderbrook for Nationwide was anything other than legitimate business in the sense that the work was actually being carried out. The suggestion was that a company which plainly was a small company, Calderbrook, was acquiring a very large slice of work which appeared to be exceedingly profitable on a basis which only appeared capable of being accounted for through the connection that Martin Brook was known to have had with Mr Emms. I do not consider that knowing that the relationship had begun 2 years earlier would have materially detracted from the significance of that information. Accordingly, I do not consider that the first ground of claim which has been pressed today has been substantiated.[31]A further point was submitted this morning by Mr Williamson concerning a document which indicated that the profitability of Smith Electrical declined after it was taken over by the Imtech Group. But it appears that that document was only relied on in support of the application for a warrant in respect of Mr Martin Brook – that is to say, the warrant which was never executed. Therefore, as Mr Williamson quite properly pointed out and accepted this afternoon, that is not a ground that can be maintained.[32]The other ground that has been maintained in oral argument concerns the email that I mentioned earlier, sent by Mr Emms internally within Nationwide in August 2014. That email was mentioned in three places in the application for a search warrant – perhaps not surprisingly given that it was a piece of evidence which positively appeared to show that Mr Emms had sought to influence the giving of work to Calderbrook.[33]In para.9 of the outline in the application, it was said that:
"NBS have uncovered an email from Emms to the Nationwide Procurement Manager requesting that Calderbrook be classed as a direct supplier to NBS."
Later, it was said that Emms had "asked" for Calderbrook to be a direct supplier to NBS in August 2014. The third reference which was highlighted by Mr Williamson stated that, by August 2014, Emms was "pushing" for them to be a direct supplier to NBS. It was said that this "is unheard of, particularly as NBS have a contract with Carillion for building maintenance, etcetera, all of the services that Calderbrook may supply."[34]Mr Williamson submitted that to describe Mr Emms as pushing for Calderbrook to be made a direct supplier was exaggerated when one looks at the content of the actual email and that the judge ought to have been told that the email in fact referred to what appeared to have been an earlier request for three companies to be appointed as direct suppliers, only one of which was Calderbrook and another of which was an Imtech company.[35]I do not consider that there is any substance in those complaints. They do not materially alter the plain fact which the email demonstrates that Mr Emms was positively advocating the appointment of Calderbrook as a direct supplier, something which clearly raised a reasonable suspicion. None of the other points mentioned in the grounds for the claim in so far as they were pressed today in my view had any substance. Accordingly, I consider that the case made that there was material misrepresentation or non-disclosure by Lancashire Police in the application for the warrant is unfounded.[36]There is, however, a second head of complaint which concerns the width of the description of the material sought by the warrant. That was described in the application as follows:
"All records of communication whether physical, electronic or otherwise, between Michael Emms, Matthew Brook and Martin Brook. Electronic communication equipment Electronic data storage equipment Financial documentation Computer equipment Mobile communication devices, including telephones and tablets Accounting information for Calderbrook, Smiths and Imtech Any documentation relating to Calderbrook, Smiths or Imtech."
Electronic communication equipment Electronic data storage equipment Financial documentation Computer equipment Mobile communication devices, including telephones and tablets Accounting information for Calderbrook, Smiths and Imtech Any documentation relating to Calderbrook, Smiths or Imtech."

Accounting information for Calderbrook, Smiths and Imtech

[37]In that description, Mr Williamson focused in particular on the first item, that is, records of communication between Michael Emms, Matthew Brook and Martin Brook, and the fourth item which was simply said to be "financial documentation". He submits that those descriptions were completely open-ended, far too wide and unlimited either in terms of the content of the communications and documentation (other than that the documentation was financial) or in terms of time. Accordingly, the warrant was unlawful.[38]The relevant requirement for this purpose is contained in s.15(6)(b) of PACE, which says that a warrant:
"shall identify, so far as is practicable, the articles or persons to be sought."
[39]As explained by authorities, for example the case of Lee & Ors v Solihull Magistrates Court & Anor [2013] EWHC 3779 (Admin), para 39:
"The purpose of the mandatory requirement imposed by section 15(6)(b) is to enable anyone interested in the execution of a warrant to know what are the limits of the power of search or seizure which is being granted. This is necessary so that such a person can be put in a position to enable him or her to challenge the lawfulness of the seizure of any particular item. Accordingly, it is now well established that the terms of the warrant must be precise and intelligible by reference exclusively to its own terms and not by reference to any other material."
[40]On behalf of the Lancashire Police, Ms Collier also referred us to the case of Superior Import/Export Ltd & Ors, R (on the Application of) v Revenue and Customs & Anor [2017] EWHC 3172 (Admin). As well as the points that I have just made, reference is there made (at para 70) to authorities which point out that:
"Where a broad investigation is underway, it may be less practicable to specify the articles in question... There may be difficulty in drafting a warrant when the scale of the investigation is very large."
Given the nature of the inquiry, a balance may need to be struck between the requirement that the warrant should be sufficiently clear and precise for those interested in its execution to know precisely what are the limits of the power, on the one hand, and the nature of the investigation on the other, but where the balance lies in an individual case must turn on the particular facts.[41]I accept, of course, those principles as an accurate statement of the law but in my view the form of warrant that was applied for in this case was deficient on any reasonable consideration.[42]It cannot be adequate to authorise seizure of all communications, not only between Mr Emms and either of the two Mr Brooks but – as was also encompassed by the wording of the warrant – between Matthew and Martin Brook. That is far too broad given in particular the fact that they are father and son and must have communications about many subjects on a regular, possibly daily basis. Simply to state that all such communications were covered without making any attempt to circumscribe those communications either in terms of their content or in terms of timescale was, in my view, manifestly deficient. It cannot be said that the warrant was sufficiently clear and precise for somebody to whom the warrant was presented to know what they had the right to challenge and what they did not. On the face of the warrant any communication of any kind could be seized but plainly that was not something which could be justified. The same, in my view, goes for the description which referred simply to "financial documentation". That, again, was entirely unlimited both as to the nature of the financial dealings which were intended to be covered and in terms of timescale.[43]I appreciate that when applications are being made as a matter of urgency and at an early stage of an investigation, it is a difficult task for a police officer responsible for making such an application to know exactly what classes of document or material will be relevant and to specify those in a way which is sufficiently precise but also enables the purpose of the investigation to be fulfilled.[44]Nevertheless, difficult as that task is, it is important that careful thought is given to attempting to make the descriptions as specific as possible. That does not mean that they have to condescend to enormous detail but they must do better than simply to state, for example, "financial documentation", without more. In those circumstances, I am satisfied that this ground of claim is valid and I would make a declaration that the search was unlawful for that reason.[45]I would not, in those circumstances, seek to prevent Lancashire Police from making an application under s.59 to retain material which has been seized, but that is an application which should be made to the Crown Court. This court will entertain an appropriate draft order that will preserve the position for a reasonable time to allow such an application to be made and, if an application is made within that time, until that application has been determined.[46]I turn, then, to the claim of Mr Garthwaite, which was clearly and ably presented on his behalf by Mr Butt. There are a number of grounds. It is convenient to take the first and last of those grounds together, both of which relate to the adequacy of the reasons for believing that there was material at his address which was likely to be of substantial value to the investigation of the offence.[47]At the time when the original application for search warrants was made no application was made for a search warrant in respect of Mr Garthwaite's address because there was, at that stage, no information to suggest that Mr Garthwaite was complicit in the suspected bribery of Mr Emms. However, the view was taken after material obtained from the search of the premises of Calderbrook and Mr Matthew Brook had been reviewed that there was now information which provided a sufficient basis for such an application.[48]Most of the written application simply consisted in a recycling of the document that had been submitted previously. The critical paragraph, however, was para.29. That stated:
"Initially, there was no evidence to suggest Garthwaite was implicated in the criminality. However, now some of the material has been examined, it would appear Garthwaite is heavily involved in Calderbrook Construction and is involved in the criminal conduct."
I think I am right in saying that in the whole of the written application that sentence was the only basis for suggesting that there were now reasonable grounds for believing that material of substantial value to the investigation was likely to be found on Mr Garthwaite's premises. The written application itself said no more than I have just quoted. In particular, it did not explain at all what the evidence was that now implicated Mr Garthwaite allegedly in criminal conduct or what information disclosed by the material examined was said to suggest that.[49]I consider that any properly prepared application would have done more than simply make the bare assertion that I have quoted. Unsurprisingly, when the oral hearing took place at the Magistrates' Court the magistrate asked for more information about what the material was that allegedly linked Mr Garthwaite to involvement in criminal conduct. Regrettably – and this was the second respect in which the presentation of this application in my view fell below the high standards which are required of officers in these circumstances – no note was made at the time of the exchange which followed.[50]However, the officer who presented the application, DC Grant, subsequently made a witness statement dated 2 December 2017, in which he described what happened at the oral hearing at this point as follows:
"The magistrate stated she had had sufficient time to read the application and summarised her findings which were an accurate portrayal of the application. The magistrate looked at the court clerk and, from memory, I believe the following was then said: 'We have just one question. What material is it that has been examined that shows that Garthwaite is involved?' I replied: 'A document has been seized which appears as though it relates to minutes of a meeting between Martin Brook and Garthwaite. We believe this document also makes mention of other suspects in this investigation and the companies that have featured in it. There is mention of disguising figures in order to avoid showing profitability and moving revenue around. There is also mention of work being carried out at Garthwaite's house and his wife receiving a wage from the company. In general, it appears as though there are financial irregularities which aren't quite right and Garthwaite appears to be aware of them. Hence we now want to carry out a warrant at his home address.' The magistrate then said she was happy with the application and as such the warrant was granted."
[51]I have made the criticism of DC Grant that he ought to have, but did not, make a note of this important exchange immediately following the hearing and ought not to have had to rely on his memory when he made a statement some months later. To be fair to him, however, I see no reason at all to doubt(a) that the witness statement gave a faithful account of what happened as best he could recall it and(b) that at the time of the application he honestly believed that the document to which he referred did represent minutes (or at least a record) of a meeting which had taken place between Martin Brook and Mr Garthwaite. Nevertheless, I also think it plain that on any reasonable reading of the document that is not what it is.[52]It is headed:
"James discussion 10.5.17"
. It then contains a list of points. It is tolerably clear on reading the document that these are notes which someone has made in preparation for a discussion: in particular, points which the maker of the note plans to raise and questions which he plans to ask. It cannot reasonably be interpreted as a record of an actual meeting that has already taken place because it is all one way and contains nothing to indicate what answers were or would be given to the points being made.[53]It follows that the document was misdescribed to the magistrate and that, had DC Grant been asked at the time whether he knew whether the meeting had actually taken place, he would have been bound to give the answer 'no'. The impression given by the document is that Mr Garthwaite had been raising issues or queries about the accounts of Calderbrook to 31 December 2016, and that the author of the document who may have been Mr Martin Brook had compiled a list of points which he was proposing to make: first of all, to explain the approach taken in the accounts; and secondly, in substance, to tell Mr Garthwaite why he should not be causing problems about the presentation of the accounts.[54]The three passages that seem most material for present purposes are these. First, a note which says in relation to the accounts:
"We need to disguise numbers to avoid issuing detailed accounts for Carillion's eyes and Imtech's. We don't want people to see profits we are making."
Secondly, there is a note which says:
"NW relationship has been built over many years. Do you believe that you are part of the reason why we got all this work? Do you believe that if you hadn't been here this work would not have arisen? We need capability (names to prove) to complete work and that is very different to the reason why we actually got it down to specific individuals."
A third passage in the note says:
"We manipulate things to suit you", and then there is what appears to be a reference to Mr Garthwaite's wife and her needs, followed by "but you come back with cash" (I think it may be) "regulation for business."
[55]Those notes seem to me a slender basis for drawing any inference that Mr Garthwaite was aware of the alleged bribery of Mr Emms as opposed to simply having been asking awkward questions and making complaints about the presentation of the accounts which Mr Martin Brook, if it was him, was seeking to deter Mr Garthwaite from pursuing any further.[56]Nevertheless, I would not go so far as to say that this note did not provide a proper basis for making an application for a warrant. But I consider that it was inadequate not only(a) to rely on an oral presentation to explain what was the key piece of evidence in support of the application, but also(b) mistakenly to describe this document as comprising minutes of a meeting when it, to my mind, obviously did not have that status.[57]As for the description of the contents that DC Grant recalls giving the magistrate, that seems to me to give a somewhat stronger impression of the strength of the document, or the degree to which it could be considered incriminating, than a reading of the actual document would be likely to suggest. But I would not go so far as to say that it was such as to amount to a material misrepresentation of the contents of the document. I will consider the consequences of the non-disclosure or misrepresentation which I have found in conjunction with the other points relied on by Mr Butt.[58]The next point which needs to be considered relates to the reasons given by the magistrate for granting the application for a warrant. Those have been recorded on the authorisation and record of the decision signed by the magistrate. It appears that neither that document nor any copy of it was provided at the time to DC Grant and it has only come to light subsequently when a request for it has been made to the Magistrates' Court. What the magistrate has written is:
"I issued a warrant because, as a result of earlier search warrants, investigations revealed evidence to suggest Mr Garthwaite is living beyond his means and there are financial irregularities with Calderbrook Construction that he is likely to be involved with."
[59]That gives two reasons for the decision: one is, financial irregularities with Calderbrook that Mr Garthwaite is likely to be involved with, which correlates with the information that DC Grant gave orally to the magistrate as set out in his subsequent witness statement; but the other is a belief that Mr Garthwaite was living beyond his means.[60]It is common ground that there was nothing in the application which provided any basis for such a belief. There was a substantial amount of information to suggest that Mr Emms had been living beyond his means but nothing to suggest that the same was true of Mr Garthwaite. It seems surprising that that did not come to light at the time given that DC Grant in his witness statement from which I quoted earlier said that he had been told by the magistrate that she had had sufficient time to read the application and that she summarised her findings which were an accurate portrayal of the application. If that is indeed what happened then it would have been known to DC Grant that the findings were inaccurate, but I assume in favour of the interested party – although again it is regrettable that no record was made of what was said contemporaneously with the hearing – that the mistake made by the magistrate was simply a misreading on her part in which she had confused Mr Emms somehow with Mr Garthwaite and formed a wrong impression, of which DC Grant, at the time, was unaware.[61]Although in those circumstances the evidence does not indicate that any misrepresentation or failure to disclose information took place, it nevertheless is apparent that the warrant was issued on the basis of a plainly material error of fact. It seems to me that in these circumstances the test that needs to be applied in determining whether the warrant can be upheld is to ask whether, if(a) the magistrate had not made the mistake which she did and(b) a fair and accurate presentation had been made about the status of the note of the proposed discussion with Mr Garthwaite, this court can be confident that the magistrate would in those circumstances have issued the warrant. If the position is that the magistrate might well not have done so, then the decision to do so must be quashed.[62]When those two matters are taken together and against the background where, as I have indicated, there was at best a very slender basis for making the application at all, it seems to me that the magistrate might very well have come to a different decision had it not been for those two errors. In those circumstances, the conclusion that I would reach is that the second warrant must for that reason be declared unlawful and the decision to issue it quashed.[63]In addition, exactly the same criticisms can be made about the width of the description of the material sought by the warrant as I have already made in relation to the warrant issued to search the addresses of Matthew and Martin Brook and Calderbrook. The second warrant was in materially similar terms, save for the addition of Mr Garthwaite as a further person in the list of those whose communications were sought. For that reason, too, the search of Mr Garthwaite's premises was unlawful.[64]A further ground was raised about whether the access conditions were satisfied in Mr Garthwaite's case.[65]Under s.8 of PACE, one of the requirements which must be satisfied before a warrant may be issued is any of the conditions set out in subsection 3. The one that was relied on in the application for the warrant in this case was:
"(c) that entry to premises will not be granted unless a warrant is produced."
In the relevant section of the application it was said in support of that assertion that:
"It is believed that there may be incriminating evidence held at the premises and it is therefore believed that the occupants will not volunteer to allow the police to search and seize items that may incriminate them in a criminal offence."
[66]It was submitted by Mr Butt that the application was deficient because Mr Garthwaite had been present when the search of the premises of Calderbrook had been carried out and had co-operated with the police in carrying out that search. It was submitted that this was a material fact which ought to have been drawn to the attention of the magistrate and which might well have led her to refuse to issue the warrant.[67]I think it would have been better, given the heavy obligation that rests on an applicant for a warrant in terms of the duty of disclosure, if that fact had been drawn to the attention of the magistrate. Nevertheless, I do not think that it significantly undermines the grounds for believing that Mr Garthwaite would not grant entry to his premises without a warrant.[68]It is plain from the circumstances which were disclosed to the magistrate that Mr Garthwaite must have been aware that a previous search had been carried out of the premises of Calderbrook. The fact that he was present when that search was carried out and co-operated with it, whilst it perhaps might have been mentioned, does not seem to me to raise any real likelihood that he could be expected to allow entry to his own private premises in the absence of a warrant. Therefore, I would not uphold that ground of the claim.[69]In the light of the conclusions that I have reached about the unlawfulness of the warrant, the further question arises of whether the Lancashire Police should also be given an opportunity, as I consider that they should in the case of the first warrant, to make an application under s.59 to retain material which has been seized or whether in the circumstances such an order should not be made.[70]For the test in that regard we were referred to the case of R (on the application of Chatwani & Ors) v The National Crime Agency & Anor [2015] EWHC 1283 (Admin). At para 139(iv) of the judgment the Divisional Court stated that:
"there may be circumstances in which it is appropriate to deny the agency of all benefit of the illegal search, irrespective of the nature and content of the documents seized. Those circumstances are likely to focus on the agency's own conduct. If it has acted in bad faith, that is likely to be a compelling reason for not allowing it to retain any benefit from the exercise. However, bad faith is not a prerequisite: the agency's conduct in obtaining and/or executing the warrant (or their subsequent conduct...) may drive this court to give the subjects of the warrants relief to deny the agency of all benefit of the unlawful search. I stress that the circumstances in which the court is likely to make such a finding will be rare."
[71]I say at once that, as in relation to the claim made by Martin and Matthew Brook, I see no basis for alleging that Lancashire Police acted in any way in bad faith either in applying for the warrant in respect to Mr Garthwaite's premises or subsequently. However, there were, as I have indicated, a regrettable number of failings in the way that the application was conducted which began at the very outset with the failure to set out in the written application a proper basis for making it, followed then by the failure to document at the time what was said at the oral hearing. Furthermore, that led in turn to the misdescription of the critical document which formed the basis for suspecting that Mr Garthwaite was involved in criminal conduct – although I accept it was an innocent misdescription. There is then the additional point that the warrant was too widely drawn.[72]I would not regard those matters had they stood alone as making it appropriate to deny the Lancashire Police all of the benefit of their illegal search. Nevertheless, there is a further consideration in this case which I have not yet mentioned but which I regard as being of great seriousness. That is that, when requests were made at the outset of these proceedings and after they had begun for disclosure of the note of the discussion or intended discussion with Mr Garthwaite which formed the basis of the application, those requests for disclosure were repeatedly refused. That, in my view, was a completely untenable and wrong position to adopt which was not consistent with the duty of candour.[73]To take the position, as was done, that the note need not be disclosed because it was not part of the material contained in the application was simply to seek to take advantage of the fact that the interested party was itself at fault in having failed to provide a proper basis for the application at the time. But, more to the point, as soon as the question of whether a fair and accurate presentation had been put in issue, as it was from the start by Mr Garthwaite, it became obviously relevant to provide the key document which would enable it to be seen whether or not the presentation had been fair and accurate. The fact that it turned out when the document was finally disclosed to have been persistently misdescribed as minutes of a meeting, when even if not apparent to DC Grant at the time of the application it should and must have been apparent to others responsible for conducting the interested party's case later to be a misdescription, only compounds the fault.[74]It seems to me that that is a matter which the court should take into account together with the other errors that have been found in this case and the fact that the application in the first place only just crossed the line of being an application which there were reasonable grounds to support. When all of that is taken in the round, I consider that this is a case in which it is appropriate to quash the warrant and to refuse permission for documents or other materials seized to be retained for the purpose of a s.59 application.

MR JUSTICE SOOLE: I agree.

Cited in 3 later judgments