GSX, R (on the application of) v The Crown Court at Southwark [2026] EWHC 538 (Admin)

[2026] EWHC 538 (Admin)Case No AC-2024-LON-004130
IN THE HIGH COURT OF JUSTICE
KING'S BENCH DIVISION
ADMINISTRATIVE COURT
DIVISIONAL COURT
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate 10/03/2026
Before
LADY JUSTICE YIPMR JUSTICE GRIFFITHS
Between
THE KINGClaimantTHE CROWN COURT AT SOUTHWARKDefendant(1) THE COMMISSIONER OF THE METROPOLITAN POLICE SERVICEInterested Parties(2) THE FINANCIAL CONDUCT AUTHORITYInterested Party
Andrew Bird KC (instructed by Lexlaw Solicitors & Advocates) for ClaimantRyan Dowding (instructed by The Metropolitan Police Service) for First Interested PartyClare Montgomery KC and Florence Iveson (instructed by The Financial Conduct Authority) for Second Interested Party for The Defendant did not appear and was not represented.Hearing Hearing date: 10 February 2026
Approved JudgmentThis judgment was handed down remotely at 10.00am on 10 March 2026 by circulation to the parties or their representatives by e-mail and by release to the National Archives..............................LADY JUSTICE YIP
[1]This claim for judicial review concerns a search warrant issued by the defendant court on an application made by the Metropolitan Police (“the police”), acting on behalf of the Financial Conduct Authority (“the FCA”). The interested parties accept that the warrant was unlawful, as were the entry, search, and seizures pursuant to the warrant. There is no dispute that the warrant should be quashed. The remaining issue is whether additional relief should be granted requiring the immediate return of all seized items, the destruction of any images or copies, and a permanent bar on the use of any material or information obtained.[2]The claimant submits that the conduct of the police and FCA, both before and after the warrant was issued, was sufficiently egregious that they should be prevented from making any use of the material obtained. The interested parties argue that the appropriate mechanism for determining the extent to which any material may be retained or used is an application to the Crown Court under section 59 of the Criminal Justice and Police Act 2001 (“s.59”). The FCA has already applied under s.59(6) for authorisation to retain the seized material. The interested parties invite us to allow that process to run its course.

Anonymity order / reporting restrictions

[3]An anonymity order was made by Griffiths J on 16 October 2025. The claimant’s identity must not be published, nor may any information likely to lead to his identification. That order remains in force.[4]At the outset of the hearing, we made a further temporary order restricting reporting of these proceedings until their conclusion, to avoid any potential risk of prejudice to any future criminal investigation. No media representative was present. As matters unfolded, I do not consider that any real risk would arise from reporting of these proceedings, subject to the existing anonymity order. Subject to any further representations, the additional restriction will be lifted.[5]This judgment does not identify the claimant and may be reported in full.

Background facts

[6]The claimant is a practising barrister. He is a member of the Bar of England and Wales, is of good character and has an unblemished professional disciplinary record.[7]In 2018, the claimant and two others incorporated a company overseas (“X Ltd”). The company was later restructured. The FCA alleges that this was an attempt to distance the founders from the activities of the company but that all three remained beneficial owners throughout. The FCA suspect that the company was a front for fraudulent activity, in which the claimant was involved. Such activity included making false claims against deceased homeowners with a view to securing default judgments which could be enforced against their property.[8]The claimant denies wrongdoing, maintaining that he provided advice to X Ltd and the other founders solely in a professional capacity and was unaware of any fraudulent activity.[9]The two other founders came under investigation by the FCA for offences under the Financial Services and Markets Act 2000 (“FSMA”) and for fraudulent trading (“Operation 1”). In September 2020, one was arrested and devices were seized during a search of his property.[10]In the same month, the FCA issued an information requirement to the claimant, who responded fully. The FCA thanked him for the level of detail in his response, which they described as “most useful”.[11]In 2021, after material on the seized devices was accessed, a further investigation (“Operation 2”) commenced. Evidence obtained caused the FCA to suspect that the claimant was himself involved in the fraud. In particular, telephone messages appeared to show active and knowing participation rather than simply the provision of legal services to the company. It is unnecessary to go into the detail of all the messages relied upon by the FCA. To give a flavour, some of the more striking messages sent by the claimant included “I think we should download telegram and move our groups onto it” followed by “If we set up a secret chat everything destroys itself”; “… that’s not gonna work to send they’ll know it’s forged” followed by “… no point getting found to have committed fraud” and the sending of a link to an online site from which counterfeit British passports could be obtained accompanied by the message “If either of you ever need id in another name”.[12]It would be inappropriate to express a view on the strength of any potential criminal case at this stage but, on the face of it, the material obtained provided reasonable grounds for suspecting the claimant’s involvement in a conspiracy to defraud. Mr Bird KC did not argue otherwise. It was this evidence that formed the basis of the warrant application.

The warrant application

[13]The FCA had power to apply for a warrant under FSMA. However, they correctly concluded that those powers did not apply in respect of the alleged fraud being investigated in Operation 2. They therefore sought and secured the assistance of the police, reflected in a Memorandum of Understanding.[14]Given the sensitivity of applying for a warrant against a practising barrister, the FCA arranged for the application to be made to the Crown Court rather than at the magistrates’ court and for it to be heard by the Resident Judge at Southwark, HHJ Baumgartner. They took steps to ensure that the application was handled discreetly to avoid unnecessary professional embarrassment for the claimant.[15]The application, dated 4 September 2024, was made by Detective Sergeant Angus Handley on the standard form applicable to applications under section 8 of the Police and Criminal Evidence Act 1984 (“PACE”). The application made it clear that the police were acting on behalf of the FCA. It set out that the claimant was suspected of conspiracy to defraud by false representation and also offences under FSMA, and provided the evidential basis. It also referred to confidential information contained in a sensitive information form (“SIF”). I shall return to the contents of the SIF.[16]The application acknowledged that it was “highly likely” that the claimant’s devices would contain items subject to legal professional privilege (“LPP”). It proposed detailed safeguards, including the instruction of King’s Counsel to attend the search as “independent LPP counsel”, and a system of quarantine and review.[17]A warrant may only be issued under s.8 of PACE if one of the four conditions contained in s.8(3) is met. The standard form contains a ‘tick box’ section to indicate which of the “access conditions” applies. The box for condition (a) was ticked (“not practicable to communicate with any person entitled to grant entry to the premises”). The interested parties accept that was wrong; the appropriate condition was (d) (risk of frustration or prejudice to the investigation).[18]The explanation for why the condition(s) were said to be met consisted of two paragraphs. The first, apparently directed at s.8(3)(a), said that it was “not practical to communicate with any person likely to grant entry to the premises as they are all suspects in the investigation”. The second paragraph suggested that, before the claimant became a suspect, “he provided a response that can only be interpreted as a lie”. The FCA suspected that if served with notice of an application for a production order, the claimant would take the opportunity to interfere with evidence and could collude with the alleged co-conspirators. The second paragraph was plainly directed towards s.8(3)(d) notwithstanding that the relevant box was not ticked.

The SIF

[19]The SIF was completed by DS Handley using information supplied by the FCA. The details provided were:
“GSX is a person of interest in another FCA criminal investigation. This investigation was opened by the FCA in 2020 amid concerns about a non-incorporated entity that cold-called (often vulnerable) consumers who had recently applied for bankruptcy or been made bankrupt. They would offer to liaise with the bankrupt’s creditors and annul their bankruptcy in exchange for an option agreement on the consumer’s property which allowed them to purchase it under market value. It is estimated that there were approximately 56 consumers contacted as part of this scheme. The entity in question was assisted in completing these transactions by a firm of solicitors and also by GSX. The firm of solicitors in question is the subject of an investigation by the Solicitors Regulation Authority concerning the activity referred to here. GSX also seems to have been defending one of the subjects of the investigation in matters relating to her own bankruptcy. The investigation was closed by the FCA in [2021] after Her Majesty’s Revenue and Customs (HMRC), as it then was, advised the FCA that it considered the case suitable for its own criminal investigation. However, the case has recently been reopened by the FCA due to recent consumer reports. The investigation team has not yet established whether GSX is involved in the latest activity.”

The hearing and judgment

[20]The application was heard by HHJ Baumgartner on 9 September 2024. DS Handley attended to make the application, accompanied by Hannah Evans and Roshani Pulle of the FCA. A transcript of the hearing is available but contains some gaps as the audio recording was of poor quality. No note was taken by DS Handley or the FCA. The judge heard evidence from DS Handley and Roshani Pulle and asked questions of each of them, before deciding that he was satisfied that the statutory criteria were made out. He issued a warrant in the terms of a draft provided by the FCA.[21]The judge provided a short written judgment setting out his reasons for issuing the warrant, addressing the statutory criteria under s.8 of PACE. His findings included that the material sought did not consist of or include items subject to legal privilege, excluded material or special procedure material, and that it was not practicable to communicate with any person entitled to grant entry to the premises. In making those findings, the judge relied upon the reasons given in the application.[22]He considered legal professional privilege further at paragraph 11, concluding:
“The power of seizure does not authorise the seizure of an item which any person authorised exercising the power has reasonable grounds for believing to be subject to legal privilege (ss.10 and 19(6) of the 1984 Act). I note the steps set out at box 3(e) of the Application to ensure items subject to legal privilege are sifted and not released to the investigation team, particularly the proposed attendance of LPP counsel and IT experts in digital forensics and handling communication devices when the search warrant is to be executed.”
[23]No reference was made to the SIF during the course of the hearing or in the judgment. However, it was confirmed after the hearing (following a specific check made by the applicants at the end of the hearing through the judge’s clerk) that the judge had seen it.

The interested parties’ concession that the warrant was unlawful

[24]A warrant cannot be granted under s.8 of PACE in respect of items where there are reasonable grounds for believing them to be subject to legal professional privilege. This is because there is a specific proviso in s.8(1)(d) which excludes the power to grant the warrant under that section in that case. The same applies to “special procedure material”, that is material that has been acquired or created in the course of any trade, profession or other occupation, which is held in confidence. Where such material is sought, it must be the subject of an application to a Circuit Judge under s.9 of PACE, following the special procedure set out in Schedule 1 to the Act.[25]The interested parties accept that the warrant should not have been sought or granted under s.8 In short, it is acknowledged that the materials on the premises would inevitably have included legal privileged material and special procedure material. This was clear from the application itself and the proposed process to deal with privileged material. It follows that the interested parties did not conceal the reality from the judge. However, they did take the judge down the wrong path by making the application on an erroneous basis. This was compounded by ticking the wrong box for the access conditions under s.8(3).[26]In R. (on the application of Sharer) v City of London Magistrates' Court [2016] EWHC 1412 (Admin) a warrant was obtained under s.8 for execution at the home and office addresses of an estate agent whose files (it subsequently emerged) contained legal advice from firms of solicitors. The warrant was upheld by the Divisional Court because the magistrates issuing the warrant were entitled to be satisfied at the time of the application that there were no reasonable grounds for suspecting the presence of legally privileged materials in the files, although, as it turned out when the warrant was executed, they were in fact present (see paras [49-50] of the judgment of Davis LJ). Davis LJ emphasised that the man against whom the warrant was obtained “was not engaged in the occupation of a solicitor or an accountant or anything like that” [51]. That was very different from the case of GSX, who was known to be a practising barrister. Sharer was not cited to HHJ Baumgartner. Nor was Bates v Chief Constable of Avon and Somerset [2009] EWHC 942 (Admin), in which Mr Bates (as it was put in Sharer at [53]) “had been over many years a professionally qualified forensic witness acting in many court cases” so that “it was obviously predictable that a search of his premises for the documents sought would involve items which were legally privileged”.[27]Although HHJ Baumgartner purported to go through the requirements of s.8, his findings that it was not practicable to communicate with the claimant and that the material sought did not include special procedure material or material subject to legal privilege were not open to him, even on the basis upon which the application was presented.[28]Further, the form of the warrant was defective. In breach of s.15(6)(b) of PACE, it did not set out what articles were sought with sufficient clarity and precision. It merely referred to “any material relevant to whether the offences specified above have been committed”. The alleged offences were not specified “above” or anywhere on the face of the warrant.[29]The interested parties accept that the judge was not sufficiently directed towards the requirements of ss. 8 and 15 of PACE during the hearing.[30]These defects suffice to require the warrant to be quashed and a declaration made that the entry, search and seizures were unlawful.

Events after the issue of the warrant

[31]The warrant was executed on 24 September 2024 and the claimant was arrested.[32]On 26September, the claimant’s solicitors (LexLaw) sought disclosure of all material placed before the judge. On 30 September, they sought an order for disclosure. HHJ Baumgartner responded on 4 October, saying that he would give directions if the applicant (DS Handley) refused to provide the material. Following correspondence between the parties as to what would and would not be disclosed, the judge gave directions on 10 October. The judge said: “I should make it clear in doing so that it is the Court, rather than the Metropolitan Police or others, which decides what material can be released (redacted or otherwise) and what cannot”.[33]The warrant application was disclosed to solicitors acting for the claimant in the criminal investigation (Hickman & Rose) on 16 October 2024. The SIF was not disclosed on the basis that public interest immunity was asserted. On 21 October, the police solicitor wrote to Hickman & Rose in the following terms:
“In summary, the SIF has not been disclosed and nor will it be disclosed. My client asserts PII in respect of the document and has already obtained a Superintendents [sic] authority to that effect. If your client insists on disclosure of the SIF then any such request will be opposed where there will be both an open and closed hearing. If that becomes necessary, the costs of and incidental to the hearings will be an issue. Alternatively, if the disclosure that has been provided is acceptable then as we discussed we would propose making a joint application to the Court to vary the Order for directions. Ultimately, this is a matter for the Court but unless the Order is varied and meets with the Courts [sic] approval, the existing directions will apply. As such, please confirm the position, if at all possible, by close of business tomorrow.”
As such, please confirm the position, if at all possible, by close of business tomorrow.”[34]On 28 October, the police confirmed to the court that the warrant application had been disclosed and that:
“The material has been provided unredacted, aside from the Sensitive Information Form which has been withheld on the grounds of PII. Ms Wallace [the claimant’s solicitor] has confirmed that no objection is raised in respect of this redaction.”
In light of that, the police requested that HHJ Baumgartner’s directions be set aside and that there be no order for costs. Ms Wallace was copied into the communication with the court and replied by return to confirm that she agreed.

Procedural history of this claim and application for disclosure of the SIF

[35]On 22 November 2024, LexLaw sent a Pre-Action Protocol letter of claim (“PAP”) to the court, copied to the police and FCA. In relation to the SIF, the PAP said:
“The Claimant invites the Police to set out what grounds are relied upon for the non-disclosure of information referred to in the schedule of sensitive information which formed a part of the application for the Warrant. The Police should tell the Claimant whether any judge has sanctioned the non-disclosure of sensitive material, and give the date and reasons for any such ruling.”
[36]On 2 December 2024, Ms Evans responded to the PAP on behalf of the FCA, conceding that the application should have been made under Schedule 1 rather than s.8 and that warrant was invalid. She said that the FCA intended to make an application to the Crown Court under s.59 for a direction authorising retention of the seized property. She confirmed that the FCA would retain the material seized but would not “screen, mirror, interrogate or inspect the items seized” pending the s.59 application.[37]The s.59 application was filed at Southwark Crown Court on 3 December 2024 and has been stayed pending the outcome of these proceedings.[38]The Claim Form was served on 20 December 2024. Following Acknowledgements of Service, Fordham J granted permission on all grounds and gave directions for dealing with any PII claim. On 10 April 2025, the FCA confirmed that it did not propose to make a PII application, on the basis that:
“… the FCA’s application for the Warrant did not rely on the sensitive material contained within the SIF. Further, there was no reference to the sensitive material in the SIF during the hearing or in the Defendant’s judgment granting the Warrant. It follows that the FCA does not need to rely upon the SIF in these judicial review proceedings and, as the FCA considers that the SIF does not otherwise fall for disclosure, no PII application is required in respect of it.”
[39]On 3 June 2025, the claimant’s solicitors were provided with an unredacted copy of the hearing transcript.[40]On 9 September 2025, the claimant filed an application seeking disclosure of the SIF, which was considered by Griffiths J at a hearing on 16 October 2025. He gave directions for the resolution of the disclosure application and for the claim generally. He also ordered that the FCA should pay the claimant’s costs to date.[41]Further to the directions, David Parkinson, joint interim head of department of the Unauthorised Business Department (UBD) of the FCA, made a statement dated 30 October 2025. He contended that disclosure of the SIF was not required in order for the court to fairly and properly dispose of the issues arising in the judicial review proceedings. He said:
“This is because, in the FCA’s view, the SIF is not relevant to the determination of those issues. In the event that the Court disagrees with the FCA in that respect, the FCA’s position is that the SIF should nonetheless be withheld from disclosure on the grounds of public interest immunity, or because the balance of risk and prejudice to legitimate interests falls against disclosure.”
[42]Mr Parkinson went on to explain that:
“The SIF concerns (and concerns only) the subject-matter of an investigation being conducted by UBD in exercise of the investigatory powers in Part XI of the Financial Services and Markets Act 2000. That investigation was covert (i.e. unknown to the suspected offenders) as at the date of the hearing of the Warrant Application, and remains both ongoing and covert at the date of this witness statement.”
[43]On the same date, Stephen Smart, an executive director at the FCA, issued a PII certificate for the SIF. The wording of the certificate mirrored what was in Mr Parkinson’s statement, making it clear that PII was claimed as a secondary position, subject to the FCA’s position on relevance.[44]The FCA maintained their position that the SIF was irrelevant and did not need to be disclosed. However, on 18 November 2025, the covert investigation ceased to be covert and the FCA disclosed the SIF to the claimant.

The claimant’s grounds

[45]The claimant initially advanced five grounds for seeking judicial review. In summary: i) The interested parties failed to give full and frank disclosure of all material facts and matters of law when applying for the warrant; ii) The judge made findings which no reasonable judge would have made on the material before him; iii) The warrant was unnecessary and disproportionate; iv) The warrant went beyond what is permitted by s.8 of PACE; v) The warrant did not comply with s.15(6)(b) of PACE because it failed to identify the articles sought.[46]After disclosure of the SIF, the claimant applied to add a sixth ground relating to the SIF, contending: i) The SIF was unnecessary, misleading and gratuitously prejudicial to him and that it should not have been placed before the judge on the warrant application. ii) The way in which the interested parties conducted themselves in relation to the SIF after the issue and execution of the warrant compounded that wrong.[47]Having considered the papers, we granted permission on Ground 6 at the outset of the substantive hearing.

The issues to be determined

[48]Given the interested parties’ concessions, it is unnecessary to go through each ground one-by-one. The interested parties accept that errors were made in the application. However, they do not accept that the grant of a search warrant was unnecessary and disproportionate, and it is their position that had they made an application under the special procedure set out in Schedule 1 of PACE, it would properly have been granted. The interested parties deny that they failed to give full and frank disclosure of factual matters when making the application. They do not accept the allegations contained in ground 6 in relation to the SIF.[49]The essential question is whether, notwithstanding the unlawfulness of the search, the interested parties should be permitted to pursue the s.59 application or whether their conduct warrants ordering the immediate return of the material and depriving them of the opportunity to use it.

Legal framework

[50]Section 59(6) provides a mechanism for authorising the retention of unlawfully seized material. The grounds for making an order are set out in s.59(7). So far as relevant, that section provides:
“ Those grounds are that (if the property were returned) it would immediately become appropriate – (a) to issue, on the application of the person who is in possession of the property at the time of the application under this section, a warrant in pursuance of which, or of the exercise of which, it would be lawful to seize the property;… ”
[51]The statutory scheme reflects a balance between competing public interests. On the one hand, it is in the public interest that law enforcement agencies act lawfully and are held to account in following proper processes. On the other hand, as pithily put by Leveson LJ in R(Cook) v Serious Organised Crime Agency [2010] EWHC 2119 (Admin); [2011] 1 WLR 144 [16]:
“Criminal litigation is not, however, a game. Although the police (or in this case the SOCA) cannot escape the consequences of the illegality of the warrant, there is no reason why they should be placed in a worse position than if the warrant had never been sought, or conversely, why those the subject of a warrant (even if unlawful) should be in a better position to protect themselves from prosecution for unlawful conduct.”
[52]A s.59 application allows a judge of the Crown Court to consider whether a notional application for a warrant made on a proper basis would be granted. If so, the judge has a discretion to allow the retention of the material.[53]In R (Chatwani) v National Crime Agency [2015] EWHC 1283 (Admin), a Divisional Court (Davis LJ and Hickinbottom J) considered how the High Court should exercise its discretion in deciding whether the agency in possession of the material should be allowed to retain it pending an application under s.59.[54]At paragraph [136] of the judgment, Hickinbottom J said:
“The fact that Parliament has countenanced the retention of documents seized as the result of an unlawful search – and has set out a procedure for enabling the issue of retention to be determined by a Crown Court judge – is an important factor to be taken into account when this court is asked to order such documents to be returned without such a procedure. It is a powerful reason for restraint. However, as Mr Bird properly accepts, on finding that documents were seized by an agency as the result of an unlawful search, relief is (as always in this court) a matter for the court's discretion; and, therefore, despite an application under section 59 being the norm, there may be circumstances in which it is appropriate for this court to deny an agency any benefit from its wrongdoing – including the benefit of having the seized material (and work product from it) available for the pursuit of a section 59 application – by ordering the return and/or destruction of such material.”
[55]Having reviewed the authorities, he said at paragraph [139]:
“Unsurprisingly, these cases illustrate that, in terms of appropriate relief, each case will be fact-dependent. However, on the basis of the authorities, the following propositions can be made: i) In the normal course, where material has been obtained as a result of an unlawful search and the agency seizing it wishes to retain it, the appropriate procedure is for the agency to make an application to the Crown Court under section 59. For the purposes of that application, the agency will have the benefit of considering the seized documents, and making submissions with that benefit. ii) On a section 59 application, the court will be astute to examine the circumstances surrounding the illegal seizure. Any suggestion of bad faith, or even that the agency has adopted a less than rigorous and scrupulous approach to drawing up and executing the initial warrant, will weigh heavily against the exercise of the court's discretion in favour of authorising retention (R (El-Kurd) v Winchester Crown Court [2011] EWHC 1853 (Admin) at [65] per Stadlen J). The circumstances may have been such that it will be open to the Crown Court to refuse the application as a whole. iii) The Administrative Court will exercise restraint in ordering the return of such documents. Parliament has assigned responsibility for determining issues of retention to the Crown Court; and the Crown Court will have the advantage of being able to consider the documents seized, which this court will not. iv) However, 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, as in Kouyoumjian) 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.”
[56]In Chatwani, the court concluded that the conduct of the NCA was such that it should be relieved of any benefit of the unlawful searches. That was because, on the evidence, the court concluded that although not acting in bad faith, the NCA officers had [141]:
“… acted with patent and egregious disregard for, or indifference to, the constitutional safeguards within the statutory scheme within which they were operating.”
Further (at [142]):
“This is not a case where the error in the application and thus the warrant was relatively minor. The errors were grave and went to the very root of the statutory scheme. It is not a case in which it can be said that, had due disclosure been given to properly informed magistrates, they would inevitably have issued the warrants in any event. Indeed, whatever the documents seized might reveal, there is considerable force in Mr Jones’ submission that, on a section 59 application, a Crown Court judge in this case could only properly exercise his discretion by refusing the application to retain – although, even where a judge might allow a section 59 application, that is no bar to this court intervening in an appropriate case to restrict or prohibit retention of material by the investigating agency.”
[57]As Johnson J observed in Heilligger v Westminster Magistrates’ Court [2022] EWHC 1056, there is a link between the test for granting a s.59 application and the question of whether a party should be prevented from making such an application. If a s.59 application is bound to fail, ordering immediate return of the property may be appropriate. Analysis: Pre-warrant conduct The interested parties’ approach to the law and preparation for the hearing

Analysis: Pre-warrant conduct

[58]The statements of Ms Pulle and Ms Evans, both in-house barristers at the FCA, explain how the application came to be drafted and the various iterations it went through. It is apparent that they considered the sensitivity of seeking a warrant against a practising barrister and recognised some legal complexity. Although they appreciated the need for stringent safeguards in relation to LPP material, that did not immediately alert them to the need to apply under s.9 and Schedule 1 of PACE rather than s.8. The drafting of the application had started on the basis it was to be made under s.176 of FSMA. Once internal discussions had identified that it should be a PACE application, the wording from the original draft was transposed onto a template for a s.8 application. That was unfortunate as it meant the application was not properly tailored to the section under which it was made.[59]Specialist counsel’s advice was sought including on whether the application should be made under s.8 or s.9. He advised that the application should be made under s.8. The advice was reasoned and the FCA relied upon it. It was reasonable for them to do so.[60]DS Handley was made aware that the application had been reviewed and approved by specialist counsel. He understood that he had a duty as the constable seeking the warrant to ensure that it was properly presented. He did not merely rubber-stamp the FCA’s approach although he made it clear to the judge that he was making the application on behalf of the FCA and did not have any independent knowledge of the investigation. He had been informed that the FCA had obtained counsel’s advice. DS Handley frankly accepted that with hindsight he should perhaps have sought advice from the MPS Legal Service. However, I do not think he can be criticised for relying on the assurance that independent legal advice had been obtained.[61]It is also of note that a very experienced judge did not detect the legal errors in the application. While he was misled by the way in which the application was presented, it would be harsh to criticise the interested parties for acting on counsel’s advice when there was no obvious basis to doubt it.[62]The claimant makes further criticisms of the FCA for failing to give proper and early consideration to the form of the warrant. Mr Bird argues that Ms Evans appeared not to have been familiar with the procedure for a seeking a warrant, only filing a draft when requested by the court shortly before the hearing. He submitted that the failure to pay attention to the wording of the warrant was “inexcusable”. The claimant also criticises the interested parties for not instructing counsel to conduct the hearing and for not providing a skeleton argument to assist the judge. On the latter point, reference is made to R (Ashbolt & Arundell) v Leeds Crown Court [2020] EWHC 1588, in which it was suggested that it should be standard practice to provide skeleton arguments in applications for search warrants in complex cases.[63]One of the difficulties in this case is that counsel fell into legal error when advising. It would not therefore have assisted to instruct him to attend or to produce a skeleton argument for the hearing because the erroneous legal advice was likely to have been replicated in written and oral submissions.[64]The importance of law enforcement agencies taking the utmost care in making applications of this sort is well-established by the authorities and is not to be downplayed. It is unfortunate that mistakes were made. However, it cannot be said that the interested parties acted with a cavalier disregard for the law or without at least attempting to do the right thing.

Whether the interested parties failed in their duty of full and frank disclosure

[65]Mr Bird relied on three factual matters that he said should have been disclosed to the judge but were not: i) that the FCA were in possession of a copy of a Power of Attorney, which authorised the Claimant to act for X Ltd; ii) having informed the judge that the claimant was the subject of an Information Requirement Notice issued in 2020 and it being suggested that the information provided was not true, the judge was given no detail of the questions asked and the answers given nor was the judge told that the FCA thanked the claimant for the high level of detail provided, which was described as “most useful”; iii) that in 2021, the FCA had engaged with a firm of solicitors, who were advising X Ltd on their business model following the arrest of the co-founder in connection with Operation 1, that the advice of the solicitors was that the trading model was lawful, and that no concerns had been raised with the solicitors at the time.[66]I have considered all these matters. Having done so, I conclude that none of them establish that the interested parties failed in their obligation to give full and frank disclosure at the time of the application.[67]There must be a degree of realism about what can reasonably be placed before a judge on an application for a warrant. Overloading the application with detail risks distraction from the real issues. The FCA’s position was that the Power of Attorney was part of the complex arrangements to conceal the true ownership of the company; the claimant’s response in 2020 was to be viewed in a different light in view of the evidence since obtained; and the 2021 solicitors’ advice was based upon instructions and did not concern the transactions which were subject of their investigation.[68]I consider that the FCA’s explanations for not considering that any of these matters needed to be drawn to the attention of the judge are reasonable.[69]That is not to say that it would not be open to the claimant to seek to rely upon them in resisting the s.59 application. If the claimant wishes to contend that there is relevant evidence that casts a different light on matters, he may do so. The question for us is whether not drawing attention to these matters on the ex parte application was something for which the interested parties (in particular the FCA) are to be criticised such as to amount to a factor to be taken into account in favour of granting the relief sought. In my view, that is not the case.

The conduct of the interested parties at the hearing

[70]I also reject other arguments advanced by the claimant as reasons for granting the relief sought – that the interested parties did not present a fair and balanced argument at the hearing, and that they failed to make a note of the hearing. Legal representatives attending an ex parte hearing should ensure that a proper note is made notwithstanding that they believe a transcript can be obtained from the court recording. As this case demonstrates, the court equipment is unfortunately not infallible. Taking a good note would have allowed for earlier disclosure of what the judge was told at the hearing. However, the transcript, imperfect as it is, does not demonstrate any impropriety in the way in which the hearing was conducted. The interested parties cooperated with the judge and answered questions in a fair and balanced way.

The content of the SIF and its effect on the application

[71]The interested parties maintain that the SIF had no bearing on the application. They contend that it neither supported nor undermined the application but was entirely neutral. According to the FCA’s evidence, the information it contained was placed before the judge “out of an abundance of caution” since it went to the “relationship” or “history” between the claimant and the FCA.[72]It is difficult to see why information said to be irrelevant was placed before the judge. The pro-forma makes it clear that it is to be used for supporting and undermining sensitive information (not material which has no bearing upon the application). As DS Handley said to his superior when seeking PII authorisation the information “certainly does not undermine [the application]”. The inference therefore is that it is supporting material. That inference is stronger since it was expressly checked the judge had seen it but no attempt was made to clarify why it had been provided.[73]I have set out the information contained in the SIF in full above. Read naturally, it raises suspicion that the claimant may have been involved in other criminal activity.[74]In his witness statement responding to the disclosure application, Mr Parkinson said that the claimant was not described in the SIF as a suspect in the covert investigation; the SIF did not include a positive allegation of either actual or potential misconduct by the claimant; and the claimant was instead described in the SIF as a ‘person of interest’. He explained that this was a “term of art that describes someone who might have been involved in some way in a crime (whether as witness, suspect or some other capacity) but who has not been charged or arrested.” That does not alter the position that a natural reading of the SIF suggested that the claimant was caught up in other wrongdoing and could become a suspect.[75]The SIF did not explain that the FCA had corresponded with the claimant in 2018 in his professional capacity when he had made representations on behalf of the clients subject to the investigation referred to in the SIF, and that the FCA had agreed with those representations. The claimant had acted for the client in County Court proceedings and a subsequent High Court appeal. None of this was apparent from the SIF.[76]If the SIF was provided to explain the “relationship” between the FCA and the claimant, it lacked the detail and context necessary to avoid a misleading picture. The FCA did not sufficiently consider the SIF from the perspective of a judge with no background knowledge of the investigation.[77]Although bad faith is not alleged, I do not consider that the FCA took sufficient care in their approach to the SIF. Had they properly examined the relevance of the information contained in it, they would on their own case have concluded that it was not relevant and therefore that it should not be included. As it was, a potentially misleading impression was created by putting this information forward without any attempt to clarify that it was not intended to be an allegation of other possible wrongdoing.[78]I have concluded that the SIF should not have been put before the judge, certainly not in the form that it was.[79]While the judge did not indicate that he had placed any reliance on the SIF, neither is there any indication that he wholly disregarded it in reaching his decision. I agree with Mr Bird’s submission that it is not possible to know whether the SIF had any impact on how he viewed the claimant.

Post-warrant conduct

[80]Conduct after the warrant was obtained may weigh in the balance when considering the nature of relief to be granted by this court: see Kouyoumjian v Hammersmith Magistrates Court [2014] EWHC 4028 (Admin) and R (Brook) v Preston Crown Court [2018] EWHC 2024.[81]As he was entitled to, the claimant made a prompt request through his solicitors for disclosure of the warrant application and all information laid before the Crown Court. In R (Golfrate) v Southwark Crown Court [2014] EWHC 840, the Lord Chief

Justice (Lord Thomas) said [18]:

“It is impermissible … for the party obtaining a warrant on a without notice basis to refuse to disclose material placed before the judge to the party against whom the warrant has been obtained. It can only be withheld if the court sanctions the withholding of that material on public interest grounds.”
[82]In response to the claimant’s request, the interested parties ought to have promptly disclosed the application and a note of the hearing. If they wished to withhold the SIF, they should have asked HHJ Baumgartner to sanction that. It should not have taken as long as it did for the claimant to receive a copy of the application. The claimant complains that the FCA had an unjustified obsession with secrecy. In reality, the delay appears to have resulted from a lack of proper understanding of their disclosure obligations. I note that DS Handley had to advise them that they could not realistically redact parts of the judgment to exclude reference to cell site evidence as PII could not properly be claimed in relation to such evidence.[83]I would not criticise the police for the way in which they responded to the requests for disclosure. DS Handley appears to have had a better understanding of disclosure obligations than the FCA and advised appropriately. The FCA could have done better. However, the delay in providing the application, judgment and record of the hearing is not something that amounts to a factor in favour of granting the relief the claimant seeks.

Conduct concerning disclosure of the SIF

[84]The problems caused by the SIF were compounded by the way in which the interested parties, particularly the FCA, handled its disclosure in the context of these proceedings.[85]The interested parties did not seek judicial approval to withhold the SIF, despite HHJ Baumgartner’s clear reminder that it was for the court to decide what material can be released and what cannot. Instead, the claimant’s solicitor was discouraged from seeking disclosure, under threat of costs, without her knowing the gist of its contents.[86]I consider it likely that had HHJ Baumgartner been asked to sanction the withholding of the SIF, he would have done so because it concerned an ongoing covert investigation. However, he could have considered the extent to which the claimant was entitled to know the gist of the information contained in it. Had the withholding of the SIF been canvassed with HHJ Baumgartner, that would also have provided an opportunity for him to clarify whether it had any bearing on his decision.[87]At the time of granting permission, Fordham J gave clear directions requiring the FCA to file any PII claim within 21 days. The FCA’s response to that was to decide that they did not need to disclose the SIF or to make a PII application. Griffiths J gave specific directions in relation to disclosure of the SIF on 16 October 2025. Mr Parkinson’s response was that it was not disclosable because in the FCA’s view, it was not relevant.[88]There was a failure to follow the clear principle set out in Golfrate that it is impermissible to withhold material placed before the judge without the sanction of the court. Thereafter, the FCA displayed a stubbornness around the issue. It is to be remembered that any difficulty surrounding disclosure of the SIF was created by their decision to place it before the judge without proper analysis of why they were doing so. Their attempts to retrospectively explain the information in the SIF through Mr Parkinson’s second statement were not helpful. The way in which Mr Parkinson described what was in the SIF was not consistent with what I have described as the natural reading, although I do not regard that as a deliberate attempt to conceal the true position.[89]The FCA’s approach acknowledged that the court might take a different view about the relevance of the SIF to the judicial review proceedings. Yet they did not take the necessary steps to allow the court to determine that via a PII application. I agree with Mr Bird’s submission that they sought to act as judge in their own cause.[90]The FCA’s approach to the SIF in these proceedings created an unnecessary air of suspicion. Having chosen to put material which was not relevant to the warrant application before the court but which could be read in a way that was prejudicial to the claimant, they had an obligation to disclose it or to seek the court’s approval to withhold it. They could and should have made a PII application at an early stage.[91]The probability is that the court (whether this court or the Crown Court) would not have ordered disclosure of the sensitive information contained in the SIF insofar as it affected the covert investigation. However, a more accurate gist of what was before HHJ Baumgartner than that contained in Mr Parkinson’s statement could have been provided.

Overall assessment of the interested parties’ conduct

[92]Drawing matters together, the FCA made significant errors of law in relation to the warrant application, but such were contributed to by independent legal advice which they were entitled to rely upon. So too were the police entitled to rely on the assurance that legal advice had been obtained. There was no failure to give full and frank disclosure of the relevant facts. I have rejected the claimant’s complaints about the conduct of the hearing.[93]The FCA’s handling of the SIF – both in placing it before the judge in the form that they did and the subsequent approach to its disclosure – fell short of the standards properly to be expected of a public authority seeking to exercise intrusive investigative powers. The decision to include the SIF appears to have been made without adequate scrutiny of its purpose or relevance. Its content risked creating an impression that the claimant was involved in other wrongdoing, without the necessary context now supplied by Mr Parkinson. The failure to consider whether such context was needed, or whether the SIF should be included at all, was a significant oversight.[94]After the warrant was issued, the FCA compounded these difficulties by failing to seek judicial approval to withhold the SIF, and by maintaining that it was irrelevant. Their stance displayed a lack of proper care, a failure to consider the potentially prejudicial effect of the SIF, and a failure to appreciate that it was for the court, not the FCA, to determine relevance.[95]While the police might have handled the initial exchanges with the claimant’s solictors better, it was the FCA that drove decisions about the SIF and disclosure and the primary responsibility for the failings I have identified rests with them.[96]The FCA’s shortcomings around the SIF are serious. However, they fall short of the “egregious disregard” for statutory safeguards described in Chatwani. The FCA did not act in bad faith. Their failings represent a lack of rigour rather than any deliberate misconduct.

The exercise of the court’s discretion with regard to relief

[97]I then turn to the question of whether the claimant should be granted the exceptional relief he seeks. The starting point is that Parliament has enacted a process for enabling a Crown Court judge to determine the issue of retention of the products of an unlawful search. That provides a powerful reason for this court to exercise restraint and ordinarily relief should not be granted in a form that prevents recourse to the s.59 jurisdiction.[98]In deciding whether the interested parties should be deprived of the opportunity to pursue their application to the Crown Court to retain and use the products of the unlawful search, the totality of their conduct must be considered.[99]Although the FCA’s actions were flawed, and in certain respects seriously flawed, they did not amount to bad faith or egregious disregard for constitutional safeguards.[100]It is also relevant that the evidential basis for suspicion did not stem from the SIF. Rather, it arose from material obtained during Operation 2, including the telephone messages to which I have referred. Whatever its flaws, the SIF was not the foundation for the warrant application. Without in any way prejudicing the outcome of the s.59 application, leaving aside the SIF, I do not regard this case as one that only just crossed the line for reasonable suspicion.[101]For those reasons, I do not accept Mr Bird’s attempt to draw a direct comparison with one of the factual scenarios described in Brook (relating to the claimant Garthwaite). In that case, there was a material misdescription of the critical document which formed the basis for suspecting criminal conduct and “the application in the first place only just crossed the line of being an application which there were reasonable grounds to support.”[102]Further, the unlawful search has not conferred an investigative advantage on the interested parties. The interested parties have not yet examined the material obtained from the unlawful search and are bound by their undertaking not to do so. Accordingly, they cannot rely upon anything obtained during the search in making submissions on their s.59 application. The s.59 application will allow HHJ Baumgartner (or another Crown Court judge) to reconsider whether a warrant should be granted on the correct statutory basis. In seeking to persuade the judge of that, the interested parties are in no better position than they would have been at the time of the warrant application.[103]By contrast, the s.59 process affords an advantage to the claimant by providing an opportunity that he did not have on the warrant application to make representations. It is not a foregone conclusion that retention will be authorised; but that is a matter for the statutory process.[104]If the material seized in the search contains evidence of criminality on the part of the claimant, it is appropriate that such material is properly considered as part of the investigation. It is not in the public interest for the claimant to be placed in a better position to protect himself from prosecution for unlawful conduct because the interested parties made errors in the presentation of the application and in relation to disclosure of the SIF.[105]Weighing those factors and the circumstances of the case as a whole, I conclude that the additional relief which the claimant seeks should not be granted. The warrant must be quashed and a declaration will be made that the entry and search under the warrant and any seizures made upon the execution of the warrant were unlawful. However, I would not make an order for immediate delivery up of the items seized during the search, or grant an injunction prohibiting the interested parties from making use of any material or information obtained from the execution of the warrant. The issue of retention should instead be determined in the Crown Court via the s.59 application.

Conclusion

[106]For the reasons set out above, I conclude that: i) The warrant issued on 9 September 2024 should be quashed; ii) A declaration should be made that the entry, search and seizures made in execution of the warrant were unlawful; iii) The court should not grant additional relief requiring the immediate return of all seized items, the destruction of any images or copies, and a permanent bar on the use of any material or information obtained. iv) The question of retention of the material should be determined under the statutory procedure provided by s.59.[107]I agree.