R (on the application of Haralambous) v Crown Court at St Albans & Anor [2018] UKSC 1

Police obtained search warrants against Mr Haralambous under PACE section 8, partly based on information withheld from him on public interest grounds. The Supreme Court held that magistrates, Crown Courts, and High Courts on judicial review may all rely on such closed material without gisting being invariably required.

Facts

On 16 June 2014, St Albans Magistrates’ Court issued two search and seizure warrants under section 8 of the Police and Criminal Evidence Act 1984 (PACE) in respect of premises associated with the appellant, Mr Haralambous. The warrants were executed on 26 June 2014 and various items were seized. The appellant was arrested and bailed.

The appellant sought disclosure of the written application for the warrants and was provided with a redacted copy, the redacted material comprising two closely typed pages which the police maintained could not be disclosed on public interest grounds. District Judge Mellanby refused the application for an unredacted version.

The appellant issued judicial review proceedings. The Chief Constable subsequently consented to quashing of the warrants but, before doing so, applied under section 59 of the Criminal Justice and Police Act 2001 (CJPA) for retention of the seized material. HHJ Bright QC ruled that the police could rely on the withheld information and made a retention order. The appellant then issued a second judicial review challenging the section 59 order. The Divisional Court dismissed the claim, holding that both the magistrate and the Crown Court could consider material withheld on public interest grounds.

Issues

Five issues were agreed for the Supreme Court:

• Whether a magistrate on an ex parte application for a warrant under sections 8 and 15(3) of PACE may rely on information which cannot, in the public interest, be disclosed to the subject of the warrant;
• Whether the High Court on judicial review of such a warrant may have regard to such undisclosed evidence, and if it cannot, whether the warrant must be quashed where disclosable material is insufficient;
• Whether the Crown Court on an inter partes section 59 CJPA application may rely on such undisclosed evidence;
• Whether on judicial review of a section 59 order the High Court may have regard to such undisclosed evidence;
• Whether irreducible minimum disclosure (gisting) principles apply to search warrant proceedings.

The underlying question was whether, absent express parliamentary authorisation, the principle in Al Rawi v Security Service [2011] UKSC 34 precluded a closed material procedure at any of these stages.

Arguments

Appellant

Mr Summers QC submitted that it was impermissible at any stage for the court to rely on material withheld from the person affected. Alternatively, if reliance was permissible before the magistrate or Crown Court, Al Rawi precluded any closed procedure on judicial review, so a warrant or section 59 order could not withstand challenge unless the disclosable material alone justified it. Failing that, he argued that the gist of the information must be provided.

Respondents and Intervener

Mr Chamberlain QC and Mr Eadie QC submitted that the magistrate, the Crown Court under section 59, and the High Court on judicial review were all entitled to rely on material withheld on public interest grounds. Alternatively, if the High Court could not conduct a closed procedure, it must assume the withheld material justified the order (following the Rossminster line). They argued that the limited intrusion involved in a search warrant did not require gisting.

Judgment

Issue (i): Issue of warrant under section 8 PACE

Lord Mance, giving the unanimous judgment, held that sections 8 and 15 of PACE permit the magistrate to rely on information which cannot be disclosed to a person affected. The statutory scheme is designed to operate speedily and ex parte. Nothing in the language restricts the information the magistrate may consider. Disclosure might often be impracticable, for example where the source is an informer whose safety must be protected under articles 2 and 3 ECHR, or where disclosure would reveal investigative methods. The authorities (Cronin, EFT, Gittins, Golfrate, Bangs) and the Criminal Procedure Rules (rules 47.25, 47.26, 5.7) proceed on this basis. The pre-PACE decision in IRC v Rossminster [1980] AC 952 provided relevant background, Parliament having legislated shortly thereafter in similar terms.

Issue (iii): Section 59 CJPA applications

Section 59(7) requires the Crown Court to put itself in the shoes of a hypothetical magistrate considering a fresh warrant. Since the magistrate could rely on withheld material, the Crown Court must be able to do so too. Drawing on Bank Mellat v HM Treasury (No 2) [2013] UKSC 38, the Court held that Parliament must have intended the Crown Court to be able to operate a closed procedure so far as necessary.

Issues (ii) and (iv): Judicial review

The Court considered the Rossminster line of authority (including Ex p T C Coombs and AG of Jamaica v Williams), which applied a presumption of regularity against the applicant for judicial review where material had been withheld. The Court found the outcome unsatisfactory as potentially depriving judicial review of teeth, and equally rejected the approach in Concordia (Marcus Smith J) which would quash validly issued warrants.

Applying the reasoning in Bank Mellat, and considering section 31 of the Senior Courts Act 1981 (including subsections (5), (5A), (2A) and (3C) introduced by the Criminal Justice and Courts Act 2015), Lord Mance concluded that judicial review must accommodate a closed material procedure where Parliament has authorised such a procedure in the court below. The Supreme Court in Al Rawi was not addressing this special situation. The High Court on judicial review of a section 8 warrant, a disclosure order, or a section 59 order may therefore conduct a closed material procedure.

Issue (v): Gisting

Although open justice should prevail to the maximum extent possible, and gisting is required where liberty or equivalent interests (such as control orders or freezing orders) are at stake (A v United Kingdom, AF (No 3)), the authorities also recognise circumstances where even the gist may be withheld (Leander, Esbester, Kennedy v UK, Tariq v Home Office). A search warrant involves a short-term invasion of property, does not alter substantive rights, and any subsequent criminal trial would attract full disclosure protections. It is therefore not axiomatic that the gist must be supplied; each case turns on its circumstances.

Outcome

The appeal was dismissed.

Implications

The decision confirms that the statutory regime governing search warrants and retention orders under PACE and the CJPA permits reliance on closed material at every stage: before the magistrate ex parte, before the Crown Court on inter partes section 59 applications, and on judicial review in the High Court. The judgment represents a significant qualification of the general principle in Al Rawi that closed material procedures require express parliamentary authorisation, by reading such authorisation into the statutory scheme as a matter of necessary implication, in line with Bank Mellat.

The decision matters most to persons whose premises are searched or whose property is seized under PACE warrants: they may find that challenges to warrants fail on the basis of material they have never seen and whose gist they have not been told. It matters to the police and investigative authorities by preserving the ability to rely on sensitive information (such as material identifying informers or disclosing investigative techniques) without compromising investigations.

Important limitations remain. The police owe a duty of candour on ex parte applications, including fair and balanced presentation (Stanford International Bank). A decision to withhold material on public interest grounds must be properly authorised and sanctioned (Golfrate). At any subsequent criminal trial, full disclosure protections apply, subject to conventional PII. The Court did not endorse the broad statement in Rossminster about a general public interest immunity covering criminal investigations; a more focused, case-specific approach applies. Gisting, while not automatically required, may be appropriate depending on the particular circumstances.

The judgment also leaves open, without deciding, whether the relevant provisions of the Criminal Procedure Rules were ultra vires, because the statutory scheme itself was held to authorise the procedures in question. The Court expressly confined its conclusions on closed material procedures to the particular statutory context under consideration, describing the situation as a ‘very special’ one outside the scope of Al Rawi.

Verdict: The appeal was dismissed. The Supreme Court held that a magistrate issuing a search and seizure warrant under sections 8 and 15 of PACE, a Crown Court hearing an inter partes application under section 59 of the CJPA, and the High Court on judicial review of either decision, are all entitled to rely on information which cannot, on public interest grounds, be disclosed to the person affected. Gisting is not invariably required in this context.

Source: R (on the application of Haralambous) v Crown Court at St Albans & Anor [2018] UKSC 1