Closed material permitted in warrant applications and associated judicial review proceedings

24/01/18

The Supreme Court today dismissed an appeal from a judgment of the Divisional Court and resolved four issues concerning the admissibility of “closed material” in applications for, and proceedings to challenge, search warrants.

In a unanimous judgment given by Lord Mance, the Court held, first, that a magistrate hearing an application made ex parte under s. 8 of the Police and Criminal Evidence Act 1984 (PACE) can properly rely on evidence that, for public interest reasons, is not and cannot be disclosed to the person or persons affected by the warrant (closed material).

Second, a Crown Court judge considering an application to retain unlawfully seized material under s. 59 of the Criminal Justice and Police Act 2001 (CJPA) had to put himself in the shoes of the magistrates, so must also be able to consider closed material if necessary.

Third, on an application for judicial review of a search warrant under s. 8 PACE or an order for retention under s. 59 CJPA, the High Court should also be able to entertain closed material. The alternative (that the presumption of regularity would apply and the claim would almost certainly fail) was unpalatable. By analogy with Bank Mellat v HM Treasury (No 2) [2014] AC 700, a court considering a challenge to a decision properly taken on the basis of closed material must itself be able to consider that material. That result could be reached either by implication from the statutory scheme (including the provisions of s. 31(5) and (5A) of the Senior Courts Act 1981, which now regulate the common law remedy of judicial review) or by holding that the present circumstances fall outside the common law principle identified in Al Rawi v Security Service [2012] 1 AC 531.

Finally, the Supreme Court rejected the submission that, where a court entertained closed material in this context, Article 6 required disclosure of the “gist” of that material so as to enable the person from whom it is withheld to address the essence of the case against him.

The judgment is here.