Challenging Arrest & Search Warrants
All search warrants can be challenged provided the grounds exist for a challenge.
The key issues to be identified are whether:
- the warrant should have been granted at all;
- the police seized items not permitted by the search warrant; and
- legally privileged material has been seized
If the decision is made that the search warrant is defective the first step is an application for permission for Judicial Review.
Time limit to challenge a search warrant
Applications for Judicial Review are made to the Administrative Court and strict time limits apply. CPR r54.5 states that the claim for Judicial Review must be filed “promptly” and in any event not later than 3 months after the grounds first arose.
Letter before claim
The letter before claim should include the date and details of the decision under challenge and should state why the decision is unlawful/irrational and what relief is sought.
Judicially reviewing the Court
The Court that made the warrant is also named as a Respondent so that, if successful, an order can be made against it.
The Court may opt not to be represented at any hearing and may limit its response to the Acknowledgement of Service of the claim of factual issues of the District Judge’s understanding of what occurred at the without notice warrant application.
Gathering the evidence
It is essential to obtain all the information presented to the court for the application for the warrant by the police including what was said and done in court.
The legal precedence is clear that the court have to provide the reasons for the ruling and what was said in the ex-parte hearing in the absence of the suspect.
The procedure is set out in the Crim PR r5.5 onwards. Specifically, r5.7(6) this provides that the application, i.e., the application for disclosure of the Judge’s reasons and notes of the hearing etc should be made to the Court in writing but copied to the police/HMRC etc.
The police then have 14 days to object to disclosure. The police are sent the letter along with the separate demand to the police for disclosure of the Information in support.
Outcome of a Judicial Review
Judicial Review remedies are always discretionary.
The High Court can order that the seizure was unlawful and any subsequent re-seizure under separate legislation is also unlawful.
Once the Court quashes the warrant under s59 of the 2001 Act the police can apply to the High Court for permission to retain the material for a short time whilst it re-applies to the Crown Court for, in effect a new Order justifying the old seizure.
In those circumstances, the Crown Court has a discretion to authorise the retention of the material seized, despite the unlawfulness of the original search, if were the material to be returned, it would be immediately appropriate to issue a warrant under which it would be lawful to seize the property.
The benefit of challenging a warrant is that the police may decide not to seek to retain the seized material and sends a clear message to the investigation and prosecution authorities that the suspect will fight and, in any event, may lead to early disclosure providing tactical and strategic advantage. In addition, a successful challenge can result in damages ordered by the High Court to be paid by the police or the prosecuting authorities to the suspect.
Kings Solicitors are experienced at advising and challenging warrants and the police’s decision to arrest. The remedy for unlawful arrest is a Judicial Review because of the unlawful exercise of powers to detain and a successful challenge can result in compensation for false imprisonment.