Law Report: Warrant was serious intrusion into liberty

Regina v Southwark Crown Court and HM Customs & Excise, ex parte Sorsky Defries; Queen's Bench Divisional Court

Regina v Southwark Crown Court and HM Customs & Excise, ex parte Sorsky Defries; Queen's Bench Divisional Court (Lord Justice McCowan and Mr Justice Waller) 6 July 1995

The issue of a search warrant, pursuant to a request by a foreign state, under section 7(4) of the Criminal Justice (International Co-operation) Act 1990, was a serious intrusion into the liberty of the subject. Before deciding whether to grant an ex-parte application for such a warrant, a judge should, if necessary, familiarise himself with the relevant statutory provisions, and should consider the material relied upon with great care. He should give reasons for his decision, or some indication of the basis upon which he was granting the application.

The Queen's Bench Divisional Court granted a judicial review application by Sorsky Defries, a firm of accountants, and ruled unlawful the issue and execution of a warrant to search and seize documents from the firm's premises.

The warrant was issued by Judge Martineau, sitting at Southwark Crown Court on 18 November 1994, on an ex-parte application made by the Customs & Excise, under section 9 of and Schedule 1 to the Police and Criminal Evidence Act 1984, on the direction of the Home Secretary, under section 7(4) of the 1990 Act, following a request by United States authorities investigating money-laundering offences. It was alleged that one of the partners in the applicant firm was involved in setting up schemes and advising in relation to such laundering.

Alan Newman QC and James Lewis (Edwin Coe) for the applicants; Philip Havers QC (Solicitor, Customs & Excise) for the respondents.

Lord Justice McCowan said the application was presented by Christopher John Berry, an officer of the Customs & Excise Investigation Division. His sworn information, together with six pages of factual background material concerning the activities of various companies, individuals and "shell corporations" said to be involved in or used for the laundering of proceeds of drug trafficking, had been placed before the judge no more than 15 minutes before he was due to consider the application.

In the course of a short hearing the judge asked Mr Berry to confirm the truth of his information and that the application had been made at the direction of the Home Secretary. Mr Berry said it was an unusual application and the judge said he had never seen one before. He then signed the warrants.

It was to be noted first that the judge had no previous experience of an application such as this and was told it was an unusual one. He should have taken his time and asked to be referred to the relevant statutory provisions and authorities.

What was plain was that such an intrusion into the liberty of the subject could not be allowed to go through on the nod. Great caution was required before such an application was granted.

Unfortunately, the plain impression given by what happened was that the judge approached it on the basis that he would rely on what Mr Berry had sworn to and not apply his own mind to being satisfied as to the various matters upon which it was necessary for him to be satisfied.

He could not possibly have been so satisfied in the time available. Simply to read the information in 15 minutes would be good going. But to analyse it and sort out what evidence related to which company and individual in that time was beyond belief.

Complaint was also made of the judge's failure to give reasons for his decision. Whether that was necessary for an application of this nature must depend on what had gone before. If the person making the application had taken the judge through the relevant statutory provisions and analysed the evidence in relation to them, it might be sufficient for the judge to say "in the light of the matters put before me I am satisfied on points (a), (b) and (c) and accordingly hold that this is a proper case in which to issue the warrant". But where, as here, the entire proceedings took a couple of minutes and the judge was referred to virtually nothing, there was a need for a short statement of his reasons for granting the warrant, so it could be apparent that he had taken the appropriate matters into account.

For these reasons the warrant was not lawfully issued and should be set aside.

Mr Justice Waller agreed.

Paul Magrath, Barrister