About this case:

• Citation:
  [2021] NIQB 113
• Judgment:
  External link
• Court:
  High Court
• Judge:
  Mr Justice McCloskey

This application for leave to apply for judicial review was brought by Andrea Hughes (the applicant). The proposed respondents were the PSNI and a lay magistrate.

The judge found the search warrants to be unlawful, and given the lack of evidence contained in the application forms, it was noted that the applications had not been made in upmost good faith.

Judicial review

The applicant challenged the respondents’ decisions, acts and omissions on 15 February 2021. On 18 February 2021, in an ex parte hearing, the PSNI applied pursuant to Article 10 of the Police and Criminal Evidence (NI) Order 1989 (PACE) for two search warrants to search Blue Stone Psychiatric Unit, Craigavon Area Hospital, where the applicant was a patient and to search the applicant’s home.

The warrants were granted by the lay magistrate on 18 February 2021, and were drafted so as to permit police to search for and seize mobile phones and SIM cards in connection with the alleged offence of perverting the course of justice, by phantom phone calls.

The applicant argued that there was non-compliance with Article 10 PACE, as the application for search warrants did not contain sufficient information compliant with the statutory criteria in order to establish that there were reasonable grounds for believing that an indictable offence had been committed and/or that the material sought did not consist of or include items subject to legal privilege and/or that there were reasonable grounds for believing that any of the conditions specified in Article 10(3) PACE applied.

The applicant also argued that her human rights had been infringed, under Article 8 ECHR and section 6 of the Human Rights Act 1998.

The search warrant applications

These applications required completion of forms PACE 5A and PACE 5B. Form 5A is designed to be completed by the police officer concerned in a manner which ensures that all of the statutory requirements enshrined in Article 10 PACE are properly addressed. It is utilised in every case.

Here, at paragraph 4(b) of each of the completed Forms 5A, it was stated that the premises to be searched were “the home address of Ms Andrea Hughes”. This was correct as regards one of the identified addresses. However, it was manifestly incorrect in the case of the application for the search warrant directed to the specified hospital unit.

Form PACE 5B, in contrast, is utilised only in cases where the police application for the search warrant is based wholly or partly on intelligence or other sensitive information. There was no indication that the authorising inspector was aware of the existence of a completed Form PACE 5B or any intelligence. The court found this to be unacceptable.

Fundamentally, the court noted that acceding to search warrant applications should never be a matter of course or routine: “Slavish, unquestioning acceptance of everything presented to [lay magistrates] both in writing and orally by the applying police officer would entail dereliction of their solemn judicial duty”.

The respondents’ affidavits

The affidavit of the police officer argued:

This is contrasted to the comments in G v Commissioner of the Police for the Metropolis [2011] EWHC Admin at [17] the English Divisional Court, which noted: “The officer applying for such a warrant must give full, complete and frank disclosure to the magistrate so as to enable the latter to base his decision on the fullest possible information.”

The court also considered an averment by the Lay Magistrate, which noted:

Further, the judicial officer concerned should ensure that reasons for their decisions are recorded in writing at the time. The court noted that the ex parte nature of such applications requires a duty of utmost good faith (uberrima fides).

The court’s findings

Article 10 PACE permits a search warrant application only where the judicial officer is satisfied that there are reasonable grounds for believing (i) four specified matters and (ii) one or more of four further specified matters, to exist. The onus on the applying constable is to persuade the judicial officer that this state of mind in these prescribed terms should be formed.

In formulating the proceedings in this way, the applicant’s legal representatives further identified the PSNI as the first respondent and the lay magistrate as the second respondent, which was erroneous, as it was the ultimate decision of the lay magistrate which was being challenged.

The court noted that a search warrant application must be discharged in a manner whereby a reviewing court can at a later stage satisfy itself simply by reading the relevant documents that all of the prescribed legal requirements had been observed. There should be no need to provide the multiple explanations and further materials, which were required in this case.

The multiple shortcomings in the police applications to the lay magistrate for the search warrants were found not to be peripheral, trivial or technical. Rather, they were matters of gravity and substance.

Conclusion

The court, by its final order, granted the following remedies:

1. An Order of certiorari quashing the impugned search warrants.
2. A declaration that the entries, searches and seizures carried out by police officers pursuant to the warrants were unlawful.
3. An order of mandamus requiring that the Police Service destroy any data or information obtained from the seizure, and return all of the property to the applicant.
4. Payment of the applicant’s legal costs.