Reflections on The Split – S2, E3: Non-molestation orders, a rehab romance and protecting the family wealth
The Criminal Procedure Rules 2013, which came into force on 7 October 2013 include, for the first time, provisions governing applications made by the police, and other law enforcement agencies, for search warrants. To anyone practising in this area, the need for a clear set of rules, as a means of trying to ensure full compliance with the legal requirements for obtaining warrants, has been clear for a long time – the more interesting issue is how far in reality the new provisions are likely go in achieving that aim.
The stimulus for the introduction of the new rules was the decision in the Tchenguiz brothers’ notorious judicial review (R oao Rawlinson and Hunter v Central Criminal Court and the Director of the Serious Fraud Office  EWHC 2254 (Admin)) in which the Divisional Court set aside search warrants on the ground that they had been obtained as a result of non-disclosure. Evidence received by the Divisional Court gave it an insight into what actually happens when applications for search warrants are made and although the failures identified in the Tchenguiz case were extreme, they were certainly not completely out of the ordinary – to give but one example, the Divisional Court appears to have been surprised, as well as disappointed, that the judge who had originally granted the search warrants gave no reasons for doing so. Our experience is that for a judge or magistrate to give reasons in these circumstances is very much the exception rather than the rule.
The new rules, which are set out in Section 7 of Part 6 of the CPR 2013, are intended by the Rule Committee “to supply a procedure which is intended to help make sure that applications meet fully all the relevant statutory requirements, as interpreted by the courts”. The provisions are fairly basic (there is an express rule that a Court must not grant an application for a warrant unless it has had sufficient time to consider the application!) and require applications to be made on a prescribed form, which includes a box in which the judge/magistrate has to give reasons for granting, or refusing to grant, the warrant.
Although these changes are welcome, there are reasons to be sceptical about how much difference they will really make. This is because the new rules are an attempt to ensure that investigators and judges/magistrates do what the law already clearly requires them to do – but if, as is the case, those requirements are currently being ignored or misinterpreted, it seems unlikely that simply having to fill in a new form is going to bring about much change. In addition, even if at least initially the new application/reasons forms are used properly, there is real risk that they will quickly become simple “tick boxes” rather than a proper tool for concentrating minds.
There is also a more fundamental problem here, which is the approach adopted by the courts when the grant of a warrant is challenged on grounds of non-disclosure. The disclosure obligation when applying for a warrant is clear – the judge/magistrate must have disclosed to her/him “anything that might militate against the grant” of the warrant. In the new rules this is expressed as a requirement on an applicant for a warrant to disclose “anything that might reasonably be considered capable of undermining any of the grounds of the application”. However, even when it can be shown that there has been a failure to meet that standard it does not follow that a public law challenge to have a warrant set aside will succeed. Although not completely consistent, the current approach of the courts generally is to require a claimant to establish not that if proper disclosure had been made it might have made a difference to the grant of a warrant (which would be consistent with the duty of disclosure) but that it would in fact have made a difference (which is inconsistent with the duty of disclosure). The practical effect of setting such a high threshold before a warrant can be set aside is that there is little to incentivise the police to comply with their legal obligations, and the new rules, since the risk of an adverse consequence for non - compliance is so small.
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