Law Report: Direction must be specific: Regina v Central Criminal Court, Ex parte Propend Financy Pty Ltd and others - Queen's Bench Divisional Court (Lord Justice Butler-Sloss and Mr Justice Laws), 17 March 1994

The Home Secretary, when directing the police to apply for a search warrant under section 7 of the Criminal Justice (International Cooperation) Act 1990 to assist another country in criminal investigations, must specify the type of search warrant application to be made.

The Divisional Court gave judgment on the issue of costs.

Australian authorities who were investigating suspected criminal offences of tax evasion made a request to the authorities here to obtain documents held at the offices of solicitors and accountants.

The Home Secretary wrote to the Metropolitan Police Commissioner directing that an application be made for a search warrant under section 7(2) of the Criminal Justice (International Cooperation) Act 1990 or section 8 of the Police and Criminal Evidence Act 1984 or a production order under section 9 of th 1984 Act. The documents to be searched for seized were wide ranging, including correspondence, contracts, notes and documents.

No prior approach was made to either the solicitors or the accountants. Judge Goddard QC granted the ex parte application for warrants to search and seize documents at the solicitors' and accountants' premises. The applicants, the parties in Australia and the solicitors, applied for judicial review of the Home Secretary's direction to the police and of the warrants.

It was conceded that the warrants should not have been issued because this was not a proper case for an ex parte order and there was no material to show that either the solicitors or accountants would have removed or destroyed the documents.

It was agreed that the warrants should be quashed and the substantive issue before the court related to costs.

R Alun Jones QC and James Lewis (Theodore Goddard) for the applicants; John S Wiggs (Metropolitan Police Solicitor) for the police; Brian Barker QC (CPS) for the Crown; Stephen Richards (Treasury Solicitor) for the Home Secretary.

MR JUSTICE LAWS said that the Home Secretary's letter to the Metropolitan Police conferred a choice as which of four different types of application they should make: an application for a warrant under section 7(2) of the Criminal Justice (International Cooperation) Act 1990, an application under section 8 of the 1984 Act, an application under paragraph 4 of Schedule 1 to the 1984 Act and application for a search warrant under paragraph 12.

The Home Secretary possessed a discretion whether or not to make a direction under section 7(4) of the 1990 Act for the application of a search warrant. He must make a judgment whether to offer assistance to the requesting state which a direction, which alone opened the door to the procedures for warrants, would provide. He must carry out some assessment of the merits of the application. Such an exercise was inextricably linked with the making of a judgment as to what form of application was appropriate.

The different forms of application were in large measure mutually inconsistent. The Home Secretary had not only the responsibility of deciding whether assistance should be given to the requesting state; he must also decide what assistance should be given. Section 7(4) authorised only a unitary direction, specifying a particular form of application. Accordingly the Home Secretary must pay the costs of the judicial review proceedings brought against him.

Turning to the costs of the warrant proceedings, the ex parte order should not have been applied for and the application was the responsibility of the police. The police had to satisfy themselves that an ex parte application should be made. The Australian authorities provided a considerable impetus to the ex parte application and by agreement there was no question of costs against them. The police should pay half the costs of the judicial reviews relating to the warrant.