If you have been arrested or your home, business or devices have been searched under a warrant, it may be possible to challenge the lawfulness of the warrant and the actions taken by the authorities.
Kings Solicitors are experienced in challenging arrest and search warrants, including cases involving unlawful searches, excessive seizure of property and breaches of legal privilege. A successful challenge can lead to the return of property, damages and a significant tactical advantage in any ongoing criminal investigation.
Can a Search Warrant Be Challenged?
Yes. All search warrants can be challenged where legal grounds exist. Key issues include:
- Whether the warrant should have been granted in the first place
- Whether the Police seized items not authorised by the warrant
- Whether legally privileged or irrelevant material was seized
If a warrant is defective, the correct route is usually an application for Judicial Review in the High Court.
Time Limits for Challenging a Search Warrant
Applications for Judicial Review are made to the Administrative Court. Strict time limits apply. Under CPR r54.5, a Judicial Review claim must be filed promptly, and in any event within 3 months of the grounds arising.
It is therefore essential to seek legal advice from Kings Solicitors as soon as possible after a search or arrest.
Letter Before Claim
Before issuing Judicial Review proceedings, a letter before claim should usually be sent. This letter will:
- Identify the decision being challenged (for example, the grant of the warrant)
- Set out why the decision was unlawful, irrational or procedurally improper
- Explain what remedy is sought (for example, quashing the warrant, return of property, damages)
Kings Solicitors can draft and send this letter, ensuring all relevant legal grounds are raised.
Judicially Reviewing the Court and the Authorities
In search warrant challenges, the Court that granted the warrant is normally named as a Respondent, alongside the Police or other investigating body (e.g. HMRC). This allows the High Court to make orders against both the authority and the issuing court if the challenge succeeds.
The Court may choose not to attend the hearing and may limit its involvement to providing an Acknowledgement of Service and clarifying the District Judge’s understanding of the without notice application.
Gathering Evidence and Obtaining the Judge’s Reasons
It is crucial to obtain all the information placed before the court when the warrant was granted, including:
- The written application
- Supporting documents and information
- Notes of what was said in the hearing
The Criminal Procedure Rules require that reasons for the decision are available. Under CrimPR r5.5 onwards, and specifically r5.7(6), an application can be made in writing to the court for disclosure of:
- The Judge’s reasons for granting the warrant
- Notes of the hearing held in your absence
This application must be copied to the Police/HMRC, who then have 14 days to object to disclosure. At the same time, a separate request can be sent directly to the Police for disclosure of the Information in support of the warrant.
Kings Solicitors will handle these steps on your behalf.
Possible Outcomes of a Judicial Review
Judicial Review remedies are discretionary. The High Court may:
- Declare that the warrant was unlawful
- Order that the seizure of property was unlawful
- Make orders affecting any attempt to re-seize material under other powers
If the warrant is quashed under s59 of the Criminal Justice and Police Act 2001, the Police can ask the High Court for temporary permission to retain the material while they apply to the Crown Court for a fresh order.
The Crown Court has the discretion to allow retention of the seized material despite the unlawfulness of the original search, if a new lawful warrant would immediately justify seizure.
Nevertheless, challenging a warrant can:
- Lead to the return of property
- Result in damages/compensation being awarded
- Force early disclosure of information
- Send a strong signal that the suspect will challenge improper conduct
Challenging Unlawful Arrest
Kings Solicitors can also challenge the lawfulness of an arrest where Police powers have been misused. Unlawful arrest and detention may be challenged by Judicial Review and/or civil claims for:
- False imprisonment
- Breach of human rights
- Misuse of powers
A successful challenge can result in compensation and a clear finding that the arrest was unlawful.
Kings Solicitors are experienced in identifying the correct remedy and pursuing challenges to both arrest and search warrants.
FAQs
1. Can I challenge a police search warrant?
Yes. You may be able to challenge a search warrant if it was granted on flawed information, executed improperly or used to seize property not covered by the warrant.
2. Is there a time limit for challenging a search warrant?
Yes. Judicial Review claims must be brought promptly and, in any event, within 3 months of the grounds for challenge arising.
3. What if the police seized items not listed in the warrant?
If the police seized items beyond the scope of the warrant, this may form part of a challenge and could lead to the return of property or a finding that the search was unlawful.
4. What happens if legally privileged material was seized?
Seizure of legally privileged material is a serious issue. It can form a strong ground of challenge and may affect the admissibility and handling of any evidence taken.
5. What is Judicial Review in the context of a search warrant?
Judicial Review is a procedure where the High Court reviews the lawfulness of a decision, such as the grant of a warrant, and can quash it if it was unlawful or irrational.
6. Can I obtain copies of what the police showed the court when they applied for the warrant?
Yes. Your solicitor can apply to the court for the Judge’s reasons, notes and the information placed before the court, subject to any objections from the authorities.
7. What are the possible outcomes if a warrant is quashed?
The court may declare the search and seizure unlawful, order the return of property and, in some cases, award damages. The police may seek fresh orders to retain certain material.
8. Can I claim compensation for unlawful arrest or unlawful search?
Yes. If your arrest or search was unlawful, you may be able to claim damages for false imprisonment, trespass and/or breach of your rights.
