1-0 to Andrew but it’s not over yet

It’s the story that gripped the nation back in February: the late Queen’s favourite son Andrew Mountbatten-Windsor arrested on suspicion of misconduct in public office, on the basis of information found in the notorious files relating to sex offender Jeffrey Epstein.

Andrew – who was stripped of his titles as a prince and Duke of York over the scandal – has consistently denied the misconduct allegations and any wrongdoing linked to his association with Epstein.

After the Central Criminal Court issued the warrants, Thames Valley Police conducted searches of Andrew’s lodgings at Wood Farm in Sandringham and the Royal Lodge in Windsor. They seized documents and devices.

Andrew filed for judicial review in May against both the Court and Thames Valley Police, arguing that the search warrants were not issued lawfully.

(The application was brought in the name of the King, who has sought to distance himself from Andrew. This is a formal procedural requirement of the King’s Bench Division that the Crown holds its public bodies to account, and not an indication that King Charles III was backing his brother. In fact, Andrew has reportedly been told that any money he receives from the King must not be used to fund the action against Thames Valley Police and the Central Criminal Court.)

A “significant error”

Giving reasons on 8 October, Mr Justice Hilliard of the High Court found a “significant error” in the issuing of the warrants. He acknowledged that Thames Valley Police had accepted that the warrants were unlawful under section 8 of the Police and Criminal Evidence Act 1984 (PACE), which requires the judge issuing the warrants to be satisfied that there are reasonable grounds to believe the material sought does not include privileged or “Special Procedure” material.

“Special Procedure” material includes material acquired or created in the course of an occupation or for the purpose of a paid or unpaid office, and held subject to an express or implied undertaking to keep it confidential.

Hilliard J said privileged material was expressly envisaged in the warrant application. He also said it was inherent in the allegations of misconduct in public office that some of the material might be Special Procedure material. That was sufficient to overturn the warrants as unlawfully issued.

However, it’s not over yet. Thames Valley Police filed an application in June to keep the information recovered under section 59 of the Criminal Justice and Police Act 2001. That section gives a judge the power to say that material seized under an unlawful warrant can still be kept if it would be lawful to reseize it once returned to the owner.

The application would allow Thames Valley Police to invoke mechanisms such as section 9 of PACE (which would be subject to certain considerations, such as the material being of substantial value or access being in the public interest). It remains pending and will be heard in private.

Why do we know about it at all?

There was never a public hearing in the action, because Thames Valley Police agreed that the warrants had been unlawful. Usually, a judicial review case like this would receive little or no publicity. But the open justice principle still applies, and the court can find itself deliberating on public access to documents.

Open justice is designed to allow for public scrutiny of decision-making in the courts, with the effect of holding the judiciary to account and imbuing the public with confidence in the justice system. But it is not a given: courts can depart from the principle including where open justice may cause prejudice to a criminal investigation.

Thames Valley Police objected to any publicity being given to the result of the case, saying consideration of the question should be deferred until its section 59 application was heard. The police were seeking to protect the integrity of a criminal investigation.

Before a hearing on the question, a journalist applied for access to the case statements and any orders made, using CPR 5.4C(1). Thames Valley Police then asked that publicity be deferred until 15 October, and Hilliard J gave them until the hearing on 8 October.

In the end, the police said they would no longer pursue publicity restrictions, except for redactions disclosing the identities of police officers and staff working on the case.

Hilliard J too the view that there was no public interest in identifying the individuals, and that it would not contribute to the public’s understanding of the case. He granted the redactions.