Don’t Shoot the Messenger

The investigation into child abuse alleged against some of the great and the good was called “Operation Midland”. To investigate further allegations made by one man that Lady Brittan’s late husband, the former head of the armed forces Lord Bramall, and the former MP Harvey Proctor and been abusing children the police sought and obtained search warrants to search their homes.

What the Police expected the search of the homes to reveal about child abuse alleged decades earlier I have never understood. Nevertheless the police applied for search warrants to a judge, in this case to a District Judge and laid what evidence they had before the judge. The judge issued the warrants and as a result the homes of three wholly innocent elderly people were searched by the police with all the attendant publicity. Of course, the searches revealed nothing because the people that the police were investigating, all elderly, were wholly innocent and the allegations were motivated by malice. Clearly all three people were badly shaken and distressed by the police turning up with search warrants and searching their homes.

Now, after the damage was done and after the police informant was convicted for perverting the course of justice by inventing these allegations of child abuse, the issue of the warrants has been investigated by a former judge of the High Court, Sir Richard Henriques, who has claimed that the Police, when applying for the search warrants may well have perverted the course of justice because they failed to tell the District Judge that the informant had been inconsistent.

It strikes me that this is a question of shooting the messenger. Of course, the police were foolish in the way they dealt with operation Midland and made mistakes by relying on a single informant who subsequently was proved to be a liar and rather a nasty piece of work. However, the target for my criticism is the District Judge who granted the search warrants.

Search warrants must be granted by a judge. This means application for a search warrant is a judicial process in which a judge makes a judicial decision. It should not be be a rubber stamping of the request but a thorough investigation into the justice of granting a search warrant.

The issues that this raises are

  1. What did evidence of child abuse the police think they would find at the homes of Lady Brittain, Lord Bramhall and Mr Proctor? The abuse alleged was years earlier – too far away for there to be electronic evidence and DNA evidence.
  2. Absent uncorrobrated evidence of a single informant, how likely was it that the search of the homes was merely a step to “shake up” the suspects and their families: this is not a proper reason to grant a search warrant.
  3. How, if at all did the District Judge having before him or her applications for search warrants test those applications.?
  4. The allegations made warranted investigation because they were serious. However these allegations depended on a single witness whose story was uncorroborated. How was it that the District Judge failed to take account of this when considering the search warrants?

Judges should remember that they are there to protect the rights of individuals and that although the existing law on search warrants is confusing, it is clear that many applications, like these applications, are not properly scrutinised by judges.

Police make mistakes all the time, so do judges. However, judges should understand that the police do make mistakes and in the case of applications for search warrants judges are there to wherever possible prevent those mistakes and not simply to believe whatever the police tell them. .

We Cannot Rely on the Judges to Safeguard Our Freedoms

There has been a great deal of press comment and scandal in the UK recently about allegations of historic child abuse. There have been quite a lot of cases in which famous people, often entertainers, have been found to have abused children and women taking advantage of their celebrity, but in efforts to catch all such abusers unsubstantiated and sometimes ridiculous allegations of abuse have been investigated with fervour, relying implicitly on the truth of the complainants statements no matter how incredible or uncorroborated they may have been.

Several people have been investigated and their investigations have made the headlines. 92 year old Field Marshall Bramhall had twenty policemen descend on his home to search it thoroughly. Former Home Secretary Leon Britton  suffered similar indignities. There have been others. None of them have been or will be prosecuted, There is no evidence of any wrongdoing on the part of a number of these people, including those I have named, who have had their names bandied around by the media as child abusers and rapists.

Of course the police must have leaked details of their investigations to the press in ways that enabled the press to identify the subject of their investigations. That is quite wrong, but the police frequently misbehave and there is nothing unusual in that. Normally we expect the judges to prevent bad or excessive behaviour on the part of the police.

When the police decided to search Field Marshall Bramall’s home they must have first obtained a search warrant from a judge. They would have had to explain to the judge (at a hearing in chambers) why they wanted the search warrant, what they expected to find and give the judge some details of the evidence that formed the basis of their suspicions.  they would have also told the judge when he considered granted the search warrant that they proposed to send twenty officers to search the Field Marshall’s home.

In my experience police exaggerate but do not lie when it comes to swearing evidence for a search warrant. It is likely that the judge who granted the warrant knew the following facts to be as hard facts and probably nothing else:-

  1. A chap called Nick had accused the 92 year old Field Marshall of abuse said to have happened some 40 years earlier.
  2. Nick’s evidence was completely uncorroborated.
  3. None of Nick’s evidence had been tested in any way – for example an allegation that the Field Marshall had carried out abuse on Remembrance Day, which would have been easy to test.

The test of granting a search warrant is there must be reasonable grounds for believing any of the following:

  • A criminal offence of a serious nature has been committed; in this case the only evidence was an unsubstantiated allegation of something said to have happened 40 years earlier. there are no reasonable grounds for believing any offence was committed.
  • There is material evidence on the premises that is likely to aid a criminal investigation; what did the police think a search would reveal? That the Field Marshall had kept photographs of the offence? That DNA would be available after more than 40 years on clothes 40 years old?
  • It is not practicable to obtain the evidence without a warrant being granted; it is hard to see what evidence the police were expecting to find at the search.
  • That the purpose of the search will be seriously prejudiced if the police officer cannot have immediate access to the property upon arriving at the premises; this ground cannot possibly apply, in my view. It was extremely unlikely that there would be any evidence revealed by the search.

On those facts if I were a judge (and I am not a judge) I would not have granted a search warrant. I would have told the police that their evidence was very thin and insufficient to grant a search warrant, and that they had to get more evidence before a search warrant would be authorised.

However, a judge or a magistrate did grant a search warrant. Sadly, it shows that judges have become too close to prosecutors and frequently do not think carefully enough about issuing things such as search warrants, even though the issue of a search warrant can turn the life of a person against whom no search warrant should be issued completely upside and cause great stress, worry and the inevitable problems that ill health caused by stress and worry brings.

We must draw the conclusion that in these matters some of our judiciary are mere cats-paws for the prosecutors and no longer can be trusted to safeguard our rights.

There is also a point to make that court staff who arrange the search warrant hearings can steer a particular judge known to be sympathetic to a particular prosecution to a particular application.  There is no robust system of allocating judges to hear search warrants on a random basis, and there should be such a system.

 

Section213 Patriot Act

Perhaps it is my fault, but I find the title to one piece of American legislation chillingly Orwellian. I mean the Patriot Act and in particular Section 213 of it. This legislation was enacted to fight terrorism. It is now rarely used for terrorism investigations and most commonly used in Federal drug investigations. The section provides Continue reading