Challenging Search Warrants

Following on from the Red Lion Chambers March Fraud Newsletter, in which the case of R (GSX) v. The Crown Court at Southwark [2026] EWHC 538 (Admin) was digested, RLC’s Tom Forster KC analyses the case in detail in this edition of Focus.

The High Court decision in GSX confirms the necessary procedural steps to be followed by law enforcement agencies when applying for search warrants under sections 8 and 9 of PACE, and their ability to retain material, even if it has been unlawfully obtained, pending an application to the Crown Court under section 59 of the Criminal Justice and Police Act 2001.

The case also underlines that if deliberate misconduct or bad faith cannot be proved, then ‘an egregious disregard for statutory safeguards’ on the part of a public authority would be the minimum requirement before the Court will consider granting a claimant a remedy that interferes with an ongoing investigation.

By Tom Forster KC

Practitioners experienced in challenging the lawfulness of a search warrant in the Administrative Court will know how complex, time-consuming, and expensive this process can be. Even when successful, a claimant sometimes derives little tangible benefit. This is because the court is rarely persuaded to direct the return of seized items and impose a bar on the use of any information obtained from an unlawful search. It prefers, instead, for such matters to be resolved by the Crown Court exercising its jurisdiction under the statutory procedure provided by s.59 of the Criminal Justice and Police Act 2001 (“s.59”) whereby on application a judge may authorise retention of unlawfully seized property.

This experience was underlined in the recent decision of the Divisional Court in R (GSX) v. The Crown Court at Southwark [2026] EWHC 538 (Admin), which involved a successful challenge to the Financial Conduct Authority’s (“FCA”) use of intrusive powers.

The decision, although sobering reading for the FCA, is unlikely to prove the sword (or, if you prefer, shield) that some advisers of claimants might have hoped for.

Before looking at the case in detail, it’s important to understand the policy behind the statutory scheme, which permits an authority to obtain an order authorising retention of unlawfully seized material.

It reflects a balance between competing public interests. On the one hand, there is a significant public interest in ensuring that law enforcement agencies are held to account, act lawfully and follow proper processes.

However, on the other hand, is the equally significant factor that potential wrongdoers should not be given an advantage in escaping investigation.

As Leveson LJ held in R (Cook) v Serious Organised Crime Agency [2010] EWHC 2119 (Admin); [2011] 1 WLR 144 [16]:

“Criminal litigation is not, however, a game. Although the police (or in this case the SOCA) cannot escape the consequences of the illegality of the warrant, there is no reason why they should be placed in a worse position than if the warrant had never been sought, or conversely, why those the subject of the warrant (even if unlawful) should be in a better position to protect themselves from prosecution for unlawful conduct.”

The principles the Administrative Court applies when striking the balance between these competing factors upon an application for return of and an injunction on use of material, were outlined by the Divisional Court at paragraph [139] in R (Chatwani) v NCA [2015] EWHC (Admin), where it was stated:

(a) Appropriate relief was, in each case, fact-dependent.

(b) The normal course in the face of an unlawful search and seizure is for the agency to make an application to the Crown Court under s.59.

(c) On that application, the court will be astute to examine the circumstances surrounding the illegal seizure. Any suggestion of bad faith, or even that the agency has adopted a less than rigorous and scrupulous approach to drawing up and executing the initial warrant, will weigh heavily against the exercise of the court’s discretion in favour of authorising retention.

(d) The Administrative Court will exercise restraint in ordering the return of such documents, Parliament having assigned responsibility for determining issues of retention to the Crown Court – it will have the advantage of being able to consider the documents seized.

(e) There may be circumstances in which it is appropriate to deny an agency the benefit of the illegal search, irrespective of the nature and content of the documents seized. Those circumstances are likely to focus on the agency’s own conduct. If it has acted in bad faith, that is likely to be a compelling reason for not allowing it to retain any benefit from the exercise. However, bad faith is not a prerequisite: the agency’s conduct in obtaining and/or executing the warrant (or their subsequent conduct) may drive the Administrative Court to give the subjects of the warrants relief to deny the agency all benefit of an unlawful search. However, the circumstances in which the court is likely to make such a finding will be rare.

(f) Finally, there is a link between the test for granting a s.59 application and the question of whether a party should be prevented from making such an application. If a s.59 application is bound to fail, ordering immediate return of the property may be appropriate.

That’s clear enough. The difficulty, however, lies in advising on the merits of each fact-dependent circumstance. Even a seemingly strong case often proves insufficient to get a claimant home.

On any view, the claimant in GSX, a practising barrister, had a strong case. Things went wrong for the FCA from the very start.

The basic facts are straightforward. The FCA was investigating the claimant’s suspected involvement in a conspiracy to defraud. It sought the assistance of the police, who applied, on its behalf, for a warrant under s.8 of the Police and Criminal Evidence Act 1984 (“PACE”).

The Crown Court judge issued the warrant and, in a short, written judgment, set out his reasons, addressing the criteria in section 8 of PACE. His findings included that the material sought did not consist of or include items subject to legal privilege, excluded material or special procedure material.

However, in so deciding, the judge was led down the wrong statutory path by the FCA. He had no power to grant the warrant under s.8 of PACE in respect of items where there were reasonable grounds to believe them to be subject to LPP, something the FCA’s application acknowledged as “highly likely”. This is because of the specific proviso in s.8(1)(d) which excludes the power to grant a warrant under that section in such a case. Where such material is sought, it must be made under s.9 of PACE, following the special procedure set out in Schedule 1 to the Act.

Moreover, the form of the warrant was defective because, in breach of s.15(6)(b) of PACE, it did not set out what articles were sought with sufficient clarity and precision. It simply referred to “any material relevant to whether the offences specified above have been committed”. The alleged offences were not specified anywhere.

These errors were acknowledged by the FCA – it conceded them - and they were therefore sufficient to require the court to quash the warrant and make a declaration that the entry, search and seizures were unlawful.

However, in response to the claimant’s application for additional relief - delivery up and an injunction on use - the FCA submitted that, notwithstanding the errors, the grant of a warrant was necessary and proportionate and had the application been made under the special procedure set out in Schedule 1 of PACE, it would properly have been granted. Accordingly, its position was that the question of the retention of the material should be determined not by the Divisional Court but in the Crown Court under the s.59 procedure.

In deciding this issue, the court applied the Chatwani principles to all the FCA’s conduct – before, during, and following R (Brook) v Preston Crown Court [2018] EWHC 2024, after the warrant, including how it responded to the judicial review challenge.

Notwithstanding the court’s assessment that the above errors of law in relation to the warrant application were significant, it accepted that the FCA was not entirely to blame. This was because it had relied upon independent legal advice from Counsel that the application should be pursued under s.8 of PACE. In the view of the court, it was entitled to rely on that advice and could not, therefore, be said to have acted “with a cavalier disregard for the law or without at least attempting to do the right thing.”

In light of that assessment, the court’s attention focused on the FCA’s conduct in the way it made the application for the warrant and thereafter responded to the challenge. At the heart of this exercise was the FCA’s use of a sensitive information form (“SIF”), which it placed before the judge when making the application.

The SIF contained information that the claimant was a “person of interest in another FCA criminal investigation”. In the view of the court, a fair and natural reading of its contents raised suspicion that the claimant was caught up in other and additional wrongdoing. If so, this was contrary to what the FCA had intended, which was merely, they said, to set out the “relationship” or “history” between the claimant and the FCA. However, the SIF lacked the detail and context necessary to do that. It created a misleading picture.

The court concluded that the failure to include necessary context in the SIF, or to consider whether it should have been included at all, was a significant oversight. However, this was not because of bad faith, but due to a lack of sufficient care on the part of the FCA. In fact, the SIF was not relevant and should not have been put before the judge. The FCA’s conduct in doing so fell far short of the standards to be expected. The practical sting was that it was impossible to know whether the SIF had any impact on the judge's view of the claimant.

After the warrant was executed, the claimant sought prompt disclosure of all documents presented to the judge. Had the FCA wished to withhold all or any of them, then the judge’s permission was required. Indeed, the judge had made this clear during correspondence. However, the SIF was not disclosed, nor was the judge asked to sanction the decision to withhold it. Indeed, under threat of costs, the police discouraged the claimant’s solicitor from pursuing the issue of disclosure any further, claiming the SIF was covered by PII.

Thereafter, and following the filing of the claim form, the court granted permission, and directions were given for the making of a PII claim. However, the FCA failed, wrongly, to do so on the basis that the SIF was not relevant to the application for the warrant. Finally, it was eventually disclosed when the sensitivity to do with the information it contained fell away.

As regards this conduct, the court found the approach to disclosure also fell short of the standards properly to be expected of a public authority. The failure to seek judicial approval to withhold the SIF and by maintaining that it was irrelevant displayed a lack of proper care, as did the failure to consider the potentially prejudicial effect of the SIF, and the failure to appreciate that it was for the court, not the FCA, to determine relevance. The FCA had acted as judge in their own cause.

In its overall assessment, the court held that these shortcomings were serious but fell short of an “egregious disregard” for statutory safeguards described in Chatwani. The FCA did not act in bad faith. The failings were consistent with a lack of rigour rather than deliberate misconduct.

In the light of the above findings, the court ultimately refused the Claimant the relief sought and determined the s.59 process should take its course, because:

(a) The starting point was that Parliament had created a process to enable a Crown Court to determine issues of retention and therefore this represented a powerful reason to exercise restraint and to refuse the grant of relief that prevented recourse of the s.59 jurisdiction.

(b) The FCA’s conduct – albeit flawed – and sometimes seriously so, did not amount to bad faith or egregious disregard for constitutional safeguards.

(c) The SIF did not provide the basis for evidential suspicion of the Claimant. It was not a case that just crossed the threshold of reasonable suspicion.

(d) No investigative advantage had accrued to the FCA – the material had not yet been examined.

(e) Both parties would have a proper and equal opportunity to address the Crown Court on whether the material should be retained.

(f) Finally, if the seized material contained evidence of criminality, it was appropriate that it was properly considered as part of the investigation. It was not in the public interest for the claimant to be placed in a better position to protect himself from prosecution for unlawful conduct because the FCA made errors in the presentation of the application and in relation to disclosure of the SIF.

When dealing with the exercise of intrusive powers of investigation, the Divisional Court’s judgment has underscored the importance of the rights being interfered with and therefore the vital importance of relevant procedural safeguards and timely disclosure.

However, that said, it has also confirmed that even conduct by investigating agencies assessed to have fallen far short of the standards to be expected of a public authority is not sufficient for the Divisional Court to intervene and prevent the s.59 process from taking its course.

If not deliberate misconduct or bad faith, then an egregious disregard for statutory safeguards on the part of a public authority is the minimum requirement before the Court will consider affording a claimant a remedy that interferes with an investigation.

No doubt to the great relief of the FCA and other agencies, that might be thought to be an uncommon occurrence.

Tom Forster KC is joint Head of Chambers at Red Lion Chambers, London. He specialises in business crime and public and administrative law. He acts in both contentious and related pre-contentions matters as well as advising in non-contentious work including issues of policy

Ed Vickers KC specialises in fraud and serious & complex criminal cases. He is the editor of Red Lion Chambers’ Focus on Fraud blog.

Faras Baloch is a specialist in fraud and corporate crime. He is the editor of the Red Lion Chambers Fraud Newsletter.