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SEARCH WARRANTS-INFORMATION OF “SUBSTANTIAL VALUE” AND THE “PUBLIC INTEREST”

In Smalling v. Satterswaite & Ors (Jamaica) [2022] UKPC 44, November 17, 2022), the police obtained a search warrant pursuant to section 115 of the Jamaican Proceeds of Crime Act 2007 (POCA), for the purposes of investigating criminal conduct alleged to have occurred on or after May 30, 2007.  In order to grant such a search warrant, a justice had to be satisfied that:

(a) the information or material is likely to be of substantial value, whether or not by itself, to the investigation for the purposes of which the order is sought and

(b) it is in the public interest for the information or material to be produced or for access to the information or material to be given, having regard to the benefit likely to accrue to the investigation if the information or material is obtained.

Counsel for Dawn Satterswaite applied to quash the search warrant, arguing that “because a person can only be charged under POCA for offences committed on or after 30 May 2007, any search or seizure in respect of her must be limited to information or material arising on or after 30 May 2007”.

The application was initially dismissed, but subsequently allowed by the Court of Appeal. The Court of Appeal ordered that any documents, which predated 30 May 2007 and had been seized upon the execution of the warrant, must be returned forthwith to the first respondent. The Crown was granted special leave to appeal to the Judicial Committee of the Privy Council in relation to the flowing question:

[W]hether a search and seizure warrant issued under section 115 of the Jamaican Proceeds of Crime Act 2007 (“POCA”) for the purposes of investigating criminal conduct occurring on or after 30 May 2007 can nevertheless authorise the search for and the seizure of information or material that came into existence prior to 30 May 2007?

The appeal was allowed. In allowing the appeal, the Judicial Committee of the Privy Council made the following comments concerning the requirements of “substantial value” and the “public Interest” (at paragraphs 58 to 68):

First, the judge must be satisfied that there are “reasonable grounds for believing” that the information or material is likely to be of substantial value. In this way the evaluation is based on the particular facts of the individual case.

Second, the condition is met if there are reasonable grounds for believing that the information or material is likely to be of substantial value.

Third, the judge must be satisfied that there are reasonable grounds for believing that the information or material is likely to be of substantial value to “the investigation.” Accordingly, there may be reasonable grounds for believing that information or material may be of substantial value to “the investigation” even though there may be no reasonable grounds for believing that it will be of any value or of any substantial value as evidence in a subsequent criminal trial. For instance, it may be that to conduct the investigation properly, the investigators must understand the continual background of history relevant to the offence being investigated. On this basis there may be reasonable grounds for believing that explanatory information or material can be of substantial value to the investigation.

Fourth, conversely information or material in respect of which there are reasonable grounds for believing that it will be of substantial value to a subsequent criminal trial will necessarily be of substantial value to the investigation. For instance, explanatory information or material under the principle derived from the judgment of Purchas LJ in R v Pettman (2 May 1985 unreported), which subject to the trial judge’s discretion may be admissible at a subsequent criminal trial, will be of substantial value to “the investigation.” So also will be evidence establishing mens rea. If information or material may be admissible at a subsequent criminal trial, then there are reasonable grounds for believing that the information or material is likely to be of substantial value to the investigation.

Fifth, the nature of an investigation is that it is a preliminary stage, ordinarily starting with suspicion, in which the aim is either to obtain prima facie proof to move on to the next stage which is a criminal trial or to determine that there is insufficient or no proof to justify continuing with the investigation.

Sixth, the reasonable grounds for believing that the information or material is likely to be of substantial value to the investigation may be met by considering the information or material by itself or in combination with other material or information.

Seventh, there may be reasonable grounds for believing that information or material is likely to be of substantial value to the investigation if the information or material leads to a train of enquiry as to other material or information.

Eighth, there may be reasonable grounds for believing that information or material is likely to be of substantial value to the investigation if it eliminates a suspect or if it demonstrates that the suspicion which led to the investigation was misplaced so that the investigation should conclude.

Ninth, there is no limit as to the date upon which the information or material came into existence. Rather, the condition is that there are reasonable grounds for believing that the information or material is likely to be of “substantial value” to the investigation. It is not limited to reasonable grounds for believing that the information or material is likely to be of substantial value to the investigation provided the information or material came into existence on or after 30 May 2007.

Similarly, several points can be made about the public interest condition. First, and in the same vein as the substantial value condition, the requirement is for “reasonable grounds for believing” that it is in the public interest for the information or material to be produced or for access to the information or material to be given. In this way the evaluation is based on the particular facts of the individual case. Second, the condition is met if there are reasonable grounds for believing that it is in the public interest for the information or material to be obtained. Third, in determining whether there are reasonable grounds for believing that it is in the public interest for the information or material to be obtained regard is to be had to “the benefit likely to accrue to the investigation if the information or material is obtained.” Fourth, the public interest can pull in both directions. On the one hand there is a public interest in investigation of criminal activity and on the other, there is a public interest in maintaining the privacy of information or material. The public interest requirement is intended to ensure compliance with the requirement that any interference with the right to respect for private and family life must be necessary for, among others, the prevention of crime. As such, the public interest requirement necessarily invokes a balance between competing considerations.

The Board considers it evident that information or material arising prior to the entry into force of POCA but relevant to the investigation of the alleged commission of an offence that must be prosecuted under POCA may fulfil both the substantial value and public interest conditions.