Thames Valley Police’s acceptance that the warrants it used to search Andrew Mountbatten-Windsor’s home were unlawful does not necessarily mean the seized property is lost to the ongoing police investigation, lawyers have said.
Mountbatten-Windsor brought an application for judicial review to quash search warrants which were issued by a judge sitting at the Central Criminal Court in February this year. The warrants were executed by Thames Valley Police, which is investigating alleged offences of misconduct in public office, the following day at Wood Farm, in Sandringham, and the Royal Lodge in Windsor.
The police seized documents and electronic devices. Mountbatten-Windsor denies any wrongdoing.
An order by Mr Justice Hilliard said Thames Valley Police ‘conceded that the judge could not properly have been satisfied that there were reasonable grounds for believing that the material to be searched for did not consist of or include items subject to legal privilege or special procedure material’. In his written reasons, Hilliard said: ‘A significant error was made in the application for and grant of the search warrants under s.8 [of the Police and Criminal Evidence Act 1984].
The quashing does not mean the whole of the investigation into the former prince is unlawful, the judge said. Proceedings under s.59 of the Criminal Justice and Police Act 2001, which gives a judge the power to allow property seized under an unlawful search warrant to be retained if it would be lawful to seize it under some other provision, are ongoing and will be heard in private.
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Andrew Gilmore, partner at Grosvenor Law, described the police’s concession as ‘quite extraordinary’. It ‘calls into question the credibility of Thames Valley Police and their ability to conduct such high profile and sensitive operations,’ he added.
Sharron Boyce, senior associate at Brett Wilson, said: ‘The fact that a judge found that the search warrants had been obtained unlawfully does not necessarily mean the seized items will then be inadmissible in a criminal prosecution.
‘For any unlawfully obtained material, the Crown Court judge would need to determine that allowing the evidence to be put before a jury would not have ‘such an adverse effect on the fairness of the proceedings’ under the Police and Criminal Evidence Act 1984. Separately, Andrew Mountbatten-Windsor could apply to the Crown court for the return of the seized property, given that it has now been accepted there was no power to seize it in the first place.’
Nick Vamos, partner at Peters & Peters agreed, predicting the police would be allowed to keep the seized material. He said: ‘Admitting to unlawfully obtaining the search warrants is an embarrassment for Thames Valley Police, especially in such a high-profile case, but the real question is how much damage has it done to the investigation.
‘Given the technical nature of the errors revealed, I expect the Crown court to rule in due course that the police can keep the material, or at least as much of it as they would have been entitled to seize in the first place, so they may not ultimately pay much of a price beyond red faces.’
Danielle Reece-Greenhalgh, partner at Corker Binning, added: ‘An unlawful or defective search warrant does not automatically render any seized evidence inadmissible in a subsequent trial. Nor does it preclude the police from examining seized items, such as devices or paperwork, during their investigation.
‘The question of whether and how unlawfully obtained evidence can be used centres on whether its admission would have such an adverse effect on the fairness of the proceedings that the court ought not to admit it. If the irregularity or unlawfulness goes hand in hand with some significant resulting unfairness which is incapable of remedy, Mr Mountbatten-Windsor may have grounds to argue that whatever material has been uncovered should not be used against him.’
