Judgment Approved by the court for handing down.
Privacy International v Investigatory Powers Tribunal
The aversion of the common law to general warrants
39.
The aversion of the common law to general warrants was established by the time of
William Blackstone. In his Commentaries on the Laws of England, Book IV, he wrote
(in the form published by Clarendon Press in 1769 but using modern spelling):
“A general warrant to apprehend all persons suspected, without
naming or particularly describing any person in special, is illegal
and void for its uncertainty; for it is the duty of the magistrate,
and ought not to be left to the officer, to judge of the ground of
suspicion.”
40.
In his History of the Pleas of the Crown (1736), Sir Matthew Hale cited earlier authority
to the effect that a general warrant to apprehend anyone suspected of a crime was void
and would give rise to a false imprisonment (First American Edition, Philadelphia,
1847, Vol 1, p.580).
41.
In Huckle v Money (1763) 2 Wilson 205, the Secretary of State (Lord Halifax) had
granted a warrant that directed four messengers to apprehend “the printers and
publishers” of an edition of a paper called the North Briton which contained a “seditious
libel” against King George III. No person was named in the warrant. One of the King’s
messengers to whom the warrant was directed – Carrington – suspected that the printer
was a man called Leach and directed the defendant to execute the warrant on the
plaintiff who was one of Leach’s journeymen. The plaintiff was kept in custody for
about six hours. Following a trial, the jury awarded £300 damages (the equivalent in
2021 terms of £60,000). A new trial was sought on the grounds that the damages were
excessive. Refusing to order a new trial, Pratt CJCP (the future Lord Camden)
described the warrant as a general warrant because no individual was named in it. Such
a warrant amounted to the exercise of arbitrary power and was unlawful. The “daring
attack” upon the liberty of the subject had justified the grant of exemplary damages.
42.
The North Briton seditious libel was further considered in Money v Leach (1765) 3
Burrow 1742, which concerned an action in trespass brought by Leach against three
King’s messengers who had broken into his home and imprisoned him for four days.
The case report shows that Lord Halifax had issued the warrant “in writing under his
hand and seal,” authorising the messengers on behalf of the King to make “strict and
diligent search for the said authors, printers, and publishers of the aforesaid seditious
libel…; and them or any of them having found, to apprehend and seize, together with
their papers, and to bring in safe custody before [Lord Halifax], to be examined
concerning the premises, and to be further dealt with according to law”.
43.
Lord Mansfield CJKB considered an objection to the warrant on the grounds of the
“incertainty of the person, being neither named nor described.” He held:
“It is not fit, that the receiving or judging of the information
should be left to the discretion of the officer. The magistrate
ought to judge; and should give certain discretions to the
officer…Hale and all others hold such an uncertain warrant
void”.