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Dotcom v Attorney-General [2014] NZSC 199; [2015] 1 NZLR 745; (2014) 27 CRNZ 537 (23 December 2014)

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IN THE SUPREME COURT OF NEW ZEALAND
SC 25/2014 [2014] NZSC 199
BETWEEN	KIM DOTCOM First Appellant FINN BATATO Second Appellant MATHIAS ORTMANN Third Appellant BRAM VAN DER KOLK Fourth Appellant
AND	HER MAJESTY'S ATTORNEY-GENERAL Respondent

Hearing:	25 and 26 August 2014
Court:	Elias CJ, McGrath, William Young, Glazebrook and Arnold JJ
Counsel:	P J Davison QC, W Akel and H D L Steele for First Appellant F Pilditch for Second Appellant G J S R Foley and L F Stringer for Third and Fourth Appellants D J Boldt, F R J Sinclair and M H Cooke for Respondent
Judgment:	23 December 2014

JUDGMENT OF THE COURT

The appeal is dismissed.

The appellants are jointly and severally liable to pay costs of [$35,000] to the respondent.

____________________________________________________________________

REASONS

	Para No
Elias CJ,	[1]
McGrath, William Young, Glazebrook and Arnold JJ	[68]

ELIAS CJ

[1] In issue in the appeal is the validity of search warrants granted by the District Court at Auckland on 19 January 2012 under the provisions of the Mutual Assistance in Criminal Matters Act 1992. The Police had been authorised to apply for the warrants by the Attorney-General following a request by the United States of America.
[2] Before authorising the Police to seek warrants, the Attorney-General was required by the legislation to be satisfied that there were reasonable grounds for believing that in the premises identified in the warrant application there would be evidence in respect of offences alleged to have been committed in the United States punishable by imprisonment for a term of 2 years or more.^[1] No issue arises as to whether this condition was met.
[3] Rather, it is claimed that the warrants as issued by the District Court were invalid because substantively defective. The defects in the particularity with which the offences and the material authorised to be seized were identified are said to make the warrants general warrants which are bad in law. They authorised search and seizure of material likely to include that which was irrelevant and private. No conditions such as might have permitted the court to supervise sorting for relevance were imposed.
[4] The Attorney-General acknowledges deficiencies in the warrants but says they are not such as to make the warrants general and invalid. He maintains that the deficiencies are technical ones giving rise to no miscarriage of justice in the circumstances (including the other information available to the appellants at the time the warrants were executed).
[5] On that basis, the Attorney-General says that the Court is obliged by s 204 of the Summary Proceedings Act 1957 to treat the warrants as valid. Section 204 is a provision of general application to criminal processes. The section, as then applicable,^[2] provided:

204 Proceedings not to be questioned for want of form

No information, complaint, summons, conviction, sentence, order, bond, warrant, or other document, and no process or proceeding shall be quashed, set aside, or held invalid by any District Court or by any other Court by reason only of any defect, irregularity, omission, or want of form unless the Court is satisfied that there has been a miscarriage of justice.

[6] The appellants were successful in the High Court, where Winkelmann J held that the warrants were substantively defective and amounted to general warrants.^[3] She deferred the question of relief to be argued at a second hearing. At it, the Crown raised the application of s 204 of the Summary Proceedings Act, which had not been raised at the initial hearing to determine the validity of the warrants. Winkelmann J pointed out that reliance on s 204 went to validity and dealt with the submission on s 204 on that basis.^[4] In the second judgment, she held that the substantive deficiencies in the warrants she identified were not susceptible to the saving provided by s 204.^[5] In case wrong in that conclusion, she concluded further that, in any event, the deficiencies gave rise to a miscarriage of justice.^[6] Winkelmann J made orders for the sorting of irrelevant material from material relevant to the charges and the return of irrelevant material to the appellants. She also made orders that the appellants were to be provided with copies of relevant material which was retained, on their provision of the encryption passwords.^[7]
[7] The judgment of the High Court was overturned on the appeal of the Attorney-General to the Court of Appeal.^[8] The Court of Appeal accepted that the warrants were, “on their face”, too broad and were defective in a number of respects.^[9] It considered however that the defects in the warrants were not “so radical as to require them to be treated as nullities”.^[10] The validity of the warrants fell to be considered in the “factual context” provided by their execution, in which the appellants had also been served with arrest warrants which provided further information than was contained in the search warrants.^[11] The Court emphasised that the imposition of conditions on the warrants was a matter of discretion and considered that it was unnecessary to impose conditions in circumstances where there was no suggestion that the material authorised to be searched and seized was the subject of privilege. Because it held that the defects did not in themselves render the warrants nullities, the Court of Appeal took the view that they fell within the saving provision of s 204.
[8] As appears in the reasons given below, I have come to the conclusion that the High Court was correct to hold the warrants to be general warrants which are invalid. Failure to specify the offences and the materials authorised to be seized with sufficient particularity to ensure that what is seized is properly connected to the offending and does not include material which is irrelevant and private cannot be characterised as no more than “want of form”, the subject with which s 204 and similar statutory slip provisions are concerned. That was also the conclusion of the Law Commission in its recent report on search and seizure.^[12] It took the view that s 204 and comparable provisions do not excuse deficiencies in warrants which are not properly characterised as “minor non-compliance with technical aspects of the warrant requirements”:^[13] “substantial compliance with the statutory requirements is absolutely essential in any search regime that aims to effectively control the exercise of law enforcement powers”.^[14]

Search warrants are judicial process

[9] Search warrants are judicial authority to do something otherwise against the law. It is part of the rule of law and fundamental rights protections under the New Zealand Bill of Rights Act and the common law that such intrusions are authorised in advance, rather than being justified afterwards. Such warrants must show the nexus between what may and may not be searched or seized and the specific offence. The issuing officer must ensure that their scope intrudes upon the protected right no more than is necessary to achieve the legitimate social interest in obtaining evidence linked to an identified offence.
[10] Some of the acknowledged defects in the warrant were defects in form. They include the use of the Summary Proceedings Act search warrant prescribed form rather than the form prescribed under the Mutual Assistance in Criminal Matters Regulations 1993. Provided that the authorisation is sufficiently particularised to offences and evidence connected with them, such defects in form may be immaterial and precisely the want of form s 204 permits to be overlooked unless giving rise to a miscarriage of justice. I am not concerned with these technical deficiencies and regard them as something of a red herring. They were not relied on by Winkelmann J and were not pressed in argument on appeal to this Court. The appeal is concerned, rather, with the deficiencies of substance which undermine the validity of the authorisation contained in the warrant.
[11] The appeal raises questions of how electronic data is properly to be treated when search and seizure is authorised. This is a topic that is exercising courts in a number of jurisdictions as reliance on electronic media has swamped case law developed for paper-based record-keeping and communications. As it has transpired, the search in the present case obtained something like 150 terabytes of data, accessed through more than 135 computers and electronic devices seized in reliance on the terms of the warrant. It is now acknowledged that a substantial amount of this data, perhaps as much as 40 per cent, was irrelevant to the offences charged. Some of it was personal and private. A direction by the Solicitor-General that any items seized were to remain in the custody and control of the Commissioner of Police until further direction, did not prevent the earlier removal of a number of cloned hard drives to the United States (an issue in additional proceedings not presently before the Court). More generally, and of direct relevance to cases involving domestic warrants where electronic data is seized with computers, however, the case raises questions about how the sorting of relevant and irrelevant information obtained under warrants is properly authorised by the court granting the warrant.
[12] The New Zealand Law Commission in a 2007 report described, in terms with which I am in complete agreement, a “number of compelling reasons” why search warrants are not left in the hands of the party conducting a search but require the authority of a judicial officer:^[15]

It is an essential component of the checks and balances that should exist in a system operating according to the rule of law. While the state through its agents may be expected to act in good faith when exercising coercive powers against individual citizens, that cannot be guaranteed and should not be assumed; it is fundamental to the protection of individual liberty that the need for the exercise of the power should be demonstrated to the satisfaction of an independent officer and authorised by that officer before the exercise of the power rather than justified afterwards with the benefit of hindsight.

It introduces its own disciplines and constraints into the routine procedures and activities of law enforcement agencies. Even if applications for warrants and orders are almost always approved, the fact that they have to be justified to an independent person is likely to mitigate any risk of abuses or excesses of power.

It acts as some protection for the agencies themselves against claims of civil or criminal liability. It gives their actions the imprimatur of a judicial order and may to some degree pre-empt the filing of court proceedings by those under investigation who would otherwise seek either to prevent the exercise of the power or to obtain damages for that exercise. In other words, the requirement for a court order acts as a protection not only to the suspect, but also to the agency.

It promotes the protective objective of section 21 of the Bill of Rights Act.

[13] To fulfil these purposes, the Law Commission said that “it is not sufficient that there be a piece of paper”: “[r]ather the warrant must have been properly issued, in accordance with the relevant law”.^[16] It recognised as “essential”^[17] the requirement that “the items to be located and seized are stated with sufficient particularity” to ensure that:^[18]

... both the person executing the warrant, and the person whose premises are being searched, know with a fair degree of certainty if and why the enforcement officers are allowed onto the premises and what it is that they are allowed to do and to seize (and, conversely what they are not allowed to do or seize).

[14] The requirement for a warrant was seen by the Law Commission as “essential to the checks and balances that are necessary in a system that operates according to the rule of law”:^[19]

It is fundamental to the protection of individual privacy and liberty that the exercise of such a power is authorised by an independent person who has been satisfied by the enforcement officer that it is necessary to do so in the circumstances.

Moreover, the requirement for particularity and an individualised focus is consistent with a human rights perspective which insists that before any coercive state power is exercised against a citizen, the state turns its mind to whether the power truly needs to be exercised. On this, the Human Rights Committee has observed, in respect of Article 17 of the International Covenant on Civil and Political Rights that:

... relevant legislation must specify in detail the precise circumstances in which ... interferences [with privacy] may be permitted. A decision to make use of such authorized interference must be made only by the authority designated under the law, and on a case-by-case basis.

[15] In its proposals for new legislation concerning search and seizure (now enacted in the Search and Surveillance Act 2012), the Law Commission was concerned to ensure that the legislation should not authorise anything approaching a general warrant by “relaxing the nexus between the material to be seized and the specific offence”.^[20]
[16] It is because they do not sufficiently identify what may be done that the common law has treated general warrants as invalid and entry under them as trespass. These principles have been established since Entick v Carrington in 1765^[21] and were confirmed in New Zealand by the Court of Appeal in Auckland Medical Aid Trust v Taylor.^[22]

The legislation

[17] The warrants were issued under Part 3 of the Mutual Assistance Act. Section 45, as then in force, prescribed the content of search warrants granted under the Act:

45 Form and content of search warrant

(1) Every warrant issued under section 44 shall be in the prescribed form.

(2) Every warrant issued under section 44 shall be directed to any constable by name, or to any class of constables specified in the warrant, or generally to every constable.

(3) Every warrant issued under section 44 shall be subject to such special conditions (if any) as the District Court Judge may specify in the warrant.

(4) Every warrant issued under section 44 shall contain the following particulars:

(a) the place or thing that may be searched pursuant to the warrant:

(b) the offence or offences in respect of which the warrant is issued:

(d) the period during which the warrant may be executed, being a period not exceeding 14 days from the date of issue:

(e) any conditions specified by the Judge pursuant to subsection (3).

[18] It has been common ground throughout that although the warrants submitted in draft by the New Zealand Police and authorised by the District Court Judge referred in their heading to “[s]ection 43 and 44 [of the] Mutual Assistance in Criminal Matters Act 1992”, they were not in the form prescribed by the Mutual Assistance Regulations,^[23] as required by s 45(1) of the Act. Rather, they were in the form prescribed for warrants under the Summary Proceedings Act.^[24] The form prescribed in the Mutual Assistance Regulations required, in addition to the information required by s 45, that the warrant identify the country under whose laws the offence is alleged to have been committed and a statement that the offence was one punishable by a term of two or more years imprisonment.
[19] Section 26 of the Interpretation Act 1999 makes it clear that failure to use a prescribed form does not render a process invalid if the differences are minor “as long as the form still has the same effect and is not misleading”. If the warrant had contained the information required to be shown in the warrant by s 45 of the Mutual Assistance Act and Form 5 in the Schedule to the Mutual Assistance Regulations, s 26 would have prevented invalidity of the warrants, as long as their form was not itself misleading. The appellants contend that the defects here were not limited to the form used but extended to the substance of what had to be communicated in the warrant.

The warrants issued

[20] The warrants as issued authorised search of three properties in Auckland occupied by or connected with the appellants, by force if necessary, and seizure of items which were “all evidence, fruits, and instrumentalities of the crimes being investigated”. The “things” believed to be on the properties and in respect of which the warrants were granted were identified in an attached “Appendix A” and were “things”:

(upon or in respect of which an offence of Breach of Copy Right and Money Laundering has been or is suspected of having been committed)

(or which there is reasonable ground to believe will be evidence as to the commission of an offence of Breach of Copy Right and Money Laundering)

[21] “Appendix A” identified the “things” in respect of which the search and seizure was authorised as:

All evidence, fruits, and instrumentalities of the crimes being investigated including, but not limited to, the following:

Indicia of occupancy or residence in, and/or ownership of, the property;
All documents and things in whatever form relating to the reproduction and distribution of copyrighted works, including, but not limited to, motion pictures, television programs, musical recordings, electronic books, images, video games, and other computer software;
All records and things in whatever form, including communications, relating to the activities of the Mega Conspiracy, including, but not limited to, Megaupload, Megavideo, and Megastuff Limited;
All bank records, deposit slips, withdrawal slips, cheques, money orders, wire transfer records, invoices, purchase orders, ledgers, and receipts;
All documents that reference shipments, imports, exports, customs or seizures;
All digital devices, including electronic devices capable of storing and/or processing data in digital form, including, but not limited to;

o Central processing units;

o Rack-mounted, desktop, laptop, or notebook computers;

o Web servers;

o Personal digital assistants;

o Wireless communication devices, such as telephone paging devices;

o Beepers;

o Mobile telephones;

o Peripheral input/output devices, such as keyboards, printers, scanners, plotters, monitors, and drives intended for removable media;

o Related communication devices, such as modems, routers, cables, and connections;

o Storage media, including external hard drives, universal serial bus (“USB”) drives, and compact discs;

o Security devices

[22] The offences in respect of which the warrants were obtained were not further described in the warrants other than as “an offence of Breach of Copy Right and Money Laundering” although the terms of Appendix A indicated a connection with what is named as “the Mega Conspiracy,” not itself further explained in the warrant or Appendix A. It appears from Appendix A that it may relate to, but not be limited to, activities of companies called Megaupload, Megavideo, and Megastuff Ltd. And it may be inferred from the specific mention of electronic devices and electronic “storage media” that the offences of breach of copyright and money laundering on which the warrants were based were at least in part conducted through electronic means.

The deficiencies

[23] There is overlap between the information required to be included in warrants under the Mutual Assistance Act and the information that must be included in a warrant under the Summary Proceedings Act. The deficiencies claimed here include failure to provide adequate particulars of the “things” or articles authorised to be searched and seized and failure to identify “the offence or offences in respect of which the warrant is issued”, which would equally be deficiencies under the requirements of the Summary Proceedings Act or the Mutual Assistance Act. As has been mentioned, the appellants contend that the warrants were so broad as to constitute “general warrants”, which are not authorised under either Act. To that extent, then, the points raised by the appeal are of equal application to purely domestic criminal investigations authorised under the Summary Proceedings Act.
[24] The use of the wrong form may however have led to two additional informational requirements in relation to Mutual Assistance Act warrants being overlooked: the identification of the country under the laws of which the offence is alleged to have been committed and a statement that the offence is punishable by imprisonment for a term of two or more years, both required by form 5 of the Mutual Assistance Regulations.
[25] Under the Mutual Assistance Act,^[25] the issuing judicial officer is empowered to set conditions. Similar ability to impose conditions has been recognised in respect of warrants granted under the Summary Proceedings Act^[26] and is now explicitly conferred by s 103(3)(b) of the Search and Surveillance Act. If conditions are imposed they must be specified in the warrant. There are however different consequences in relation to the product of any search and seizure in respect of mutual assistance requests by foreign States and domestic investigations. Where a warrant is executed under the Mutual Assistance Act, “any thing” seized under it is required to be delivered “into the custody of the Commissioner of Police” to hold pending a direction by the Attorney-General as to how it is to be dealt with, including a direction that it “be sent to an appropriate authority of a foreign country”.^[27] If, within one month, no such direction is given, the Commissioner is required to return anything seized to the person from whom it was taken.^[28]
[26] The consequence of execution under a warrant granted under the Mutual Assistance Act is therefore that, in the absence of any conditions set by the court in granting the warrant, further dealings with the product of search and seizure are matters for the Attorney-General and outside the operation of the domestic criminal justice system in New Zealand, supervised by the domestic courts. The fact that remittal of the information beyond the jurisdiction is the end of the mutual assistance process is important to the argument of the appellants that the breadth of the search and seizure authorised, which inevitably entailed things irrelevant to the underlying offences, should have been subjected to conditions to protect their privacy and to ensure that only information and material relevant to the offences was obtained, observing the law.
[27] The search warrants did not identify the country in which the offences alleged were crimes. In addition, the items listed in Appendix A were not limited to those relevant to the offences and did not impose conditions to ensure that irrelevant material, which was inevitably within scope, would be sorted from material relevant to the offending. The failure to identify the underlying offence with sufficient particularity overlaps with the failure to confine the search to exclude irrelevant material or instead to impose conditions to ensure only those things which were relevant were searched and retained. The imprecision in the description of the offences exacerbated the overreach of the warrants which, especially in relation to the electronic devices authorised to be seized from domestic premises, was likely to include personal and irrelevant information.

The arrest warrants and the circumstances of execution of the search warrants

[28] In addition to the request for assistance in the matter of obtaining evidence under the Mutual Assistance Act, the respondents are also the subject of extradition proceedings on behalf of the United States. Warrants for their arrest have been issued in the United States on a Grand Jury indictment charging them with conspiracy to commit racketeering, copyright infringement and money laundering (the money laundering and racketeering charges being apparently linked to the underlying offence of conspiracy to commit copyright infringement), as well as charges of criminal copyright infringement. As a result of the request for extradition, provisional warrants for the arrest of the appellants in New Zealand were issued under the Extradition Act 1999 and were executed at the same time as the execution of the search warrants at the premises in Auckland.
[29] This circumstance is of importance in the present appeal because it was accepted by the Court of Appeal, and is maintained by the Attorney-General in the appeal to this Court, that the acknowledged inadequacies in the description of the offences, the failure to identify the country of the offences, and the over-inclusive scope of the search authorised, were all cured by the information contained in the arrest warrants and the evidence that at the time of the execution of both warrants the appellants seemed to appreciate that they related to breaches of copyright. On that basis, the Court of Appeal held that the defects were ones of form, able to be overlooked in application of s 204 of the Summary Proceedings Act because they gave rise to no miscarriage of justice.
[30] The provisional warrants for arrest under the Extradition Act, served on the appellants at the time the search warrants were also executed, recite that each “is accused of the following offences related to criminal copyright and money laundering”:

Count One: Conspiracy to commit racketeering, in violation of Title 18, United States Code, Section 1962(d), which carries a maximum penalty of twenty years of imprisonment.

Count Two: Conspiracy to commit copyright infringement, in violation of Title 18, United States Code, Section 371, which carries a maximum penalty of five years of imprisonment.

Count Three: Conspiracy to commit money laundering, in violation of Title 18, United States Code, Section 1956(h) which carries a maximum penalty of twenty years of imprisonment.

Count Four: Criminal copyright infringement by distributing a work on a computer network, and aiding and abetting of criminal copyright infringement, in violation of Title 18, United States Code, Sections 2 and 2319, and Title 17, United States Code, Section 506, which carries a maximum penalty of five years of imprisonment.

Count Five: Criminal copyright infringement by electronic means, and aiding and abetting of criminal copyright infringement, in violation of Title 18, United States Code, Sections 2 and 2319, and Title 17, United States Code, Section 506, which carries a maximum penalty of five years of imprisonment.

[31] The provisional arrest warrant also recited that a warrant for the arrest of the appellants had been issued by the United States District Court for the Eastern District of Virginia and that the issuing Judge in the District Court was satisfied that the appellants were “extraditable” and that the offences were “extradition offences” within the meaning of the Extradition Act. The United States arrest warrant was annexed. In it, the offences in respect of which the warrant was issued were “briefly described” as “Conspiracy to Commit Racketeering, Conspiracy to Commit Money Laundering, Conspiracy to Commit Copyright Infringement, Criminal Copyright Infringement”.

The search warrants were invalid as general warrants

[32] In Auckland Medical Aid Trust v Taylor^[29] and in Tranz Rail Ltd v Wellington District Court,^[30] the Court of Appeal affirmed longstanding authority that general search warrants are invalid. The Court acknowledged in addition that general warrants breach s 21 of the New Zealand Bill of Rights Act.^[31] They purport to authorise trespass and interference with property and privacy which is wider than the circumstances require. A general warrant, as was explained in Tranz Rail, is one which “does not describe the parameters of the warrant, either as to subject-matter or location, with enough specificity”.^[32] The Law Commission, as described above at [15], was concerned that there should not be relaxation of “the nexus between the material to be seized and the specific offence”, which would be to “raise the spectre of a general war[33]nt”.³³
[33] Although what is “enough specificity” is ultimately a matter of degree for assessment, minimum requirements in the context of the statutory purpose include both identification of the offence as a matter of positive law and indication of the basis on which it is said to be transgressed in the particular case, without which information search cannot be confined to what is relevant. So, in Tranz Rail, the Court said that a warrant issued under an Act which described the underlying offence as “conduct that constitutes or may constitute a contravention of this Act” would be “hopelessly general and thus invalid”.^[34] In that case, the warrant was said to be “only slightly more specific” in referring to “conduct that does or may constitute contraventions of sections 27 and/or 36 of the Commerce Act 1986”.^[35] The invocation of provisions of the Act in this way did not save the warrant in Tranz Rail from invalidity.
[34] Tipping J, who delivered the judgment of the Court of Appeal in Tranz Rail, explained the principles which make a general warrant bad in law and justified the granting of a declaration of invalidity and other relief:

[41] A search warrant is a document evidencing judicial authority to search. That authority must be as specific as the circumstances allow. Anything less would be inconsistent with the privacy considerations inherent in s 21 of the Bill of Rights. Both the person executing the warrant, and those whose premises are the subject of the search, need to know, with the same reasonable specificity, the metes and bounds of the Judge’s authority as evidenced by the warrant: see McMullin J in Auckland Medical Aid Trust at 749; and also McCarthy P at 736. The point is reinforced by s 98C of the Act which requires production of the warrant on execution [as s 47 of the Mutual Assistance Act also requires].

[42] Judges who issue warrants which are not as specific as reasonably possible are not balancing the competing interests appropriately. ...

[35] In the present case, the specific offences relied on were not identified in the search warrants. Nor was the manner of their transgression explained. The Court of Appeal did not effectively disagree with the conclusion of Winkelmann J that the search warrants, taken by themselves, were significantly deficient in these respects. It considered however that the context provided by reading the arrest warrants, served on the appellants at the same time the search warrants were executed, was “an unusual, if not unique, feature of the case” which could not “be sensibly ignored when considering the validity of the warrants in their factual context”.^[36] It pointed to the evidence that, at the time, the appellants appeared to understand that the arrest and the searches were related to “copyright infringement”.^[37] Indeed, the Court thought that a “reasonable reader” in the position of the appellants would have understood without any difficulties the references in the search warrants.^[38] Its view was “reinforced” by the fact that Mr Dotcom was a “computer expert” (as the Court thought was shown by counsel’s acknowledgment that Mr Dotcom’s “life and soul is on his computer”).^[39]
[36] Although it accepted that off-site sorting of relevant and irrelevant information was necessary^[40] (as Winkelmann J in the High Court had also accepted^[41]), the Court of Appeal took the view that the judge was not obliged to impose conditions. The power to impose conditions was “discretionary” and Appendix A to the search warrant “was as specific as could reasonably be expected in the circumstances, and no issues of legal professional privilege were contemplated”.^[42] The Court considered the Judge “was entitled to rely on the police to execute the warrants lawfully and not to seize anything that was clearly irrelevant”.^[43]
[37] Greater specificity was readily available. As the Court of Appeal pointed out, the request from the United States “was comprehensive and provided all the necessary background information relating to the criminal offences in the United States”.^[44] Such “necessary background information” included:^[45]

... maximum penalties, a detailed description of the alleged offending by the respondents through their various companies, including Megaupload, Megavideo and Megastuff Ltd (described generically as the Mega Conspiracy), the substantial sums of money alleged to be involved, the presence in New Zealand of the respondents and the relevant electronic equipment in their possession.

[38] In concluding that the deficiencies in the warrants were sufficiently overcome by the additional information provided in the arrest warrants, the Court of Appeal said it applied the approach taken in Rural Timber Ltd v Hughes.^[46] There, a warrant to search the premises of a road transport company, subject to road user charges, described the suspected offence as “conspiring to defraud the Commissioner of Works (Crimes Act 1961, s 257)”.^[47] Although the Court was of the view that the offence was described “somewhat inadequately in the warrant, in that the precise nature of the alleged conspiracy was not specified and no dates were given”, the detailed descriptions in the schedule attached to the warrant of the items to be seized made it clear that “hubodometers, instruments for tampering therewith, road user charges, and distances were involved”.^[48] In those circumstances, the Court considered that “[a] reasonable reader would have little difficulty in gathering that the alleged conspiracy must involve misrepresentation of the distances travelled by the company’s vehicles”.^[49] The warrants were accordingly not treated as bad for generality because they sufficiently described the offences.
[39] The substantive deficiency in Rural Timber concerned the description of the offence.^[50] The Court held that it was reduced to one of form only (amenable to the curative effect of s 204) because the description of the items authorised to be seized in the warrant itself made the nature of the conspiracy evident.
[40] Rural Timber demonstrates the interconnection between the description of the scope of the search and the description of the offence when considering whether a warrant is sufficiently particular to enable what is authorised to be understood. In the present case, the deficiencies went to both the description of the offence and the description of what was within the scope of the search authorised by the warrant. The inadequacies in both here meant that there was no limitation on the scope of the offence, as in Rural Timber, which enabled relevance to be understood. No limits were set by the warrants, as was found by the Court of Appeal to be the effect of the warrants in Rural Timber. As a result, as Winkelmann J pointed out, in my view correctly, whereas in Rural Timber the scope of the authority granted in the warrant was sufficiently clear from reading the warrants as a whole, in the present case what they were able to search and seize was in large part left to the police to define.^[51]
[41] Nor do I think the Court of Appeal was right to say that the Judge granting the warrant was “entitled to rely on the police to execute the warrants lawfully and not to seize anything that was clearly irrelevant”.^[52] As the Law Commission said, it is not appropriate to proceed on such assumption.^[53] Lawfulness and relevance have to be tied to the terms of the warrants themselves. They cannot be left to be justified after the exercise of power “with the benefit of hindsight”.^[54] The warrants should have established what could and could not be seized or should have set up conditions to enable sorting under the supervision of the Court. Simply leaving the matter to the police executing the warrant is not consistent with the legislative scheme. It directs those executing the warrant as to what is relevant. It is important to the rule of law, for the reasons given by the Law Commission and referred to above at [12], that those exercising powers under search warrants know what is authorised and what is not.
[42] The “disconnect”^[55] here was between what the police were authorised to take and what was material relevant to the commission of the crimes in respect of which the warrants were obtained. This was not an inadequacy properly described as an “error of expression”.^[56] Winkelmann J referred to the fact that the police indeed acknowledged that they had no basis upon which to assess relevance, including any basis they might have obtained in the instructions provided to them.^[57] Unlike the warrant in Rural Timber, the warrants in issue here were general and invalid.
[43] In addition, I consider that the Court of Appeal extracted a broader proposition from Rural Timber than was warranted. It treated that case as permitting the scope of a warrant and its generality to be determined from material and circumstances extraneous and in part subsequent to its grant. That is not the effect of Rural Timber, where the acknowledged deficiency in the description of the offence (a description not dissimilar in generality to the one provided here) was overcome by the specificity of the items for which search was authorised annexed to the warrant itself.
[44] In light of the reliance placed by the Court of Appeal on the circumstances surrounding the execution of the warrants, including explanations given by the officers executing them, it should be noted that in Rural Timber the Court treated such context as bearing not on whether the warrants were invalid because they were too general, but rather whether, in application of s 204, defects which were not such as to require the warrants to be treated as nullities had caused a miscarriage of justice. It is one thing to look at the surrounding circumstances when deciding whether deficiencies in a warrant not so defective as to be beyond saving under s 204 have caused a miscarriage of justice. It is quite another to treat as valid a fundamentally flawed warrant (as a general warrant is) on the basis that, in the event, it has not been shown to have caused a miscarriage of justice.
[45] It should be noted that the consequences of invalidity are a subsequent issue and may involve comparable consideration of prejudice to the inquiry of miscarriage of justice in application of s 204. A determination of invalidity does not for example preclude admission of the product of an unlawful search under s 30 of the Evidence Act 2006 and questions of actual prejudice may be highly relevant to the form of relief granted as a consequence of a determination of invalidity. But such consequences are not relevant to the determination of invalidity except where the defect is not fundamental and properly falls within the scope of s 204.
[46] Conversely, the emphasis placed by the Court of Appeal on s 49 of the Mutual Assistance Act, which makes the disposition of items seized a matter for the Attorney-General, seems to me to be misconceived. The role of the issuing Judge was to ensure that the search warrant authorised seizure that was lawful and reasonable. Subsequent dealing with the material seized is distinct from the question of justification for the search and seizure in the warrant. Indeed, as has already been suggested,^[58] the fact that under the Mutual Assistance Act subsequent use passes beyond the New Zealand criminal justice system may be seen as a pointer to a need for more, rather than less, care in the warrants themselves.
[47] The extent to which the approach adopted in Rural Timber should be built on requires care, post enactment of the New Zealand Bill of Rights Act. The New Zealand Bill of Rights Act not only provides that protection against unreasonable search and seizure is a human right but adds further emphasis to the common law’s preference for prior authorisation of law before rights of property and privacy are limited.^[59] More importantly, nothing in Rural Timber suggests that a reviewing court may treat a warrant that is fundamentally flawed as valid, as the discussion about nullity makes clear. And, as has been explained, a warrant bad for generality is fundamentally flawed and rightly outside the protection of s 204.
[48] Nor is Rural Timber authority for treating the context in which validity is to be assessed as extending beyond the terms of the warrant. There may be cases in which cross-reference to other process may make it appropriate to look to a wider context. But there was no such cross-reference here. Like Winkelmann J, I have considerable doubts about whether it is appropriate for a court to take what she described as a “patch and mend approach” to significant defects in warrants.^[60] Search warrants are judicial authority to take action that would otherwise be in breach of the law. It is critical that they are clear as to what is authorised and are tied to the offences properly identified which provide the justification for such action. In this case, as Winkelmann J rightly identified, the warrants authorised the seizure of items “unlimited by the notion of relevance to each offence”.^[61] It was not surprising then that “the Police regarded themselves as authorised to carry away and keep a wide category of items without undertaking analysis of whether the items were ‘things’ falling within s 44(1)”.^[62] (The basis on which Winkelmann J concluded that, in any event, there had been a miscarriage of justice.)
[49] The Court of Appeal accepted the criticism made by counsel for the Attorney-General that the High Court Judge had:^[63]

focussed principally on the nature of the defects themselves rather than on the practical consequences for the person whose property or possessions were being searched, which is the correct approach.

As has already been indicated,^[64] I do not accept that the “practical consequences” for the person searched is sufficient assessment for a process that is substantively and seriously flawed and I do not think Rural Timber supports such reasoning.

[50] Moreover, in the present case, the arrest warrants potentially added to the confusion, for the reasons given by Winkelmann J. They stipulated offending not referred to in the search warrants or mentioned in the application for them.
[51] It is suggested that the scale of the offending made greater specificity in the warrants impossible. But, as has been mentioned above at [37], the High Court and the Court of Appeal were in agreement that the application to the Attorney-General provided ample information which could have been drawn on. To the extent that sorting for relevance on-site was impractical, conditions should have been imposed, as is further discussed below, particularly in relation to search and seizure of electronic devices. It was not good enough to characterise any excessive seizure, along with claimed breaches of s 49, as “separate downstream matters not caused by the defects in the search war[65]nts”⁶⁵ when the excessive seizure was a result of the generality of the warrants.
[52] General warrants are not deficient in any technical or minor way. They are fundamentally objectionable. Winkelmann J considered that the warrants in the present case were properly characterised as general and invalid. In addition to the failure to identify the country in which the offences applied, more significantly, the description of the offences was inadequate and their nature could not be reasonably inferred from reading the warrant as a whole. The search warrants were not issued in respect of particular offences, as the Act required, but rather indicated the category of offence. Such general indication is inadequate, as the Auckland Medical Aid Trust case determined and as Tranz Rail has more recently confirmed. While there was reference to the “Mega Conspiracy” in Appendix A, that reference, as Winkelmann J pointed out, “adds to, rather than removes the confusion”, since the conspiracy was not described or defined.^[66] Nor, given the breadth of the warrants, could the Judge granting them have had reasonable grounds to believe that all the items listed were relevant to the offence or offences. In their terms, the search warrants were “unlimited by the notion of relevance to each offence”^[67] and the evidence of the police made it clear that their intention was “to seek warrants that authorised the seizure of anything that might possibly be relevant, in the knowledge that irrelevant material would be caught up in the net that was cast” for subsequent sorting by the authorities in the United States.^[68] Winkelmann J considered that the defects went “to the heart of the warrants” because they “did not limit the authority conferred as the statutory scheme required”.^[69] They could not be characterised as “minor, as technical, or mere defects in expression”.^[70] I agree. I would allow the appeal on this point.
[53] In what follows I expand briefly, because of its practical importance, on the question of conditions to permit sorting, particularly in relation to the data held or accessed through seized electronic devices. I also deal briefly with miscarriage of justice in application of s 204. Although on the view I take, s 204 has no application, I do not accept the approach taken by the Court of Appeal to it and express reservations about reliance on the judgment of Fisher J in R v Sanders.^[71]

Conditions

[54] In both Courts below it was accepted that, for practical reasons, the material seized (including the data obtained through the more than 135 electronic items obtained) could be sorted for relevance only off-site. That was acknowledged to be a process that would require some time and inevitably and reasonably required the assistance of the United States authorities because beyond the capacity of the New Zealand Police. For that reason, Winkelmann J envisaged that it would be necessary to create clones of the hard drives and set up a system for release of irrelevant material on sorting.^[72]
[55] Such off-site sorting, where the seizure is not indiscriminate and the executing officer has reasonable grounds to believe the material is evidence of the crime under which the warrant is justified, is permitted in New Zealand in accordance with the principles discussed by the Court of Appeal in A Firm of Solicitors v District Court at Auckland.^[73] This latitude does not permit wholesale seizure for later examination of documents or material not reasonably thought to contain evidence. Off-site sorting may be the only practicable way to separate out relevant from irrelevant data contained on or accessed by electronic devices.
[56] In the United Kingdom, s 50 of the Criminal Justice and Police Act 2001, which applies to mutual assistance warrants,^[74] specifically empowers the police executing a search warrant to seize something which contains material that is both relevant and irrelevant if there is no practicable way to separate the two. That is subject to prompt sorting off-site,^[75] notice and opportunity for judicial review,^[76] and subsequent orders as to how the material is to be treated before it is sent to the requesting country.^[77] In Canada, too, the mutual assistance legislation provides for judicial oversight of material seized before it is delivered to the requesting country.^[78]
[57] Beyond the context of mutual assistance warrants, the Supreme Court of Canada held in R v Vu that, before a warrant authorises seizure or search of computers, there must be prior consideration by the judge and specific authorisation to ensure that privacy interests are sufficiently protected.^[79] This protection is necessary to give effect to rights under the Canadian Charter of Rights and Freedoms because of the likelihood that electronic devices contain much information that is private and personal, giving rise to “unique privacy interests”.^[80] The Court held that while a computer reasonably thought to contain relevant material might be seized under a search warrant, search of the computer required specific warrant.^[81] I am of the view that the same approach should be followed in New Zealand. It is simplistic and insufficiently protective of the right not to be subjected to unreasonable search and seizure to take the view that sorting of data held on a device is not the responsibility of the court in issuing a warrant authorising seizure of the device itself.
[58] Although New Zealand does not have as elaborate legislative safeguards as exist in the United Kingdom and Canada for dealing with material obtained under the Mutual Assistance Act, the power of the issuing Judge to impose conditions on the warrant enables protection of the values underlying the right to be free from unreasonable search and seizure. The use of such power, wherever reasonable seizure includes material unable to be immediately extracted but which is not within the scope of the warrant, is also consistent with the procedure under the Search and Surveillance Act for sorting items of “uncertain status”.^[82]
[59] The Court of Appeal considered that the failure to impose conditions in the present case could not be said to be an error because the power to impose special conditions under s 45(3) is discretionary and its exercise was not necessary, as it might have been if issues of legal or professional privilege were likely to arise.^[83] It thought that the decision of the Supreme Court of Canada in Vu did not advance the case for the appellants because “the warrants in this case did authorise the police to seize [their] computers” and:^[84]

There is also no real dispute in this case that the computers had to be examined off site before it would be possible to differentiate between relevant and irrelevant information.

[60] I do not find this reasoning to be convincing. It is not sufficient to say that the power to impose conditions is “discretionary”. Such powers are conferred to be exercised where the circumstances indicate the need. Those applying for the warrants cannot have it both ways. If it was reasonably necessary to seize material likely to be irrelevant (as Vu recognised will very often be the case with personal computers) or if it was reasonably necessary because of the scale of the offending for the warrants to be so broad in scope that they were likely to cover irrelevant as well as relevant material (as is suggested here), then the discretion must be exercised to meet the circumstances.
[61] I agree with the views expressed by Winkelmann J that the issuing Judge could not have been satisfied that there were reasonable grounds for suspecting that all the things listed in Appendix A were evidence of breach of copyright or money laundering when “those categories were so broadly drawn”.^[85] Had the issuing Judge turned his mind to it (as A Firm of Solicitors and Vu suggest he was obliged to do), he would have identified that the digital devices would “most likely store some irrelevant material, probably a large volume of irrelevant material, since the warrants were to be executed at domestic properties”.^[86] He might also have “identified the real possibility that not all of the accounting material or shipping documents would be relevant”.^[87]
[62] Without definition of the “Mega Conspiracy”, it was impossible to know what properly fell within the category referred to in Appendix A, as Winkelmann J pointed out.^[88] That was borne out by the evidence of Detective Inspector Wormald, which Winkelmann J accepted showed that the intention of the police was to seek anything that might be relevant “in the knowledge that irrelevant material would be caught up in the net”.^[89] The police acknowledged they were not able to assess relevance and that such sorting would be carried out when the material was passed over to the United States.^[90] All these circumstances indicated that the power to impose conditions on the warrant was one the Judge should have exercised if the warrant was to authorise a search that was reasonable and lawful.
[63] It is not an answer to the concern for the protection of privacy expressed in Vu to say that the warrant here explicitly authorised the search and seizure of electronic devices so that Vu (where such devices were not identified) is distinguishable. The question is whether the warrant should have done so without imposing conditions to ensure that irrelevant material was properly excluded by sorting under judicial supervision and before the material was passed to the Attorney-General. This was the approach indicated in A Firm of Solicitors, which accepted that computers which could reasonably be expected to contain irrelevant as well as relevant information could be seized for forensic examination and extraction of the relevant information. There it was accepted such removal and extraction would be pursuant to conditions included in the warrant which would ensure that irrelevant material would be deleted from any clone of the original hard drive.^[91] Although that case was concerned with legal professional privilege, I do not think the general approach was dictated by that dimension. It is one of general application in protection of rights of privacy and property where electronic capture means that irrelevant material needs to be excluded from what is appropriately passed under judicial authority to investigating authorities for use in criminal cases.

Miscarriage of Justice

[64] Because I take the view that the warrants were seriously flawed, I consider s 204 has no application for the reasons already given. It is therefore unnecessary for me to deal with the conclusion of the Court of Appeal that there was no miscarriage of justice, because that issue arises only if there is defect in form. Other members of the Court however consider that the warrants were not general warrants and that their broad scope, although defective, is not sufficient to cause them to be treated as invalid under s 204 unless they amounted to a miscarriage of justice. It is therefore necessary for me to indicate disagreement with the approach taken in the Court of Appeal to the application of s 204, which is approved by the majority in this Court. I indicate my views briefly because they overlap with the reasons why I consider the defects here were too substantive to be covered by s 204.
[65] The Court of Appeal was satisfied that the defects in the search warrants “have not caused any significant prejudice to the respondents beyond the prejudice caused inevitably by the execution of a search warrant”.^[92] That conclusion is I think based on a mistaken view of what constitutes a miscarriage of justice in this context. The Court of Appeal adopted the view taken by Fisher J in his judgment in R v Sanders, a judgment that the two other members of the Court of Appeal, Cooke P and Casey J, were not prepared to join in full. Fisher J there said that miscarriage could be determined only by examining the events which had actually occurred “since the application”, so that the defect could be said to have caused “significant prejudice to the accused”.^[93] I think this is to focus wrongly on the criminal process to follow, rather than the warrant itself and what it authorises.
[66] A search warrant properly issued would not have authorised the seizure of irrelevant material, at least not without setting up conditions to ensure secure and expeditious sorting under the supervision of the court. Where, as here, a search warrant was overbroad and no protective conditions were imposed, the relevant miscarriage of justice is complete. If treated as valid, the warrant is authority for any trespass or breach of privacy entailed. Section 204 is not concerned with matters “downstream” of that.^[94] As has already been indicated, the treatment of evidence obtained under an invalid warrant is a different matter.

Conclusion and Result

[67] For the reasons given, I would allow the appeal. I would reinstate the orders made in the High Court. The majority being of the contrary view, the appeal is dismissed with costs of $35,000 for which the appellants are jointly and severally liable to the respondent, together with reasonable disbursements.

McGRATH, WILLIAM YOUNG, GLAZEBROOK AND ARNOLD JJ
(Given by McGrath and Arnold JJ)

Table of Contents

	Para No
Introduction	[68]
Factual background	[73]
The Mutual Assistance Act	[78]
The warrants	[86]
Alleged deficiencies in warrants	[89]
Statutory provisions relating to defects in form Overview of underlying principles	[94] [99]
Description of offences	[105]
The Courts below	[106]
New Zealand authorities	[108]
Miscarriage and relevance of surrounding circumstances	[115]
Additional factual context	[131]
Evaluation	[140]
Overbroad description and absence of conditions	[148]
The Courts below	[151]
The position of the parties	[158]
Interpretation of the Mutual Assistance Act	[161]
New Zealand authorities	[163]
United Kingdom authorities	[172]
Canadian authorities	[178]
United States authorities	[187]
Evaluation	[190]
This case	[202]
An overall view	[205]
Decision	[209]

Introduction

The United States of America seeks to extradite Mr Dotcom and the remaining appellants to face trial on counts relating to racketeering,^[95] copyright infringement and money laundering. Warrants for their arrest have been issued in the United States. On the United States’ application, a District Court Judge issued provisional warrants for their arrest in New Zealand under s 20(1) of the Extradition Act 1999. In addition, the United States requested New Zealand’s assistance under the Mutual Assistance in Criminal Matters Act 1992 (Mutual Assistance Act), the purpose of which is “to facilitate the provision and obtaining, by New Zealand, of international assistance in criminal matters”.^[96] The request was granted and the New Zealand police sought and obtained search warrants in respect of three addresses occupied by, or associated with, Mr Dotcom and Mr van der Kolk.^[97] On 20 January 2012, the police searched those addresses, arrested the appellants, and seized items belonging to them.

[69] The appellants issued judicial review proceedings challenging the validity of the mutual assistance search warrants. They alleged that they were, in effect, general warrants, against which the law has long set its face.^[98] They were successful before the High Court,^[99] but that Court’s decision was overturned on appeal.^[100] This Court granted leave on the question:^[101]

...whether the Court of Appeal was correct to allow the appeal from the High Court on the basis that the search warrants issued by the District Court under s 44 of the Mutual Assistance in Criminal Matters Act 1992 were valid.

[70] It is common ground that the District Court Judge who issued the search warrants had a proper basis for issuing them. The evidence before him established reasonable grounds to believe that items related to the offending alleged by the United States were on the premises identified. What is at issue is the form of the warrants. They were not in accordance with the prescribed form, as required by the Mutual Assistance Act and provided for in regulations made under it. More importantly, the appellants also argue that the warrants were deficient in two critical respects – first, they did not sufficiently identify the alleged offences and, second, they contained an overbroad description of the items that could be seized without specifying conditions to ensure that only relevant items were seized – and were, accordingly, unlawful general warrants.

Under s 21 of the New Zealand Bill of Rights Act 1990, everyone in New Zealand has the right not to be subjected to unreasonable search or seizure.^[102] This statutory prohibition has its origins in the common law, in particular the great English case of Entick v Carrington^[103] and also reflects New Zealand’s international obligations.^[104] While there are circumstances where warrantless searches are lawful,^[105] in general searches must be carried out under warrant, thus interposing the decision of an independent judicial officer between the investigators seeking to conduct a search and the suspect. Besides providing the authority for a search and delineating its scope, a search warrant serves the important function of informing both the searchers and the searched of the legitimate scope of the search.^[106]

[72] At the time these warrants were issued, a search warrant that was defective in form could be saved by s 204 of the Summary Proceedings Act 1957.^[107] An issue in the present case concerns the application of s 204, which depends on the nature of any deficiencies in the warrants.

Factual background

[73] Mr Dotcom and Mr van der Kolk are resident in New Zealand. Like the other appellants, they have various interests in the Megaupload group of companies, which includes Megaupload Ltd, a company incorporated in Hong Kong, and Megastuff Ltd, a company incorporated in New Zealand. Megaupload Ltd operated a website, Megaupload.com, that offered file and content hosting (ie, storage) services. The United States alleges that this website was used by the Megaupload group to facilitate reproduction and distribution of infringing copies of a variety of copyrighted works, including movies, television programmes, music, software and ebooks. In addition, the United States alleges that the Megaupload group conducted monetary transactions with the proceeds of these unlawful activities.
[74] On 5 January 2012, a Grand Jury in Virginia handed down an indictment which charged the appellants and associated companies with offences relating to breach of copyright, money laundering and racketeering. Specifically, Mr Dotcom and the other appellants face charges on counts of conspiracy to commit racketeering, conspiracy to commit copyright infringement, conspiracy to commit money laundering, criminal copyright infringement and criminal copyright infringement by electronic means. The maximum penalties for these offences range from five to 20 years’ imprisonment.
[75] On 11 January 2012, the United States Department of Justice (as the United States Central Authority)^[108] requested the assistance of the Attorney-General (as the New Zealand Central Authority) in obtaining items of evidence. A Deputy Solicitor-General, acting under delegated authority, authorised Detective Sergeant Nigel McMorran to seek a search warrant under s 44 of the Mutual Assistance Act.
[76] Detective Sergeant McMorran swore the affidavit which was the basis for the issue of the warrants. In all, five warrants were granted, three for addresses associated with Mr Dotcom and Mr van der Kolk and two in respect of telecommunications companies. At least two of the addresses associated with Messrs Dotcom and van der Kolk were residential properties, albeit ones from which the United States alleged that the appellants conducted their business activities. The properties had multiple internet connections, including a dedicated fibre optic link, a microwave link and multiple ADSL connections.
[77] Before we set out the next steps in the background, we should address the relevant provisions in the Mutual Assistance Act and set out the wording of the warrant issued under it.

The Mutual Assistance Act

[78] The Mutual Assistance Act was enacted to give effect to the Commonwealth Scheme Relating to Mutual Assistance in Criminal Matters, which was adopted at the Commonwealth Ministers meeting in Harare in 1986. The Act makes provision in Part 3 for requests by foreign countries to New Zealand for assistance in criminal matters. Such requests must be made to the Attorney-General, or a person authorised by the Attorney-General in writing to receive such requests.^[109] Requirements as to the form of a request for assistance, and what must accompany it, are specified by the Mutual Assistance Act.^[110] Assistance may be provided to a requesting country under Part 3 of the Mutual Assistance Act, subject to such conditions as the Attorney-General determines in any particular case or classes of case.^[111]
[79] The United States’ request for assistance was made under s 43, which makes specific provision for assistance to obtain an article or thing by search and seizure:

43 Assistance in obtaining article or thing by search and seizure

(1) A foreign country may request the Attorney-General to assist in obtaining an article or thing by search and seizure.

(2) Where, on receipt of a request made under subsection (1) by a foreign country, the Attorney-General is satisfied—

(a) that the request relates to a criminal matter in that foreign country in respect of an offence punishable by imprisonment for a term of 2 years or more; and

(b) that there are reasonable grounds for believing that an article or thing relevant to the proceedings is located in New Zealand,—

the Attorney-General may authorise a constable, in writing, to apply to a District Court Judge for a search warrant in accordance with section 44.

As we have said, the United States’ application for assistance was granted by a Deputy Solicitor-General. Under s 9A of the Constitution Act 1986 the Solicitor-General may “perform a function or duty imposed, or exercise a power conferred, on the Attorney-General”. Under s 9C, the Solicitor-General may delegate any of these matters to a Deputy Solicitor-General, with the written consent of the Attorney-General. There is no suggestion that the Deputy Solicitor-General was not authorised to act.

[80] The police applied for the search warrants under s 44, which provides:

44 Search warrants

(1) Any District Court Judge who, on an application in writing made on oath, is satisfied that there are reasonable grounds for believing that there is in or on any place or thing—

(a) any thing upon or in respect of which any offence under the law of a foreign country punishable by imprisonment for a term of 2 years or more has been, or is suspected of having been, committed; or

(b) any thing which there are reasonable grounds for believing will be evidence as to the commission of any such offence; or

(c) any thing which there are reasonable grounds for believing is intended to be used for the purpose of committing any such offence—

may issue a search warrant in respect of that thing.

(2) An application for a warrant under subsection (1) of this section may be made only by a constable authorised under section 43(2).

As previously noted, it is not disputed that the District Court Judge had a proper basis for issuing the search warrants.

[81] The form and content of the warrants was governed by s 45.^[112] It provided:

45 Form and content of search warrant