ON APPEAL FROM THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISON
The Lord Chief Justice of England and Wales
The Hon Mr Justice Foskett
Strand, London, WC2A 2LL
B e f o r e :
LADY JUSTICE MACUR
LORD JUSTICE BURNETT
| Panesar and others
|- and -
|Her Majesty's Revenue and Customs
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Andrew Bird (instructed by HMRC) for the Respondent
Hearing date: 2 December 2014
Crown Copyright ©
Lord Justice Burnett:
"(1) This section applies where anything has been seized in exercise, or purported exercise, of a relevant power of seizure.
(2) Any person with a relevant interest in the seized property may apply to the appropriate judicial authority, on one or more of the grounds mentioned in subsection (3), for return of the whole or a part of the seized property.
(3) Those grounds are –
(a) that there was no power to make the seizure;
(b) that the seized property is or contains an item subject to legal privilege that is not comprised in property falling within the section 54(2);
(c) that the seized property is or contains any excluded material or special procedure material which –
(i) has been seized under a power to which section 55 applies;
(ii) is not comprised in property falling within section 55(2) or (3); and
(iii) is not property the retention of which is authorized by section 56;
(d) that the seized property is or contains something seized under section 50 or 51 which does not fall within section 53(3);
and subsections (5) and (6) of section 55 shall apply for the purposes of paragraph (c) as they apply for the purposes of that section.
(4) Subject to subsection (6), the appropriate judicial authority, on an application under subsection (2), shall-
(a) if satisfied as to any of the matters mentioned in subsection (3), order the return of so much of the seized property as is property in relation to which the authority is so satisfied; and
(b) to the extent that that authority is not so satisfied dismiss the application.
(5) The appropriate judicial authority –
(a) on an application under subsection (2),
(b) on an application made by the person for the time being having possession of anything in consequence of its seizure under a relevant power of seizure, or
(c) on an application made –
(i) by a person with a relevant interest in anything seized under section 50 or 51, and
(ii) on the grounds that the requirements of section 52(2) have not been or are not being complied with,
may give such directions as the authority thinks fit as to the examination, retention, separation or return of the whole or any part of the seized property.
(6) On any application under this section, the appropriate judicial authority may authorise the retention of any property which-
(a) has been seized in exercise, or purported exercise, of a relevant power of seizure, and
(b) would otherwise fall to be returned,
if that authority is satisfied that the retention of the property is justified on grounds falling within subsection (7).
(7) Those grounds are that (if the property were returned) it would immediately become appropriate-
(a) to issue, on the application of the person who is in possession of the property at the time of the application under this section, a warrant in pursuance of which, or of the exercise of which, it would be lawful to seize the property; or
(b) to make an order under-
(i) paragraph 4 of Schedule 1 of the 1984 Act,
(ii) paragraph 4 of Schedule 1 to the Police and Criminal Evidence (Northern Ireland) Order 1989 (S.I 1989/1341 (N.I 12)),
(iii) section 20BA of the Taxes Management Act 1970 (c.9), or
(iv) paragraph 5 of Schedule 5 to the Terrorism Act 2000 (c.11),
under which the property would fall to be delivered up or produced to the person mentioned in paragraph (a).
(8) Where any property which has been seized in exercise, or purported exercise, of a relevant power of seizure has parts ("part A" and "part B") comprised in it such that-
(a) it would be inappropriate, if the property were returned, to take any action such as is mentioned in subsection (7) in relation to part A,
(b) it would (or would but for the facts mentioned in paragraph (a)) be appropriate, if the property were returned, to take such action in relation to part B, and
(c) in all the circumstances, it is not reasonably practicable to separate part A from part B without prejudicing the use of part B for purposes for which it is lawful to use property seized under the power in question,
the facts mentioned in paragraph (a) shall not be taken into account by the appropriate judicial authority in deciding whether the retention of the property is justified on grounds falling within subsection (7).
(9) If a person fails to comply with any order or direction made or given by a judge of the Crown Court in exercise of any jurisdiction under this section-
(a) the authority may deal with him as if he had committed a contempt of the Crown Court; and
(b) any enactment relating to contempt of the Crown Court shall have effect in relation to the failure as if it were such a contempt.
(10) The relevant powers of seizure for the purposes of this section are-
(a) the powers of seizure conferred by sections 50 and 51;
(b) each of the powers of seizure specified in Parts 1 and 2 of Schedule 1; and
(c) any power of seizure (not falling within paragraph (a) or (b)) conferred on a constable by or under any enactment, including an enactment passed after this Act.
(11) References in this section to a person with a relevant interest in seized property are references to-
(a) the person from whom it was seized;
(b) any person with an interest in the property; or
(c) any person, not falling within paragraph (a) or (b), who had custody or control of the property immediately before the seizure.
(12) For the purposes of subsection (11)(b), the persons who have an interest in seized property shall, in the case of property which is or contains an item subject to legal privilege, be taken to include the person in whose favour that privilege is conferred. "
The Divisional Court decided that section 59(5)(b) enabled HMRC, for the time being in possession of the seized material, to make the application for retention relying upon the grounds identified in section 59(6) and (7). To the extent that he ordered retention Judge Cooke QC was satisfied that, if that property were returned to the applicants, HMRC could immediately seek an appropriate warrant which would enable them lawfully to seize the material. Mr Jones QC told us that the applicants are likely to challenge that decision in judicial review proceedings.
"(1) No appeal shall lie to the Court of Appeal-
(a) except as provided by the Administration of Justice Act 1960, from any judgment of the High Court in any criminal cause or matter".
Section 151 of the 1981 Act defines a "cause" as any action or any criminal proceedings and a "matter" as any proceedings in court not in a cause.
"37 I accept that this conclusion may be said to fall foul of the wide principle which may appear to have been laid down in the Amand case  AC 147. However, my conclusion is consistent with the conclusion reached in Ex p Green … which, despite two opportunities, the House of Lords has not overruled or disapproved. Indeed, some of the observations in In re Smalley  AC 622, and perhaps more arguably some of the observations of Lord Hoffmann in the Montgomery case  1 WLR 196, appear to suggest that the reasoning in the Amand case does not in fact go as wide as it might appear at first sight to go.
38 The reasoning in Ex p Green is not to be relied upon: it is demonstrably flawed. In the Montgomery case Lord Hoffmann obviously was unconvinced by the reasoning, and in Carr v Atkins  QB 963 Sir John Donaldson MR held that the reasoning was no longer binding. However, my conclusion in this case appears to be consistent with Sir John Donaldson MR's suggested justification for the conclusion in Ex p Green, and with his tentative guidance given in the most recent case on this issue in this court, Carr v Atkins. I also think that the conclusion lies comfortably with Lord Hoffman's observations in the Montgomery case.
39 Furthermore, it does not seem to me that the conclusion that the Court of Appeal has jurisdiction in this case for the reason which I have given would mean that any other decision of this court would have gone the other way. …"
"It is to my mind clear beyond argument that the order which was made in this case was made in a criminal context … It is sufficient to note that no criminal proceedings have been begun here and, indeed, in most cases there is no doubt that orders would be sought under this Act where a decision had not yet been reached whether or not to prosecute. It is essentially a statutory provision in aid of a criminal investigation designed, if the evidence will stand it, to lead to a criminal prosecution. But unless it is to be said that an order under this Act is either never or very rarely one which is by its nature a criminal cause or matter merely because of the stage at which the order is made, then the fact that there are no criminal proceedings does not, in my judgment, matter. That fact stems purely from the nature of the Act and the statutory provisions and does not affect the criminal character of the proceedings."
"I have no doubt whatsoever that an order or a refusal of an order under Act of 1984 and all subsequent proceedings relating to such an order or refusal are properly to be characterised as orders in a criminal cause or matter, and it would follow from that that we have no jurisdiction. Accordingly, I would decline to hear the appeal."
The Rt Hon Lady Justice Macur
The Rt Hon Lord Justice Patten