QUEENS BENCH DIVISION
Strand, London, WC2A 2LL
B e f o r e :
THE HONOURABLE MR JUSTICE KING
| Amrick Cheema (1)
Rajinder Cheema (2)
Bridget Kaur (3)
Gurjit Singh Thakar (4)
|- and -
|Nottingham and Newark Magistrates Court (1)
Her Majesty's Revenue and Customs (2)
Amy Mannion (instructed by HMRC) for the Defendants
Hearing dates: 15th November 2013
Crown Copyright ©
Mr Justice King:
(i) the issuing by the First Defendant through a Justice of the Peace, Mr James, on 17th May 2013, on the Information of the Second Defendant, sworn by an Officer of the second defendant, Christopher James Stevens, of a search warrant pursuant to section 8 of the Police and Criminal Evidence Act 1984 (the 1984 Act); and
(ii) the execution of this warrant on 21st May 2013 at each of the four addresses specifically listed in the schedule to the warrant in the course of which a considerable quantity of material was seized including five electronic devices, namely a lap top, a PC, two USB sticks and an iPad.
- an order to quash the warrant,
- a declaration that the entries, searches and seizures of 21 May 2013 were unlawful,
- an order that all property seized and any copies taken, are returned to the Claimants.
'Correspondence and other documentation relating to the structure, registration and ownership of companies;
Documentation relating to VAT invoices and returns;
Customer records, banking, financial and accountancy documentation, including correspondence, payment slips and money service bureau transactions;
Documentation relating to the income and employment of Amrick and Rajinder Cheema, Bridget Kaur and Gurjit Singh Thakar;
Documentation relating to tax credit claims;
Documentation relating to mobile telephone documents and billing;
Mobile telephones, faxes and other telecommunications equipment;
Computers, laptops, tablets and other storage media;
Documentation relating to the movement and control of cash and assets overseas.'
'any high value items suspected of being the proceeds of crime and any other items which appear relevant to the offences under investigation.'
(1) 18 Ring Fence, Shepshed, Loughborough, Leicestershire LE12 9HY
(2) 15 Shepshed Road, Hathen, Leicestershire LE12 5LL
(3) 38 Manston Close, Leicester, Leicestershire LE4 9NA
(4) 56-58 Rolleston Street, Leicester, Leicestershire LE5 3SA
Premises occupied by or controlled by Bridget Kaur, Rajinder Cheema, Amrick Cheema, Bridget Kaur and Gurjit Singh Thakar'
It is below those words that the signature of the authorising magistrate appears.
'Married couple behind Phoenix companies and putting family members and staff up front. 4 individuals based on rag trade area of Leicester. Issuing invoices to a legit company
work done and invoices are genuine. Companies have failed to declare VAT and pay it over.'
The second annotation reads as follows:
'reasonable grounds to believe that evidence will be found on the premises
Seeking entry to the premises without a warrant would be likely to result in evidence being destroyed or removed
Approved by Mr James on 17/5/13 at 3.35pm'
- the fraudulent evasion of Value Added Tax (VAT) contrary to section 72(8) of the VAT Act of 1994;
- false representation and possession of articles contrary to sections 2 and 8 of the Fraud Act 2008;
- the fraudulent evasion of income tax contrary to section 106(a) of the Taxes Management Act 1970 and tax credit fraud contrary to section 35 of the Tax Credit Act 2002;
- money laundering offences contrary to sections 327, 328, and 329 of the Proceeds of Crime Act 2002.
'Amrick Cheema and Rajinder Cheema are married and live in a substantial property in Hathen, Leicestershire. They are believed to be the controlling minds behind the use of a series of phoenix companies and de-registered VAT numbers that are the foundation for this criminal activity. It is suspected that Amrick Cheema has used and is using family, associates and employees to front these companies in an attempt to distance themselves from the criminality. These associates are believed to be Bridget Kaur and Gurjit Singh Thakar.
It is believed that Amrick Cheema, Rajinder Cheema, Bridget Kaur and Gurjit Singh Thakar are involved in the fraudulent evasion of VAT, income tax and associated money laundering activities through four companies known as House of Designs Limited, HOD Ltd, T Processors Limited and Premier Mode all of which have ceased trading. The VAT evaded by their activities is excess of £250,000.'
The grounds of challenge
'(6) A warrant
(b) shall identify, so far as practicable, the articles or persons to be sought.'
'Search warrants safeguards'
'The warrant should be quashed and the entries, searches and seizures declared unlawful because it did not identify with sufficient precision the property which the officers of the Second defendant might seize.'
Grounds two, three and four
(a) that an indictable offence has been committed, and
(b) that there is material on premises which is likely to be of substantial value (whether by itself or together with other material) to the investigation of the offence; and
(c) that the material is likely to be relevant evidence; and
(d) that it does not consist of or include items subject to legal privilege, excluded material or special procedure material;
(e) that any of the conditions specified in subsection (3) below applies in relation to each set of premises specified in the application;
'(a) that because of the particulars of the offence referred to in paragraph (a) of subsection (1) above, there are reasonable grounds for believing that it is necessary to search premises occupied or controlled by the person in question which are not specified in the application in order to find the material referred to in paragraph (b) of that subsection; and
(b) that it is not reasonably practicable to specify in the application all the premises which he occupies or controls and which might need to be searched.'
1. Ground two is that 'there were no reasonable grounds for believing that in accordance with section 8(1)(d) of the Act that the items to be searched for did not include special procedure material as defined in section 14 of the Act'
2. Ground three is that 'there were no reasonable grounds for believing in accordance with section 8(1)(c) of the Act that the items to be searched for were likely to be 'relevant evidence' as defined by section 8(4) of the Act as anything that would be admissible in evidence at trial for the offence'
3. Ground four is that 'there can have been no reasonable grounds for believing that the conditions of section 8(1B) of the Act were satisfied so as to justify the issue of an all premises warrant'.
Is this claim now academic? the pending application of the Second Defendant under s 59 Criminal Justice and Police Act 2001
'6. Whilst the Second Defendant would contend that in large part this description meets the statutory requirements, the final phase "and any other items which appear relevant to the offences under investigation" where the offences which are under investigation are not set out, does not, in the circumstances of these warrants, amount to identifying, so far as is practicable, the articles to be sought. The Second Defendant accepts that, in the particular circumstances of this case, it would have been practicable to state the offences under investigation.
7. As a result, the Second Defendant is prepared to concede, to this extent only, that the entries, searches and seizures under the four warrants issued on 21 May for were unlawful pursuant to section 15(1) of the 1984 Act.
9. It follows that the Second Defendant concedes:
(1) that the entries, searches and seizures of 21 May 2013 were unlawful; and
(2) that the original items seized fall to be returned to the Claimants.'
'(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 in exercise of which, it would be lawful to seize the property'
'1. Since the unlawfulness of the search warrant is accepted, the declaration sought is not needed. The application made pursuant to section 59 means that the items seized will not be returned pending a decision on that application. In the meantime the items must be kept secure and they must not be viewed or examined.
2. In the circumstances this claim is not needed save in relation to damages .
4. However, claims such as these are on the increase and there is a need for consideration of the correct approach of this court (a) where the unlawfulness of the warrant is accepted but a s.59 application is made and (b) where any error in the application for the warrant is said to be merely technical (a point raised in Lees).'
Conclusions on the grounds of Claim
Ground 1 - the failure of the warrant to identify with sufficient precision the property which the officers of the Second Defendant might seize contrary to section 15(6)(b) and the consequential unlawfulness of the entry search and seizure.
(i) The purpose of this mandatory statutory requirement is to enable anyone interested in the exercise of a warrant to know what are the limits of the power of search or seizure which have been granted. This is necessary so that such a person can be put in a position to enable him to challenge the lawfulness of the seizure of any particular item. Accordingly, it is now well established that the terms of the warrant must be precise and intelligible by reference exclusively to its own terms and not by reference to any other material (see Van Der Pijl at paragraphs 53 and 54).
(ii) The obligation 'to identify as far as practicable the articles to be sought' is a reference to the articles which the magistrate decided fell within section 8(1) and for the search of which he issued the warrant. Accordingly in considering whether the obligation has been satisfied it is necessary to look to the Information in order to identify what those articles must have been and what, if any, were the identified parameters (such as by reference to a specific offence or a specific company).
(iii) It is for the magistrate to decide whether there were reasonable grounds to believe that there was on the premises concerned, identifiable material falling within the terms of section 8(1)(b) ('likely to be substantial value to the investigation of the offence') and 8(1)(c) (likely to be relevant evidence) and for that material to be identified in the warrant. The responsibility for making that decision of 'substantial value' or 'relevance' cannot be left to the judgment of the officer executing the search and any warrant which by its terms has this effect ...such as 'any other item believed to be of evidential value' (as in Anand, and see too in Hoque and Das) will not be compliant.
'any other items which appear relevant to the offences under investigation'.
Ground 2 no reasonable grounds for believing in accord with section 8(1)(d) that the items to be searched for did not include special procedure material as defined in section 14
'(2) material in the possession of a person who (a) acquired or created it in the course of any trade, business, profession, or other occupation and (b) holds it subject (i) to an express or implied undertaking to hold it in confidence .'
Ground 3 no reasonable grounds for believing in accordance with section 8(1(c) that the items to be searched for were likely to be relevant evidence
'it is necessary to search the premises referred to on the accompanying schedule as it is believed evidence of Mr and Mrs Cheema's, Bridget Kaur's, and Gurjit Thakar's involvement in criminal activities and the material sought will be at these premises.'
Ground 4 no reasonable ground for believing that the conditions of section 8(1B) of the Act were satisfied so as to justify the issue of an 'all-premises warrant'
' It is clear that such warrants are prepared by officers who do not have the benefit of legal scrutiny. It is clear also that notwithstanding a number of decisions of this court prior to 2013 relating to the contents of warrants, HMRC have been slow to respond to the need for care and attention in the drawing of search warrants whose effect is to make substantial inroads into individual freedoms. We were told for example that the warrant templates altered in the light of the decision in Anand in October 2012 were only made available in July 2013'
Lord Justice Treacy: