|Royal Courts of Justice|
London, WC2A 2LL
B e f o r e :
MRS JUSTICE HALLETT
THE QUEEN ON THE APPLICATION OF
PAUL DA COSTA & CO (A FIRM) AND
- and - THAMES MAGISTRATES COURT AND
H.M. COMMISSIONERS OF CUSTOMS & EXCISE
Smith Bernal Reporting Limited, 190 Fleet Street
London EC4A 2AG
Tel No: 020 7421 4040, Fax No: 020 7831 8838
Official Shorthand Writers to the Court)
Philip Coppel (instructed by the Customs & Excise)
AS APPROVED BY THE COURT
Crown Copyright ©
Lord Justice Kennedy :
(1) The information placed before the Deputy District Judge on 12th July 2001 at Thames Magistrates Court which persuaded him to issue the warrants.
(2) The form of the warrants.
(3) The actions taken by the second defendant on 18th July 2001 of which complaint is now made.
Before the Deputy District Judge
(1) Eleven invoices which described the services supplied as “re-charge of salaries”. They were dated between 30th December 1997 and 30th September 1998 and bore total VAT of £54,009.
(2) The remaining seven invoices were for “management services”. They were dated between 31st August 1997 and 28th February 1999 and bore the balance of the VAT reclaimed, £140,529.
The visiting officer of Customs and Excise checked the output tax declarations made by PDC on its VAT returns, and they did not correspond. It also emerged that PDC had apparently gone in to liquidation with effect from 25th August 1998, before the date of some of the alleged supplies. Further enquiries revealed that the directors of PDC were three partners of Da Costa - Collins, Grant and Fletcher (who apparently ceased to be a partner in June 1998). PDC was registered for VAT from 19th August 1997, and during its short life submitted nine monthly tax returns, the earlier ones being signed by Fletcher and the later ones by Grant, both of whom also signed returns submitted by the firm. The PDC output tax figures for the period between December 1997 and June 1998 corresponded to the first seven “re-charge of salaries” invoices posted in the records of Da Costa. But no output tax declarations were made in respect of management charges invoices, and very little tax was paid by PDC to Customs and Excise. The liquidation was a result of a petition by Customs and Excise, and at that time PDC had a known debt to the Customs and Excise of £41,151. The records of PDC obtained from the Official Receiver’s offices show no reference to the management services invoices, and there is no evidence of any payment being made by Da Costa for anything other than re-charge of salaries invoices, although the total net value of the management services invoices purportedly raised by PDC up to the date of its liquidation was £437,764.
(a) Any documentation and correspondence relating to the VAT registered businesses suspected of being involved in VAT fraud offences.
(b) Any records relating to Bank Building Society or any other financial institutions accounts controlled or operated by Paul Da Costa and Co. any of the individual partners of Paul Da Costa and Co, PDC Management Limited and/or any other business believed to be controlled by any of the individual partners of Paul Da Costa and Co.
(c) Any computer equipment, computer discs and any of the specified information held on any form of computer storage medium
(d) Any other items or information which reasonably appears to the officers to be evidence in relation to suspected VAT fraud offences which appear to be of a serious nature.”
The warrant states that any officer who enters the premises under its authority:-
“may seize and remove any documents, or other things whatsoever found on the premises which he or she has reasonable cause to believe may be required as evidence for the purposes of proceedings in respect of a Value Added Tax fraud offence which appears to him or her to be of a serious nature.”
It also states that the person in charge of the search “shall take with him or her no more than nine other persons.”
Before us Mr Knowles for the Claimant does not go so far as to say that the warrants should not have been issued. His submissions relate entirely to the wording of the warrants and to the actions taken in reliance on them.
The searches and these proceedings
Criticisms of the Warrants
“If a Justice of the Peace … is satisfied on information on oath that there is reasonable ground for suspecting that a fraud offence which appears to be of a serious nature is being, has been or is about to be committed on any premises or that evidence of the commission of such an offence is to be found there, he may issue a warrant …”
(1) Had been committed and maybe was still being committed at the premises it was sought to search, and
(2) That evidence of the commission of such an offence was to be found there -
and I see no reason why the Deputy District Judge should have been obliged to rely on one access condition rather than the other. In my judgment the use of the word “or” in paragraph 20(3) does not have that disjunctive effect.
The criticisms of the searches
Mrs Justice Hallett : I agree.