England and Wales High Court (Administrative Court) Decisions

IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
DIVISIONAL COURT

		Royal Courts of Justice Strand London WC2A 2LL
		10 November 2009

1. LORD JUSTICE MOSES: This is an application to move by way of judicial review to quash a warrant which purported to be issued under Section 8 of the Police and Criminal Evidence Act 1984 ("PACE").
2. The claimant and his partner the second claimant contend that the magistrate who sanctioned the issue of the warrant could not have been satisfied of those matters identified in Section 8 (1) of PACE or the ground under Section 8 (3) before allowing the warrant to be issued.
3. It is necessary to place that allegation in context. As the magistrate was told, what was alleged against the first claimant was that he had set up a company known as Construction International Company Ltd and advertised for sale equipment in respect of which he required advanced payment but never delivered that equipment. On the contrary, having received substantial sums of money for the advertised equipment, he made off with the money and never had the equipment to deliver. He had apparently, so it is alleged, obtained details of the equipment from a website, simply cut from the website those details and pasted the details on to his own website. A number of victims over a period of between November 2007 and certainly the end of 2008 complained of being defrauded of their advanced payments which have never been returned.
4. Once complaints had been made in 2008, on 20 June 2008 a warrant was issued for the search of Flat 37, The Point, Marina Close, Boscombe. It was never executed.
5. A further victim complained. On 30 June 2008 a second warrant was issued in respect of different premises associated, so it was said, with the first claimant, Flat 32, The Reef, Boscombe. Some seven days later on 7 July 2008 those premises were searched, particularly by an officer who has sworn evidence in this application Detective Constable Pithin and others. No computers were seized but a number of documents were taken away, said to be relevant to the investigation. I should recall that there was considerable dispute and protest as to the course of execution of that warrant, but there was certainly evidence that the first claimant had been unwilling to participate in the search and had for a period concealed his presence from the notice of those officers undertaking the search.
6. On 29 July 2008, after further contact with alleged victims, an application for a third warrant was sought (the second warrant in respect of the premises at Flat 32). That was never executed because the officer Dectective Constable Pithin, liaising with the force of another area, the Dorset police, learned that they were intending to go to Flat 32 to investigate two of the complaints. In those circumstances he applied to the magistrates for a search of that flat but did not execute the warrant. However the Dorset police did go to the flat. They arrested the first claimant in respect of two offences of fraud and searched the premises seizing a lap top, no computers having been seized on any earlier occasion.
7. Between 30 July and the time when the warrant - the subject matter of these proceedings - was applied for, there were two further complaints by other victims. It is plain that the police believed that the claimant was continuing to trade in the fraudulent manner I have described.
8. On 22 January 2009 Dectective Constable Pithin completed an application for a warrant referring to the further victims and handed the forms to another police officer Detective Constable Nicholas who applied for a warrant. As a result of that application, on 23 January 2009 the first defendant, the North Avon Magistrates' Court, issued the warrant and it was executed on 18 February 2009. Three computers were seized, with four memory sticks and other property which I can identify when I come to the particular grounds upon which the issue and execution of the warrant are challenged.
9. The first ground contends that the requirements of Section 8 (1), of which a magistrate must be satisfied, were such that it is, so it is submitted, plain that the magistrate failed to satisfy himself of those conditions before allowing the warrant to go. It is alleged that the magistrate failed to consider whether the statutory conditions in Section 8 of PACE were satisfied and failed to record his reasons for being so satisfied.
10. I say at the outset that I am not at all surprised that such an allegation comes to be made. Solicitors instructed by the first claimant wrote a letter on 11 March 2009 asking questions as to whether the magistrate was satisfied as to the statutory conditions in Section 8 (1) and (3) of PACE and also asking for the reasons for the issue of the warrant and whether they were given orally or in writing. In writing that letter, the then solicitors who were no longer the solicitors instructed sensibly referred to authority to which I shall have occasion to refer - R (Redknap) v City of London Police Commissioner and the City of London Magistrates' Court [2008] EWHC 1177 (Admin) - in support of the proposition as to the importance that a magistrate should be satisfied of those conditions before issuing the warrant and underlining the need not to treat obtaining a warrant as a formality (see paragraph 13).
11. In response to that letter a deputy justice's clerk wrote on 19 March 2009 enclosing various documents, including the application for the magistrates search warrant (a form known as Form 118), the application for the warrant to enter and search premises under Section 8 (known as Form 135) and including something identified as "reasons for the grant/refusal of ex parte search warrant completed by the legal adviser". The letter then went on say that the justice of the peace was satisfied with the grounds set out in the application (see Form 135), and, in response to the question whether the reasons for the issue of the warrant were given either orally or in writing, answered that the reasons for the grant or refusal of the ex parte search warrant were enclosed.
12. Those reasons form the subject matter of the first ground of the application. They are headed "Reasons for the Grant/Refusal of an ex parte search warrant". Neither "grant" nor "refusal" is deleted. The form then refers to the correct address and then describes the application as made under (and then there is a blank) Section8/15 of PACE. There is an asterisk by the number "15" alerting the reader to delete "8" or "15" as appropriate. The form then goes on:

"I am satisfied/not satisfied* that the grant of application will pursue a legitimate aim, namely [tick as appropriate a series of boxes referring to]

� the interests of national security;

� the interests of public safety;

� the economic well being of the county;

� the prevention of disorder or crime;

� the protection of health or morals;

� the protection of the rights and freedoms of others because [the reason is written in] 'fraudulent trading large sums'."

13. The forms goes on in bold in contrast to the earlier parts:

"I am satisfied the application is properly dealt with ex parte because -

.....

the purpose of a search may be frustrated or seriously prejudiced unless a constable arriving at the premises can secure immediate entry to them."

That entry is ticked, the others are not. The form then goes on:

"I am satisfied/not satisfied ..... " -

and that requires deletion which has not taken place -

" ..... that the grant of a search warrant is proportionate due to [written in] 'evidence easily removed/destroyed'."

The form goes on:

"I am not satisfied that the application is properly dealt with ex parte because [blank]. The following conditions shall apply [blank]."

The form is dated 23 January 2009; it has the initials of the legal adviser who turns out to be Mr Tate. Underneath that it is signed in the wrong place by the magistrate.

14. Accompanying that document were the Form 118 (the application for the magistrates' search warrant) and also Form 135 setting out the information on which reliance was placed. The information sets out the premises and details the material that it is thought could be recovered under the warrant - including company computer business transactions, computer e.mails, computer financial accounts and records, similar documents handwritten - and continues at the end of that page -

" ..... all of which has subsequently come to light during the course of this inquiry and not recovered previously."

15. On the next page the officer has recorded that it is not practicable to communicate with any person entitled to grant entry to the premises, but entry to the premises will not be granted unless a warrant is produced even though the purpose of a search may be frustrated or seriously prejudiced unless a constable arriving at the premises can secure immediate entry to them. The warrant is expressed to be for one occasion only.
16. The officer then set out in writing further information and grounds for belief, setting out the nature of the allegation, the fact that the inquiry had been running for several months, that the victims are alleged to have been at least nine companies with several hundreds of thousands of pounds obtained, that no money has ever been returned. It continued:

"A previous warrant was executed and property obtained which provided further evidence in relation to this investigation and this [was] requested because Wood is still trading on the internet. Further victims have been identified since the last one as having been defrauded by Wood. It is believed that Wood has been using further computer equipment, in particular a lap top, will have substantial paperwork evidence and will have evidence applicable to asset recovery on the premises (CSIC) which will be of critical importance to this inquiry."

17. Further forms enclosed in the deputy clerk's response included a handwritten note by Mr Tate of the evidence given by Dectective Constable Nicholas on oath, recording that he had previously been arrested and charged, that there is evidence from the website and two new victims have reported the suspect to the police.
18. In evidence, both by way of a written submission on behalf of the first defendant and in a statement from the legal adviser to North Avon Magistrates' Court, it is contended that the form headed "Reasons for the Grant/Refusal of an ex parte search warrant" was incorrectly enclosed as the form recording the reasons. It is said that it does not purport to state the reasons as to why the magistrate was satisfied as to the criteria under Section 8 and as to whether they had been fulfilled. It was said to be of "non-statutory form created locally to assist the justice in applying their (sic) mind to the implication of the Humans (sic) Right Act which is evident by the phrases used".
19. That is confirmed by Mr Tate who goes on to say that the officer did take the oath, did give the evidence recorded in handwriting by Mr Tate, and that the reasons the justice issued the warrant were that he was satisfied of those criteria identified in Section 8 (1) and, through Section 8 (1) (e), Section 8 (3) on the basis of the written information and oral evidence he was given.
20. It is clear to me that the form which I have identified is misleading. It is not what it says it is. It does not contain the reasons for the grant of the ex parte search warrant in this case. In particular the first part is plainly relevant to proportionality and considerations under the European Convention on Human Rights, particularly it has regard to questions of proportionality. None of the earlier part of the form is relevant to the criteria under Section 8 (1).
21. The second part of the form purports to deal with whether the application is properly made ex parte but then refers to a criterion which is ticked in this case that is relevant to Section 8 (3) (d). None of the entries purport to deal with the criteria identified in respect of those matters of which a magistrate must be satisfied before the warrant is issued, namely whether an indictable offence has been committed, whether there is material on the premises which is likely to be of substantial value to the investigation of the offence, and whether the material is likely to be relevant evidence (see Section 8 (1) (a), (b), (c)).
22. It is true that the second half of the form does refer to the conditions mentioned in sub-section (1) (e) in respect of one of which a magistrate must be satisfied, namely Section 8 (3) (d). In those circumstances, on its face, if that is all the magistrate was satisfied about there would be no evidence, let alone any record, that he had been satisfied of Section 8 (1) and the matters therein identified. However there is evidence contained in the information which would form the basis of any satisfaction of the conditions in Section 8 (1) by a magistrate. There is evidence now before us that the magistrate was satisfied of those matters before he issued the warrant. He initialled the information before doing so.
23. This is however in my view unsatisfactory. These courts have, on innumerable occasions, underlined the importance of the rigorous application of the statutory criteria. Only by being satisfied of those criteria can citizens be safeguarded against the unlawful invasion of their premises.
24. If authority is needed for so clear a proposition it can be found in the decision of this court in Redknap, particularly at paragraph 16, and in further authorities identified in R (Lewes Crown Court) v Chief Constable of Sussex ex p Nigel Weller & Co, decision of 12 May 1999, in which Lord Justice Kennedy cited the judgment of Lord Justice Watkins in R v Southampton Crown Court ex p J and B in support of the proposition as to the importance of a scrupulous compliance with Section 8 (1) and a record of the reasons for the decision.
25. In Redknap no reasons or record had been given such as to satisfy the court that the requirements of Section 8 (1) had been satisfied. Here, as I have already said, there has been evidence that the magistrate did comply with Section 8 (1) and (3). But it is important to recognise that it is all too easy for clerks to magistrates or the police to give post-decision justification as a substitute for reasons unless at the time, as Lord Justice Watkins said they should, they record the reasons. If reasons are recorded at the time, then not only a complainant will be in a position to understand why his premises had been raided but also there will exist the powerful discipline for the decision-maker of knowing and having to record why the warrant was issued. Further any court considering a challenge to the issue of a warrant will learn the reasons without the fear that they are no more than an ex post facto justification.
26. In the instant case I am prepared to accept that the form that purports to give the reasons for the decision did not accurately or fully record those reasons. Moreover I am not prepared to disbelieve the evidence of Dectective Constable Nicholas as to the procedure he adopted before the magistrate or the evidence of Mr Tate (the legal adviser) that the magistrate did indeed satisfy himself of the requirements of Section 8. I merely record my dissatisfaction with the process and emphasise yet again that the freedom from interference in the premises can only be properly safeguarded if the reasons for being satisfied of the statutory criteria are recorded at the time. In those circumstances and with that caution, I do not accept the first ground of challenge.
27. The second ground of challenge contends that the information did not disclose any reasonable grounds for thinking that there would be material likely to be of substantial value to the investigation of the offence (see Section 8 (1) (b) or that the material was likely to be relevant evidence (see Section 8 (1) (c) of PACE). The information set out materials such as company computer business transactions and handwritten accounts which were plainly of the greatest relevance to the fraud it was alleged this first claimant had perpetrated. I note that Mr Bowers did not pursue that ground with any enthusiasm. I would dismiss it.
28. I turn to the ground of greater substance which was that the second defendant (the Avon and Somerset Constabulary) failed to give full and frank disclosure of an earlier search which I have identified undertaken by Dorset police on 30 July 2008 at Flat 32, The Reef. It is noteworthy that whilst the information referred to a previous execution of a warrant in Form 118, it referred to such a warrant being executed in November 2008. That was incorrect. No warrant was ever executed in November 2008. The only previous execution of a warrant was back on 7 July 2008. However the information did refer to the fact that a previous warrant had been executed and that property had been obtained. The request for a further warrant was said to be because it was believed that the first claimant was still trading on the internet and that further victims had been identified since the last warrant. That was correct. But, as Dectective Constable Nicholas reveals in his sworn evidence, the magistrate was never told that there had been a warrant, nor that the search was not a search under Section 8 but was rather a search after Dorset police had arrested the first claimant for two offences of fraud.
29. There was some debate, particularly in writing, as to whether that was a lawful search pursuant to Section 18 of PACE. In my judgment that is irrelevant. The important question is as to whether there was such a failure to disclose that search and its consequences if there was such a failure. As I have indicated, it is plain that the magistrate was never told about that search. It is disappointing to record that on behalf of the Chief Constable of Avon and Somerset Constabulary Mr Bird did not accept that that information should have been disclosed. He took a neutral stance as to whether or not it should have been. In my judgment, it plainly should have been disclosed. The importance of the procedure by which a warrant is obtained is such that there must be full and complete and frank disclosure before a magistrate so that he can have the fullest possible information in determining whether the statutory criteria are satisfied.
30. If authority for what one would have thought was so plain a proposition is needed, it can be found in the decision of Lord Justice Bingham in R v Lewes Crown Court ex p Hill [1991] 93 Crim App R 60, 69. Lord Justice Bingham made it clear that a magistrate or a judge must be shown such material as is necessary to enable him to be satisfied of those criteria under the statute of which he must be satisfied before a warrant is issued.
31. In the instant case the magistrate needed to be told of that search, first, in order to be satisfied pursuant to Section 8 (1) that there would be material on the premises of substantial value and relevant, despite a previous search, and also needed to be told of that search in order to form a view as to whether the conditions under sub-section (3) were satisfied, in particular as to whether the purposes of a search would be frustrated or seriously prejudiced were advance warning to be given. If, as Mr Bowers pointed out, the applicant had previously been co-operative that would have been highly material in deciding whether a warrant should be issued or not.
32. In those circumstances I am of the clear view that the information as to the visit of the Dorset police, of which Dectective Constable Pithin was aware, should have been disclosed.
33. Part of the trouble may have stemmed from the fact that the officer giving evidence before the magistrate was Dectective Constable Nicholas who had no first-hand knowledge of the investigation at all. The magistrate was not to know that, because there was a serious error in Form 118 which described the source of the information as being Detective Constable Nicholas and as the officer "completing the background". He had not completed the background; he had no knowledge of it. The officer completing the background was Dectective Constable Pithin who did not appear before the magistrate. It may be, for all I know, that Detective Constable Nicholas was unaware of the visit of the Dorset police.
34. I therefore reject the argument advanced by the Chief Constable that there was no obligation to make that disclosure. However I am satisfied that that failure to make the disclosure was not as a result of bad faith or a deliberate attempt to conceal the information. That, in my judgment, is made good by the fact that a previous execution of the warrant, albeit with the wrong date of November 2008, was disclosed and by reason of the last two paragraphs of the information, which I have already recorded, there was a reference to a previous warrant being executed and as to what had been recovered and as to the need for a further warrant in the light of further victims and the belief that the first claimant was still trading.
35. Had I thought that the concealment of the earlier visit by Dorset police was deliberate or that non-disclosure indicated bad faith, I, for my part, would have quashed the warrant on that ground alone whether the information made any difference or not. Since I am satisfied that it was an error and was not as a result of bad faith, I go on to consider the further question as to whether the non-disclosure made a difference. In my judgment, it did not. There was ample basis for thinking that in the light of the suspicions of the police there would be further material found at home since they believed he was continuing fraudulently to trade on those premises. The fact that earlier visits had revealed earlier information was no warrant for thinking there would not be further relevant evidence.
36. The other question which Mr Bowers raised was as to whether had the magistrate known of that visit it would have revealed how co-operative Mr Wood had been. The only information about that is a record that he admitted the police to the flat immediately before he was arrested. That is hardly material on which it can be said he co-operated in a search. On the contrary, there is evidence in relation to the previous execution of a warrant on 7 July 2008 that he had not co-operated. Although his young son was in the flat, he had hidden away in a corridor and not presented himself to the police during the search until much later. In those circumstances it would have been misleading to tell the magistrate that he had previously co-operated.
37. In short, the non-disclosure of the visit of the Dorset police does not in my judgment undermine the magistrate's satisfaction of the relevant statutory criteria.
38. I deprecate again the failures of accuracy in reporting who was the officer with knowledge of the background and the failure to disclose that information, but I am not prepared to conclude that the errors were as a result of bad faith, let alone that they were material, and I would not in those circumstances strike down the warrant on those grounds.
39. The third ground advanced on behalf of this claimant relates to a reference in the final paragraph of the information to evidence "applicable to asset recovery on the premises which will be of critical importance to this inquiry". The first claimant contends that that reveals that the purpose for the warrant was not that which is within the scope of Section 8 but was rather in order to assist recovery pursuant to the Proceeds of Crime Act 2002. I do not agree. As the respondent points out, the respondent has no statutory power to seek recovery of assets pursuant to that statute. In those circumstances I am not prepared to accept that the officer had that in mind when he completed the information. I do not think it is a reference to asset recovery under the Proceeds of Crime Act. It merely refers to evidence which would plainly be of substantial value and relevant, assets, the source of which might have no explanation other than being the proceeds of the fraud alleged against this claimant.
40. In those circumstances I reject that ground of challenge. There is no basis for thinking that this was a disguised method of obtaining assets for the purposes of recovery. On the contrary, any assets found at the premises would - for reasons I have given - be powerful evidence of the fraud.
41. The fourth ground of challenge is that there was no basis for seizing documents relating to another company called Network International Company UK Ltd. Documents relating to that company would be of relevance, and of substantial value to the inquiry. Having regard to the method by which it is alleged this claimant defrauded the victims, evidence of another company with a similar name would, as it seems to me, be highly material.
42. The fifth ground relates to the seizure of a Mercedes motor car found in the car park behind the enclosure of the flats amongst which was Flat 2. Detective Constable Pithin described seeing the claimant arriving at the communal entrance to the flats, seeing the police and then running away towards a silver Mercedes displaying a personalised number plates associated with the second claimant V22 LOU. That is the same registration number as that of an earlier BMW the police had searched back in July 2008. On an earlier occasion the claimant and the second claimant, Louise Powell, had been seen in that BMW vehicle with a young boy in the rear. The car itself was plainly relevant for the same reason that other assets, if found on the premises, would have been relevant, namely to show the destination of money from the fraud which had no very obvious legal source.
43. But a separate question was raised on behalf of the second claimant, namely whether there was power to seize that car as coming within the scope of the warrant. As I have indicated, the scope of the warrant was limited to Flat 2. It was contended on behalf of the Chief Constable therefore that there was power to seize the Mercedes pursuant to the general power of seizure contained in Section 19 of PACE. That confers a power to seize anything "which is on the premises" if a constable lawfully on the premises has reasonable grounds for believing that it has been obtained in consequence of the commission of an offence and that it is necessary to seize it in order to prevent it being concealed, lost, damaged, altered or destroyed or, if he has reasonable grounds for believing that it is evidence in relation to an offence which he has investigated or any other offence unless it is necessary to seize it to prevent the matters I have already identified (see Section 19 (1), (2) and (3)).
44. The difficulty as I see it is that whilst for the reasons I have given the officers were lawfully on the premises pursuant to Section 19 (1), it has not been shown to my satisfaction that the Mercedes was "on the premises". Section 19 (2) is plainly referring to the premises on which the constable is lawfully and the officer was only lawfully on the premises - Flat 2 - and any part of the premises which were necessary in order to gain access to those premises, namely the common parts.
45. There is, to my mind, insufficient evidence that the car park on which the Mercedes was parked was part of the premises within the scope of the warrant. It would have been easy for the warrant to refer not only to Flat 2 but any other part of the premises within the property demised by the lease or surrounding Flat 2 or the common parts, but the warrant did not. It might be thought obvious that it was referring to the car park if the car park was demised with the lease in respect of Flat 2. But so important are the terms and scope of the warrant, it seems to me wrong and dangerous for this court merely to assume that the warrant covered the car park on which the car - the Mercedes - was placed. For that limited reason I therefore conclude that the seizure of the Mercedes, which apparently is owned by the second claimant, was lawful [sic] unlawful.
46. So far as the remedy is concerned, I shall hear further argument as to what should be done with the Mercedes now but I am prepared to declare that the seizure of that particular item, since it was on premises which do not appear to have been covered by the warrant was unlawful. Apart from that separate and distinct question, I would refuse the application.
47. This case again demonstrates the inadequacies in the care with which these warrants are approached and the need for much more scrupulous compliance. But, subject to the further discussion as to the Mercedes motor car, I would refuse this application.
48. MR JUSTICE SIMON: I agree. Like my Lord, I am concerned by the process by which the warrant under challenge was applied for and was granted.
49. There seem to me to be three points which give rise to particular concern. First, the officer applying for the warrant at court and giving information on oath should, in my view, save in exceptional circumstances, be an officer directly involved in the investigation. Unless this is so, the magistrate is unlikely to get the full and coherent picture he or she is entitled to expect.
50. Secondly, proper care should be taken in filling in Forms 118 and 135 which, we are told, are common forms used by police forces. This means addressing the relevant questions which arise under Section 8 of the Police and Criminal Evidence Act 1984. In the present case there were errors and omissions made in Form 118 which would not have been made if proper attention had been paid while completing the document, and which should not have been made.
51. Thirdly, there is in my judgment nothing wrong in having a form for use by magistrates who hear applications for search warrants. On the contrary, a form which enables magistrates to check that they have considered all the matters of which they must be satisfied and as a short record of the reasons for issuing the warrant i likely to be very helpful. However the form used in the present case by the first defendant and headed "Reasons for the Grant/Refusal of an ex parte search warrant" is both insufficient and inadequate for these purposes. It shows every sign of having been created from two other forms whose purposes are different: one, a form which addresses human rights issues and another a form which addresses, but incompletely, issues which arise under Section 8. Reliance on such a form in cases where the reasons for the grant of a search warrant are in issues will not assist magistrates. On the contrary, it is likely to give rise to the sort of arguments which have arisen in this case.
52. LORD JUSTICE MOSES: Mr Bird, what do you want to do about the motor car. I assume you have a photograph, you have evidence about it. If you want to say "Where on earth did he get it from, members of the jury," you can say it. I do not want to make an order subject to legal argument, if you are to give it back to the lady.
53. MR BIRD: May I take brief instructions? (Pause) May I propose that the court makes a declaration that it should not have been seized for reasons in the judgment. Then we can decide what our responsibilities are in relation to it and my friend has a remedy should we not.
54. LORD JUSTICE MOSES: He has asked for remedy today that items unlawfully seized should be returned, application for judicial review.
55. MR BIRD: I cannot see there would be any harm in returning it to its rightful owner.
56. LORD JUSTICE MOSES: You mean to find out - - - - -
57. MR BIRD: Yes. We need to find out.
58. LORD JUSTICE MOSES: SOCA may tomorrow apply for a freezing order.
59. MR BIRD: They might do, yes. Can I ask that we should not have to do anything for seven days. It would not be right on existing evidence to make an order that it be returned to the second claimant. My Lord's judgment can simply deal with the declarations.
60. LORD JUSTICE MOSES: I think seven days is too long. I would probably give you three days. What do you want to say about this? It is no use to your client.
61. MR BOWERS: I represent both.
62. LORD JUSTICE MOSES: I know. What has she been driving around in since?
63. MR BOWERS: I do not know. They have had since February to discover who the rightful owner is. They have documents.
64. LORD JUSTICE MOSES: Whose is it do you say?
65. MR BOWERS: It is Louise Powell's as far as I am aware.
66. LORD JUSTICE MOSES: What happens if the money is from the fraud? If there was a fraud - I agree it all has to be proved - suppose there is a fraud, and suppose money came from it and suppose it was your client.
67. MR BOWERS: Then they can apply to confiscate it if it still exists or if there is evidence there was a gain - - - - -
68. LORD JUSTICE MOSES: We know it still exists.
69. MR BOWERS: No. If Mr Wood is convicted after a trial - - - - -
70. LORD JUSTICE MOSES: SOCA could apply for a freezing order tomorrow. The question is do you really want them to bother.
71. MR BOWERS: They could have done that already and discovered whose it was. For the time being it is in their unlawful possession.
72. LORD JUSTICE MOSES: Is it not your remedy to go under Section 59 to get to the Crown Court?
73. MR BOWERS: No, because judgment has now been obtained in this court. All the Crown Court will say is that the Divisional Court said they unlawfully hold it, can you give it back?
74. LORD JUSTICE MOSES: It is not within the warrant for the reasons I have given because it is in the wrong place. The warrant was lawful. The only reason I was asking Mr Bird was because I did not want to put you to the trouble of going to the appropriate judicial authority where something has been seized in the purported exercise of a relevant power of seizure. If they came to some sensible arrangement with you, then - - freezing is not disposing of it if it is your lady's own. Has she had the baby yet?
75. MR BOWERS: Probably. I do not know.
76. LORD JUSTICE MOSES: It may be that they will let you use it so long as you do not dispose of it or something. There are all sorts of arrangements that can be made. What I did not want you to have to do was to go to the trouble of having to go to the Crown Court for the reasons we argued earlier.
77. MR BOWERS: I do not think that needs to be done. The only relevance it could have in the criminal proceedings is as part of the confiscation proceedings.
78. LORD JUSTICE MOSES: It could be evidence that there was a lot of money floating around.
79. MR BOWERS: It can still be that. It can still be that in a trial. There can still be evidence that there was gain in the confiscation proceedings. That would be the safe way if it is still in existence or not. It does not matter for the purposes of confiscation.
80. LORD JUSTICE MOSES: It might be if some poor chap from Nigeria or Abu Dhabi or wherever they came from wants his money back.
81. MR BOWERS: At the moment they have had since February to discover who the rightful owner is. It probably takes about five minutes to make those inquiries. It does appear that they have done nothing at all. It remains in unlawful possession as of now of the second defendant. It should be given back. While on the subject of cars, my Lord did mention a Land Rover.
82. LORD JUSTICE MOSES: That has been handed back. The subject matter of the other ground was the Mercedes. I do not think the Land Rover has nothing to do with this case; it has gone back.
83. MR BOWERS: It was in the car park also.
84. LORD JUSTICE MOSES: Thank you, but I am not interested in that. What do you suggest? I want some sensible way. Seven days is far too long anyway.
85. MR BIRD: In my submission the relief that arises from your judgment is essentially declaratory relief, namely that the police were not entitled to seize it because you have ruled that Section 19 does not apply. In effect, it was not covered by the warrant. There is a restraint order on some of the claimant's assets but not all of his assets, so one option the police have or the CPS have is to apply to extend the restraint order. It would not matter if it is being used, so long as it was not disposed of. That is one option we have. I am told the second claimant is driving around in a new Land Rover at the moment so she has some means of transport. She does not need it back as such. So in my submission declaratory relief would be sufficient.
86. MR BOWERS: I know nothing of a Land Rover. It is in unlawful possession and should go back.
87. LORD JUSTICE MOSES: I shall make a declaration in terms that you two can draft. Let me know by close of play tomorrow. I am not going to make any further order in relation to the motor car at the moment. I think you ought within three days to decide, to make a decision, by 4 pm on Friday otherwise your client will be back before me. Liberty to apply.
88. MR BOWERS: May I apply for the second claimant's costs?
89. MR BIRD: Both claimants have substantially failed on the relief they were seeking. It may be that by apportioning it, one-fifth for them and four-fifths for me or no order as to costs.
90. LORD JUSTICE MOSES: It is such a mess this case that it seems it ought to be marked. No order as to costs.
91. If you do not do some sort of deal about the Mercedes you can come back to me and I will make a further order. Could you draw up an order for the associate and draw up a form of declaration and I will approve it.
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