QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Strand, London, WC2A 2LL |
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B e f o r e :
THE HON. MR. JUSTICE STADLEN
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The Queen (On the application of Ussama El-Kurd) |
Claimant |
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- and - |
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Winchester Crown Court -and- Serious Organised Crime Agency |
Defendant Interested Party |
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Mr. Kennedy Talbot (instructed by SOCA) for the Interested Party
Hearing dates: 19th April
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Crown Copyright ©
The Hon. Mr. Justice Stadlen:
The Facts
Relevant Provisions of the 2001 Act.
"50. Additional powers of seizure from premisesE+W+S+N.I.This section has no associated Explanatory Notes
(1) Where—
(a) a person who is lawfully on any premises finds anything on those premises that he has reasonable grounds for believing may be or may contain something for which he is authorised to search on those premises,
(b) a power of seizure to which this section applies or the power conferred by subsection (2) would entitle him, if he found it, to seize whatever it is that he has grounds for believing that thing to be or to contain, and
(c) in all the circumstances, it is not reasonably practicable for it to be determined, on those premises—
(i) whether what he has found is something that he is entitled to seize, or(ii) the extent to which what he has found contains something that he is entitled to seize,
that person's powers of seizure shall include power under this section to seize so much of what he has found as it is necessary to remove from the premises to enable that to be determined.
(2) Where—
(a) a person who is lawfully on any premises finds anything on those premises ("the seizable property") which he would be entitled to seize but for its being comprised in something else that he has (apart from this subsection) no power to seize,
(b) the power under which that person would have power to seize the seizable property is a power to which this section applies, and
(c) in all the circumstances it is not reasonably practicable for the seizable property to be separated, on those premises, from that in which it is comprised,
that person's powers of seizure shall include power under this section to seize both the seizable property and that from which it is not reasonably practicable to separate it. …..
(5) This section applies to each of the powers of seizure specified in Part 1 of Schedule 1. …..
51. Additional powers of seizure from the personE+W+S+N.I.
This section has no associated Explanatory Notes
(1) Where—
(a) a person carrying out a lawful search of any person finds something that he has reasonable grounds for believing may be or may contain something for which he is authorised to search,
(b) a power of seizure to which this section applies or the power conferred by subsection (2) would entitle him, if he found it, to seize whatever it is that he has grounds for believing that thing to be or to contain, and
(c) in all the circumstances it is not reasonably practicable for it to be determined, at the time and place of the search—
(i) whether what he has found is something that he is entitled to seize, or(ii) the extent to which what he has found contains something that he is entitled to seize,
that person's powers of seizure shall include power under this section to seize so much of what he has found as it is necessary to remove from that place to enable that to be determined.(2) Where—
(a) a person carrying out a lawful search of any person finds something ("the seizable property") which he would be entitled to seize but for its being comprised in something else that he has (apart from this subsection) no power to seize,
(b) the power under which that person would have power to seize the seizable property is a power to which this section applies, and
(c) in all the circumstances it is not reasonably practicable for the seizable property to be separated, at the time and place of the search, from that in which it is comprised,
that person's powers of seizure shall include power under this section to seize both the seizable property and that from which it is not reasonably practicable to separate it. …..(5) This section applies to each of the powers of seizure specified in Part 2 of Schedule 1. …..
53 Examination and return of property seized under Sections 50 or 51E+W+S+N.I.
This section has no associated Explanatory Notes
(1) This section applies where anything has been seized under a power conferred by section 50 or 51.
(2) It shall be the duty of the person for the time being in possession of the seized property in consequence of the exercise of that power to secure that there are arrangements in force which (subject to section 61) ensure—
(a) that an initial examination of the property is carried out as soon as reasonably practicable after the seizure;(b) that that examination is confined to whatever is necessary for determining how much of the property falls within subsection (3);(c) that anything which is found, on that examination, not to fall within subsection (3) is separated from the rest of the seized property and is returned as soon as reasonably practicable after the examination of all the seized property has been completed; and(d) that, until the initial examination of all the seized property has been completed and anything which does not fall within subsection (3) has been returned, the seized property is kept separate from anything seized under any other power.(3) The seized property falls within this subsection to the extent only—
(a) that it is property for which the person seizing it had power to search when he made the seizure but is not property the return of which is required by section 54;(b) that it is property the retention of which is authorised by section 56; or(c) that it is something which, in all the circumstances, it will not be reasonably practicable, following the examination, to separate from property falling within paragraph (a) or (b). …..54 Obligation to return items subject to legal privilegeE+W+S+N.I.
This section has no associated Explanatory Notes
(1) If, at any time after a seizure of anything has been made in exercise of a power of seizure to which this section applies—
(a) it appears to the person for the time being having possession of the seized property in consequence of the seizure that the property—
(i) is an item subject to legal privilege, or
(ii) has such an item comprised in it,
and
(b) in a case where the item is comprised in something else which has been lawfully seized, it is not comprised in property falling within subsection (2),
it shall be the duty of that person to secure that the item is returned as soon as reasonably practicable after the seizure.
(2) Property in which an item subject to legal privilege is comprised falls within this subsection if—
(a) the whole or a part of the rest of the property is property falling within subsection (3) or property the retention of which is authorised by section 56; and
(b) in all the circumstances, it is not reasonably practicable for that item to be separated from the rest of that property (or, as the case may be, from that part of it) without prejudicing the use of the rest of that property, or that part of it, for purposes for which (disregarding that item) its use, if retained, would be lawful.
(3) Property falls within this subsection to the extent that it is property for which the person seizing it had power to search when he made the seizure, but is not property which is required to be returned under this section or section 55.
(4) This section applies—
(a) to the powers of seizure conferred by sections 50 and 51;
(b) to each of the powers of seizure specified in Parts 1 and 2 of Schedule 1; and
(c) to 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. …..
55. Obligation to return excluded and special procedure materialE+W+S+N.I.This section has no associated Explanatory Notes
(1) If, at any time after a seizure of anything has been made in exercise of a power to which this section applies—
(a) it appears to the person for the time being having possession of the seized property in consequence of the seizure that the property— (i) is excluded material or special procedure material, or (ii) has any excluded material or any special procedure material comprised in it,
(b) its retention is not authorised by section 56, and
(c) in a case where the material is comprised in something else which has been lawfully seized, it is not comprised in property falling within subsection (2) or (3),
it shall be the duty of that person to secure that the item is returned as soon as reasonably practicable after the seizure.
(2) Property in which any excluded material or special procedure material is comprised falls within this subsection if—
(a) the whole or a part of the rest of the property is property for which the person seizing it had power to search when he made the seizure but is not property the return of which is required by this section or section 54; and (b) in all the circumstances, it is not reasonably practicable for that material to be separated from the rest of that property (or, as the case may be, from that part of it) without prejudicing the use of the rest of that property, or that part of it, for purposes for which (disregarding that material) its use, if retained, would be lawful.
(3) Property in which any excluded material or special procedure material is comprised falls within this subsection if—
(a) the whole or a part of the rest of the property is property the retention of which is authorised by section 56; and
(b) in all the circumstances, it is not reasonably practicable for that material to be separated from the rest of that property (or, as the case may be, from that part of it) without prejudicing the use of the rest of that property, or that part of it, for purposes for which (disregarding that material) its use, if retained, would be lawful.
(4) This section applies (subject to subsection (5)) to each of the powers of seizure specified in Part 3 of Schedule 1.
56 Property seized by constables etc.E+W+S+N.I.
This section has no associated Explanatory Notes
(1) The retention of—
(a) property seized on any premises by a constable who was lawfully on the premises,
(b) property seized on any premises by a relevant person who was on the premises accompanied by a constable, and
(c) property seized by a constable carrying out a lawful search of any person is authorised by this section if the property falls within subsection (2) or (3).
(2) Property falls within this subsection to the extent that there are reasonable grounds for believing—
(a) that it is property obtained in consequence of the commission of an offence; and
(b) that it is necessary for it to be retained in order to prevent its being concealed, lost, damaged, altered or destroyed.
(3) Property falls within this subsection to the extent that there are reasonable grounds for believing—
(a) that it is evidence in relation to any offence; and
(b) that it is necessary for it to be retained in order to prevent its being concealed, lost, altered or destroyed.
(4) Nothing in this section authorises the retention (except in pursuance of section 54(2)) of anything at any time when its return is required by section 54. …
(5) In subsection (1)(b) the reference to a relevant person's being on any premises accompanied by a constable is a reference only to a person who was so on the premises under the authority of—
(a) a warrant under section 448 of the Companies Act 1985 (c. 6) authorising him to exercise together with a constable the powers conferred by subsection (3) of that section; …..
Section 57 Retention of seized items
(1) This section has effect in relation to the following provisions (which are about the retention of items which have been seized and are referred to in this section as "the relevant provisions")— ….
(2) The relevant provisions shall apply in relation to any property seized in exercise of a power conferred by section 50 or 51 as if the property had been seized under the power of seizure by reference to which the power under that section was exercised in relation to that property. ….
59 Application to the appropriate judicial authorityE+W+S+N.I.This section has no associated Explanatory Notes
(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 the 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 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 authorised 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 53(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 to 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 decision of HH Judge Cutler
The grounds for Judicial Review
"13…. This Court has complained in the past of slip-shod completion of application forms such as this, the last occasion being the judgment of Underhill J in R(on the application of "C") v the Chief Constable of "A" Police and Another [2006] EWHC 2352 (Admin). The obtaining of a search warrant is never to be treated as a formality."
The Claimant submitted that that statement of principle should inform the construction of Section 59(5) - (7) of the 2001 Act.
"This gives anyone with a relevant interest in the seized property the right to apply to the appropriate judicial authority (as defined in section 64) for its return. It is hoped this will provide a quick and easy mechanism for challenging both the use of the new powers and, in certain circumstances, the exercise of existing powers. Subsection (3) sets out the grounds on which an application for the return of the property can be made. On such an application the court can order the return of material or, amongst other things, order that it be examined, for example, by an independent third party. Subsections (5)(b), (6) and (7) enable the police or other body in possession of the property to make an application to keep any material which they would otherwise be obliged to return if it would immediately become appropriate to issue a warrant enabling them to seize that material or to demand its production in the circumstances set out in subsection (7)(b). This means, for example, that the police will not have to return material which might be of value to them and then have to immediately obtain a warrant to seize it back. Subsection (8) means that the Court can also authorise the retention of not just what the police or others could seize under a warrant but also any material which is inextricably linked to it."
Discussion
"To put the matter in terms which would meet the requirements of the Convention it seems to me that if in a democratic society it is necessary for the prevention of crime to invade privacy to a greater extent than is spelled out in the Act of 1984, then the limits of the invasion must be spelled out in the statute or in some regulations or code made thereunder, and there must be a convenient forum available for dealing with disputes: cf Mienietz v Germany (1992) 16 EHRR 97. Meanwhile, in order to defend the right to privacy I see no escape from the proposition that the words of the statute should be strictly applied." (per Kennedy LJ. 587 E-F).
"Like Kennedy LJ, therefore, I agree that further statutory power has to be provided to cover the situation which I have considered above. For my part, I doubt whether anything short of primary legislation would suffice to meet the stringency of the requirement of the European Convention for the Protection of Human Rights and Fundamental Freedoms. Having regard to the practical implications of the result in this case, it may be thought that the authorities should consider this matter with a degree of urgency." (per Turner, J. at 591 A-B).
"That leaves the problem of what is to be done if a difference of opinion persists as to whether an item seized was relevant (i.e. within the warrant) or was subject to legal professional privilege (as qualified by section 10(2)) and, if so, whether at the time of seizure the constable had reasonable grounds for believing the item to be subject to legal professional privilege. In my judgment as the law stands those issues can only be ventilated by means of an action for trespass to goods, or perhaps in some cases by means of proceedings for judicial review. The latter course is not usually satisfactory, and either course may tend to slow up a criminal investigation which should be proceeding as quickly as possible. So there would seem to be a need for a special inter partes procedure to bring the matter speedily before a circuit judge. Protocols of the type shown to us in draft could have a valuable role to play, not least in preserving the material in a suitable state until it has been adjudicated upon, but in the end they cannot provide a quick solution where there is a dispute."
"Criminal litigation is not, however, a game. Although the police (or this case SOCA) cannot escape the consequence of the illegality of the warrant, there is no reason why they should be placed in a worse position than if the warrant had never been sought or, conversely, why those the subject of the warrant, (even if unlawful) should be in a better position to protect themselves from prosecution for unlawful conduct." (Paragraph 16).
If the court did not have the power in this case to authorise the retention by SOCA of the seized material so that it had to be returned to the Claimant, there would inevitably be a risk that it would be destroyed. That would be to place the Claimant in a better position and SOCA in a worse position than if it had not issued and executed the 5 July 2010 warrant thereby putting the Claimant on notice of SOCA's investigation and its intention of searching the premises of KCSL. The risk of destruction of the seized material is obvious.
Conclusion
Lord Justice Laws:
I agree entirely