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
		23 February 2011

1. LORD JUSTICE PILL: This is an application for judicial review of a decision of the South Bedfordshire Magistrates' on 13 October 2009 by which under section 295(2) of the Proceeds of Crime Act 2002 ("the 2002 Act") they authorised the continuing detention by the Chief Constable of the Bedfordshire Constabulary ("the respondent") of the sum of £2,050 in cash seized from the claimant, Mr Jawaid Iqbal. In the judicial review claim form it was alleged that the Chief Constable's application had been brought outside the 48 hour period specified in section 295(1).
2. The cash was first seized under section 19 of the Police and Criminal Evidence Act 1984 ("the 1984 Act") when the Bedfordshire police executed a search warrant under the Misuse of Drugs Act 1971, section 23, in May 2009 at the claimant's address in Luton. He was arrested on suspicion of money laundering. IO Dyer took possession of potential exhibits, including a sum of money which was not counted. IO Dyer is a civilian employee and not a constable. The money was detained under section 22 of the 1984 Act, which confers power to detain 'so long as is necessary in all the circumstances'. At interview, the claimant said the amount of money was about £2,400.
3. On 1 October 2009, IO Dyer, who was handling the money laundering investigation, sought advice and was told by the Crown Prosecution Service that no criminal proceedings would be brought on that subject against the claimant. On 3 October, he answered police bail and was told that no criminal proceedings on that ground would be brought against him.
4. The IO took further advice. Initial advice was given by Detective Sergeant Guild, head of the Economic Crime Unit ("ECU") in the force on 7 October. On 9 October, IO Dyer went to the property store at the Luton Police Station and extracted the money, which had not previously been counted, from exhibit bags. It is made up of £10 and £20 notes and the total count was £2,050. IO Dyer consulted Detective Constable Donoghue at the ECU and told him it totalled £2,050 and he then purported to seize the cash under section 294 of the 2002 Act.
5. Application was made to the Magistrates on 13 October. In a well-drafted statement in support of an application for the detention of the seized cash, Detective Constable Donoghue related the sequence of events. He stated that recently, on Friday 9 October, IO Dyer had obtained exhibits in the case, which included monies seized. On the morning of 9 October, he formally seized the money, stating that there were separate criminal proceedings -- that is separate from money laundering -- against Iqbal. He had been charged with possession of crack cocaine with intent to supply, possession of heroin with intent to supply and counts of possessing cannabis.
6. Detective Constable Donoghue stated that he believed the continued detention of the money would be justified. There were proceedings against the claimant for an offence with which the cash involved was connected. Those proceedings had been started and had not been concluded. The application was to detain the cash for a period of three months, the maximum permitted on the initial order.
7. It is not disputed that the money involved is "recoverable money" within the meaning of section 294 of the 2002 Act. Section 294 provided at the material time, insofar as is material:

"Constable may seize any cash if he has reasonable grounds for suspecting that it is;

a) Recoverable property."

Section 294(3) provides:

"This section does not authorise the seizure of an amount of cash if it or, as the case may be, the part to which his suspicion relates is less than the minimum amount."

At the material time the minimum amount specified was £1,000.

8. Under the terms of the section, criteria had to be satisfied if the seizure was to be valid. It had to be performed by a constable (other officers not material to the present case are also contemplated). Secondly, it has to be recoverable property. Thirdly, It has to be at least £1,000. Section 295(1) provides, as far as is material:

"While the constable continues to have reasonable grounds for his suspicion, cash seized under section 294 may be detained initially for a period of 48 hours..."

9. Under section 295(1)(b), when calculating the period of 48 hours in accordance with the sub-section, no account is to be taken of any Saturday or Sunday. If the relevant seizure occurred on 9 October, and given the intervening Saturday and the Sunday, it is common ground that on 13 October the Magistrates had power to make the order they did. Section 295(2) provides that "the period for which the cash...may be detained may be extended by an order made by a magistrates' court."
10. On behalf of the Chief Constable it was submitted that the three requirements in section 294 were satisfied, on and only on 9 October. Cash was seized by Detective Constable Donoghue, it was recoverable property and it was found to amount to more than £1,000. It is accepted by the Chief Constable that if the seizure by the officer, within the meaning of the section, took place more than 48 hours before the application to the court, the detention of the money was unlawful and the Magistrates ought not to have made the order under section 295(2).
11. On behalf of the claimant, it was submitted in grounds of claim that seizure under section 294 should be taken to have occurred at the time when the power of detention under section 22 had elapsed. That is on 1 October. Application to the court was not made within 48 hours. That was stated to be the single ground on which judicial review was sought. In a subsequent skeleton argument, prepared by counsel now appearing, the claimant attempted to broaden the scope of the inquiry.
12. In my judgment, the submissions, as put, go beyond what was stated to be a single ground of appeal. However, the respondent is not prejudiced and the broader nature of potential argument had been suggested in the original statement supporting the claim for judicial review. For the respondent, Mr Berry accepts that he is not prejudiced in presenting the respondent's case by the course events have taken. We have been prepared to consider the broader argument put to the court.
13. On the claimant's behalf, Mr Leake submitted in writing that where the power of retention under section 22 had lapsed, the cash must, first, be restored into the possession of the person from whom it was initially seized before any power to reseize arose under section 294. The power under section 22 lapsed on 1 October when the respondent decided to take no further action.
14. Mr Berry accepts that, on the present facts, the relevant date is 1 October when the decision was taken, rather than 3 October. A letter was sent to the claimant on 1 October informing him that there would be no further action, though it was only when he answered to his bail on 3 October that he became aware of that.
15. Reliance is placed by Mr Leake on the decision in R (on the application of Cook) v SOCA [2011] 1 WLR 144. In Cook, the Serious Organised Crime Agency obtained warrants under section 8 of the 1984 Act to search homes. It was later conceded that the execution of the warrants and seizure of material in the homes had been unlawful. Later, an officer of the Agency purported to reseize the documents by exercising powers under section 19 of the 1984 Act.
16. It was held that section 19 did not permit the further seizure at the police station of properly unlawfully obtained pursuant to an unlawful seizure. Before unlawfully seized property could lawfully be reseized, it had to be restored into the possession of the person from whom it had been taken. Destruction was not, however, ordered. The material obtained unlawfully could be admitted in evidence, subject to control by section 78 of the 1984 Act.
17. Leveson LJ gave the leading judgment in Cook. He stated, at paragraph 13:

"I readily accept that the words of section 19 are, on their face, sufficient to justify the further seizure of the property seized during the course of the execution of search warrants, which it is conceded was unlawful. That construction, however, is to deny the structure of the legislation and to fail entirely to have regard to the way in which the serious interference, which is the power to enter premises and seize property, is controlled. For my part, I reject the proposition that however unlawful the seizure of property, providing it ends up on premises at which the presence of a police officer is lawful, that officer can then convert what is unlawful possession into lawful possession."

Leveson LJ added, at paragraph 14:

"If the warrant does not comply with the law, seized goods have to be returned before they can lawfully be reseized through the power to do so. They must be restored into the possession of the person from whom they are taken."

18. Reliance is also placed on Webb v The Chief Constable of Merseyside Police [2000] QB 427 where it was held that the police had no statutory power to retain money where the person is entitled to its possession and was not convicted of a drug traffic offence. That decision, however, predates the 2002 Act.
19. The powers of the police were considered by Mr Justice Mitting in Chief Constable of Merseyside Police v Hickman and Preston [2006] EWHC 451 (Admin). Mr Justice Mitting considered the question he posed at paragraph 14:

"The basic question raised by this appeal is can cash seized under section 19 be reseized subsequently under section 294?"

The learned judge's answer was given at paragraph 24:

"Seizure under section 294 may, in my opinion, occur

at any time. Is there a special limitation on the exercise of the power to seize under

Section 294 because a different statutory power under section 19 has been exercised in

relation to the same property? I can see no principled reason why there should be. A

police officer entering premises for the first time cannot know what he will find. If he

expects to find cash, he cannot know how much he will find and whether it is above or

below the statutory minimum for the purposes of seizure under section 294."

20. Hickman was cited in Cook, Leveson LJ stating, at paragraph 12:

"Finally, and in any event, there is no doubt that property seized under one police power may be reseized under another, see Hickman, although that case involved a sum of money originally lawfully seized under section 19 of PACE and relevant to a prosecution for possession of drugs with intent to supply which it was held was lawfully reseized under the Proceeds of Crime Act 2002 after a conviction for simple possession."

21. In Gough v Chief Constable of the West Midlands Police [2004] EWCA Civ 2006, the Court of Appeal considered the powers of the police in circumstances such as the present. Carnwath LJ stated, at paragraph 44:

"If, as in this case, civil proceedings are commenced for return of the property (that is by the person from whom it was taken) then the police will have to give careful thought as to whether they are in practice able to defend those proceedings. I would accept that section 22(1) would enable them to retain the property for a short period while they are considering the position. However, if having considered the matter they are not able to offer a substantial defence then, for the reasons given by Mr Justice Park; they cannot show that it is necessary to retain it."

22. Mr Leake developed his submissions orally by stating that when the property was first seized in May 2009, concurrent grounds were available; that is both the section 19 ground and the section 294 ground. Mr Leake does not challenge the proposition stated by Mr Justice Mitting that section 294 powers can be exercised following the decision of 1 October. However, he submits that the criteria required by section 294 were satisfied in May 2009. At that time, a constable was involved in seizure, Detective Sergeant King, the money plainly was recoverable property and there was evidence that at least £1,000 was being seized.
23. Accordingly, he submits, as soon as the section 22 powers ceased to operate on 1 October, there was a deemed seizure of the money and, if application was to be made to retain it, it was required to be made within 48 hours of 1 October. If that submission fails, Mr Leake submits that the respondent was entitled to take only a short time in which to consider the position. Seizure should have occurred, if it was to occur, very soon after 1 October. He relies on the decision in Scopelight v Chief Constable of Northumbria [2010] QB 438 where it was held that the word "necessary" in section 22(1) of the 1984 Act:

"Means necessary for carrying out the purposes for which the powers given by section 19 have been conferred."

That need expired on 1 October. There had been a deemed seizure on that date, if any seizure occurred under section 294.

24. In relation to the events of May, Mr Leake submits that the property involved was both criminal property, for the purposes of the 1984 Act, and recoverable property, for the purposes of the 2002 Act. The section 19 powers were very general and on these facts the powers under section 294 were concurrent with them.
25. On his second submission, Mr Leake states that it was necessary for the respondent to consider whether he could defend a claim for retention under section 22 on 1 October. He was not entitled to take eight days before making a decision. There was dilatory conduct, a week was too long in which to take the decision to act under section 294. The minimum sum was, in fact, exceeded and a seizure, if it occurred at all, occurred on 1 October.
26. For the respondent, Mr Berry submits, in reliance on the statement of Carnwath LJ in Gough, that the respondent had what counsel describes as, "a short period of grace" in which to consider his position after 1 October. I agree with that proposition. The remedy of a claimant if there is a delay is by way of abuse of process, as Mr Justice Mitting contemplated in Hickman. The period involved was a matter of days and very much shorter than the equivalent period in Hickman.
27. Three possible justifications arise, as stated by Mr Berry in his submissions. There should be time for the police to consider whether they are able to defend civil proceedings for the return of the cash, as in Gough. Second, time for the police to consider whether to seize the cash under section 294 and, third, time to organise the return of the seized cash if appropriate. These factors all point towards a period of grace, as counsel calls it, referred to by Carnwath LJ in Gough.
28. In relation to the deemed seizure argument, he submits that section 294 is not a general catch-all power; it requires specific tests to be satisfied. It confers a personal power on a constable. He refers to the decision of the House of Lords in O'Hara v Chief Constable of Royal Ulster Constabulary [1997] AC 286. Lord Steyn stated at page 293:

"How can the badge of the superior officer and the fact that he gave an order make a difference in respect of a statute vesting an independent discretion in the particular constable and requiring him personally to have reasonable grounds for suspicion? It would be surprising if seniority made a difference. It would be contrary to the principle underlying section 12(1) which makes a constable individually responsible for the arrest and accountable for his law."

For the power under section 294 to be exercised, Mr Berry submits, a constable must address his mind to the section 294 criteria. I agree with that proposition.

29. I have expressed conclusions in the course of summarising submissions, but I put my general conclusions as follows. 1)The money was lawfully seized in May 2009 under section 19 of the 1984 Act.

2)It was lawfully detained, at least until 1 October 2009, under section 22 of that Act.

3)The right to detain by virtue of section 22 ended on 1 October 2009.

4)Cash seized under section 19 of the 1984 Act can subsequently be reseized under section 294 of the 2002 Act (Hickman and Cook).

5)Section 22 of the 1984 Act permits the police to continue to retain any property for a short period while they are considering the position (Gough, Carnwath LJ).

6)At no time between 3 October and 9 October did the appellant request the return of the money or commence proceedings for its return.

7)If a decision is taken to apply to retain the money under section 294 of the 2002 Act within a reasonable time, which in the circumstances must be a short time in the context of section 22 powers, the section 294 power may be exercised without first returning the money to the claimant.

8)The requirement first to return arose in Cook because, and only because, the original seizure had in that case been unlawful. The present case is plainly distinguishable. 9)A seizure under section 294 must be effected by a constable, or other officer specified in the section, and must comply with the requirements of the section. The constable must have reasonable grounds for suspecting that the money is recoverable property and it must be not less than £1,000. It was only on 9 October when Constable Donoghue became involved that those requirements were satisfied.

10)I do not accept there was a deemed seizure on 1 October. Seizure is a formal act and it is for a constable to make it and to decide whether the criteria are satisfied.

11)It was not in dispute, because of the other criminal proceedings against the claimant, that the money was recoverable property under section 294(1). It was only on 9 October, when he became involved, that Constable Donoghue had grounds to suspect that it was recoverable property and that the amount of money was known to him.

12)The lapse of time between the lapse of the 1984 Act powers and the exercise of the 2002 Act powers was within the period of time which, in present circumstances, was permitted to the police to consider their position.

13)The order under section 295(2) was lawfully made.

30. For those reasons, I would refuse this application.
31. MR JUSTICE SUPPERSTONE: I agree.
32. LORD JUSTICE PILL: Are there any applications?
33. MR BERRY: My Lord, simply the matter of costs. It is my understanding that the claimant has the benefit of public funding. Therefore, I would simply ask for the order that the claimant, Jawaid Iqbal, do pay the defendant's costs to be subject to detailed assessment, but not to be enforced without inquiry as to his means as he is publicly funded. That is my application.
34. MR LEAKE: My Lord, unless I was able to persuade you that there was some aspect of public interest involved in this case, I don't think I can --
35. LORD JUSTICE PILL: Should your wording not be somewhat different, Mr Berry, because on your wording as long as inquiries are made then the power can be exercised. Is that what you intend, or must the inquires show something?
36. MR BERRY: Well, perhaps a simpler wording would be more effective then, simply that there be detailed assessment of the claimant's publicly funded costs.
37. LORD JUSTICE PILL: Well, you would make that application anyway. Yes, you make that application, but whether we should make an order inter partes is more questionable. Do you pursue that?
38. MR BERRY: Well, my Lord, we do seek our costs. Obviously you can enforce without --
39. LORD JUSTICE PILL: Yes, what are the powers? On appeal, where I usually consider these applications, different considerations apply. What considerations apply at first instance with a legally aided loser?
40. MR BERRY: Yes, well, my understanding is that courts are not ordinarily summarily assessed where you do not have sufficient information to deal with the claimant's means.
41. LORD JUSTICE PILL: Well, we cannot in the case of a legally aided person, that is a different issue. A simpler order which I would be more used to, and my Lord has just mentioned it, is that you should have your costs not to be enforced without leave of the court.
42. MR BERRY: Yes, my Lord, that would be a much simpler way of expressing it.
43. LORD JUSTICE PILL: Yes. It used to be called a football rules order, I think it is called a lottery order now. Do you have any objection to that, Mr Leake?
44. MR LEAKE: My Lord, no.
45. LORD JUSTICE PILL: Mr Berry has to come to the court if he seeks to enforce it.
46. MR BERRY: My Lord, yes.
47. LORD JUSTICE PILL: So be it. Thank you.