QUEEN'S BENCH DIVISION
Strand, London, WC2A 2LL
B e f o r e :
MR JUSTICE WILKIE
| PCJ VAN DER PIJL
JPM DE GREEF
|- and -
|THE CROWN COURT AT KINGSTON
THE COMMISSIONER OF THE METROPOLITAN POLICE
THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
1st Interested Party
2nd Interested Party
James Lewis QC & James Hines (instructed by Director of Legal Services)
for the 1st Interested Party
Ben Watson (instructed by Treasury Solicitors)
for the 2nd Interested Party
Hearing date: 4th December 2012
Crown Copyright ©
MR JUSTICE WILKIE:
a) A small number of documents which were acknowledged potentially to attract legal professional privilege were returned to the claimants. There are no outstanding issues of legal professional privilege.
b) Documents acknowledged to be irrelevant to the case were returned to the claimants.
c) Documents falling within the terms of the search warrant of 12th April 2011 were retained by the police. This material is currently the subject of an application by the claimants for its return pursuant to s.59 of the 2001 Act.
d) Documents which, though not within the terms of the search warrant, were caught by an order made on 6 July 2011 by Kingston Crown Court pursuant to section 59 of the 2001 Act, were retained by the MPS pending determination by the Crown Court of the claimants' s.59 application.
The underlying facts said to support the search warrant and Section 59 orders.
The request of 2nd March 2011
29. Legal assistance was requested on the basis that,
"there are indications that important evidence for this criminal case can be found within your jurisdiction. You are kindly requested to carry out the following investigative acts".
" If these offences occurred in the UK they would be indictable offences namely cheating the public revenue, contrary to common law and money laundering, contrary to s.329 Proceeds of Crime Act 2002 s.16(1)(b) CICA and s.8(1)(a) and Schedule 1 PACE
There is likely to be material present on the premises in question of substantial and relevant value to the offence under investigation s.8(1) and Schedule 1(b-c) PACE
There are grounds for believing that special procedure material will be found s.9(1) and Schedule 1 PACE
Access to the premises is not likely to be granted unless a warrant is produced s.8(3) and Schedule 1 PACE"
"I have taken some time to try and absorb the information that you have helpfully brought, to understand the situation the search warrant is straight forward and from what I have read I have no problem with granting that "
The law relevant to the grant of the search warrant
The 2003 Act
"Where a request for assistance in obtaining evidence in a part of the United Kingdom is received by the territorial authority for that part, the authority may
(b) direct that a search warrant be applied for under or by virtue of section 16 "
(1) "Part 2 of the Police and Criminal Evidence Act 1984 is to have effect as if references to indictable offences in section 8 of, and Schedule 1 to, that Act included any conduct which
(a) constitutes an offence under the law of the country outside of the United Kingdom and
(b) would, if it occurred in England and Wales, constitute an indictable offence."
(2) But an application for a warrant or order by virtue of subsection (1) may be made only
(a) in pursuance of a direction given under section 13 "
The Police and Criminal Evidence Act 1984
"(1) A constable may obtain access to excluded material or special procedure material for the purposes of a criminal investigation by making an application under Schedule 1 below and in accordance with that Schedule."
"(1) This section and section 16 below have effect in relation to the issue to constables under any enactment, including an enactment contained in an Act passed after this Act, of warrants to enter and search premises and an entry on or search of premises under a warrant is unlawful unless it complies with this section and section 16 below.
(2) Where a constable applies for any such warrant it shall be his duty
(c) to identify so far as is practical the articles or persons to be sought.
(3) An application for such a warrant shall be made ex parte and supported by an information in writing.
(4) The constable shall answer on oath any question that the Justice of the peace or Judge hearing the application asks him
(6) A warrant
(b) shall identify so far is practicable the articles or persons to be sought"
(1) If, on an application made by a constable, a Judge is satisfied that one or other of the sets of access conditions is fulfilled, he may make an order under paragraph 4 below.
(2) The first set of access conditions is fulfilled if -
(a) there are reasonable grounds for believing -
(i) that an indictable offence has been committed
(iii) that the material is likely to be of substantial value to the investigation in connection with which the application is made and
(iv) that the material is likely to be relevant evidence
(b) other methods of obtaining the material -
(ii) have not been tried because it appeared that they were bound to fail.
Submissions, discussions and conclusions
The Search Warrant
McGrath v Chief Constable of the Royal Ulster Constabulary  UKHL 39, Lord Clyde (in the context of an arrest warrant) said at Paragraph 18:
"The warrants must be sufficiently clear and precise in their terms so that all those interested in their execution may know precisely what are the limits of the power which has been granted"
In R(Energy Financing Team Ltd) v Director of the SFO  EWHC 1626 (at paragraph 24, conclusion (5)), Lord Justice Kennedy said:
" The warrant needs to be drafted with sufficient precision to enable both those who execute it and those whose property is affected by it to know whether any individual document or class of document falls within it. If that is done it seems to me that the specificity required will be no less than would be required for a notice under s.2(3) were it practicable to serve such a notice and although the terms of the warrant may be wide it will not simply be fishing if it is directed to support an investigation which has apparent merit."
In the same case at paragraph 37, Mr Justice Crane said:
" a warrant should be capable of being understood by those carrying out the search and by those who premises are being searched without reference to any other document".
In the case of R(Anand) v HMRC  EWHC 2989 (Admin), a review of the authorities was undertaken. It was pointed out that the approach of Lord Justice Kennedy and Mr Justice Crane in Energy Financing Team Ltd had been followed in the case of Gittins v Central Criminal Court  EWHC 131 (Admin) and Power-Hynes and Another v Norwich Magistrates Court and Another  EWHC 1512 (Admin). The court in Anand, accordingly, followed it..
"That there were reasonable grounds for suspecting that a fraud offence, which appears to be of a serious nature under the Value Added Tax Act 1994 has been committed or is currently being committed on (the premises of the main office) or that evidence of commission of such an offence is to be found there."
The warrant authorised officers to enter those premises and;
"search them for evidence relating to the commission of this offence including "
( four generic paragraphs one of which provided ):
" Any other items or information which reasonably appears to the officers to be evidence in relation to the suspected VAT fraud offences which appear to be of a serious nature"
"for evidence relating to the commission of this offence"
including the items set out in the four paragraphs of which complaint was made. Lord Justice Kennedy then said;
"They are all introduced and governed by the words which I have emphasised, so, for example, to any officer who was properly briefed, there would be no doubt as to the identity of the VAT registered businesses expected of being involved in the VAT fraud offences and not all documentation and correspondence relating to those businesses could be searched. Only that capable of constituting evidence relating to the commission of the suspected offence. The same limitation applied to all four lettered paragraphs "
"There is, perhaps, some tension between Kennedy LJ's statement in R (Energy Financing Ltd) that a warrant should be capable of being understood by those carrying out the search and by those whose premises are being searched without reference to any other document on the one hand and his statement in Da Costa that, "to any officer who was properly briefed" there would be no doubt as to the identity of the VAT registered businesses suspected of being involved in VAT Fraud offences. However, in my view, what emerges from the authorities is that, in the words of Lord Woolf, it is necessary to approach search warrants in a case such as this with a sense of proportion to the type of issue which are embraced in an investigation of this scale. It is also legitimate when considering a general category of documents to have regard to the whole warrant. The fourth category referred to money laundering offences and, although the three offences referred to in paragraph 33 of the information were not identified in the warrant, the first three categories of documents condescended to a considerable degree of detail and particularity. In my view both the claimants and those executing the warrants would be able to know whether any individual document or class of documents fell within the terms of the warrant. Accordingly, in my view, this ground of challenge to the search warrant claim is also unarguable."
"Nor am I able to accept Mr Barne's fourth submissions. His argument ignores two factors. First the warrants issued on 11 April 1997 all contained the limiting words, "all relating to the stated offence." That the offence is not stated in the warrant is nothing to the point. It had been stated to the magistrate and the applicants accept for present purposes that there were reasonable grounds for believing that offence had been committed. Thus the warrants provided no authority for seizure of a document or other record simply because it was found on the premises searched and fell within one of the four numbered categories set out in them. It had to be related to the stated offence ."
"24 On the facts of Power-Hynes it was unnecessary for the court to decline to follow Fitzpatrick, but the language of the court was disapproval. The issue is not whether the warrant fulfils the purposes of section 8 but whether its terms comply with section 15(6)(a) and (b). As the headnote to section 15 demonstrates, it is intended that the requirements of section 15 shall be "safeguards".
25 Mr Bird valiantly argues that the officers who executed the present warrant were also briefed as to the nature of their investigation, including the names of the companies and individuals suspected, accordingly while the warrant appeared to be unlimited in scope the search would not be unlimited in scope. If a question had been asked as to the breadth of the investigation concerned, then the claimant could have been told.
26 In my judgment the present warrant did not conform with section 15(6)(b) because it failed to specify in respect of what business or investigation the articles were sought .
27 With respect to the court in Fitzpatrick, I conclude that the requirements imposed by section 15 are independent from those imposed by section 8. Section 8 identifies the matters of which the justice of the peace must be satisfied before a warrant may be issued section 15(6) concerns not the grounds on which the warrant is issued, but the contents of the warrant which identifies the material which the officer is entitled to seek under section 8(2)"
The consequences of our decision on the search warrant
The statutory provisions.
Part 2 of the 2001 Act
(a) a person who is lawfully on any premises finds anything on those premises that he has reasonable grounds for believing may be or contain something for which he is authorised to search on those premises
(b) a power of seizure to which this section applies would entitle him, if he found it, to seize whatever it is that he has grounds for believing that thing to be or contain, and
(c) in all the circumstances, it is nor reasonably practicable for it to be determined on those premises
(i) whether what he has found is something that he is entitles 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"
"Where a person exercises a power of seizure conferred by s.50 it shall be his duty on doing so to give to the occupier of the premises a written notice
(a) specifying what has been seized on reliance on the powers conferred by that section
(b) specifying the grounds on which those powers have been exercised
(c) setting out the effect of s.59 s.61
(d) specifying the name and address of the person to whom notice of an application under s.59(2) to the appropriate judicial authority in respect of any of the seized property must be given "
"(1) This section applies where anything has been seized in exercise or purported exercise of a relevant power of seizure"
"(a) The powers of seizure conferred by s.50 and s.51 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."
"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 part of the seized property"
(a) That there was no power to make the seizure.
"The appropriate judicial authority
(a) on 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
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.
"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 seizure the property "
"(a) a person from whom it was seized
(b) any person with an interest in the property
(c) any person not falling within paragraph (a) or (b) who had custody or control of the property immediately before the seizure.
Rule 39 of the Crown Court Rules 1982 (SI 1982 No1 109)
There is, however, no explicit provision requiring a person having for the time being possession of the property, who makes an application pursuant to s.59(5) for an order under s.59(6), to give notice of that application to any other person having a relevant interest in the seized property.
Remedies beyond orders quashing these decisions
1. I would make an order quashing the decisions of the Kingston Crown Court on 12th April 2011 and 6th July 2011, respectively, granting a search warrant, and making orders under s.59 of the 2001 Act in respect of the property seized by the police from the claimants' residence on 27th April pursuant to the search warrant granted on the 12th April 2011.
2. I would order the MPS to return to the claimants all such property seized and any copies of that material, which is currently in its possession, within 14 days of this Court's order unless, within that period, the MPS has made an application to the Crown Court at Kingston, pursuant s.59(5) of the 2001 Act, for an order, pursuant to s.59(6), authorising retention of that property on the grounds that the conditions in s.59(7) of the 2001 Act are satisfied.
3. On the undertakings of the MPS and the Secretary of State for the Home Department forthwith to inform the Dutch authorities of the order made by this Court in 1 above, and to use their best endeavours to persuade the Dutch authorities to return, to the MPS or the Secretary of State, the property and any copies of that material of the claimants, seized pursuant to the search warrant of 12th April 2011. I would make no substantive order save for 4.
4. An order that the MPS and/or the Secretary of State for the Home Department shall, within 14 days of the return to them of such property and any copies of that material by the Dutch authorities, return that property to the claimants unless, within that period, the MPS and/or the Secretary of State have made an application to the Kingston Crown Court, pursuant to s.59 of the Criminal Justice and Police Act 2001, in respect of that property for an order under s.59(6) of that Act on the ground that the conditions in s.59(7) are satisfied.
SIR JOHN THOMAS, PQBD:
1. I agree. I merely wish to add some observations.
2. First, it is of the greatest importance, for reasons that have been made clear in a number of cases, that a judge granting a warrant must give reasons. Arrangements must be made at the Crown Courts to ensure that the judge has time for this to be done.
3. Second, in the circumstances of this case there was no reason whatsoever why the words "suspects" was used in the warrant. The names of the claimants should have been specified. The principles are clearly set out in the authorities to which Wilkie J has referred at paragraph 53. The person on whose premises the warrant is executed is entitled to know from the warrant as a whole what is covered by it. In the circumstances of this case, even reading the warrant as a whole, that was not possible.
4. Thirdly, Wilkie J has drawn attention at paragraphs 81-84 to the provisions of the Criminal Procedure Rules governing applications made under s.59 of the 2001 Act. It was plain from the argument before us that the Rules did not make it sufficiently clear that, save where an urgent ex parte application was required, applications under s.59 must be inter partes and therefore those with a relevant interest in the documents ought to be served. The court would invite the Criminal Procedure Rule Committee to consider the Rules in the light of what has happened in this case.