England and Wales High Court (Administrative Court) Decisions

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

		Royal Courts of Justice Strand, London, WC2A 2LL
		21/12/2012

MR JUSTICE WILKIE:

Introduction

1. This claim concerns the validity of a search warrant granted by the Crown Court to the Metropolitan Police Service (the MPS) pursuant to section 9(1) and Schedule 1 of the Police and Criminal Evidence Act 1984 (the 1984 Act) and the validity of orders of the Crown Court pursuant to section 59 of the Crime Justice and Police Act 2001 (the 2001 Act) permitting the MPS to retain material seized by it, purportedly pursuant to the search warrant. In each case the MPS was directed, pursuant to the provisions of the Crime International Cooperation Act 2003 (the 2003 Act), to make the applications by the United Kingdom Central Authority, a department of the Home Office, after receiving a request for mutual legal assistance from the Dutch authorities.
2. The claimants are Dutch nationals who reside in the United Kingdom at an address in West London from which they carry out business activities and at which they keep a large quantity of business records, in hard copy and computerised form.
3. On 25^th February 2011 the District Court in the Hague, on an application by the Public Prosecutor dated 21^st February, and based on a report drafted on 3^rd February, granted an application for an order that a search be carried out at the claimants' address in West London.
4. The examining Judge was of the opinion that there was "sufficient suspicion" that the Defendants were guilty of a violation of Sections 140 and 420 of the Dutch Criminal Code 420 to justify a search of the claimants' address. As that was in England, the order authorised a request that the English authorities carry out the search.
5. On the 2^nd March 2011 a request was made to the United Kingdom Central Authority for legal assistance, which included a police search of the claimants' address. The request asked the UK authority to pay specific attention to certain classes of material which were set out in seven categories. Those categories were reproduced, virtually verbatim, in the search warrant the subject of the first challenge.
6. The request identified a number of companies which were relevant to the investigation. It was supplemented, on the 9^th March 2011, by a further request which added three further companies to those previously identified.
7. The request, initially, went to the Judicial Co-operation Unit of the Home Office. Pursuant to its powers under Section 13 of the 2003 Act, on 7 April 2011 it directed the MPS to apply for a search warrant pursuant to Section 16 of the 2003 Act.
8. On 12^th April 2011 an application, supported by an information on oath, was made to the Kingston upon Thames Crown Court by Detective Constable Steeples for the issue of a warrant under Section 16 of the 2003 Act and Section 9(1) and Schedule 1 of the 1984 Act. Her Honour Judge Tapping granted the search warrant. That is the first decision subject to challenge.
9. The warrant was executed on the 27^th April 2011. On the same date the claimants were arrested, pursuant to a parallel European Arrest Warrant dated the 14^th April 2011.
10. On 4^th May 2011 an order for the claimants' extradition was made by the City of Westminster Magistrates Court. On 9^th May those orders were appealed but, on 8^th July, the appeals were withdrawn. They were duly extradited to the Netherlands on 25^th July where they were subject to investigatory interviews. After those interviews had been completed the claimants were released.
11. In the course of the search on 27^th April 2011 three categories of material were seized: (1) paper files covered by the warrant; (2) paper files marked "legal"; (3) computer images.
12. Categories 2 and 3 are said to have been seized pursuant to Section 50 of the 2001 Act.
13. The paper files which appeared to be covered by the warrant were transmitted to the Dutch authorities, with permission of the UKCA, on 28^th April 2011.
14. The paper files marked "legal" were seized for subsequent examination and sift pursuant to the 2001 Act. That material was intended not to be handed over to the Dutch police until the sift was completed.
15. The present position, following the grant of permission by Mr Justice Owen at an oral hearing on 29^th May 2012, in relation to these paper files is as follows:

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 12^th 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.

16. The computers were all imaged at the scene of the search by a digital examiner pursuant to Section 20 of the Police and Criminal Evidence Act 2001. The images were handed to the officer in charge of the search, Detective Sergeant Coutts. Those image files were taken to the Netherlands and a sift conducted there between the 26^th – 30^th June 2011 in the presence of independent counsel. She removed any files deemed to be governed by legal professional privilege.
17. It became apparent, in the course of that sifting process, that some material on the computer related to other companies which were neither identified on the warrant nor in the request for legal assistance. DS Coutts informed the Dutch authorities that they could not have that material as it was not covered by the warrant. That material was removed and stored separately. The Dutch authorities were informed that, if they wanted to have that material, they should submit a further letter of request to the UKCA seeking the seizure of material relating to these companies.
18. On the 4^th July 2011 the Dutch authorities issued to the UKCA a letter of request for material identified in the sift as not covered by the original warrant. On 8^th July that new request was approved by the UKCA and was passed to the MPS. In the meantime, on the 6^th July, an application was made by the MPS, without notice to the claimants, to Kingston Crown Court seeking orders pursuant to Section 50 and 59 (1)(6)(7) of the 2001 Act. The orders sought were to authorise retention of, respectively, the computer images which were taken from the claimants' address on 27^th April 2011 and any material seized during the search at these premises which relates to companies owned, controlled or utilised by the claimants.
19. Those applications were supported by a statement of Detective Sergeant Coutts dated 6^th July. DS Coutts stated that he attached the supplemental request which had been provided by the Dutch authorities. It appears that this statement was inaccurate. That request, though received by UKCA on 4^th July, was not formally passed on to the MPS until 8^th July. It is unnecessary for us to reach any final conclusions on this aspect of the case, which has not been the subject of detailed submissions.
20. The orders made by the Kingston Crown Court on 6^th July, pursuant to the 2001 Act, are the subject of the other challenges.
21. On 14^th July 2011 judicial review claims were issued in respect of all three decisions. Mr Justice Holman granted an interim injunction restraining the MPS from handing over any of the retained material to the Dutch authorities.
22. On 20^th January 2012, Mr Justice Burnett, on the papers, refused permission to apply for judicial review. Amongst other reasons, he concluded that the challenge to the retention of the material still held in the UK should be made to the Crown Court pursuant to s.59 of the 2001 Act which, he said, provided a suitable alternative remedy
23. On 3^rd February 2012 notice of renewal of the application for permission was lodged and, on 29^th May 2012, Mr Justice Owen gave permission: in respect of the search warrant, on one of the two grounds; and in respect of the s.59 orders, on the basis that, if the search warrant application were to succeed, then there could be no lawful basis for the s.59 orders. Beyond that, he did not indicate the extent to which the grounds put forward in respect of the s.59 order were arguable.
24. In the meantime, an application had been made to the Crown Court by the claimants pursuant to s.59 for the return of the material seized. A hearing of this application was held before HHJ Price QC on 26 March 2012. That hearing was adjourned part heard pending the sift of material to which I have referred above and the oral permission hearing in these proceedings. It appears that on 1 May 2012, the claimants made a further application to the Crown Court, pursuant to s.59, for the return of material seized. Both those applications have yet to be heard.

The underlying facts said to support the search warrant and Section 59 orders.

The request of 2^nd March 2011

25. The request was made in respect of the claimants and Mr Ritsema who, it was said, had emerged as suspects of committing tax fraud, concerning corporate tax, and of money laundering arising from the tax fraud. Those offences are punishable by Sections 140 and 420 of the Dutch Criminal Code.
26. The criminal enterprise alleged can best be described as follows: the claimants are alleged to have obtained €9.5 million by targeting at least ten Dutch companies which owed corporation tax, but had cash available to discharge that liability. Those target companies were purchased through companies owned and controlled by the claimants. The target companies entered into over the counter derivative transactions with Norwegian companies, also owned and controlled by the claimants. These transactions always resulted in a loss to the target companies and profit to the Norwegian companies. No tax fell to be paid by the Norwegian companies in Norway on those transactions.
27. The allegation is that the derivative transactions were a sham with no real economic loss suffered by the target companies. No real money changed hands. The claimants controlled the companies on both sides of the derivative transaction. The losses sustained by the target companies were virtual rather than real. Nonetheless, those losses were claimed to be set against Dutch corporate tax for which the target company had cash available. Those losses were sufficient to reduce the corporation tax liability to zero. The cash in the target companies was diverted to the conspirators, including the claimants.
28. The letter of request contained a detailed description of the case including: a description of the types of Dutch companies targeted; their common features; the nature of and control over the Norwegian companies; and the identity of and control over English companies involved. In addition there was detailed information describing the role of the suspects, including the claimants, within the organisation and their involvement with the various companies involved in the scheme.

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".

29. The first request was for a police search of the claimants' residence. The request set out the basis upon which it was believed that documents and data could be found at that address. It identified the categories of material and identified the companies said to be involved, setting them out in a list which reflected the then state of the investigation. In respect of five of the seven categories of material, reference is made to "the suspects". In the context of the request, it is clear that "the suspects" were the claimants and Mr Ritsema.
30. The Information presented by DC Steeples, in support of the application for the search warrant, summarised the history of the case. The text of that summary is lifted from the letter of request. The Information also refers to the supplemental request dated 15^th March which added three companies to the list annexed to the original request.
31. The Information sets out what it claimed to be the relevant law. It identified Section 9(1) and Schedule 1 of the 1984 Act, as applied by the 2003 Act. It set out the terms of s.13 and s.16 of the 2003 Act and stated that those sections allowed the Court to grant a search warrant in aid of an international criminal investigation, if the relevant provisions were satisfied.
32. The Information set out, in a series of bullet points, why it was said that the 2003 Act provisions were satisfied.
33. The Information purported to set out why certain of the conditions for the grant of a warrant prescribed by the 1984 Act were also met in the following terms:

"• 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"

34. On that basis it was asserted that the conditions in the 2003 and 1984 Acts for the issue of a search warrant were met.
35. The application was made on the 12^th April. D C Steeples confirmed, on oath, that the contents of the Information were true to the best of her knowledge. The Judge then said as follows:

"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…"

36. The Judge did ask if the involvement of Norwegian companies was being pursued in Norway, which was confirmed. She also asked that it be confirmed that she was not asked to make production orders in relation to UK bank accounts. That too was confirmed. Other than these exchanges, there was nothing said and no reasoned judgment.
37. The search warrant was granted. Its terms state that it was on application by DC Steeples, supported by an Information on oath. The warrant was said to have been sought under s.16 of the 2003 Act and s.9(1) and Schedule 1 of the 1984 Act. The warrant was to enter the premises and search for seven, listed, categories of material. That list has been lifted, virtually verbatim, from the letter of request. In relation to categories 3, 4, 5, 6 and 7 the text refers to "the suspects" in the description of the material for which the warrant was providing legal cover. The warrant gave authority for "any constable" and a number of specific named individuals to enter the premises, on one occasion, within 3 months and to search for the listed material.

The law relevant to the grant of the search warrant

The 2003 Act

38. Section 13(1) provides:

"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 …"

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

39. Section 9:

"(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."

40. It is common ground that some, at least, of the material the subject of the search warrant was excluded material or special procedure material so that this was the appropriate procedure to be adopted.
41. Section 15: Search warrants – safeguards

"(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"

42. Schedule 1:

(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

43. The claimants contend that certain of the conditions prescribed by Schedule 1 are not satisfied and that, accordingly, the grant of the warrant was unlawful.
44. In brief, those contentions are that the material placed before the Judge, including the letter of request and the Information, were not such as could satisfy her that there were reasonable grounds for believing: that an indictable offence had been committed; that the material was likely to be of substantial value to the investigation; or that the material was likely to be relevant evidence.
45. First, it is asserted on behalf of the claimants that, at its highest, the letter of request discloses a description of an investigation which had reached a preliminary stage and contained no material upon which a Judge could properly have concluded that there were reasonable grounds for concluding that the offences of cheating the revenue or money laundering had actually been committed. Grounds only for suspicion were established.
46. Second, it is said that, although it is asserted that there was a great deal of material at the residence of the claimants which might be relevant to the investigations, there is no process of reasoning by which the Judge could properly have concluded that there were reasonable grounds for believing that the material was likely to be of substantial value to that investigation.
47. Third, it is argued that, even if the first two conditions were satisfied, there is nothing in the request, or the Information, sufficient to enable the Judge to conclude that the material sought is likely to be relevant evidence. It is pointed out that this is a requirement where the vehicle for seeking access is the 1984 Act. Other enactments, for example governing the investigation of serious fraud, permit warrants to be granted to other bodies, such as the Serious Fraud Office, do not have this additional requirement. The Secretary of State, having chosen to direct this request to the MPS, pursuant to s.13, has selected a vehicle with more onerous conditions attached. The Dutch request and the Information do not, it is argued, address that distinction. The Information, though purporting to give guidance to the Court on the conditions which must be satisfied and on whether they are satisfied, does not contain any reference to this condition.
48. The inference we are invited to draw from that absence, coupled with the absence of a reasoned ruling, is that this issue has not been addressed by the Court. We should, therefore, not conclude that this condition has been satisfied.
49. Mr Lewis QC, for the MPS, has taken us through the request in some detail and has highlighted those passages, of which there are many, in which, either explicitly or by necessary inference, the assertion is made that offences, equivalent to cheating the revenue and money laundering the proceeds, have been committed; that the material is likely to be of substantial value to the investigation; and that the material is likely to constitute relevant evidence. I am satisfied, having been taken through the request, that, looking at it as a whole in conjunction with the Information, there were reasonable grounds for the Judge to believe that each of the conditions was satisfied. On this first argument of the claimants I would not be minded to grant a judicial review of the search warrant.
50. However, the claimants also seek to review the search warrant on the basis that s.15(6) has not been satisfied. If that be the case, then, by virtue of section 15(1), an entry on, or search of, premises under authority of that warrant would be unlawful.
51. The attack on the warrant was made in a number of respects, however, in my judgment only one of those is of any substance. That is the argument that the use, in describing five of the seven categories of material, of the phrase "the suspects" is too vague to satisfy s.15(6)(b), which requires the warrant to identify, so far as is practicable, the articles or persons to be sought.
52. The proper approach to this question is not in dispute and can be summarised by reference to a number of citations from the relevant authorities. These are:

McGrath v Chief Constable of the Royal Ulster Constabulary [2001] 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 [2005] 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 [2012] 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 [2011] EWHC 131 (Admin) and Power-Hynes and Another v Norwich Magistrates Court and Another [2009] EWHC 1512 (Admin). The court in Anand, accordingly, followed it..

53. The claimants' case is that there is nothing in the warrant which helps to identify who "the suspects" might be. Accordingly, it is impossible, within the four corners of the warrant, for a person executing it, or a person whose premises are being searched pursuant to it, to be able to identify precisely what the warrant authorises by way of seizure in respect of those five categories.
54. Mr Lewis QC, for the MPS, accepts that, as a matter of fact, this submission is correct. He argues that, if one looks at the warrant in conjunction with the Information supporting its grant and/or the Dutch request for legal assistance, it immediately becomes obvious that the suspects are the claimants and Mr Retsema. Accordingly, it is argued, any constable who is, to any extent, briefed in the matter would know who the suspects are and, accordingly, would know whether any individual document or class of material would, or would not, fall within the warrant. The subject of the warrant could, by asking the constable, immediately be so informed so as to enable that person to know whether or not the constable was acting within, or outwith, its ambit.
55. The claimants' response is that there is a distinction between section.15(6), on the one hand, and other provisions in section 15 and Schedule 1 on the other. The latter provisions concern the processes by which the order is made and require the Judge to come to conclusions on whether the relevant conditions are satisfied.
56. Section 15(6), however, addresses, not the process of application but the warrant itself, which is the only document which provides lawful cover for what otherwise would be an unlawful act. Accordingly, (as recognised by Mr Justice Crane) the warrant must be judged by reference to its own terms exclusively and not by reference to any other material source.
57. Mr Lewis QC for the MPS argues that there is authority for the proposition that whether, or not, the warrant satisfies s.15(6) may be ascertained by looking outside the four corners of the warrant. He relies on Burgin v Commissioner of Police of the Metropolis [2011] EWHC 1835 (Admin). In that case, reference was made to another decision in which Lord Justice Kennedy gave judgment, which pre-dated Energy Financing Ltd. In that case, R(Da Costa & Co and Another) v Thames Magistrates Court and HM Commissioner of Customs & Excise [2002 EWHC] 40 (Admin), complaint was made in respect of a warrant. The warrant itself recorded that the District Judge was satisfied;

"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"

58. Lord Justice Kennedy, at paragraph 18 of his judgement, described the complaints in relation to this as misconceived. He explained that the warrant entitled the officers to enter the specified premises and search them:

"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 … "

59. Mr Justice Stadlen, in his judgment in Burgin, said at paragraph 86;

"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."

60. In my judgment Mr Lewis QC is wrong to rely on Burgin v Commissioner of Police of the Metropolis as authority for the proposition that it is legitimate for the court, considering a complaint about s.15(6) of the 1984 Act, to have regard to material in addition to the terms of the warrant, taken as a whole. It is clear from the terms of Mr Justice Stadlen's judgment in Burgin that, looking at the terms of the warrant in that case as a whole, the terms of that part of the warrant about which complaint was being made did satisfy the requirement of specificity. Furthermore, it is equally clear, in my judgment, that, in Da Costa, which in any event predated Energy Financing Team Ltd, Lord Justice Kennedy's reasoning was that the full terms of the warrant provided the context which elucidated that part of it which, on its own, may have appeared unspecific. In my judgment nothing more than that is to be read into what he said.
61. Mr Lewis QC, in a written submission lodged after the hearing, sought, in addition, to rely on a passage in the judgment of Lord Justice Rose in R(Fitzpatrick) v Chief Constable of Warwickshire [1999] 1WLR 564.
62. In that case, which was not cited to the court in Energy Financing Team Ltd, the words on the search warrant limited the ambit of the search to materials "all relating to the stated offence". The offence was not, however, stated on the face of the warrant. Lord Justice Rose, at 572G said

"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…."

63. This authority was relied on by the first defendant in Anand and was addressed by the court at paragraph 19 and following of the judgment of Lord Justice Pitchford with which Mr Justice Foskett agreed. Lord Justice Pitchford embarked on a review of subsequent authorities including Power-Hynes. He cited passages, paragraphs 21-23, from the judgment of Lord Justice Stanley Burnton in which he distinguished Fitzpatrick on its facts. Lord Justice Pitchford then addressed Fitzpatrick more directly, at paragraphs 24-27.

"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)"

64. In my judgment Lord Justice Pitchford was correct to decline to follow Fitzpatrick as a matter of construction of the 1984 Act. Furthermore, in so doing, he was consistent with the weight of authority decided since Fitzpatrick, which takes Energy Financing Team Ltd as authoritative. This reassures me that the authorities have spoken, in this respect, with one voice since Fitzpatrick which I too decline, with respect, to follow .
65. On that basis, looking at the warrant as a whole, the descriptions of the five categories of material, of which complaint is made, do not satisfy s.15(6) even when taking the warrant as a whole. They would have done had the warrant, at any point, identified the suspects as the claimants and Mr Ritsema, but it did not.
66. Unhappily, DC Steeples appears to have copied the relevant part of the request into the warrant without noticing that it did not identify who the suspects were. It would have been practicable for her to have done so. It is further to be observed that, in the Information, she did not draw the Judge's attention to the requirements of s.15(6). It may be that that omission casts a light on the failure to identify the suspects in the warrant. However that may be, the upshot is that, in my judgment, the search warrant does not comply with s.15 and, accordingly, the entry on or search of the premises under its authority was unlawful.

The consequences of our decision on the search warrant

67. It is not in dispute that, as the orders made on the 6^th July were dependent upon there having been a valid search warrant issued on the 12^th April, then those orders too must be quashed.
68. We have, nonetheless, to consider the provisions of Part 2 of the 2001 Act in order to determine the consequences of decisions to quash all three orders .

The statutory provisions.

Part 2 of the 2001 Act

69. Section 50 provides additional powers of seizure from premises. It provides:

"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 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"

70. Section 52 provides for notice of exercise of the power under s.50. It provides:

"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 …"

71. Section 53 provides for the examination and return of property seized under s.50. In summary it requires the person in possession of the seized property to ensure that there are arrangements for examination of the property to be carried out as soon as is reasonably practicable and to separate, as soon as is reasonably practicable, anything which is found, on examination, to be property which should be returned. Section 54 requires the return as soon as is reasonably practicable of property which is subject to legal privilege and Section 55 provides for the return of excluded and special procedure material where its retention is not authorised by Section 56.
72. Section 56 authorises the retention of property seized pursuant to a lawful search if there are reasonable grounds for believing that it is evidence in relation to an offence and it is necessary for it to be retained in order to prevent it being concealed, lost, altered or destroyed.
73. Section 59 makes provision for application to the appropriate judicial authority (in this case the Crown Court). It provides:

"(1) This section applies where anything has been seized in exercise or purported exercise of a relevant power of seizure"

74. Subsection (10) defines "relevant powers of seizure" for the purposes of this section as:

"(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."

75. Section 59 grants a number of different categories of person the right to apply to the Crown Court. Subsection (2) provides:

"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"

76. Subsection (3) setting out the grounds upon which such an application may be made includes:

(a) That there was no power to make the seizure.

77. Subsection (5) provides that:

"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.

78. Subsection (6) provides:

"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 …"

79. Subsection (11) defines a person with a relevant interest as:

"(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)

80. This rule applies to any application made under section 59 of the 2001 Act.
81. Subrule (2) provides for notice in writing of the application to be given to the appropriate officer of the Crown Court. Subrule (3) concerns applications made under s.59(2) by a person with a relevant interest in the property. It provides that copies of the application shall be served, amongst others, on the person for the time being in possession of the property.

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.

82. It was the absence of any such explicit provision which persuaded Detective Sergeant Coutts to make the applications resulting in the orders of the 6^th July without notice to the claimants, even though the orders sought affected property in which they had a relevant interest, they were in active correspondence with him about that property and there was no particular urgency in the application being made which might have called for an application to be made without notice.
83. In my judgment, such an application ought properly to have been made on notice to the claimants, whether arising out of a common law duty to act fairly in the circumstances, or by virtue of Article 6 of the ECHR. On that basis, quite apart from the concession that these orders must be quashed as a consequence of the quashing the search warrant, in my judgment, the orders of the 6^th July would be liable to be quashed.

Remedies beyond orders quashing these decisions

84. The claimants seek an order that the MPS return the material and any copies which have been taken of such material which is in their possession to the claimants on the basis that there is no lawful authority for its continued retention.
85. In my judgment, on the face of it, that must be the appropriate order. However, as Mr Lewis QC has pointed out it is open to the MPS to make an application under s.59(5) in respect of material which is in their possession which has been seized in purported exercise of a relevant power of seizure, which includes seizure pursuant to Schedule 1 of the 1984 Act. In my judgment the property which was seized, under the, now known to be, unlawful search warrant, would, even in the light of its being quashed by this court, have been seized in purported exercise of the Schedule 1 power. In those circumstances, it would be open to the MPS to make an application to the Crown Court, pursuant to s.59(5), for an order under s.59(6) for retention of the property, which would otherwise fall to be returned, on the basis that s.59(7) applies namely: that if the property were returned it would immediately become appropriate to issue an application for a warrant in pursuance of which it would be lawful to seize the property.
86. This might be on the basis that the defect with the search warrant, which has resulted in my conclusion that it must be quashed, was one which could have been remedied by the insertion into the warrant of the identity of "the suspects" in the five categories of property where, in the warrant granted, they were unidentified.
87. In my judgment, it would not be just to quash the orders on terms which would preclude the ability of the MPS to make an application to the Crown Court pursuant to section 59, if so advised and provided they did so with due expedition. Therefore, I would make an order, ancillary to quashing the orders of the 12^th April and the 6^th July, that the MPS be ordered to return all property and any copies which have been taken of such material, currently in its possession, seized, pursuant to the warrant of 12 April 2011 and/or retained pursuant to the orders of the 6^th July 2011, within 14 days of the making of the order unless, in the meantime, the MPS has made an application to the Crown Court at Kingston pursuant to s.59(5) for the retention of the material pursuant to s.59(6) on the grounds that the conditions in s.59(7) are satisfied.
88. In respect of the material which has been passed on to the Dutch authorities, they are not before the court and, accordingly, in my judgment, it is not appropriate to make any order requiring the MPS, or the Secretary of State for the Home Department, to return that property. In my judgment it would be sufficient to meet the justice of the case for the MPS and the Secretary of State to inform the Dutch authorities of the orders quashing the search warrant and the s.59 orders and for them to use their best endeavours to persuade the Dutch authorities to return the material and any copies of that material to her or the MPS. It would, at the point at which such material is returned to the MPS or the Secretary of State, by parity of reasoning, be appropriate for there to be an order requiring the Secretary of State or the MPS (whichever has possession of the property) to return those items to the claimants within 14 days unless, in the meantime, an application is made by either of them to the Crown Court pursuant to s.59(5) of the 2001 Act for an order under s.59(6) on the grounds that the conditions in s.59(7) have been satisfied.
89. I would invite Counsel for the claimants and the First and Second Interested parties to draft an order which reflects those principles.

Summary

1. I would make an order quashing the decisions of the Kingston Crown Court on 12^th April 2011 and 6^th 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 27^th April pursuant to the search warrant granted on the 12^th 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 12^th 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.