England and Wales High Court (Administrative Court) Decisions

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

		Royal Courts of Justice Strand London WC2A 2LL
		1 August 2013

1. MR JUSTICE OUSELEY: This application for the continuation of interim relief is but an incident in long, ongoing proceedings between the Metropolitan Police, the Dutch prosecutors and the claimant, Mr van der Pijl. For present purposes, the background can be read in the judgment of the Divisional Court on 21 December 2012: [2012] EWHC 3745 (Admin). Wilkie J, with whose judgment the President of the Queen's Bench Division agreed, sets out the background to the challenge, with which that case was concerned, to the validity of a search warrant granted by Kingston Crown Court to the Metropolitan Police Service pursuant to the Police and Criminal Evidence Act 1984 and orders made by the Crown Court pursuant to section 59 of the Criminal Justice and Police Act 2001 permitting the police to retain material seized by a court in pursuance of a search warrant.
2. The police had been directed pursuant to the Crime (International Co-operation) Act 2003 to make applications for the warrant by the appropriate UK authority after receiving a request for mutual legal assistance from the Dutch authorities. The Dutch were seeking to proceed against the claimant and his wife in respect of a tax fraud, which Wilkie J describes at paragraphs 26 and 27 of the judgment.
3. The validity of the search warrant was challenged on a variety of grounds. One challenge was 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. That was a challenge based on the need for a search warrant to comply with schedule 1 of the Police and Criminal Evidence Act 1984. Wilkie J concluded that the material before the judge did entitle her to be satisfied as to those matters.
4. However, the search warrant omitted the names of the suspects, and on that ground was held to be invalid. At paragraph 86, Wilkie J dealt with the consequences of the search warrant being invalid on that ground. He recognised that section 59(5) of the Criminal Justice and Police Act 2003 permitted an application to be made by the police for the retention of property which had been unlawfully seized. He said:

"86. ... 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."

He envisaged that it was open to the police to apply for an order for the retention of the property on the basis 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." That is a reference to the powers within section 59(7) of the 2003 Act.

5. The court orders for the return of the unlawfully seized property gave to the police a period of time in which to make an application under section 59(7) both in respect of the material which it had and in respect of any material which might be returned to it by the Dutch authorities pursuant to an order that the police use their best endeavours to achieve its return. Such applications were made. They came on for hearing before His Honour Judge Price QC, at Kingston Crown Court.
6. Although there may be scope for argument as to the correct approach to section 59(7), the parties were in effect in agreement that its proper operation required the person who wished to retain unlawfully seized material to show that a lawful notional warrant, the immediately appropriate warrant envisaged by section 59(7), would satisfy the requirements of schedule 1 to the Police and Criminal Evidence Act 1984, and in particular, so far as relevant here, would satisfy the requirements that the material be likely to be of substantial value to the investigation and likely to be relevant as evidence, in the light of knowing what the material obtained actually showed.
7. It was not the position of the parties before the judge that the appropriate approach was simply to envisage a further warrant using the same language as in the original warrant with its more general reference to the documents and items to be seized, with the suspect's name included and such further alterations made as were required in order to bring the justification for the warrant up to date in the light of any circumstances which had changed. There is, however, it is important to note, the provision in section 15(6) of the Police and Criminal Evidence Act in relation to the detail required by a warrant. It is that a warrant "(b) shall identify so far as practicable the articles or persons to be sought". Clearly by the time the material has been seized, albeit unlawfully, it is perfectly possible to know with far higher precision than section 16 would normally contemplate what the seized articles actually are.
8. There were a number of issues raised before the judge as to how the statutory tests of relevance of evidence and substantial value to an investigation were to be demonstrated. The problem was acute because of the volume of material and the fact that many of the documents were in Dutch, a language not often spoken by those who are not brought up in it. Mr Jones QC pointed to two issues which at least went to arguments about continuing relevance. The first, important from the claimant's wife's point of view, though not obviously so from relevance, was the fact that she was no longer being proceeded against as an alleged party to the fraud. More importantly, the Dutch proceedings which had led to the claimant's extradition to Holland had reached a certain investigatory stage by June 2012, a dossier had been compiled which included 267 documents from the much larger number that would have made up what had been referred to here as files C and D. (I should add that file B is not relevant other than to continuity and forms no part of these proceedings. There is a further set of files called group of documents A, which the Dutch had never had possession of but had examined.)
9. The question arose as to how the court was to deal with the various issues of relevance that were to arise. It was made clear by Mr Jones QC, on behalf of the claimant, that the process would involve the examination of the relevance of the documents. In his notice of argument, he said that the decision should be exercised in the light of facts as they now existed, and therefore a detailed evidential assessment of the question would be required. It is clear that there was scope for very considerable examination of the relevance of the documents.
10. The judge did not specifically rule on the question of whether the fact that the Dutch court dossier had 267 documents selected in it, rather than all the rest, made everything else irrelevant. He was aware of that argument and made no ruling on it. He was aware that he had to examine the documents. A note of what he said on this issue is:

"So I am in a position to exercise discretion under section 59 and to do so I have to assess them. If I am to go through documents I will, but I need help. I need a case opening. I will call upon special counsel to assist me [that is a reference to independent counsel, because the matters would be dealt with, as I understand it, inter partes rather than through special counsel, which is normally a reference to counsel involved where proceedings cannot be dealt with inter partes]. If it is thousands of documents then I may need other assistance. It seems to me I am going to require translations or a Dutch speaker. He [I believe that to be a reference to the judge] expresses reluctance to do this and there are matters I am obliged to take into consideration to see if they are relevant. Confirms he [again, a reference to the judge] will only deal with retention and not transmission. If you [a reference to Mr Hines for the MPS] take instructions and the Dutch decide they don't need these documents then this court need not consider them under section 59. From what I have read I would still need special counsel. I shall give you 20 minutes to consider."

11. Mr Hines took instructions. He came back proposing, as I understand it, that, instead of the use of independent counsel, the Dutch prosecutor, who had impeccable English and who had written a letter saying the documents were still of significance, should assist with this. He proposed she write a case opener for the judge, and in respect of the documents he was to go through, he would be assisted by her. She had previously had all the documents from the summer of 2011 to the ruling in 2012, so she would have considered them before. Mr Hines pointed out that it was not unusual to hear from a police officer with regards to a warrant, and so the proposal was that she would assist the judge in the task as any intermediary counsel would. There was objection to that from Mr Jones QC.
12. Eventually, the judge ruled that the prosecutor would have access to the material. The defence would attend. If there were issues in dispute, he would resolve them. He hoped he would not have to go through an analysis of thousands of documents, but, as Mr Jones QC says, he, the judge, had to decide on each individual document. He said he took the view that it was necessary for Miss Sachs, the Dutch prosecutor, to see the documents and he also took the view that the trial should start when it was scheduled to start. That is a reference to the Dutch trial with an anticipated start date of December 2013. If it were the Dutch prosecutor who reviewed the material and made an initial statement on it early in August, the defence could meet that date.
13. That ruling led to judicial review proceedings being lodged with this court. The ruling was on 10 July; proceedings were lodged with this court on 22 July. Interim relief was sought and was granted by Lewis J on 26 July on a without notice application. He granted that relief over until today. The interim relief which Lewis J ordered on paper was that the police should not allow Miss Sachs, her servants or agents, access to or sight of paper or electronic documents seized by the second defendant from the claimant's premises and any copies of such documents.
14. The issue before me is not essentially the issue of permission but is the question of continuation of interim relief, although in effect a decision on interim relief will essentially dispose of the proceedings as it seems to me.
15. Mr Jones QC's contentions are that it is wrong for the prosecutor to be involved in an examination of these documents and wrong then to be of assistance to the judge in the way in which the judge envisaged. He would be perfectly adequately assisted by independent counsel as he had envisaged originally. The process, submits Mr Jones, that the judge has ended up with effectively circumvents the letter of request procedure involving a request to the Home Office which is passed to the Metropolitan Police, leads to a warrant and then transmission. More fundamentally, he contends that the vice of what the judge contemplates is that it would permit effective examination of unlawfully seized documents in order to justify their retention in circumstances which would be little different from the wholesale seizure of documents in order to see whether there might be something of interest, and then selecting those which were found to be of interest and a very considerable breach of the common law and the privacy rights of an individual. All of this could be adverted by the use of independent counsel, a role which is accepted and commonly used in relation to the retention or return of material. Moreover, the judge ought to have dealt with the issue concerning the relevance of any documents, other than the 267 which are part of the court file, before he reached any conclusion on how the prosecutor should be involved, if at all, because it might mean that none of the documents were relevant to her consideration at all.
16. Before turning to my ruling, I just add this in relation to independent counsel. The role of independent counsel in this sort of case has become, as I understand it, quite common and has been recognised at the highest level as being of real value. Its particular role, but not an exclusive role, is in assisting dealing with issues of legal professional privilege. In this case, independent counsel, Miss Christine Braamskamp, was involved in the analysis and sift of group A documents. Her role was not confined to an analysis of legal professional privilege; it included that topic, and those which she concluded were privileged have been returned. Unusually in this case, but because she was a Dutch speaker, she did consider issues of relevance. Her conclusions may be generally accepted as at the date when she reached them, but there are certainly issues about her conclusions which both claimant and police from their differing perspectives would wish to take issue with. The role of independent counsel, as Mr Hines submitted, is not that of the decision maker, however valuable it may be in relation to legal professional privilege or indeed in relation to relevance in narrowing the differences and eliminating the need for all parties to examine before the judge the relevance of particular documents. The jurisdiction is a judicial jurisdiction to be exercised by the Crown Court judge. Independent counsel, as the judge said, could assist him - he or she could assist the parties - but the decision would be his.
17. The question, it seems to me, that this application gives rise to is first of all a question of jurisdiction: did the judge have jurisdiction to make the order he did? There is nothing at all, in my judgment, to show that he had no jurisdiction to permit the Dutch prosecutor to read the documents and then to assist him, or rather to give evidence before him, as to the justification for the retention of the material. If he had jurisdiction, it is obvious that his decision, whether seen as case management or some other form of decision, is one essentially for him and no complaint can be made of it.
18. So far as jurisdiction is concerned, there is nothing in the relevant statutes to show that the approach to be adopted to a section 59 application is as contended for by Mr Jones QC, even on the basis that all the documents are for examination for relevance. Of course, if the right approach to section 59(7) is to imagine a seized document with no more precision than would be applied to a warrant before seizure, then there could be no objection to a process in which, on a general basis, an English police officer, with whatever support was necessary from a foreign police officer, explained the basis for the warrant. But once, however, one moves to the position, as commonly understood between the parties and the judge here, that what is required is an examination potentially of each document for substantive value and relevance, the position, as to who can see the documents and explain their relevance, cannot be different. I can see no justification for saying that the domestic police officer has to do the best he can (with the assistance of a translator, no doubt) to explain the relevance of the documents to a case which he is not investigating, and has to do so with the benefit only of a case study. I can see no reason why he should be disabled in his explanation of relevance of the documents seized pursuant to a letter of request, from obtaining assistance directly or indirectly on relevance and substantive value from somebody who did know about it.
19. It was then suggested by Mr Jones QC that there would be no objection to the prosecutor giving evidence so long as the prosecutor could not further examine the documents. That, to my mind, illustrates the impracticability of the course he proposes. A court would not be assisted by having the imperfect and inaccurate unrefreshed memory of a witness on those issues as opposed to the refreshed and more accurate memory of it. If this were a domestic warrant entirely, the police would not be barred from giving evidence about what they had seen, whether before the warrant was declared unlawful or after it, for the purposes of making the application. If prosecutors and police officers were to be barred from seeing the seized material, it would suggest that the scope of the section 59(7) application was very much more of the sort which the parties did not agree here was appropriate; that is to say, it was simply a general document which was required, corrected and updated as might be necessary, by reference to change of circumstance, but not by reference to what documents had actually been seized.
20. The practicability of the alternative processes confirms to my mind that there was no jurisdictional bar to the judge ordering as he did. It is obviously a sensible way for him to proceed, to have the best evidence as to relevance and substantial value where that is the issue. The role of independent counsel is a valuable one, but is not a substitute. It is not the only way in which these issues can be tackled. Its existence does not operate as a jurisdictional bar to the judge doing what he did.
21. Mr Jones QC's point (and it is not one too lightly to be dismissed) is that this gives the prosecutor a wider power as a result of unlawful behaviour than the prosecutor would have as a result of lawful behaviour in terms of the documents that the prosecutor can see. But it seems to me that if that is so, and the prosecutor has to justify document-by-document the retention of the documents that have been seized, the prosecutor is nonetheless not to be disabled in the making of the application, which Parliament has permitted to be made, from making it properly by examining the documents.
22. Parliament has itself set out as lawful a procedure whereby the unlawfully seized material can be retained in certain circumstances. To refuse to permit the prosecutor to see the documents for the purposes of that application, whilst at the same time fixing the prosecutor with the obligation to make a document-by-document defence of its relevance, while it was unseen for some time, seems to me to be a contrary approach. It is an approach that would fit with section 59(7) requiring only a generally expressed warrant, not benefiting from knowledge as to what had actually been obtained. But once the right approach under section 57 is seen as being an examination of the basis for the retention of each document, it cannot be right that the prosecutor has to do that on a half-remembered or even ignorant basis without full understanding of the case. As I say, once jurisdiction is present, then, as a matter of effective procedure, this approach cannot be faulted.
23. Mr Jones QC, with greater emphasis in reply than in opening, points out that he raised the question of whether the selection of 267 documents from files C and D for inclusion in the court dossier meant that there was no basis at all for consideration of relevance. The judge did not decide to deal with that issue before dealing with the question of how the detailed examination would proceed. It seems to me that a challenge to that approach could only succeed on the basis of a rationality challenge. The judge was not provided with, in my judgment, a sufficiently detailed examination by either party as to the position in order to justify it being said that it was irrational for him to proceed in the way he did. I am by no means clear how far the point was actually pressed on him. Although it is in the grounds, it does not feature in my view as the main thrust.
24. I have been shown documents in which, although each can criticise the other, it has been made clear that the Dutch consider that the other documents have a continuing substantial value and relevance, although it has not been very clearly explained; and, on behalf of the claimant, where it says that the dossier has effectively been closed. I am far from certain about how this issue will go. I can see the force of Mr Jones QC's points, I can see the force of Mr Hines'. I am by no means clear how far what the Dutch advocate supporting the claimant says is based on a court order or their conjecture as to the position.
25. It seems it is said by Mr Hines, contested by Mr Jones QC in the light of that document, that nothing more was added in the light of the decision on the judicial review challenge to the validity of the warrant. I am not sure that Dubonts are in a position to express a conclusion on that, or that the court orders that I have seen support it.
26. At all events, it is difficult, absent an allegation of bad faith, to see how it could be the Dutch authorities would be in the slightest bit interested in pursuing these documents unless they had some relevance to the case which they are pursuing in Holland, due for trial in December 2013. It is perfectly possible to add documents to the dossier, as the claimant's Dutch lawyer makes clear, and how far the Dutch have been influenced, either before June 2012 or after December 2012 or in the interim, by the judicial review proceedings does not seem to me conclusively determined. So there is not, in my judgment, a basis upon which it can be said that the judge acted irrationally in not ruling on that issue before ruling that the Dutch prosecutor could see the documents for the purpose of the exercise which he saw he had to perform - a lengthy exercise, potentially, and one to be performed urgently. For those reasons, this application for the discharge of interim relief, or alternatively for its continuation, is dealt with in whichever way is appropriate but means that the injunction is discharged.
27. I have not, as I said, dealt with permission, but it does not seem to me that there is any real point in the light of that in not refusing permission. Accordingly, I refuse permission to apply for judicial review. I am grateful to both parties.