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
		13 March 2013

1. LORD JUSTICE PITCHFORD: This is a claim for judicial review which challenges the lawfulness of four search warrants issued by the City of London Magistrates' Court on 15 February and executed on 20 February 2012. The claimants contend that all four warrants failed to comply with the requirements of section 15(6)(b) of the Police and Criminal Evidence Act 1984; furthermore, that no reasonable justice of the peace could have been satisfied that the access requirements of section 8(1) of the Act had been met in the case of computers and other electronic equipment named in the warrants. The circumstances in which Mr Timothy Blackwell of Her Majesty's Revenue and Customs ("HMRC") made his application for the warrants are as follows. The first named claimant, Mohammed Rabiul Hoque, was at the relevant time the sole director of a company called Shefali Limited, which carried on business as an Indian buffet restaurant at 12 Festival Park, Basildon under the trading name "Moza". Mr Hoque lives at 170 Charlemont Road, East Ham.
2. On 1 September 2011, officers from the UK Border Agency made a compliance visit to Shefali and discovered that three employees were unlawfully employed at the restaurant. A civil penalty was subsequently issued. Shefali's cash book revealed that the restaurant takings were very substantial but the company was not registered for VAT. Using turnover figures obtained from the cash book HMRC estimated a VAT revenue loss for the period 2009 to 2011 which exceeded £225,000. Serious irregularities were also found in the PAYE records of the company. A test purchase was made at the Moza restaurant on 9 December 2011. The VAT number recorded on the receipt was that of Spicy Café Bar Limited, a company incorporated on 14 September 2011 and registered for VAT on 17 November 2011. It appeared that following the visit by UKBA an attempt had been made to camouflage Mr Hoque's responsibility for previous infractions of the VAT rules.
3. There is a business association between Mr Hoque and the second claimant, Mr Mridul Kanti Das. The previous occupant of the Moza restaurant was a company called Manchi Limited, of which the sole registered director was Mr Das. Mr Das is also the sole registered director of a company called Memsaheb on Thames Limited, an Indian restaurant located at 65 to 67 Amsterdam Road, Docklands. Mr Das lives with his family at 43 Stanley Road North, Rainham in Essex.
4. Between 11 August 1997 and 3 May 2001, a restaurant business was run from the same premises under a partnership between Mr Das and another. Although Memsaheb on Thames Limited had been incorporated on 3 December 2002, it failed to register for VAT. Test purchases were made at the restaurant in December 2011 and January 2012. Receipts gave a VAT number which had not been registered with HMRC for over 10 years. By examining the turnover revealed by the company's corporation tax returns HMRC estimated that during the period 2002 to 2010 the VAT revenue loss was over £500,000.
5. HMRC instituted an investigation against both men into suspected offences of cheating the Revenue. It wished to recover all and any business records of the claimants which cast light on their joint and several use of these companies to evade their revenue obligations. For that purpose, on 15 February 2012 Mr Blackwell made an application to the City of London Magistrates' Court for search warrants in respect of the homes and business addresses of the claimants. Mr Blackwell gave evidence during which he confirmed the contents of the information which I have just summarised. One warrant was addressed to each address. The first warrant was issued in respect of 43 Stanley Road North, Rainham, Essex. It authorised Mr Blackwell to enter that address and search for:

"Any form of evidence deemed relevant to the offences under investigation relating to Mridul Kanti Das and Mohammed Rabiul Hoque and their companies, including taking records, invoices, wage records, hire purchase agreements, business records, diaries, address books, faxes, travel documents, mobile telephone communications, including handsets, SIM cards, computer processing equipment, including portable storage devices and media records, documents showing financial deals and records relating to the opening of bank accounts, fund flow, and the acquisition, ownership, retention or control of any other assets, and any other material which appears to officers to be of evidential value".

Warrants in materially identical terms were issued in respect of 175 Charlemont Road, East Ham, London; 12 Festival Park, Basildon, Essex; and 65 to 67 Amsterdam Road, Docklands London.

6. Turning to the statutory jurisdiction for the issue of these warrants, section 8 of the Police and Criminal Evidence Act 1984 in its relevant parts provides as follows:

"(1)If on an application made by a constable a justice of the peace is satisfied that there are reasonable grounds for believing—

(a)that an indictable offence has been committed; and

(b)that there is material on premises mentioned in subsection (1A) below which is likely to be of substantial value (whether by itself or together with other material) to the investigation of the offence; and

(c)that the material is likely to be relevant evidence; and

(d)that it does not consist of or include items subject to legal privilege, excluded material or special procedure material; and

(e)that any of the conditions specified in subsection (3) below applies,

he may issue a warrant authorising a constable to enter and search the premises in relation to each set of premises specified in the application.

...

(2)A constable may seize and retain anything for which a search has been authorised under subsection (1) above.

(3)The conditions mentioned in subsection (1)(e) above are—

...

(d)that the purpose of a search may be frustrated or seriously prejudiced unless a constable arriving at the premises can secure immediate entry to them.

(4)In this Act 'relevant evidence', in relation to an offence, means anything that would be admissible in evidence at a trial for the offence..."

Section 15 of the Police and Criminal Evidence Act 1984 regulates the requirements for a warrant, and in its relevant parts reads as follows:

"(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.

...

(6)A warrant—

(a)shall specify—

(i)the name of the person who applies for it;

(ii)the date on which it is issued;

(iii)the enactment under which it is issued; and

(iv)each set of premises to be searched, or (in the case of an all premises warrant) the person who is in occupation or control of premises to be searched, together with any premises under his occupation or control which can be specified and which are to be searched; and

(b)shall identify, so far as is practicable, the articles or persons to be sought..."

7. The claimants' first ground of challenge is that, contrary to section 15(6)(b), none of the warrants identified so far as practicable the articles to be sought. Mr Alun Jones QC criticises the warrants because they permitted Mr Blackwell to remove any form of evidence which he "deemed" to be relevant to his investigation, the nature of which investigation was unspecified in the warrants, and they permitted Mr Blackwell to remove "any other material which appears to officers to be of evidential value". It is true that "any form of evidence" is by the terms of the warrant taken to include the variety of specific objects then listed but, Mr Jones submits, the warrants were not limited to such objects and therefore were far too widely drawn.
8. Mr Bird responds on behalf of HMRC that search warrants are drafted to inform the occupier of the premises of the ambit of the search permitted. The practicability of providing particulars of the articles for which the search is authorised will vary from case to case and may depend upon the breadth of the investigation which is underway. Sometimes it will be possible to identify articles with precision or by name or by their association with a particular person or business. On others it may be possible to identify articles only by general description. In the former cases the warrant may not need to make any reference to the nature of the investigation, while in the latter it may be necessary to specify the nature of the investigation in order to define the limits of the authority given. It is not the function of this court to look for deficiencies in the wording of a warrant providing that so far as practicable the articles for which the search is authorised are identified (see to this effect the observation of Simon J in the R(Glenn & Co (Essex) Limited & Ors) v Her Majesty's Commissioners for Revenue and Customs & Anor [2011] EWHC 2998 (Admin), [2012] 1 Cr App R 22 at paragraphs 54 to 66). I accept these submissions.
9. A problem similar to the present arose in R v Chief Constable of Warwickshire Constabulary [1999] 1 WLR 564 (Rose LJ and Jowitt J). There, the warrants purported to limit the objects to be sought by reference to the "stated offence" being investigated. This court held that since the investigating officer knew what was the stated offence and was empowered only to remove items which were relevant to it, the validity of the warrant did not require the stated offence to be named in the warrant itself. The claimants had submitted that "the wide scope of the warrants left the police with a completely free hand to decide what they should search for and seize. This meant that the task of defining the scope of the warrants had been delegated by the magistrates to the police". Jowitt J, delivering the first judgment, with which Rose LJ agreed, pointed out that the constable's power to search and remove was limited by section 8(2). At pages 572 to 573, he said:

"First the warrants issued on 11.4.97 all contained the limiting words, 'all relating to the stated offence'. That the offence is not stated in the warrants 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. Nor was this all. The power of seizure in the case of these warrants was that set out in section 8(2). 'A constable may seize and retain anything for which a search has been authorised under sub-section (1) above.'

It follows from this that it was not sufficient that any material seized should fall simply within the terms of the warrant, including the words, 'all relating to the stated offence'. It had also to be something for which a search had been authorised under section 8(1). In other words, there had also to be reasonable grounds for believing it was likely to be of substantial value to the investigation and be evidence of the stated offence and not consist of or include special procedure material ... The effect of section 8(1) and (2) is to limit what may be seized under a search warrant issued under section 8. The effect of a description in the warrant is potentially to limit further what may be seized. I say potentially because no doubt in practice, where this is practicable, the description in the warrant will accurately define that for which the warrant is intended to give a power to search and seize. However, those executing a search warrant issued under section 8 should not lose sight of the requirement that, even though material may fall within the description in the warrant its seizure still has to fall within what is permitted by section 8(1) & (2). This is the more important in a case in which there are limitations on the practicability of identifying with any precision the material to be sought."

In this passage it would seem that Jowitt J was addressing the arguments specifically mounted before the court on that occasion. He seems not to have been applying section 15 subsections (1) and (6) of the Act, the effect of which is that if the warrant does not so far as a practicable identify the articles to be sought the entry on or search of premises under it will be unlawful.

10. The separate requirements of sections 8 and 15 were subsequently pointed out by this court in Power-Hynes & Anor v Norwich Magistrates' Court & Anor [2009] EWHC 1512 (Admin); R(Anand) v Her Majesty's Revenue & Customs [2012] EWHC 2989 (Admin); and PCJ Van Der Pijl & Anor v Crown Court at Kingston [2012] EWHC 3745 (Admin). Mr Bird acknowledges that these decisions create difficulties for him. The present warrant was drafted before Anand was decided.
11. Section 8, in my judgment, fulfils a purpose which is different from that of section 15. Section 8 regulates the requirements for jurisdiction to issue a warrant, and section 8(2) permits the constable only to remove anything for which the search has been authorised by the warrant. Section 15, on the other hand, requires identification in the warrant of the articles in respect of which authorisation has been given. It follows that it is the responsibility of the justice of the peace to ensure the compliance of the warrant with the requirements of section 15. The present warrants fail to identify the nature of the investigation to which the articles were said to be relevant but left it to Mr Blackwell and his teams of investigators to use their own judgment.
12. Mr Bird sought to argue that the words in the opening lines of the warrants "any form of evidence deemed relevant to the offence under investigation" and the words "any other material which appears to the officers to be of evidential value" should be treated as qualifying the range of articles listed in the warrant rather than extending the scope of the warrant beyond that which was ascertainable on its face. However, when confronted with the fact that the nature of the investigation was not specified, Mr Bird disarmingly argued that it was enough for the occupier to be told by the warrant that Mr Blackwell was an officer of HMRC.
13. In my judgment, anyone reading the warrant could not ascertain the limits of Mr Blackwell's authority to search for and seize objects which he deemed to be relevant. The investigation could, so far as the occupier was concerned, have comprised and embraced anything within the powers of HMRC to investigate. There is, it seem to me, a further flaw in the warrants as issued. It is the responsibility of the justice of the peace to apply the access criteria of section 8(1)(a)-(e). Section 8 does not permit the justice of the peace to delegate to the constable the very responsibility which the justice of the peace is exercising under section 8(1). On the contrary, the evidence submitted by the constable should establish to the satisfaction of the justice of the peace reasonable grounds for believing that the articles to be identified in the warrant so far as practicable meet the access criteria in section 8(1). A constable's power to seize additional material beyond the scope of the warrant is governed by section 19 of the Police and Criminal Evidence Act 1984 and section 50 of the Criminal Justice and Police Act 2001. It seems to me, with great respect to the court in the R v Chief Constable of Warwickshire, that to reflect the responsibility of making the judgment of relevance to the constable may have the effect of rendering the ambit of the warrant far too wide, as in the present case I have concluded.
14. In my judgment, the warrants were defective for these reasons, and by section 15(1) the entries on, and searches of, the premises were unlawful. I have no doubt, however, that there were strong grounds for the application for the warrants, which, if suitably phrased, could hardly have provided any grounds for complaint. This finding is relevant to the issue of relief, to which I shall return later in this judgment.
15. The claimants' second ground of claim is that no justice of the peace could properly have concluded that "mobile telephone communications, including handsets, SIM cards, computer processing equipment, including portable storage records and media records" were likely to have been "relevant evidence" for the purpose of section 8(1)(c) and (iv) of the Act. This court has recognised in R(Faisaltex Ltd) v Preston Crown Court & Anor [2009] 1 WLR 1689 (Admin) that computers, if likely to contain relevant evidence, are likely also to contain evidence not relevant to an investigation. That does not mean that the constable enforcing the warrant is bound only to seize that which is relevant, since data stored on a computer is for practical purposes indivisible until it is examined and separated. The claimants contend that HMRC was not required by the justices during the application for the warrant to justify its application to recover electronic material, and it follows that the issue of relevance was not properly addressed. I do not accept these contentions. It seems to me to be obvious from the contents of the information that the HMRC investigation embraced not only the business records of the claimants and their companies but also communications between the claimants themselves and between the claimants respectively and their senior employees. HMRC had cause to believe that the claimants were not merely acting coincidentally in their efforts to cheat the Revenue but were acting in concert. That being the case, computer and telephone equipment was likely to reveal the association between the two men and the coordination of their activities. I do not consider for these reasons that ground 2 is made out.
16. I turn to the question of relief. This is not a case in which it could be asserted that HMRC acted in bad faith. The complaint successfully made was that the warrant was drawn too widely because it failed to specify the nature of Mr Blackwell's investigation and permitted an undue margin of discretion to him. The only objects seized in respect of which real complaint is made are the computers and telephones. As I have found, the warrant properly included those objects. I would grant the declaration sought to the effect that the warrants failed to comply with section 15(6)(b) and that the searches carried out were for that reason unlawful. There is, however, no purpose to be served in quashing a warrant already executed and I would decline to do so. HMRC accepts that an issue as to damages may arise and for that reasons concedes that the issue of damages should be adjourned to a single judge. I would so order.
17. The remaining question is what is to happen to the material currently in the hands of HMRC. HMRC acknowledges its responsibility to return the original material to the claimants since it is conceded that copies would be sufficient for the purpose of the criminal trial (see section 19(4) of the Police and Criminal Evidence Act 1984). Some of the original material has already been returned. HMRC undertakes to return the rest within 7 days. No order is required to that effect. The claimants, however, seek the return not only of the original material seized but also all copies admittedly made by HMRC. HMRC seeks to retain the copies made for the purpose of the ongoing criminal proceedings, which are shortly to reach the stage of a plea and case management hearing. In those proceedings the claimants are jointly charged with cheating the Revenue. By section 63(1) of the Criminal Justice and Police Act 2001, Part II of the Act is to be construed as if the seizure of material included the taking of a copy of the material, and copies are to be treated as originals. Section 59 of the 2001 Act applies, by section 59(1), where anything has been seized in exercise or purported exercise of a relevant power of seizure. Section 59(2) gives to any person with a relevant interest in seized property the right to apply to the Crown Court for its return. By section 59 subsections (6) and (7), on any application for the return of property the Crown Court may authorise its retention if upon its return it would immediately become appropriate to issue on the application of the person in possession a warrant in pursuance of which it would be lawful to seize the property.
18. HMRC asserts that copies of the material seized are relevant in proof of a charge of cheating the Revenue. It follows that were these copies to be returned it would immediately become appropriate to issue a warrant for the seizure of that material. HMRC would for that reason seek to resist any application for the return of the copies made. Should the claimants resist the admission of that material in evidence the trial judge would be required to exercise a judgment under section 78 of the Police and Criminal Evidence Act 1984 whether the evidence should be excluded on the grounds of the unfairness which would otherwise arise. It must be acknowledged, as Mr Jones submitted in writing, that the judge is unlikely to exclude relevant evidence seized in excess of the powers conferred by sections 8 and 15 of the 1984 Act unless there is a finding that HMRC acted in bad faith. HMRC accepts that it has imaged the hard drive of computers seized, and no doubt SIM cards and mobile telephones, but argues that it is not practicable to separate out from the electronic images that which is relevant to the prosecution case and that which is not.
19. Thirdly, HMRC considered that it may be in possession of material seized from one claimant which does not assist him or the prosecution in the criminal trial but which may be disclosable to the other claimant since it may assist his defence. Mr Bird argues that HMRC should not, at least at this stage, be required to relinquish possession of copies of such material.
20. Fourthly, HMRC believe that it is not in possession of any copies which do not fall into one or other of those categories. To its knowledge, it does not hold material which is irrelevant to the issues arising in the criminal proceedings.
21. It seems to me that this is not the occasion on which to embark upon an analysis of that material which is prima facie relevant to the issues arising in the criminal proceedings. The parties have not addressed their evidence to that issue in the current proceedings and this court is not equipped to carry out the analysis. Had HMRC obtained warrants when there were no reasonable grounds to suspect that an offence had been committed, or if seizure was made or copies taken in contravention of a court order, or if the Magistrates' Court had been misled, I would be favourably disposed towards an order requiring delivery up of all the copied documents. In this case, however, there were reasonable grounds, there was no prohibitory court order, proper disclosure was made in the Magistrates' Court and copies have been made of material which would undoubtedly have been the lawful subject of seizure had the warrants not been too widely drawn.
22. Mr Jones sought to argue that because HMRC volunteered to return original documents, it was bound also to return copies, since by section 63(1) of the 2001 Act copies were to be treated as originals. This is an ingenious but, with respect to him, a fallacious argument. The effect of section 63(1) is simply to provide the Crown Court with the same jurisdiction over copies of material as it has over originals. The originals have been, and will be, returned under section 19(4) of the Police and Criminal Evidence Act 1984 since the originals are not required for the criminal prosecution. Having divested themselves of possession of the originals, HMRC seeks to retain the copies because they are required for the criminal proceedings. I would therefore decline to make an order for the return of the copies made. The issues raised seem to me issues properly to be considered by a Crown Court judge following any application the claimants are advised to make to the Crown Court under section 59 of the 2001 Act.
23. To summarise, therefore, I would find the claim proved upon ground 1; I would make a declaration that the warrants issued by the City of London Magistrates' Court on 15 February 2012 did not comply with section 15(6)(b) of the Police and Criminal Evidence Act 1984; and the entries on premises and seizures which took place on 20 February 2012 under the authority of those warrants were unlawful; and I would direct that the issue of damages be adjourned to a single judge of the Administrative Court in the exercise of discretion. I would otherwise make no order.
24. MR JUSTICE KENNETH PARKER: I agree.
25. MR JONES: My Lord, I think that just leaves the question of costs outstanding. My Lord, we have submitted a statement of costs. My Lord, I think I must address your Lordship on the merit of costs. My submission is that the claimants, putting it bluntly, substantially succeeded and that the second defendant's argument, my Lord, was, if I may say so, apologetic in tone and there could easily have been a consent order. Your Lordships might feel that if there had been a concession upon ground 1, it is unlikely that ground 2 would have troubled the court. I also ask your Lordships to take in mind that the HMRC contested the permission hearing in November of last year, my Lord. So we would invite your Lordships either to make an assessment in relation to these costs or that there should be a detailed assessment by others and we would invite your Lordships to make an interim order of costs in your Lordships' discretion.
26. LORD JUSTICE PITCHFORD: You have had time to consider this, Mr Bird?
27. MR BIRD: Yes, my Lord, we had it before the adjournment. My Lord, Pitchford J, made some observations on costs in the case of Anand, I do not know if my Lord recalls, but there was a ruling at the end of Anand, which is in the judgment in the bundle at page 14 of 15. It is at tab 8. The application for cost made by the successful claimant starts on page 13 of 15 and the issue, broadly speaking, was that Miss Malcolm, then appearing for the claimants, was asked to what extent she was getting relief that she could not otherwise have got in the Crown Court. The same applies in the instant case with one exception and that relates to damages. Obviously, the warrant needs to be addressed and the declaration made in order to grant the claim of damages and that cannot be dealt with in the Crown Court. So I cannot say that my learned friend has got nothing out of this hearing that he could not have got from the Crown Court but what he has got is only a liability and damages, in my submission. All of the other application could be made in the Crown Court under section 78 if the evidence was sought to be adduced, or under section 59 of the 2001 Act if he wanted the material returned. So, in my submission, it was not in fact necessary, largely, to trouble this court with this application at all.
28. The second submission is that the quantum of costs sought, £62,585, is wholly disproportionate to a hearing listed for half a day in the Administrative Court. I accept, of course, that there was a contested permission application which should properly be included in an award of costs since we lost today but, in my submission, this sort of figure is just completely disproportionate to the value of getting the relief that this court has in fact given the claimants. So for both of those reasons my submission is that your Lordships should summarily assess costs but should knock it down in much the same way as the court knocked down the costs in the Anand case from around £30,000 to around £10,000. In my submission, to allow perhaps one third of the costs would be a more proportionate way of dealing with the costs in this case. That would also make them broadly equivalent to the costs incurred by the HMRC.
29. LORD JUSTICE PITCHFORD: Thank you.
30. MR JONES: My Lord, there is one small but quite important point of law there. My Lord, it is that there is no authority which says that we could have applied under section 59, to have the warrant declared unlawful and get the property back, to a Crown Court judge under 15(6). Now, my Lord, I understand the argument that under section 59 it is possible to argue that there was no power to seize it because the warrant was unlawful and therefore the entry, search and seizures under section 15(1) were unlawful. My Lord, there is a judgment of Stanley Burnton LJ in a case called Dulai -- I know my learned friend will be familiar with this -- where what he says is that the present law appears to be that the only ground which cannot be put before the Crown Court is non-compliance with statutory pre-conditions because that does go to the grant of the warrant and you cannot argue under section 59 that the seizure was unlawful because the statutory conditions were not fulfilled, that is a matter for the Divisional Court. If you are arguing that there is excessive seizure or privileged material, that is unquestionably section 59 but the grey area in the middle which the courts have not yet ruled, whether it can be dealt with by section 59 or not, is a breach of section 15(6), and, my Lord, there is another case in which I am involved, where I know that the Chief Constable of Nottinghamshire is taking the point that you cannot take the section 15(6) point under section 59, that is a matter which has to go to the Divisional Court, and they say what is being said in that case is the discipline is you have to make that application within 3 months and therefore an application under section 59 in relation to a breach of 15(6) brought a year later is out of time and an abuse of process. Your Lordship, I hope, sees the point that the section 15(6) argument that we have had in this court, is that capable of being dealt with under section 59 or not, that is not clear and the better view, in my submission, is that at present, as the law stands --
31. LORD JUSTICE PITCHFORD: To deprive you of your costs in respect of it, we would have to decide that it was unreasonable.
32. MR JONES: Yes, exactly, and, my Lord, my learned friend never argued that we had another remedy and we could have argued this point under section 59.
33. LORD JUSTICE PITCHFORD: If there is jurisdiction in the Crown Court to decide this issue, then to which court does the appeal lie?
34. MR JONES: If there is a jurisdiction under section 59 to decide section 59(6), then there is also a judicial review of that decision here.
35. LORD JUSTICE PITCHFORD: So it comes here by way of challenge?
36. MR JONES: Exactly, and that matter, whether a section 15(6) challenge must be dealt with by section 59 or not, will come for decision in the Nottinghamshire case that I am talking about but at present, we say, it is here.
37. LORD JUSTICE PITCHFORD: We will retire to consider that.
(A short adjournment)
38. LORD JUSTICE PITCHFORD: The court is invited to make a summary assessment of the claimant's costs, and for this purpose we have been provided with a schedule of costs in the total sum of £62,585, of which £4,545 comprises the VAT element. Criticism is made of the sum claimed, by Mr Bird on behalf of HMRC, on two grounds. The first is that the sum claimed is utterly disproportionate to the issues which have arisen in this claim, accepting that the bill embraces a disputed leave application, and, secondly, that in large measure the victory achieved is hollow. We have come to the following conclusion. We are not satisfied that this is not a wholly disproportionate bill of costs. However, we do not have the information required in order to make a reliable assessment as to what would be an appropriate bill of costs. We shall therefore direct that there will be an assessment of costs and that the claimants will be awarded one third of their assessed costs, to be taxed if not agreed. That, of course, will be on the standard basis. The basis upon which we have concluded the claimant should recover one third of their total costs is that we assess the real issue arising in this claim to have been the nature of the relief which this court considered appropriate should it decide that the warrants were unlawful.
39. A moot point arises as to whether Mr Jones' clients could have taken the same argument to the circuit judge at the Crown Court on an application under section 59(6) of the 2001 Act. Our view is that the more pertinent question is whether the issue of lawfulness or otherwise of the warrants could have been taken in the course of the criminal trial under section 78 of the 1984 Act. We have no doubt that that was the real motivation for the challenge made to the warrants, at least in correspondence in the early stages of this dispute. It is still open, as it always was, for the claimants to take the issue of unlawfulness for the purposes of challenging the admissibility of evidence. Of course, the fact that they have obtained that ruling from this court is of assistance to them. It was not, however, necessary for these proceedings to be launched in order to take the very same point in the course of the trial. For that reason we consider that the fair way of dealing with this application for costs is to make the partial award which we have indicated.
40. Anything else, gentlemen?
41. MR JONES: No, thank you.
42. LORD JUSTICE PITCHFORD: Thank you very much for your help.