English and Welsh Courts - Miscellaneous

IN THE CROWN COURT at NOTTINGHAM
IN THE MATTER OF AN APPLICATION PURSUANT TO
SECTION 59(5) AND 59(6) OF THE CRIMINAL JUSTICE
AND POLICE ACT 2001

		Royal Courts of Justice Strand, London, WC2A 2LL
		11/12/2013

Mr Justice King:

1. This is an application by her Majesty's Revenue and Customs made under section 59(5) of the Criminal Justice and Police Act 2001 ('the 2001 Act') seeking an order from the Crown Court pursuant to section 59(6) of the Act authorising the retention of property currently in possession of the Applicant which has been seized by the Applicant in purported exercise of a relevant power of seizure, namely under a section 8 warrant, but which would otherwise fall to be returned. A section 8 warrant is a reference to a warrant issued by a Justice of the Peace under section 8 (1) of the Police and Criminal Evidence Act 1984 ('the 1984 Act').
2. The Applicant has conceded that the property would 'otherwise fall to be returned' because it concedes the initial seizure was unlawful by reason of defects in the contents of the warrant which offended section 15 of the 1984 Act.
3. Under section 59(6) the Crown Court may make such an order in these circumstances if it is satisfied that the retention of the property is justified on grounds falling within subsection (7). This Application is made on the basis that the conditions set out in subsection 7(a) are satisfied, namely 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 … a warrant in pursuance of which or the exercise of which, it would be lawful to seize the property'. The Applicant's case is that if this property were to be returned, it would immediately be able to obtain a fresh lawful warrant under section 8, compliant with section 15, under which the property could be lawfully seized.
4. This application is in effect, a notional application under section 8 of the 1984 Act for a warrant of entry and search for the articles which are sought to be retained, upon the premises from which those articles were in fact seized. Under subsection (2) of section 8 'a constable may seize and retain anything for which a search has been authorised under subsection (1)'.
5. The application is however subject to the overarching discretion of the Crown Court provided for in section 59 (6) to refuse retention notwithstanding it may be satisfied that the section 8 criteria for the grant of such a warrant have been made out and that in principle, if the property were returned, it would immediately be appropriate to issue such a warrant. On this see the observations of the court in R(El Kurd) v Winchester Crown Court & SOCA [2011] EWHC 1853 (Admin) in particular at paragraph 65, and in the judgments given in the Judicial Review Claim connected to this application, referred to below.
6. As far as procedure is concerned this application is governed by the Crown Court Rules 1982, Rule 39. It is to be noted that under 39(4) copies of the application are to be served (a) on the person from whom the property was seized, (b) any person appearing to have a relevant interest in the property and (c) any other person appearing to be the owner. Under 39(5) any person served with the application:

'… shall within 7 days of being served –

(a) notify the applicant and the appropriate officer of the Crown court whether or not he wishes to make representations concerning the application and appear at the hearing of the application; and

(b) if he wishes to make representations, give the applicant and the appropriate officer of the Crown court a written statement setting out such representations;

…'

7. The application was issued in the Crown Court at Nottingham on the 29^th July 2013. By order of Collins J of 2^nd September 2013 made in the High Court claim for Judicial Review brought by the Interested Parties against (1) the Nottingham and Newark Magistrates Court and (2) the Applicant (Case No. CO/667/2013), this application was directed to be heard by a High Court Judge sitting in the Royal Courts of Justice as a Judge of the Nottingham Crown Court.
8. This application was listed to be heard immediately following the hearing of the claim for Judicial Review by the same constitution but sitting as Judges of the Nottingham Crown Court.
9. The Judicial Review claim was duly heard by a Divisional Court of the Queens Bench Division comprising myself and my Lord, Lord Justice Treacy on the 15^th November 2013 and immediately following that hearing this application came on before us sitting as Judges of the Crown Court.
10. For reasons given below we decided that the application could not be dealt with substantively that day and that we should give directions for the further progress of the application.
11. The purpose of this judgment is to explain the position now reached in the application and to set out those directions.
12. By the Judicial Review Claim the Interested Parties sought to challenge the lawfulness of (i) the grant of the warrant by a Justice of the Peace on the 17^th May 2013 purportedly pursuant to section 8 of the 1984 Act, authorising the search of four different premises which as a matter of fact are each in their separate ways connected to the Interested Parties and (ii) the subsequent execution by the Applicant of that warrant on the 21^st May 2013 at each of those premises in which a considerable amount of property was seized by the Applicant, of which the majority is still retained by it and is the subject of this application.
13. Orders were sought in the Judicial Review for amongst other things, the quashing of the warrant, a declaration that the entries, searches and seizures of the 21^st May were unlawful, and for the return of the property seized and any copies taken.
14. As a matter of fact no copies have been made by the Applicant save in respect of the five electronic devices seized, namely a lap top, a PC, two USB sticks and an iPad which have been imaged. Those images have been retained. The original property seized including the electronic devices has been retained save for the laptop which has been returned at the request of the First Claimant.
15. Further, on the initiative of the Second Defendant, none of the material seized has yet been examined or viewed by the Second Defendant. This was made clear in its Acknowledgement of Service (AOS) to the Judicial Review Claim, which stated (at paragraph 12) that:

'All material seized (or 'imaged') has been isolated and secured pending the resolution of this judicial review and the application pursuant to section 59(6). It has not been viewed or examined'

16. By his Order of 2^nd September, which post dated the AOS, Collins J directed that 'In the meantime, the items kept must be kept secure and they must not be viewed or examined'.
17. Judgment has now been given in the Judicial Review claim (see Cheema & Others v (1) Nottingham and Newark Magistrates Court and (2) Her Majesty's Revenue and Customs [2013] EWHC 3790 (Admin)). This judgment should be read in the light of those judgments, and the orders made therein. Those judgments explain the basis of the Applicant's concession, made in its Acknowledgement of Service lodged on 16^th July, that the entries, searches and seizures of the 21^st May were unlawful and that the property would fall to be returned. The court has made its own findings on the legality of the entries, search and seizures and of the warrant itself.
18. Although in the Judicial Review claim, an order has been made granting the declaration of unlawfulness sought, no order has been made for the return of the property because of this pending application.
19. The difficulty we found ourselves in when considering this application was that it failed to set out in any legible form the property which had been seized and for which retention is sought. An attached handwritten schedule is difficult to decipher and is in part totally illegible. Nor did it attempt, by reference to the individual items, to explain why a warrant under section 8 to search for that particular item upon the particular premises where it was seized, was justified. Moreover it became clear that since the Applicant had never examined any of the property pursuant to its own voluntary decision and then the Order of Collins J., it had never turned its mind to whether retention was to be sought of the entirety of the property currently in its possession. Further and until these deficiencies were rectified, it was difficult to see how the Interested Parties could be in a position to make considered representations on whether the grounds relied on under section 59 had been made out, notwithstanding the submission of Miss Mannion on behalf of the Applicant that the Interested Parties had failed properly to comply with their obligations under Rule 39 (5) (a) and (b).
20. Although I have spoken of an application for a section 59(6) order which involves reliance upon the grounds in subsection (7)(a), as one involving a notional application for a warrant under section 8 in respect of the property concerned, there is a critical difference between an application such as this made after the property has been seized and an actual application for a warrant in advance of seizure. In advance of seizure, any warrant application asserting, as it must, that the criteria for the issue of the warrant set out in section 8(1) of the Act have been satisfied, must necessarily be based on what is believed to be on the premises and what it is believed any such article or class of article is likely to contain. An application made after seizure however is in respect of known articles which must mean that the onus is on the Applicant to show that the subsection 8(1) criteria for the grant of a warrant is satisfied in relation to the known contents or characteristics of each particular article. This must be particularly so in relation to the requirements under 8(1)(c) and (d) that, respectively, there are reasonable grounds for believing that (c) the material is likely to be of substantial value to the investigation of the offence and (d) is likely to be relevant evidence as defined in subsection (4).
21. It must further follow that in order to begin to make out its application for the retention of any particular item seized, the Applicant must first examine its contents which requires relaxation of the Order made against examination.
22. The only exception is in respect of the electronic devices or their images (the images of the lap top, a PC, two USB sticks, the iPad). This court has held in R(Faisaltex) v Preston Crown Court [2008] EWHC 2832(Admin) [2009] 1 WLR 1678 that a computer and its hard disk and similar devices are not to be regarded as a container of separate files but as a single item or thing and that it is sufficient to satisfy the 8(1) (c) criteria, for example, if there are reasonable grounds for believing that they contain relevant evidence albeit it is likely that they also contain irrelevant evidence.
23. Accordingly we concluded that the application could not proceed any further before us.

Directions

24. We propose in these circumstances to make the following directions for the further progress of this application:

1. The Order of the 2^nd September 2013 be varied to allow, save in respect of any electronic devices, the examination by the Applicant of the items seized on the 21^st May 2013 or any copies thereof which are currently in the possession of the Applicant but solely for the purpose of the resolution of this application;

2. The Applicant do within 28 days file with the court and serve upon the Interested Parties a typed list of the property seized from each identified premises, indicating in writing which items it seeks to retain and explaining in respect of each item why it is said the criteria set out in section 8(1)(b), (c) and (d) of the Police and Criminal Evidence Act 1984 have been satisfied;

3. The Interested Parties do within 35 days file with the Court and serve upon the Applicant written representations indicating to which items it objects to retention by the Applicant and why; and indicating in particular whether it is contended that the grounds under subsection 7(a) of section 59 of the Criminal Justice Police Act 2001 have not been satisfied and if so why; and whether it is also contended that the court ought to refuse an order for retention in exercise of its overarching discretion under section 59(6) and if so why;

4. The Application be listed for hearing before a single Judge of the Administrative Court (sitting as a Judge of the Nottingham Crown Court) with an estimate one day.

Cross examination of the Applicant's witnesses.

25. In support of its application, the Applicant relies upon the evidence contained in two witness statements of its Officer Christopher James Stevens.
26. Mr Jones QC, upon enquiry made by this court, sought leave to cross examine Mr Stevens on behalf of the Interested Parties at any substantive hearing of the application. In principle we were minded to grant leave. Miss Mannion raised no objection on behalf of the Applicant.
27. On reflection however we consider that the question of the grant of such leave should be one for the single Judge hearing the application. Mr Stevens should be made available to appear for cross examination at the listed hearing in the event permission is granted.

Lord Justice Treacy:

28. I agree.