Amrick Cheema and Others v Nottingham and Newark Magistrates Court and Another
| Jurisdiction | England & Wales |
| Judge | Mr Justice King,Lord Justice Treacy |
| Judgment Date | 11 December 2013 |
| Neutral Citation | [2013] EWHC 3790 (Admin) |
| Court | Queen's Bench Division (Administrative Court) |
| Docket Number | Case No: CO/6677/2013 |
| Date | 11 December 2013 |
[2013] EWHC 3790 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEENS BENCH DIVISION
DIVISIONAL COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
The Right Honourable Lord Justice Treacy
and
The Honourable Mr Justice King
Case No: CO/6677/2013
Alun Jones QC and Rizwan Ashiq (instructed by Rainer Hughes Solicitors) for the Claimants
Amy Mannion (instructed by HMRC) for the Defendants
By these proceedings for judicial review lodged on 31 st May 2013 the Claimants seek to challenge:
(i) the issuing by the First Defendant through a Justice of the Peace, Mr James, on 17 th May 2013, on the Information of the Second Defendant, sworn by an Officer of the second defendant, Christopher James Stevens, of a search warrant pursuant to section 8 of the Police and Criminal Evidence Act 1984 (the 1984 Act); and
(ii) the execution of this warrant on 21 st May 2013 at each of the four addresses specifically listed in the schedule to the warrant in the course of which a considerable quantity of material was seized including five electronic devices, namely a lap top, a PC, two USB sticks and an iPad.
By its Acknowledgement of Service, the Second Defendant conceded that the entries, searches and seizures were unlawful on a basis which is explained below, but indicated that it was going to make an application to the Crown Court for an order under section 59 (6) of the Criminal Justice and Police Act 2001 authorising the retention of the property. It further stated that pending the resolution of this judicial review and the section 59 application, all material seized had been isolated and secured but had not been viewed or examined. With one exception the material has not been copied. The one exception relates to the electronic devices. The five devices have been 'imaged' and the images retained but not viewed or examined. The devices themselves remain with the Second Defendant save for the laptop which has been returned at the request of the First Claimant.
The relief sought by section 6 of the claim form is in these terms:
— an order to quash the warrant,
— a declaration that the entries, searches and seizures of 21 May 2013 were unlawful,
— costs,
— damages,
— an order that all property seized and any copies taken, are returned to the Claimants.
The warrant on its face authorised a search for the following listed articles:
'Correspondence and other documentation relating to the structure, registration and ownership of companies;
Documentation relating to VAT invoices and returns;
Customer records, banking, financial and accountancy documentation, including correspondence, payment slips and money service bureau transactions;
Documentation relating to the income and employment of AC and RC, BK and GSTA;
Documentation relating to tax credit claims;
Documentation relating to mobile telephone documents and billing;
Mobile telephones, faxes and other telecommunications equipment;
Computers, laptops, tablets and other storage media;
Documentation relating to the movement and control of cash and assets overseas.'
This list then concluded with the following words:
'any high value items suspected of being the proceeds of crime and any other items which appear relevant to the offences under investigation.'
Four specified premises authorised to be entered and searched under the warrant, were listed in the attached schedule as follows:
(1) A, Loughborough, Leicestershire
(2) B Road, Hathen, Leicestershire
(3) C Close, Leicester, Leicestershire
(4) D Street, Leicester, Leicestershire
Although not stated on the face of the warrant, premises (1) was the home address of the Third Claimant, premises (2) was the home of the First and Second Claimants, premises (3) was the home of the Fourth Claimant and premises (4) were the business premises of a company run by the First and Second Claimants.
In addition that schedule of premises at its foot made further provision for the entry and search of any other premises occupied or controlled by the Claimants, by the inclusion on its face of the following words:
'and/or
Premises occupied by or controlled by BK, RC AC, BK and GST'
It is below those words that the signature of the authorising magistrate appears.
In other words the warrant on its face by virtue of this additional provision was not a 'specified premises warrant' but an 'all premises warrant' as referred to in section 8(1B) of the 1984 Act.
The First and Second Claimants are husband and wife. The Third Claimant is the sister of the First Claimant. The Fourth Claimant is the former husband of the Third Claimant.
Although no Acknowledgement of Service has been lodged by the First Defendant, what has been produced is a copy of a document received by the Second Defendant from the First Defendant, being a copy of the Information as sworn by Officer Stevens as annotated on the reverse by the legal advisor to the magistrate. The first annotation reads as follows:
'Married couple behind Phoenix companies and putting family members and staff up front. 4 individuals based on rag trade area of Leicester. Issuing invoices to a legit company
work done and invoices are genuine. Companies have failed to declare VAT and pay it over.'
The second annotation reads as follows:
'reasonable grounds to believe that evidence will be found on the premises
Seeking entry to the premises without a warrant would be likely to result in evidence being destroyed or removed
Approved by Mr James on 17/5/13 at 3.35pm'
The Information itself explained in some detail the nature of the Investigation being undertaken by the Second Defendant under the title 'Operation Endgame' which was the background to the application for the warrant, it being an investigation into a number of indictable offences in which the Claimants were believed to be involved. These offences included:
— the fraudulent evasion of Value Added Tax (VAT) contrary to section 72(8) of the VAT Act of 1994;
— false representation and possession of articles contrary to sections 2 and 8 of the Fraud Act 2008;
— the fraudulent evasion of income tax contrary to section 106(a) of the Taxes Management Act 1970 and tax credit fraud contrary to section 35 of the Tax Credit Act 2002;
— money laundering offences contrary to sections 327, 328, and 329 of the Proceeds of Crime Act 2002.
As to the involvement of the individual Claimants, the Information stated amongst other things:
'AC and RC are married and live in a substantial property in Hathen, Leicestershire. They are believed to be the controlling minds behind the use of a series of phoenix companies and de-registered VAT numbers that are the foundation for this criminal activity. It is suspected that AC has used and is using family, associates and employees to front these companies in an attempt to distance themselves from the criminality. These associates are believed to be BK and GST.
It is believed that AC, RC, BK and GST are involved in the fraudulent evasion of VAT, income tax and associated money laundering activities through four companies known as X Limited, Y Ltd, Z Limited and P, all of which have ceased trading. The VAT evaded by their activities is excess of £250,000.'
The grounds of challenge
Four grounds of challenge appear in the claim form.
Ground One
The first ground is founded on the provisions of section 15(1) of the 1984 Act which provides in part that ' an entry on or search of premises under a warrant is unlawful unless it complies with this section and section 16 below', and alleges non compliance with subsection (6)(b) of section This provides as follows:
'(6) A warrant —
(a) …
(b) shall identify, so far as practicable, the articles or persons to be sought.'
It is to be noted that section 15 is headed :
'search warrants — safeguards'
Ground one as it appeared in the claim form was in the following terms:
'The warrant should be quashed and the entries, searches and seizures declared unlawful because it did not identify with sufficient precision the property which the officers of the Second defendant might seize.'
Mr Alun Jones QC, on behalf of the Claimants, did not before us pursue the quashing of the warrant on this ground, seeking now only the declaration of unlawfulness. He was wise to do so. It is established jurisprudence that non compliance with the provisions of section 15 or 16 does not render the warrant itself unlawful but rather renders unlawful the entry and search (and necessarily any seizure consequent upon such unlawful search) under the authority of non-compliant warrant. See for example the observations of this court in R (on the application of Mathew Goode) v The Crown Court at Nottingham [2013] EWHC 1728 (Admin) at paragraph 45; and at paragraph 43 in the judgment of my lord, Lord Justice Treacy, in R (on the application of Lees and others) v Solihull Magistrates Court [2013] EWHC 3779 (Admin), the claim which was heard immediately before the present case.
Grounds two, three and four
Grounds two, three and four do go to challenge the validity of the warrant or more precisely the lawfulness of the decision of the Magistrate to issue the warrant under section 8, and do so by reference to the pre-conditions which have to be met before the power to issue the warrant can arise.
Section 8(1) requires that the magistrate be satisfied that there are reasonable grounds for believing that a number of what has been described elsewhere as...
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