Business Energy Solutions Ltd v The Crown Court at Preston
| Jurisdiction | England & Wales |
| Judge | Mr Justice Green,Lord Justice Bean |
| Judgment Date | 19 June 2018 |
| Neutral Citation | [2018] EWHC 1534 (Admin) |
| Docket Number | Case No: CO/4768/2017 |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 19 June 2018 |
[2018] EWHC 1534 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
DIVISIONAL COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
Lord Justice Bean
Mr Justice Green
Case No: CO/4768/2017
Philip Marshall QC and Matthew Morrison (instructed by Weightmans LLP) for the Claimants
Andrew Thomas QC and Sarah Morgan (instructed by Cheshire West and Chester Legal Services) for the Interested Party
Hearing date: 1st May 2018
A Introduction, overview and conclusion
This case raises novel issues about the duties of authorities who, pursuant to lawfully obtained warrants, seize computers and other electronic devices containing data which the authority then copies and retains.
On the 22 nd July 2016 the Interested Party, a Trading Standards Authority (“the Authority”) applied to the Crown Court for, and obtained, warrants to search and seize material from various premises. The warrants permitted the seizure of computer equipment such as servers, laptops, usb sticks and mobile phones. The warrants were to further an investigation into possible fraud by the Claimants.
The warrants were executed by Lancashire Constabulary on 28 th and 29 th July 2016 and data storage devices with a capacity of 53 terabytes were seized 1. The exercise was conducted under the Criminal Justice and Police Act 2001 (“CJPA 2001”). There was no challenge to the lawfulness of the warrants.
Subsequently, the contents of these seized devices were imaged and copied and then backed-up and the physical devices were returned. The (copied) data which was now on the servers of the investigating authorities exceeds 200 million documents and included about 770,000 audio recordings of telephone conversations.
Section 53 CJPA 2001 imposes an obligation on persons who come into possession of seized material (such as the Authority) to conduct an “ initial” review and then return any seized property which is not properly within the scope of the warrant. There are exceptions to the duty when the properly seized material cannot, applying a test of reasonable practicability, be separated from material not covered by the warrant. Under section 59 CJPA 2001 a person can apply to the Court for an order compelling the return of “ seized property” or for other “ directions” relating to the “ examination, retention, separation or return of the whole or any part of the seized property”. Subsequently, in 2017, the Claimant applied to the Court under section 59 for return of physical property, hard copy documents and data now stored and backed-up on the Authority's systems. The Judge refused to make any direction about the copied data held by the Authority. This refusal is the decision now challenged in this judicial review. The claim raises a series of issues which it is helpful to identify at the outset.
The first issue focuses upon how the duty to return in section 53 CJPA 2001 operates in the context of copied data. In a non-data case, if an item of property is seized by an authority, for instance a motor vehicle, then when it is returned the authority no longer has the item in its possession. But in a case such as the present where the physical devices have all been returned and the authority retains electronic digital copies that data is incapable of being “ returned” in any conventional sense of the word. That data subsists on the authority's computers in the form of binary numbers in electronic form. It is true that the data could be deleted but deletion is not, ordinarily, encompassed within the concept of “ return”.
If therefore the duty to return in the CJPA 2001 applies only to the physical items seized (the servers, laptops, usb sticks etc) then the seizing authority is under no additional obligation to fillet the data it has subsequently copied to ensure that it is consistent with the warrant and to return the residue. If this is correct, it might be argued that it undermines the purpose of the CJPA 2001 which recognises that the exercise of a power of search and seizure is a serious intrusion into private freedoms
and rights and should be strictly circumscribed by the law. On the other hand, it might also be said that from the perspective of the person or company under investigation it is the seizure of its computer equipment which causes business disruption and the policy imperative is therefore to facilitate the earliest restoration of that physical property. The retention by the authority of copied data thereafter causes no additional harm and raises a far more muted public interest.The second issue addresses the provisions under which the duty to return seized property which is not within the scope of a warrant is subject to certain exceptions one of which (in summary) is that it is not reasonably practicable to separate it from property which is within the scope of the warrant and can therefore be retained.
On the 28 th July 2017, the Claimants applied for an order for the return of property pursuant to section 59 CJPA 2001. A hearing was held before HHJ Brown, the Recorder of Preston, on the 7 th and 8 th September 2017, during which the Authority consented to providing the Claimants with: (a) a list setting out, individually documents or files of such documents “ seized in hard copy form”; (b) a description of the document or file of documents; and (c), a brief explanation of why it was believed to fall within the scope of the warrant. The Authority refused to go further and apply that same process to soft, copied, material in electronic form. The issue boiled down to whether the exception from the duty to return based upon reasonable practicability of separation was a test based upon physical or technical capability, on the one hand, or practical capability on the other hand.
It is common ground that if the test is only physical or technical capability then the Authority, could (by expending time, money and effort) conduct the exercise. If, however the test is practical capability (which takes into account considerations over and above technical capability) then the Authority argued that it was impracticable for a variety of good and sound reasons relating to time, cost and diversion of resources etc to separate out the data which was within and outside the scope of the warrant. In his ruling the Judge applied the practical capability test advanced by the Authority. The correctness of that analysis of the test is raised in the claim.
The third issue is whether even if the Judge was correct in applying the practical capability test to section 53 CJPA 2001, he nonetheless acted irrationally in accepting the arguments and evidence of the Authority as to the (very substantial and therefore unacceptable) burden that being required to conduct the segregation exercise demanded by the Claimants would entail.
The fourth issue concerns a narrow point about the duty to provide inventories of items seized under section 21 PACE.
In written and oral arguments advanced by the Authority another (fifth) issue arose which is of some practical importance. Mr Thomas QC, for the Authority, contended that in reality the claim for judicial review was a collateral, satellite, attempt to thwart the ongoing investigation and any sensible disputes were capable of being, and should be, resolved in the Crown Court upon the basis that there was an adequate alternative remedy in that court under section 59 CJPA 2001.
The principal issues arising for determination before the court may thus be summarised as follows:
a) Issue I (“return” of seized property): Whether the duty to “ return” seized property in section 53 CJPA 2001 applies to retained data which is copied from seized computer storage devices which are, following copying, restored to their owners.
b) Issue II (“reasonable practicability of separation”): Whether the reasonable practicability of separation test, in sections 53 and/or 59 CJPA 2001, is based upon (i) physical/technical capability or (ii) a broader practical capability.
c) Issue III (rationality): Whether, even if the Judge was correct in his interpretation of the reasonable practicability test, he nonetheless acted irrationality in accepting the Authorities submissions and evidence.
d) Issue IV (The duty to provide an inventory under section 21 PACE): Whether the Claimants had a right to a “record of what was seized” and if so whether one was provided.
e) Issue V (alternative remedy): Finally, even if the Claimant is correct should relief be refused because it lacks utility and because the Claimants could and should instead have exercised rights and remedies in the Crown Court under section 59 CJPA 2001.
The Courts have long recognised that the law relating to warrants amounts to an “ unfortunate jumble of legislative provisions” ( Gittins v Central Criminal Court [2011] Lloyds Rep FC 219; A and B v Central Criminal Court [2017] EWHC (Admin) 70, [2017] 1 WLR 3567 at paragraph [11] (“ A v CCC”). In this latter case the Court (at paragraph [55]) sought to disentangle the “ jumble” by finding a solution which did “… practical justice by both facilitating the investigation and prosecution of crime and safeguarding the important public interest in protecting [individual rights]”.
The conclusions I have arrived at seek to apply the CJPA 2001 so as to achieve “ practical justice” and in a way which reflects the complexities of modern computing, enables investigations to proceed effectively but which also protect individual rights against what is by its very nature an intrusive power of search and seizure.
In conclusion:
i) On Issue...
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