Cecil Steven Heilligger v Westminster Magistrates' Court
| Jurisdiction | England & Wales |
| Judge | Mr Justice Johnson |
| Judgment Date | 06 May 2022 |
| Neutral Citation | [2022] EWHC 1056 (Admin) |
| Docket Number | Case No: CO/2001/2021 |
| Court | Queen's Bench Division (Administrative Court) |
[2022] EWHC 1056 (Admin)
Mr Justice Johnson
Case No: CO/2001/2021
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
Alun Jones QC (instructed by Hollingsworth Edwards) for the Claimant
Nicholas Yeo and Ryan Dowding (instructed by Metropolitan Police Service) for the Second Defendant
Hearing date: 27 April 2022
Approved Judgment
This judgment was handed down remotely by circulation to the parties' representatives by email and released to The National Archives. The date and time for hand-down is deemed to be 10am on 6 May 2022.
The claimant seeks judicial review of the issue of a search warrant by the first defendant, its execution by the second defendant's officers, and the retention of property, including a substantial quantity of cash. He seeks a declaration as to the unlawful conduct of the second defendant's officers, an order for the return of the property seized, and damages for trespass.
The second defendant now accepts that the search warrant failed to comply with statutory requirements, that it was therefore invalid, and that the search and seizure of property were unlawful (although the second defendant does not accept the full extent of the claimant's case). The second defendant resists an order for the immediate return of property and wishes to make an application to the Crown Court under section 59 of the Criminal Justice and Police Act 2001 which would, if successful, permit the continued retention of the property.
The background
In March 2021 the claimant was living in London. He was being investigated by the authorities in Sint Maarten on suspicion of involvement in (amongst other matters) four murders, money laundering and participation in a criminal organisation. It is said that encrypted data that has been analysed during the investigation shows that the claimant “coordinates assassinations.”
The authorities in Sint Maarteen sought the claimant's extradition and made a request to the United Kingdom for mutual assistance. The Secretary of State made a direction under section 13 of the Crime (International Co-operation) Act 2003 that the police should apply for a search warrant of the claimant's home. In addition, a warrant for the claimant's arrest was obtained under section 71 of the Extradition Act 2003.
The police duly applied for a search warrant under section 8 of the Police and Criminal Evidence Act 1984, read with section 16 of the 2003 Act. On 9 March 2021, the search warrant was issued. On its face it grants authority to search for:
“(A) Cash;
(B) Documents relating to and concerning real estate properties or goods linked to the offending Heilligger which is relevant to the offence under investigation;
(C) Electronic devices on which data may be stored including telephones, computers and USB sticks;
(D) All administration/paperwork dating from 2015 till now concerning the allegations against Heilligger;
(E) Objects/goods that can be linked to the criminal organization the No Limit Soldiers or the Army;
(F) All administration/paperwork concerning the traveling of Heilligger;
(G) All administration/paperwork in connection with countries of which we know members of the NLS reside like Dubai, Brazil, Dominic Republic and of possible properties in those countries.”
The warrant was executed at 5am on 19 March 2021. Three officers attended at the claimant's home. Entry was forced, and damage was caused to the door. The claimant was arrested under the arrest warrant. A search was conducted which lasted just over 2 hours. The police seized twenty-five items of property, including mobile phones, an ipad, a computer, a small amount of cannabis, and approximately £62,000 in cash (“the cash”). They left two pieces of paper with the claimant's partner who was at the premises with him. The first is a copy of the first page of the warrant. The second is a copy of the second (and final) page of the warrant. The second page is signed by the District Judge who issued the warrant, certifying that it is a true copy of the original warrant. The two pages were not stapled or otherwise attached to each other.
On 22 March 2021 there was email correspondence in which the Sint Maarten authorities asked for the cash to be paid into a bank account and then transferred later with the court's approval together with the seized goods. The cash was duly paid into a bank account. That meant that the cash itself was no longer available as evidence for the investigation. The claimant was not told about this until later (see paragraph 10 below).
On 29 June 2021 the second defendant filed an acknowledgement of service. It was conceded that the warrant should be quashed because it failed sufficiently to identify the articles to be sought, in that it did not explain the allegations referred to in paragraphs (B) and (D), or list the relevant countries in (G) (see paragraph 5 above). It was acknowledged that this meant that the search and seizure were also unlawful. It was said that the second defendant would issue an application under section 59 of the Criminal Justice and Police Act 2001 to seek to retain the material. This was not done.
The detailed grounds were due by 1 October 2021. On 30 September 2021 the second defendant applied for an extension of time until 29 October 2021 on the ground that pressure of work had meant that it was not possible to complete the detailed grounds in time. The application was opposed by the claimant but granted by the court.
On 7 October 2021 the second defendant's officers had a conference with counsel. On 8 October 2021 a request was made by the second defendant to “urgently contact Sint Maarten to establish whether they still wished to apply for the cash pursuant to an external order… they would need to urgently commence the process… [so that] an application [could] be made to restrain the property in this jurisdiction.” On 11 October 2021, Mr Daniel Futter, a lawyer employed by and acting for the Metropolitan Police Service, wrote to the claimant's solicitor and acknowledged that the cash was not being held lawfully because “it had mistakenly been banked by the MPS.” It was explained that the options were being urgently explored with Sint Maarten and that he would revert the following week. The claimant's solicitor responded by saying that the money should be restored to the claimant and requesting that the second defendant notify him of any request from Sint Maarten for the transfer of the money. On 19 and 25 October 2021 Mr Futter was provided with correspondence between the UK Central Authority and the authorities in Sint Maarten. That correspondence showed that the authorities in Sint Maarten wanted the money to be transferred to them, that they had been told that they would need to make a request for restraint, and that they had said that they would do so following the extradition proceedings. On 25 October 2021 Mr Futter was provided with advice from counsel in which it was said that only a “short period of grace [was] potentially available to the MPS when holding cash unlawfully to determine what, if any, steps should be taken next.” On 29 October 2021 detailed grounds were filed on behalf of the second defendant.
On 29 October 2021, 8 December 2021 and 19 January 2022 counsel emailed Mr Futter chasing for updates and urgent instructions. On each occasion there was no response. Mr Futter left the Metropolitan Police Service on 25 March 2022. At that point, the case was transferred to a senior solicitor within the Metropolitan Police Service, Asma Karam-Aslam. Urgent advice from counsel was sought and provided about the steps that needed to be taken as a matter of priority. Ms Karam-Aslam says (in a witness statement made shortly before the hearing) that discussions are now being undertaken with the authorities in Sint Maarten to ensure that the matter is resolved without any further delay.
In her statement, Ms Karam-Aslam says that the “inaction” of the second defendant's in-house lawyer was a result “of a general overload of work… with limited resources.” She explains that there has been a significant increase in work and that this has coincided with experienced members of staff leaving the organisation. The volume of work being undertaken by Mr Futter resulted in this case being overlooked, and the “relevant advice” not being provided to the client.
Extradition proceedings regarding the Claimant are ongoing. On 9 December 2021 the Secretary of State ordered the Claimant's extradition. An appeal against that order is outstanding.
The grounds of challenge and response
The claimant advances three grounds of challenge.
First, the claimant says that the entry, search, and seizure of property was unlawful because there was a breach of section 15(6)(b) of the 1984 Act, in that the warrant did not set out its ambit in a sufficiently clear and precise way.
Second, the claimant says that there were breaches of sections 15(8) and 16(5)(c) of the 1984 Act because the copy of the warrant that was left at the premises was not clearly certified as a true copy (only the second page was signed, not the first page) and the two pages were not attached to each other.
Third, the claimant says that the police have unlawfully retained the cash that was taken from the property at the time of the execution of the warrants.
The first defendant has not taken any part in these proceedings.
In pre-action correspondence, the solicitor for the second defendant expressed the “firm belief” that the proposed claim for judicial review was “hopelessly misconceived” and asserted that there was “no prospect of even permission...
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