Chief Constable of Merseyside Police v Lawrence Robert Reynolds
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE ROSE,MR JUSTICE LEVESON |
| Judgment Date | 19 November 2004 |
| Neutral Citation | [2004] EWHC 2862 (Admin) |
| Court | Queen's Bench Division (Administrative Court) |
| Docket Number | CO/3509/2004 |
| Date | 19 November 2004 |
[2004] EWHC 2862 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
DIVISIONAL COURT
Royal Courts of Justice
Strand
London WC2
Lord Justice Rose
Mr Justice Leveson
CO/3509/2004
MR I UNSWORTH (instructed by CHIEF CONSTABLE OF MERSEYSIDE) appeared on behalf of the CLAIMANT
MR D ACKERLEY (instructed by NADIM ASSOCIATES) appeared on behalf of the DEFENDANT
This is an appeal by way of Case Stated by the Chief Constable of Merseyside Police. He challenges a decision of the Liverpool Justices on 11th May 2004.
The circumstances, as they are set out in the case were these. On 10th February 2004 officers in the Merseyside police seized £14,980 in sterling and $6,500 (US) from the home address of Mr Reynolds, the respondent. As it ultimately emerged, the United States dollars were in fact forged and there have, subsequent to the proceedings before the Magistrates, been charges levelled against the respondent in relation to that. But that aspect of the matter is immaterial for present purposes.
The seizure was made under section 294 of the Proceeds of Crime Act 2002, which enables a constable to seize cash if he has reasonable grounds for suspecting it is recoverable property or intended for use in unlawful conduct.
On the following day, 11th February, application was made to the Liverpool Justices, under section 295(2)(a) of the Act. Section 295 provides:
"(1) While the… constable continues to have reasonable grounds for his suspicion, cash seized under section 294 may be detained initially for a period of 48 hours.
(2) The period for which the cash or any part of it may be detained may be extended by an order made by a magistrates' court… but the order may not authorise the detention of any of the cash-
(a) beyond the end of the period of three months beginning with the date of the order…"
The Justices granted that application and authorised the continued detention of the cash for a further period of 90 days. The Form B, which the Justices signed in relation to that order, was timed at 10.00 am.
On 10th May 2004 there was faxed to the court and to the respondent's solicitors an application in Form A, for continued detention of the seized cash. According to the Case Stated "the order of 11th February 2004 expired on the 11th May 2004, the only contention being the time it expired."
The contention advanced before the Justices, on behalf of the appellant, was that the order of detention of 11th February did not expire until midnight on 11th May. The proceedings in relation to Form A took place on the morning of 11th May. There was a further matter for consideration by the Justices arising from Rule 5 of the Magistrates' Courts (Detention and Forfeiture of Cash) Rules 2002, Statutory Instrument 2002, No 2998. That rule, so far as it is presently material, is in these terms:
"(1) An application under section 295(4) of the Act for a further order under section 295(2) of the Act for the continued detention of cash shall be made in Form A and shall be sent to the justices' chief executive to whom the first application under section 295(4) of the Act was sent.
(2) The applicant shall send a copy of the application to every person to whom notice of previous related orders made under section 295(2) of the Act has been given.
(3) The justices' clerk shall fix a date for the hearing of the application, which, unless he directs otherwise, shall not be earlier than seven days from the date on which it is fixed, and the justices' chief executive shall notify that date to the applicant and every person to whom notice of the previous orders has been given."
It is in relation to that rule that further submissions were made on behalf of the appellant to the justices, namely, that although Form A was not served 7 days prior to the date of the hearing, (it being apparent from what I have already said that it was served on the day before the hearing on 11th May,) and although no application had been made for the 7 day period to be waived, that was merely a procedural irregularity, which did not irretrievably flaw the proceedings.
On behalf of the respondent, it was contended that the order of detention, dated 11th February 2004 had extended the permitted detention of the cash until 10.00 am on 11th May. If the appellant had made arrangements for the court to be convened and to make its decision before 10.00 am, the justices' clerk might have given permission for obtaining waiver of the 7 day notice period.
It was further contended, on behalf of the respondent, that because there had not been 7 days between the notice of application and the hearing, the proceedings were irretrievably flawed, because no direction had been sought from the justices' clerk to reduce the 7 day period of notice prescribed in Rule 5(3).
The Justices expressed this opinion, as appears from page 3 of the Case Stated:
"Strict compliance with the time limits for seized cash is necessary and therefore the application should have been processed sooner by the Appellant, and should not have been left until the date of expiration of the order of the 11th February 2004 to apply. In our opinion the earlier order expired at 10.00 am on the 11th May 2004 and not midnight as contended by the Appellant. Such orders are dated and timed and we believe that this is also indicative of the fact that the order ceases at the same time on the expiration date. Otherwise, if the order merely ceased at midnight, as contended, there would be no need to time the order at all, merely date it.
The fact the Form A was not served on the Court and the Respondent in accordance with the Rules did irretrievably flaw the proceedings/application and we distinguished this case from other cases referred to by the Appellant on the basis that these cases referred to applications made in accordance with earlier legislation and more importantly involved post and not pre-conviction orders. We accepted that the point being made was similar to that of the case before us but felt the application/proceedings were irretrievably flawed for the reasons mentioned above.
The fact that a direction was not sought in accordance with Rule 5(3) of the Rules did irretrievably flaw the proceedings/application."
The case proceeds to pose four questions for the consideration of this Court.
On behalf of the appellant, Mr Unsworth submits that the 90th day of the period permitted by the order of 11th February expired at midnight on 11th May. Although, no doubt, it is helpful that...
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Chief Constable of Merseyside Police v Reynolds
...an order for the detention of cash for 90 days expired, and whether the failure to give 7 days notice of the ap Neutral Citation : [2004] EWHC 2862 (Admin) Court and Reference: Divisional Court, CO/3509/2004 Judges : Rose LJ and Leveson J Chief Constable of Merseyside Police and Reynolds A......