John Sweeney v Westminster Magistrates Court (1st Defendant) London Regional Asset Recovery Team and Environment Agency (2nd Defendant Interested Party)
| Jurisdiction | England & Wales |
| Judge | Mrs Justice Nicola Davies,Lord Justice Pitchford |
| Judgment Date | 25 June 2014 |
| Neutral Citation | [2014] EWHC 2068 (Admin) |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 25 June 2014 |
| Docket Number | Case No: CO/1148/2013 |
[2014] EWHC 2068 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
DIVISIONAL COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
Lord Justice Pitchford and Mrs Justice Nicola Davies DBE
Case No: CO/1148/2013
and
Samantha Riggs (instructed by Pannone) for the Claimant
Elliot Gold (instructed by London Regional Asset Recovery Team) for the 1st Defendant
Sailesh Mehta (instructed by the Environment Agency) for the Interested Party
Hearing dates: 13 May 2014
The claimant challenges the lawfulness of a search warrant issued by the first defendant, the Westminster Magistrates Court, on 10 May 2013. Detective Constable Mary Allen from the Regional Asset Recovery Team ("RART"), the second defendant, applied pursuant to section 8 of the Police and Criminal Evidence Act 1984 ("PACE") on behalf of the Environment Agency (" EA") the interested party, to enter and search the claimant's premises. The premises included the business premises at Trout Lane Depot, Middlesex ("The Site"), a waste transfer and recycling station operated by Ethos Green Ltd, together with the home of the claimant in Iver. Contained within the warrant was the identified purpose of the search. Set out in a schedule were the names of six individuals together with their home addresses plus the name and address of a firm of accountants, all premises were the subject of the warrant. Some of the individuals have been joined as interested parties in these proceedings. For the purpose of this application they have played no real part.
The ex-parte application for the warrant was made to Justices sitting in camera at Westminster Magistrates Court. No information was provided to the court in advance of the application. The written Information was given to the court, the application took 15 minutes. No contemporaneous record of the proceedings was made, neither the court nor DC Allen made any notes. DC Allen stated that she had no memory of what, if any, questions were asked of her. No written reasons were provided by the Justices as to the grant of the warrant. In a letter dated 8 August 2013, the legal team manager of the court stated that "The Magistrates were satisfied on the strength of the information that there were reasonable grounds to believe that PACE section 8 (1) (a), (b), (c), (d) and (e) were met. Further that without the grant of a warrant section 8 (3) (a), (c) and (d) applied. Their view was that the detailed summary provided by the applicant clearly addressed the necessary matters and gave compelling grounds for belief."
On 16 May 2013 the warrant was executed at a number of premises. Officers accompanied by a film crew, executed the search warrant at the Site. The claimant declined to grant access to the film crew but showed the officers around the building and depot in order to identify any potential hazards. A search of the office block commenced at 7.15 a.m. and concluded at 10.30 p.m. Documentation found within the premises was removed as were two laptops and various discs. Simultaneously officers attended the home address of the claimant to execute the search warrant. The claimant provided keys to enable them to gain access. Correspondence, a camera, a Blackberry, a quantity of folders and files, £2000 in cash and coins and other items were seized. The property is presently held, in part, by RART and, in part, by the EA. At a date which has not been identified it was agreed between RART and the claimant that no further examination of the material would take place pending the outcome of these proceedings.
In support of his application the claimant relies upon 10 grounds. HH Judge Pelling QC, sitting as a judge of the High Court, granted permission in respect of Gounds 3 and 5. The claimant seeks an oral hearing on the issue of permission in respect of the refusal of the outstanding grounds. Prior to this hearing the claimant indicated that in the event that he was successful upon Ground 3 and/or 5 he would not pursue the oral application for permission upon the other grounds.
The claimant seeks the following relief:
• An order quashing the warrant;
• A declaration that the entry, search and seizure were unlawful;
• An order for the return of the items seized;
• Damages and costs.
• The court heard oral submissions made on behalf of the claimant, RART, the second defendant, and EA, the interested party. The Westminster Magistrates Court has declined to take part in the proceedings.
The challenges set out in Grounds 3 and 5 are:
Ground 3
The warrant, which was drafted in extremely wide terms ("evidence in documentary or any other forms") was unlawful because it failed to identify so far as practicable articles being sought: Section 15(6)(b) PACE.
Ground 5
The warrant was unlawful because the Information relied upon in support of the application was defective in a number of material respects:
(i) It failed to set out the statutory requirements, which have to be satisfied before a warrant can be granted.
(ii) It failed for each of the relevant statutory requirements to set out how that requirement is satisfied by setting out the relevant facts relied upon including all the facts and matters which are said to show that a particular "reasonable belief" is justified.
(iii) It failed to identify the offences with reference to the facts. E.g. " Langdon Pumas Football Ground – This site is a small football ground just off A127 in Essex. There is no environmental permit on the site. Between the 7 th and 10 th October approximately 100 tonnes of transfer station waste deposited. Evidence found in the waste traces to Envirowasyste (London) Ltd. 100 tonnes at £64 per tonne landfill tax = £6,400." Is it being suggested that Envirowayste tipped waste from their Site at the Football Ground?
(iv) It failed to make full and frank disclosure about information within the knowledge of the EA. The EA knew that the Company was contracted by a third party to remove waste from the Langdon Pumas football ground because Gary Yardley from the EA telephoned the Company the day after the waste had been cleared to ask for the waste to be quarantined and spoke to the third party. The Company agreed to keep the waste for 24 hours. The EA failed to inspect. Further, the EA did not attend the football ground whilst the waste was on site. Approximately 30 tonnes of waste had been deposited by a third party, not 100 tonnes. Waste Transfer Notes are available to show the waste was carried away from the site by the Company, copies of which were never requested by the EA.
(v) Although reference is made to "evidence", (see for example (iii)) the Information fails to identify the evidence at any site. In these circumstances, it is difficult to assess how the tribunal could be satisfied there are reasonable grounds for believing that an indictable offence had been committed. No explanation is provided for the belief held.
(vi) It failed to make the court aware of the EA's statutory power of search and to request information (which have been exercised in the past).
(vii) It failed to make the court aware that the EA made regular compliance visits to the Site and also attended Standlake, Oxfordshire. Once the Claimant is able to gain access to company records, a Chronology on Contact will be compiled.
(viii) It did not give any factual basis for the assertion that requests had been made by the EA to interview company officers, however these have been ignored and significantly delayed. It is not accepted that any requests have been ignored. Conversely, the EA has failed to respond to correspondence sent on behalf of the company, which is not mentioned in the information. Further on at least two occasions, requests for interview were made in December and requests were made for the interviews to take place in January when Michael Krantz, the solicitor who regularly acted on behalf of the company was available.
(ix) No explanation is given why it is believed that material likely to be of substantial value to the investigation and likely to be relevant evidence would be at the home address of those mentioned in the warrant as opposed to business address.
(x) No explanation is given as to why the officer has reason to believe the purpose of the search may be frustrated or seriously prejudiced unless a constable arriving at the premises can secure immediate entry to them. The first defendant was misled by: (i) not being made aware of the power of the EA to attend with a constable under section 108 Environment Act 1995; (ii) the co-operation of JS & the Company in the past; (iii) the fact the EA visited the Site on a regular basis in accordance with their statutory duties and (iv) (save for the fly tipping at sites completely unconnected with JS & the Company) JS & the Company were aware the EA were investigating the Site and Standlake because they had been invited in for an interview which undermines the argument that any search might be frustrated or seriously prejudiced if they were on notice.
The background to the application
It is suspected by the EA and RART that the claimant has generated considerable sums of money through unlawful waste activities over a number of years. The claimant has controlled, as a director or as the de facto controlling mind, numerous companies which have dealt in waste at a permitted site, Trout Lane and at a site at Standlake, Oxfordshire. Regular and persistent breaches of the...
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Checks And Balances Public Authority Enforcement Powers
...is taking a much more robust stance on enforcing. The High Court in the case of Sweeney v Westminster Magistrates Court and another [2014] EWHC 2068 (Admin) has confirmed that due process of law needs to be followed and that even in this case where a court order authorising search and seizu......