Khajag Kouyoumjian (First Claimant) Sarkis Kouyoumjian (Second Claimant) v Hammersmith Magistrates' Court Metropolitan Police (Interested Party)
| Jurisdiction | England & Wales |
| Judge | Lord Justice Aikens,Mr Justice Mitting |
| Judgment Date | 29 October 2014 |
| Neutral Citation | [2014] EWHC 4028 (Admin) |
| Docket Number | CO/2226/2014 |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 29 October 2014 |
[2014] EWHC 4028 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
DIVISIONAL COURT
Royal Courts of Justice
Strand
London WC2A 2LL
Lord Justice Aikens
Mr Justice Mitting
CO/2226/2014
Mr Rupert Bowers and Ms Abigail Bright (instructed by Byrne and Partners) appeared on behalf of the Claimants
The Defendant did not appear and was not represented
Mr Nicholas Mathers (instructed by the Metropolitan Police) appeared on behalf of the Interested Party
The Background to the Claim
This is a claim for Judicial Review of a decision of District Judge Jennifer Edwards to grant four search warrants pursuant to S.8 of the Police and Criminal Evidence Act 1984 on 13 February 2014. The warrants were executed on 22 February 2014. I will set out in a little more detail some of the circumstances leading to the application and what happened subsequently in a moment. In short, the material seized consisted of four laptop computers, one desktop computer, various smartphones and hard copy documents. They were taken from the business premises of the Claimants in the present proceedings.
The application for Judicial Review was issued on 14 May 2014. The Claimants are brothers. The first is a director of several companies and he runs a property portfolio as well. The Second Claimant, whom I shall refer to as Sarkis, is a disqualified director but he assists his brother in running various companies. Sarkis is disqualified from being a company director until 2015. The companies are broadly concerned with restaurants and their turnover is about £3 million per annum.
The claim for Judicial Review challenged both the issue of the warrants and their execution. The relief sought is set out in section 7 of the Judicial Review claim form and is as follows:
"1) A declaration that the entry, searches and seizures made pursuant to the warrants were unlawful.
2) An order quashing the warrants.
3) A mandatory order for the return of all material seized and the destruction of any copies taken and an order that no use be made of any knowledge gained as a result of examining the material seized under the warrants.
4) Damages.
5) Costs."
An Acknowledgment of Service was made by the Respondents on 4 June 2004. In section D of that form it stated:
"Although the Defendant will not be contesting the claim for judicial review. [sic] The Defendant does not agree to return the seized material to the Claimants at this time.
The Defendant will be seeking to agree an order with the Claimants to include a time period in which the return of the currently seized material is stayed pending any order of the Crown Court under s.59 of the Criminal Justice and Police Act 2001, under which Act the Defendant will be issuing an application. The Defendant requests the court allows a period of time for the parties to seek to agree the terms of such an order."
In fact, nothing very much happened until 5 September 2014. On that date the Director of Legal Services of the Metropolitan Police sent a letter to the solicitors acting for the Claimants. It made various proposals based upon the intention of the Metropolitan Police to apply to the Crown Court under S.59(5)(b) of the Criminal Justice and Police Act 2001 ("the CJPA") for an order that all the material that was obtained in the execution of the four warrants should be retained by them. Such an application was eventually issued on 9 October 2014.
The present position of the parties is that Mr Mather, on behalf of the Metropolitan Police, accepts that certain relief should indeed be granted to the Claimants. I can deal with these by reference to a draft order which has been prepared by Mr Bowers on behalf of the Claimants. Paragraph 1 is an order that the claim be allowed. That is agreed. Paragraph 2 is an order that the search warrants issued by the First Defendant (that is the Hammersmith Magistrates' Court) on 13 February 2014 in relation to the relevant premises be quashed. That also is agreed. The third order proposed is that the entries, searches and seizures made pursuant to the quashed warrants are declared unlawful. There is no dispute about that. Nor is there any dispute that there should be an order that no use should be made of any knowledge gained as a result of the execution of of the quashed warrants. It is also agreed that the Second Defendant should pay the Claimant's damages in the sum of £5,000 and that the Second Defendant should pay the Claimant's costs.
So far as the last is concerned, we understand that there is a costs schedule that has been served by the Claimants on the Second Defendants, but the court has not seen it, so how costs might be dealt with is a matter that will have to be considered hereafter.
The Dispute: Section 59 of the Criminal Justice and Police Act 2001
The sole issue in dispute is whether there should be an order as proposed in paragraph 4 of the draft order that Mr Bowers has prepared. That states:
"All material seized under the quashed orders and any copies made thereof shall be delivered to the offices of the solicitors for the claimants within 14 days of the date of this order."
Mr Mather, on behalf of the Metropolitan Police, says that such an order should not be made in view of the pending application under S.59(5)(b) of the CJPA. Section 59 of the CJPA provides:
"59. Application to the appropriate judicial authority.
(1) This section applies where anything has been seized in exercise, or purported exercise, of a relevant power of seizure.
(2) Any person with a relevant interest in the seized property may apply to the appropriate judicial authority, on one or more of the grounds mentioned in subsection (3), for the return of the whole or a part of the seized property.
(3) Those grounds are—
(a) that there was no power to make the seizure;
(b) that the seized property is or contains an item subject to legal privilege that is not comprised in property falling within section 54(2);
(c) that the seized property is or contains any excluded material or special procedure material which —
(i) has been seized under a power to which section 55 applies;
(ii) is not comprised in property falling within section 55( 2) or (3); and
(iii) is not property the retention of which is authorised by section 56;
(d) that the seized property is or contains something seized under section 50 or 51 which does not fall within section 53(3);
and subsections (5) and (6) of section 55 shall apply for the purposes of paragraph (c) as they apply for the purposes of that section.
(4) Subject to subsection (6), the appropriate judicial authority, on an application under subsection (2), shall —
(a) if satisfied as to any of the matters mentioned in subsection (3), order the return of so much of the seized property as is property in relation to which the authority is so satisfied; and
(b) to the extent that that authority is not so satisfied, dismiss the application.
(5) The appropriate judicial authority —
(a) on an application under subsection (2);
(b) on an application made by the person for the time being having possession of anything in consequence of its seizure under a relevant power of seizure, or
(c) on an application made—
(i) by a person with a relevant interest in anything seized under section 50 or 51, and
(ii) on the grounds that the requirements of section 53(2) have not been or are not being complied with,
may give such directions as the authority thinks fit as to the examination, retention, separation or return of the whole or any part of the seized property.
(6) On any application under this section, the appropriate judicial authority may authorise the retention of any property which —
(a) has been seized in exercise, or purported exercise, of a relevant power of seizure, and
(b) would otherwise fall to be returned,
if that authority is satisfied that the retention of the property is justified on grounds falling within subsection (7).
(7) Those grounds are that (if the property were returned) it would immediately become appropriate —
(a) to issue, on the application of the person who is in possession of the property at the time of the application under this section, a warrant in pursuance of which, or of the exercise of which, it would be lawful to seize the property; or
(b) to make an order under —
(i) paragraph 4 of Schedule 1 to the 1984 Act,
(ii) paragraph 4 of Schedule 1 to the Police and Criminal Evidence (Northern Ireland) Order 1989 (S.I. 1989 1341 (N.I. 12)),
(iii) section 20BA of the Taxes Management Act 1970 (c. 9), or
(iv) paragraph 5 of Schedule 5 to the Terrorism Act 2000 (c. 11),
under which the property would fall to be delivered up or produced to the person mentioned in paragraph (a).
(8) Where any property which has been seized in exercise, or purported exercise, of a relevant power of seizure has parts ("part A" and "part B") comprised in it such that —
(a) it would be inappropriate, if the property were returned, to take any action such as is mentioned in subsection (7) in relation to part A,
(b) it would (or would but for the facts mentioned in paragraph (a)) be appropriate, if the property were returned, to take such action in relation to part B, and
(c) in all the circumstances, it is not reasonably practicable to separate part A from part B without prejudicing the use of part B for purposes for which it is lawful to use property seized under the power in question,
the facts mentioned in...
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