Liaqat Malik and Others v Manchester and Salford Magistrates' Court and Others
| Jurisdiction | England & Wales |
| Judge | Lord Justice Bean,Mrs Justice McGowan |
| Judgment Date | 18 July 2017 |
| Neutral Citation | [2017] EWHC 2901 (Admin) |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 18 July 2017 |
| Docket Number | CO/1220/2016 |
[2017] EWHC 2901 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
DIVISIONAL COURT
Royal Courts of Justice
Strand
London WC2A 2LL
Lord Justice Bean
Mrs Justice McGowan DBE
CO/1220/2016
The Queen, on the Application of:-
Mr Rupert Bowers QC (instructed by Khans Solicitors) appeared on behalf of the Claimant
Mr Andrew Bird (instructed by the Government Legal Department) appeared on behalf of the Third Defendant
The first two claimants and the third claimant, a company of which the first claimant was a director, were being investigated by the Home Office in respect of allegations that they were fabricating offers of employment, or making false statements that certain individuals were employed by them, and doing so in return for payment.
The Home Office wished to progress the investigation by searching for evidence at the home and business premises of the claimants. Applications were made on 27 January and 1 February 2016 for the issue of warrants under section 8 of the Police and Criminal Evidence Act 1984. These warrants were executed on 2 February 2016 and a number of items were seized.
By a claim form issued in this court on 4 March 2016 the claimants challenged the issue and execution of the search warrants on a number of grounds. Permission was initially refused on the papers by Hickinbottom J (as he then was), but on a renewed application for permission of this court Gross LJ and Nicol J granted permission on one of the original grounds and on a further ground added by amendment.
The original ground on which permission was granted was that the warrants failed to comply with section 15(6)(b) of PACE, which requires that a search warrant shall identify so far as practicable the articles to be sought. The new ground was that in its application to the magistrates' court the Home Office failed to inform the courts that there were live businesses operating at the business premises and the employment documentation which might be found there might include genuine documents. Genuine employment documents could have included special procedure material, and a necessary condition for the grant of the search warrants by the magistrates' courts might not therefore have been satisfied. In a document headed "Grounds of concession and submissions as to relief from the third defendant" dated 13 July 2016 Mr Andrew Bird, who has appeared on behalf of the Home Secretary before us today, conceded that there was merit at least in the original ground on which permission was granted.
On 29 November 2016 this court, comprising Supperstone J and myself, made an order quashing the search warrants and making further provision as follows. By paragraph 2 of the order, the entries and searches effected under the warrants which had been quashed were declared unlawful pursuant to section 15(1) of PACE. Paragraph 3 provided:
"(3) The Third Defendant [that is the Home Secretary] shall return to the Claimants all original property seized under the Warrants within 56 days of this Order unless prior to that date the Third Defendant files an application in the Manchester Crown Court for relief under s.59(5) and (6) of the Criminal Justice and Police Act 2001, in which case paragraph (4) applies.
(4) In the event that such an application is made then the obligation to return original property seized shall be subject to any decision to the contrary of the Crown Court in the s.59 proceedings, and the decision of the Crown Court shall be in substitution for (3) above.
(5) The Third Defendant is to be at liberty to inspect the original property and to make copies for the purposes only of considering whether to make an application under s.59 of the Criminal Justice and Police Act 2001 and for use in any such s.59 proceedings.
(6) Any further use of copies and/or originals is to be determined by the Judge in the s.59 proceedings. No such property or copies may be retained or used by the Third Defendant for any other purposes save to the extent that the judge so orders in the s.59 proceedings, and any material in respect of which the judge refuses to authorise retention shall be returned to the Claimants, or in the case of copies, destroyed."
The substantive judgment on that hearing was given by Supperstone J. It is published on the Bailii website: [2016] EWHC 3723 (Admin). It will be seen from that judgment that the area of dispute at the hearing was whether the Home Office should be permitted to retain the material in order to use it to inform the contents of an application to the Crown Court under section 59 of the 2001 Act, which is what Mr Bird contended and the order which this court in fact made, or whether on the other hand the material should have to be returned to the claimants or at least sealed, with the Home Office being required to make the section 59 application to the Crown Court, at least initially, without the benefit of the material, and then to seek permission from the Crown Court judge to inspect it.
We announced our decision and gave judgment on 29 November 2016. The order of the court was drawn up and sealed the following day, 30 November. On 24 January 2017 some but not all of the seized property was returned to the claimants. The next day the Government Legal Department filed an application under section 59 in the Crown Court by email without, at that stage, supporting evidence.
It will be observed that the application on 25 January was one day out of time. That is because time, in an order of this kind, runs from the date on which the order is pronounced, namely 29 November. The 56th day inclusive of the date on which judgment was pronounced was 23 January. The phrase "within 56 days of" takes one to the 57th day, namely 24 January. So the section 59 application should have been filed at the latest by 24 January. It is only by taking the date of sealing of the order as the start date, which is incorrect, that one could get to the 57th day (and thus the last date for filing the application) being 25 January.
The present claimants filed and served grounds of resistance in the Crown Court proceedings dated 6 February 2007. This document stated that they required an oral hearing of the application and continued as follows:
"2. The Applicant has not provided nor does the Applicant seek to provide any justification as to how they can retain each item of property seized under the warrants.
3. The Applicant has not provided any evidence within their application and therefore the Interested Parties are unable to make further representations.
4. On 29 November 2016, the Divisional Court quashed the warrants and ordered that the Home Office return the property to the Interested Parties unless an application under s59 was made within 56 days.
5. All parties were in attendance at the hearing on 29 November 2016 when the order was made. The Applicant failed to comply with the order in that she failed to lodge and serve a s59 application nor return the goods within 56 days that is to say, by 24 January 2017…..
6. The continued detention of the property seized under warrants is unlawful."
This succinct and understated document did not induce any sense of urgency, still less alarm, in those within the Government Legal Department who received it. It might have been otherwise if it had been accompanied by a letter asserting that the Secretary of State was now in contempt in retaining the property seized under the warrants. Some four and a half weeks went by until on 10 March 2017 the Government Legal Department lodged an application to this court for retrospective variation of the order announced on 29 November 2016 and sealed the following day. They did so without prior correspondence with the claimants' solicitors. They lodged an application notice with the Administrative Court Office. In answer to question 9, "Who should be served with this application?" They put "The claimants". This court received the notice with an accompanying witness statement of Alexander Smeeth of the Government Legal Department. The court gave notice of it by email to the claimants' solicitors but at a generic email address, info@khansolicitors. com, which was the address which the claimants' solicitors had given when originally lodging the claim in the present proceedings. The email read:
"Dear Sirs, We have received an application from the Government Legal Department seeking to vary the order of the Divisional Court on 29 November 2016 (attached). I would be grateful if you would let us have any responses you wish to make to this application by 4.00 pm on Tuesday 14 March 2017."
No such response was received. I am quite satisfied that both the court and the Government Legal Department assumed that the claimants' solicitors had received notice of the application, and had decided not to make any response. Accordingly the papers were placed before Supperstone J, lead judge of the Administrative Court, for him to make the order sought, paragraph 1 of which provided that the order of the Divisional Court should be varied by the substitution in paragraph 3 of the words "56 days" with the words "58 days".
I should record that the Government Legal Department accepted, as they have from start to finish, that they were at fault: indeed the draft order which they submitted, and which Supperstone J approved, provided that the third defendant should pay the claimant's costs,...
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