Martin Brook v Preston Crown Court
| Jurisdiction | England & Wales |
| Judge | Mr Justice Soole,Lord Justice Leggatt |
| Judgment Date | 11 July 2018 |
| Neutral Citation | [2018] EWHC 2024 (Admin) |
| Court | Queen's Bench Division (Administrative Court) |
| Docket Number | CO/229/2018 |
| Date | 11 July 2018 |
[2018] EWHC 2024 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT
Royal Courts of Justice
Lord Justice Leggatt
Mr Justice Soole
CO/229/2018
CO/5880/2017
The Queen on the Application of
and
APPEARANCES
Mr A Williamson QC (instructed by Brown Rudnick) appeared on behalf of the First and Second Claimants.
Mr M Butt (instructed by Kingsley Napley) appeared on behalf of the Third Claimant.
THE DEFENDANTS did not appear and were not represented.
Ms B Collier (instructed by Lancashire Police Legal Services) appeared on behalf of the Interested Party.
In these two conjoined actions the claimants are seeking judicial review of two decisions to issue search warrants. In the first action, the claimants are Mr Matthew Brook and his father, Mr Martin Brook. They challenge a decision of HHJ Lloyd sitting at Preston Crown Court on 25 July 2017 to issue warrants to search four addresses which included Matthew Brook's home address and the business address of a company called Calderbrook Construction Limited, of which he is a director.
In the second action, the claimant is Mr Oliver Garthwaite, who is also a director of Calderbrook. He challenges the decision of a magistrate on 23 August 2017 to issue a warrant to search his home address.
The Lancashire Police who, through their Chief Constable, appear as an interested party – with the defendants taking no active part in these proceedings – applied for the search warrants in the course of a criminal investigation into suspected offences of bribery and money laundering. The investigation was prompted by an intelligence report alleging that a company called Smith Electrical was paying someone called Mike Emms �1 million in cash over 5 years to obtain contracts with Nationwide Building Society.
Lancashire Police made enquiries of Nationwide, who confirmed that they had an employee named Michael Emms who was employed as a project manager and had worked for Nationwide for 35 years. The Police also established that, according to his employer, Mr Evans was in a position to influence the choice of subcontractors used by Nationwide.
Mr Emms' salary was some �63,000 a year but further enquiries showed that he owned three properties in Northampton and owned or had an interest in two further properties in South Africa; that he had many different bank accounts with a number of financial institutions; that, in addition to receiving rental income and his salary, he had been making numerous cash deposits into different bank accounts on a weekly basis; and that he had travelled extensively on holidays, travelling business class and staying in expensive hotels. In short, Mr Emms had wealth far beyond what he could reasonably be expected to have accrued from his salary.
Lancashire Police learned from Nationwide that the main contractor that it uses for maintenance and construction work is Carillion plc, a very substantial company. Carillion often uses subcontractors. One such subcontractor which previously used to carry out maintenance work for Nationwide had been a company based in Lancashire called “Smith Electrical UK Limited”. One of the two directors of Smith Electrical from 2000 until shortly after the company was sold to the Imtech Group in 2011, or thereabouts, was Mr Martin Brook.
Subsequently, Carillion had used Calderbrook as a subcontractor. The police, through a company search, found out that Calderbrook had been set up in December 2013 by Matthew Brook and had started trading in January 2014. Mr Garthwaite later joined as a director in January 2016.
An email was uncovered by Nationwide which had been sent by Mr Emms to Nationwide's procurement manager in August 2014 and which contained a suggestion that Calderbrook should be authorised as a direct supplier of Nationwide. That request had not been granted but Calderbrook had continued to be used extensively as a subcontractor for Nationwide and there was evidence that, for the financial years 2016 and 2017, Calderbrook had carried out many contracts for Nationwide and that the value of the work undertaken in 2017 was approximately �14 million.
On the basis of the information obtained, Lancashire Police suspected that Mr Emms had used influence within Nationwide to procure lucrative work, first for Smith Electrical and then, after that company was taken over, for Calderbrook, in return for bribes paid by persons who were likely to have included Martin Brook and, more recently, Matthew Brook.
In July 2017, shortly after the investigation had commenced, Lancashire Police also received information that Mr Emms was planning to emigrate to New Zealand and was about to be made redundant by Nationwide.
On 25 July, they applied to Preston Crown Court for the four search warrants, three under s.8 of the Police and Criminal Evidence Act 1984 (“PACE”) to search the home addresses of Michael Emms and Matthew Brook and the business premises of Calderbrook, and one special procedure warrant under s.9 to search an address which they believed to be the home address of Martin Brook, who is a chartered accountant.
It turned out that Martin Brook no longer lived at that address and that the property had been sold. That warrant, therefore, was never executed. Mr Martin Brook was in fact at the time living at the same address as his son. The other warrants were executed on 26 July 2017.
At that stage, no application was made for a warrant to search Mr Garthwaite's address but, as I have mentioned earlier, such an application was later made. It was made on 23 August 2017 at Preston Magistrates' Court under s.8 of PACE. The warrant was granted and it was executed on 4 October 2017.
I shall take the two claims in turn, starting with that of Matthew Brook and Martin Brook. They challenge the lawfulness of the warrants granted on 25 July 2017 in respect of Martin Brook's home address and Calderbrook's address. They do so on a variety of grounds. However, the essential grounds which have been developed by Mr Williamson QC today are, first, that the warrant was allegedly obtained on the strength of certain misleading assertions and the failure to disclose certain allegedly material facts and, second, that the application for the warrant was too widely drawn.
As on any application made without notice to a person who will be affected if an order is made – particularly an order of a draconian kind such as an order authorising a search of a person's private or business address – a police officer applying for a search warrant owes a duty to make full and fair disclosure to the judge of all facts which it is material for the judge to know. That includes, as the form that was used to make the applications in this case makes clear, any information that might reasonably be considered capable of undermining any of the grounds of the application. The test of materiality is whether the information might reasonably lead the judge to refuse to grant the warrant.
The duty extends not only to facts known to the officer but to facts which would have been known if proper enquiries had been made. The extent of enquiries that need to be made in order to satisfy that requirement must depend on all the circumstances including, amongst other things, the nature of the investigation, the information that has been obtained and the urgency of the application.
The first ground advanced on behalf of Matthew Brook and Martin Brook is that there was a breach of that duty in the way that the application to issue warrants was presented. The central complaint made is that the application gave the impression that Calderbrook was a newly established business which had not existed before the company was founded in 2013 and that the people running Calderbrook, in particular Mr Matthew Brook, had no previous dealings with Nationwide and Carillion and, in the case of Matthew Brook, little, if any, previous business experience. That is said to have been the impression given by statements in the application that Calderbrook was “a young company” and that it had been initially formed in December 2013, with no suggestion that there had been any previous business dealings with Nationwide and Carillion other than those dealings which had taken place between those entities and Smith Electrical.
It is said in that regard that, if the police had carried out a proper search, they would readily have established that the Calderbrook company which was founded at the end of...
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