Panesar and Others v HM Revenue and Customs
| Jurisdiction | England & Wales |
| Judge | Lord Justice Burnett,The Rt Hon Lady Justice Macur,The Rt Hon Lord Justice Patten |
| Judgment Date | 15 December 2014 |
| Neutral Citation | [2014] EWCA Civ 1613 |
| Docket Number | Case No: C1/2014/2830/C1/2014/2900/C1/2014/2901 |
| Court | Court of Appeal (Civil Division) |
| Date | 15 December 2014 |
[2014] EWCA Civ 1613
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISON
The Lord Chief Justice of England and Wales
The Hon Mr Justice Foskett
CO/1031/2014;CO/1462/2014; CO/1494/2014
Royal Courts of Justice
Strand, London, WC2A 2LL
Lord Justice Patten
Lady Justice Macur
and
Lord Justice Burnett
Case No: C1/2014/2830/C1/2014/2900/C1/2014/2901
Geraint Jones QC, Rizwan Ashiq (instructed by Rainer Hughes) for Appellants Panesar & Others and Jamas Hodivala (instructed by Blackfords LLP) for Appellants Gill, Brar, Chambers, Welham & Marwaha) and (instructed by Bivonas LLP) for the Appellants Patel &Turner
Andrew Bird (instructed by HMRC) for the Respondent
Hearing date: 2 December 2014
This is an application for permission to appeal against the order of the Divisional Court (Lord Thomas of Cwmgiedd CJ and Foskett J) of 14 August 2014 dismissing claims for judicial review: [2014] EWHC 2821 (Admin). By those claims the applicants challenged a decision of His Honour Judge Cooke QC, sitting at the Central Criminal Court, accepting jurisdiction to determine a claim by Her Majesty's Revenue and Customs ["HMRC"] pursuant to section 59 of the Criminal Justice and Police Act 2001 ["the 2001 Act"] for authority to retain material seized by them pursuant to search warrants that were subsequently quashed by the High Court. The applicants argued that on a proper construction of section 59 of the 2001 Act, the Crown Court had no jurisdiction to make the orders for retention sought by HMRC. The High Court disagreed. The applicants wish to challenge that conclusion. However, HMRC contend that the proceedings before the Crown Court and the Divisional Court were in a "criminal cause or matter" for the purposes of appeal routes with the consequence that the Court of Appeal has no jurisdiction. Rather the only appeal route is to the Supreme Court. The applicants have lodged an application with the High Court with a view to launching an appeal to the Supreme Court, should it be necessary. The skeleton arguments filed by the parties dealt not only with that issue but also with the merits of the appeal which the applicants wish to pursue. We heard argument on the question whether the Court of Appeal has jurisdiction in this matter as a preliminary issue in the application. For reasons which I will develop I have concluded that this court has no jurisdiction to hear the appeal.
These proceedings originate in search warrants issued by His Honour Judge Horton in Bristol Crown Court on the application of HMRC pursuant to section 8(1) and 9 of the Police and Criminal Evidence Act 1984 ["the 1984 Act"] as part of an investigation into an alleged substantial tax fraud. The material which had been seized following the issue of the warrants was not returned immediately to the various claimants in the High Court proceedings following the quashing of those warrants. The orders made by the Court deferred the return of the material pending an application by HMRC to the Crown Court pursuant to section 59(5)(b) of the 2001 Act for authority to retain it. The judge has since determined the substance of the application. He has allowed the HMRC to retain much, but not all, of what they had seized.
Section 59 of the 2001 Act provides:
"(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 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 the 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 authorized 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 52(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 of 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 paragraph (a) shall not be taken into account by the appropriate judicial authority in deciding whether the retention of the property is justified on grounds falling within subsection (7).
(9) If a person fails to comply with any order or direction made or given by a judge of the Crown Court in exercise of any jurisdiction under this section—
(a) the authority may deal with him as if he had committed a contempt of the Crown Court; and
(b) any enactment relating to contempt of the Crown Court shall have effect in relation to the failure as if it were such a contempt.
(10) The relevant powers of seizure for the purposes of this section are—
(a) the powers of seizure conferred by sections 50 and 51;
(b) each of the powers of seizure specified in Parts 1 and 2 of Schedule 1; and
(c) any power of seizure (not falling within paragraph (a) or (b)) conferred on a constable by or under any enactment, including an enactment passed after this Act.
(11) References in this section to a person with a relevant interest in seized property are references to—
(a) the person from whom it was seized;
(b) any person with an interest in the property; or
(c) any person, not falling within paragraph (a) or (b), who had custody or control of the property immediately before the seizure.
(12) For the purposes of subsection (11)(b), the persons who have an interest in seized property shall, in the case of property which is or contains an item subject to legal privilege, be taken to include the person in whose favour that privilege is conferred. "
The Divisional Court decided that section 59(5)(b) enabled HMRC, for the time being in possession of the seized material, to make the application for retention relying upon the grounds identified in section 59(6) and (7). To the extent that he ordered retention Judge Cooke QC was satisfied that, if that property were returned to the applicants, HMRC could immediately seek an appropriate warrant which would enable them lawfully to seize the material. Mr Jones QC told us that the applicants are likely to challenge that decision in judicial review proceedings.
The relevant powers of seizure identified in section 59(10) include those under the...
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