Power-Hynes and Another v Norwich Magistrates' Court and Another
| Jurisdiction | England & Wales |
| Judge | Lord Justice Stanley Burnton,Mr Justice Wilkie |
| Judgment Date | 26 June 2009 |
| Neutral Citation | [2009] EWHC 1512 (Admin) |
| Date | 26 June 2009 |
| Court | Queen's Bench Division (Administrative Court) |
| Docket Number | Case No: CO/4019/2009 |
[2009] EWHC 1512 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
DIVISIONAL COURT
Lord Justice Stanley Burnton
Mr Justice Wilkie
Case No: CO/4019/2009
Kennedy Talbot (instructed by Bivonas) for the Claimants
Adam Clemens (instructed by Legal Services, Norfolk Constabulary) for the Second Defendant
The First Defendant was not present or represented
Hearing date: 12 June 2009
Lord Justice Stanley Burnton:
Introduction
On 12 June 2009 we heard this application for permission to apply for judicial review and, if permission was granted, for judicial review of the decision of District Judge Browning sitting in Norwich Magistrates' Court made on 25 February 2009 to issue a search warrant for the search of “9 Marryat Square, Wyfold Road, London SW6 6UA (also known as 16 The Coda Centre, London SW6 6AW)”. At the conclusion of the hearing we informed the parties of our decision to grant permission and to quash the search warrant. We said that we would give the reasons for our decision in writing. These are my reasons for the order made by the Court.
The grounds of the application
The Claimants' grounds for quashing the warrant are:
(i) That the warrant did not adequately identify the premises to be searched;
(ii) The warrant related to special procedure material, for which justices cannot issue a warrant;
(iii) The warrant was too broad and uncertain.
(iv) The warrant was unnecessary: an order for production would have adequately elicited the material sought by the police;
(v) The police failed to comply with the duty of full and frank disclosure when applying for the warrant.
We heard counsels' submissions on grounds (ii) and (iii); having done so, it was unnecessary to consider the Claimants' other grounds.
The facts in summary
Mr Power-Hynes is an accountant. He is a member of the Institute of Financial Accountants and the Association of International Accountants. He acts for a large number of companies, offering tax, accounting and corporate services. He calls his business Power-Hynes Associates. His office is at 16 the Coda Centre. The Second Claimant, who is described as his romantic partner, lives with her son at the adjacent residential premises, 9 Marryat Square.
Mr Power-Hynes is the company secretary of Humanitarian Coalition Aid Foundation Ltd, referred to as “HCAF”. His office is its registered office. Its grandiloquent title, indicating charitable activities, was misleading, doubtless deliberately so. It had been struck off the charities register in mid-2008 for financial irregularities in 2004.
The police had been investigating one Alan Hunt, who is or was a director of HCAF. They suspected that he was using the company as a vehicle for serious fraud, of the kind known as prime bank guarantee frauds. One victim of the frauds lost over £11 million.
Mr Power-Hynes played no part in the management of the company, but that was not known to the police.
In November 2008 DC Christopher Gay, a member of the Economic Crime Unit of Norfolk Constabulary, carried out a search on HCAF. In his witness statement he describes the search as a check carried out at Companies House, but the exhibit to his witness statement shows it to have been with Dun and Bradstreet. It showed that 16 the Coda Centre was its registered address and the main trading address. Its directors were shown as Judith Thomsen, Rupert Harris and Hunt. The search identified 15 other companies with which Hunt was associated, and stated that he had other associations. Mr Power-Hynes was named as company secretary; his address was given as 9 Marryat Square; he had been appointed on 31 December 2005; and he was described as an accountant. The report identified 15 other companies with which he was identified, and stated that he had other associations. Of those 15 other identified companies with which he was associated two (Water for Life Ltd and Influcare (Europe) Ltd)) were also in the list of companies with which Hunt was associated. DC Gay also checked Quick Address, and found two entities listed at 16 The Coda Centre, namely Clocktower Designers Centre and ICICS Plc. The latter, but not the former, was on the list of companies associated with Hunt.
On 6 February 2009 DC Gay went to Fulham to find 16 the Coda Centre. He located the Coda Centre, but saw no unit identified as number 16. His enquiries indicated that number 16 was partly residential and partly office accommodation. He saw nothing to indicate that an accountancy practice was being carried on. On returning to his office, he carried out an address search on 9 Marryat Square, which showed that Mr Power-Hynes owned that property, but no one living there. Mr Power-Hynes's background was not investigated. According to his witness statement, DC Gay did not know that he was an accountant or that he operated an accountancy practice at 16 the Coda Centre. DC Gay says that if he had thought it appropriate, which he did not, he would have made an application under section 9.
On 25 February 2009, DC Gay applied to District Judge Browning for a search warrant under section 8 of the Police and Criminal Evidence Act 1984. He made no note of what he told the judge. We have the following note from the court:
The district judge was given details of an alleged wide-reaching fraud of £9.7 million relating to a well-known Norwich businessman. Nine sets of premises were identified at addresses in different parts of the country. No challenge to the warrant has been made in respect of any of the other premises subject to search. In relation to the specific grounds in this claim:
1. The judge was informed that 9 Marryat Square was also known as 16 The Coda Centre and the postcodes of both were cited in the application as being the same.
2. The application specifically excluded items subject to legally privileged, excluded material or special procedure material.
3. The extent of the warrant was justified having regard to the nature and sophistication of the alleged offence.
4. The judge was satisfied that had notice of the police intention been given, it was unlikely that incriminating material would have been retained or surrendered.
5. The judge was satisfied that the complainant had suffered a substantial loss and that an indictable offence had been committed.
6. Having heard directly from the officer in the case, the judge was satisfied that he had received adequate information about the alleged offence and the police inquiry to issue the warrant.
The material text of the warrant was as follows:
“… an application was made by DC 616 Christopher Gay for the issue of a warrant under section 8 of the Police and Criminal Evidence Act 1984 to enter the premises described in the attached schedule [to] search for
Documents and records (Electronic or otherwise) relating to high value financial transactions.
Authority is hereby given for any constable …. to enter the said premises …. to search for the material in respect of which the application is made.”
The briefing pack prepared by DC Gay for the officers carrying out the search stated, so far as relevant:
“Met Police have no entries on their intelligence system for the address or the occupant.
…
The purpose of this search is to obtain evidence of [HCAF] its involvement in this matter, Hunt's links to this company and other individuals under investigation, and identify bank accounts, assets and details of financial transactions he or the company have been involved in.
This company is believed to be a vehicle for fraud and it is envisaged that any documents or records held for this company at the address should be seized.”
When on 4 March 2009 the search was carried out, the officers carrying out the search removed all the client files, relating to Mr Power-Hynes's many clients of his accountancy practice who were totally unconnected with Hunt or HCAF, as were Mr Power-Hynes's computers. It is not disputed that the material removed included special procedure material within the statutory definition that was unconnected with Hunt or HCAF. At the date of the issue of these proceedings, on 28 April 2009, one of the computers and documents required by Mr Power-Hynes for his business had not been returned.
The applicable legislative provisions
Sections 8, 9, 14 and 15 of PACE as amended are so far as relevant as follows:
8 Power of justice of the peace to authorise entry and search of premises
(1) If on an application made by a constable a justice of the peace is satisfied that there are reasonable grounds for believing—
(a) that an indictable offence has been committed; and
(b) that there is material on premises mentioned in subsection (1A) below which is likely to be of substantial value (whether by itself or together with other material) to the investigation of the offence; and
(c) that the material is likely to be relevant evidence; and
(d) that it does not consist of or include items subject to legal privilege, excluded material or special procedure material; and
(e) that any of the conditions specified in subsection (3) below applies in relation to each set of premises specified in the application,
he may issue a warrant authorising a constable to enter and search the premises.
(1A) The premises referred to in subsection (1)(b) above are—
(a) one or more sets of premises specified in the application (in which case the...
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