R (Cummins) v Manchester Crown Court
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE LEVESON,MR JUSTICE OUSELEY |
| Judgment Date | 27 July 2010 |
| Neutral Citation | [2010] EWHC 2111 (Admin) |
| Date | 27 July 2010 |
| Court | Queen's Bench Division (Administrative Court) |
| Docket Number | CO/7507/2010 |
[2010] EWHC 2111 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
DIVISIONAL COURT
Before: Lord Justice Leveson
Mr Justice Ouseley
CO/7507/2010
Mr Rupert Bowers Appeared On Behalf Of The Claimant
Mr K. Talbot Appeared On Behalf Of The Defendant
(As approved)
: On 16th April 2010, in the Crown Court at Manchester, on the application of the Serious Organised Crime Agency (“SOCA”), based upon an underlying allegation of money laundering, His Honour Judge Henshall issued three warrants in relation to the claimant's home, his business premises and a third property owned by him but said to be uninhabitable due to building works. He also made a restraint order. The warrants were executed on 21st April and property was seized.
By this application for judicial review the claimant seeks a declaration that the decision to issue the warrants was unlawful and that their execution was unlawful. A mandatory order is sought for the return of all orders made and also a further order that no use be made of any knowledge gained as a result of the unlawful search and seizure. Although listed for the grant of interim relief and permission it was common ground that the interim order will be determinative. We grant permission and, with the consent of the parties, treat the hearing as the final determination. Aggravated damages are also sought on the basis “as a result of the knowing and wilful retention of material admittedly unlawfully seized”. This last relief sought underlines an important part of the history which we must recount.
Before the issue of the warrant draft detailed grounds were sent to SOCA on 5 July. On the following day SOCA conceded that the warrants did not comply with section 15(6)(a)(iii) of the Police and Criminal Evidence Act 1984 (“PACE”) as amended, on the grounds that they did not give sufficient indication of the nature of the investigation in respect of which the warrants were issued. As a result, it was conceded that the warrants were unlawful. SOCA also conceded that they would be prepared to make arrangements for the return of the material seized and suggested that there was no point in issuing proceedings for judicial review.
The caveat expressed in this letter was “in relation to the relatively small quantity of relevant material” in respect of which SOCA sought an irrevocable consent to its retention until the completion of the investigation or criminal proceedings, whichever was the latter, observing that if consent was not forthcoming steps would be taken to ensure that the material was obtained or retained by lawful means. By e-mail the following day the solicitors for the claimant insisted that all the property was delivered forthwith and that any attendance at their offices could solely be for that purpose, such that the execution of any other purpose would be regarded as a trespass. In that way the solicitors sought to avoid what occurred in a case of which they were aware, namely, Cook v SOCA, which this court has also decided. The letter goes on:
“Further, it follows that as a direct consequence of the unlawful seizure that other considerations must apply. We list the same below:
(1) We require an undertaking that no use shall be made of any knowledge gained from any of the unlawfully seized material.
(2) We require a list of all personnel who have had dealings with the property to provide and comply with such an undertaking.
(3) We require a list of all personnel who have received any information from the unlawfully seized material to also provide and comply with such undertakings (to include legal advisers).
(4) We require an undertaking that no copies have been made of any of the unlawfully seized materials, and if such copies have been made we require an opportunity to witness the destruction of such copies, and a certificate that no further copies have been kept.
(5) It follows that entry to the three premises was unlawful, and in the case of April House our client was subject to witnessing for a brief period the continuation of his unlawful search by 18 officers some of whom were armed. We understand that these premises were damaged in the process. We maintain that these actions sound in damages at each of the three properties…[sums for settlement were identified without prejudice]”
On the same day SOCA replied:
“As you require return of all items we shall do so. However, we put you on notice that:
(1) We shall provide all the material to your firm. In our opinion, for reasons of clarity for your and our future purposes, this will be sorted into two parts: the material which is returned and not to be re-sought; the material to be re-sought. This does not involve copying or re-assessment: rather ‘sorting’ in accordance with the view previously taken as to relevance (the material uplifted having already been considered);
(2) The return of material is pending an application, currently being prepared under s345 POCA 2002 (Production Order) for you to produce the material considered to be relevant to the ongoing investigation;
(3) This application will be on notice.
(4) We specifically draw your attention to s343(2)(b) POCA which makes it an offence for a person to falsify, destroy, conceal or otherwise dispose of material relevant to the legislation.
We should emphasise and make it clear that as we regard some of the documents to be returned to you to be material, any disposal of such relevant material, by you to your client or to any other person, would amount to an offence contrary to s342.
In the light of the further action SOCA is now taking, we consider it unnecessary and unduly onerous to provide the undertakings you seek.”
By return the solicitors challenged SOCA in relation to the failure to deal with the undertaking sought or the list of personnel who had had dealings with the property or received any information from the unlawfully seized material, including legal advisers. They made it clear that they do not own the material seized and that their offices were being offered only as what they describe as “a handing over post”. On 8 July SOCA replied:
“Before any arrangement for return is fixed, please confirm what it is you propose to happen upon our attendance, namely:
—whether it is proposed that your client will be there;
—is it...
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