R (Faisaltex Ltd and Others) v Crown Court at Preston, Chief Constable of Lancashire and HM Revenue and Customs [Administrative Court]
| Jurisdiction | England & Wales |
| Judgment Date | 21 November 2008 |
| Date | 21 November 2008 |
| Court | Queen's Bench Division (Administrative Court) |
Administrative Court, CO/6184-189/2008, CO/6192-194/2008
Keene LJ and Griffith Williams J
A Jones QC and A Nice (instructed by DLA Piper UK LLP) for F; A Bird and R Dudley (instructed by Constabulary Solicitor, Lancashire Constabulary) for the Chief Constable and Revenue and Customs
Whether search warrants were invalid on the grounds that the test for issue of the warrants was not satisfied, and whether the seizure of material was unlawful because it was not covered by the warrants
The P family controlled a number of companies, including F. Their accountant was H. The police and HMRC investigated P in relation to allegations of the import and export of counterfeit clothing, money laundering and a conspiracy to pervert the course of justice in relation to an
employee who was convicted in Scotland of counterfeiting offences. Between March 2004 and April 2007, HMRC seized 39 consignments of counterfeit clothing being imported to the UK by companies allegedly linked to P; the estimated total losses of sales had the goods been genuine was over £1M per consignment. The goods were seized; the Police and HMRC believed that over 600 containers of such clothing were imported, and that P and their companies had been involved in the counterfeiting trade since the late 1990s, both by manufacture and by importation. HMRC were also investigating a VAT fraud involving some £45M, the allegation being that containers with low value material and waste were exported but declared to contain high value textiles on which VAT could be reclaimed.
An information was put before a Crown Court Judge for search warrants under s8 and Sched 1 Police and Criminal Evidence Act 1984. The applications asserted that there were reasonable grounds for believing that indictable offences had been committed, namely conspiracy to sell or distribute counterfeit goods, contrary to s92(1)(b) Trade Marks Act 1994 and s1(1) Criminal Law Act 1977; conspiracy to pervert the course of justice; cheating the Revenue, contrary to common law; and laundering the proceeds of crime contrary to the Proceeds of Crime Act 2002. On 31 March and 3 April 2008 the Judge issued 9 warrants permitting searches at premises occupied by F, H, P and Hill Dickinson LLP (solicitors for F); they were executed on 3 April.
F, H and P issued claims for judicial review on 30 June 2008. They challenged the decision of the police to apply for the Crown Court warrants, the decision of the Crown Court judge to issue those warrants, the execution of the warrants, the search of each of the properties and the seizure of property, and sought quashing orders, declarations that the entries and searches on 3 April 2008 were unlawful, mandatory orders directing the police to restore all property seized and/or copies of property seized, costs and damages. They contended that there was no sufficient basis for the assertion that service of a notice of application on the solicitors' offices might seriously prejudice the investigation. In respect of the warrants under s8 of the 1984 Act they contended that the warrants were invalid because the individual informations leading to them were not sworn; that they were too widely drafted; that no reasonable judge could have been satisfied that there were reasonable grounds for believing that all the material specified was likely to be relevant evidence, as required by s8(1)(c) of the 1984 Act; that no reasonable judge could have been satisfied that there were reasonable grounds for believing that the material specified did not consist of or include items subject to legal privilege, excluded material or special procedure material, as required by s8(1)(d); that the judge was misled by the officers making the s8 applications because the judge had said that there had been a conviction in respect of counterfeit goods (and the officers had not corrected that), and because he had been told that independent barristers would be available at the time of the searches in case questions of legal privilege arose whereas the barristers were not genuinely independent because they were not appointed by the Attorney-General, all came from the same chambers and all had acted for police forces in the past; that the officers seeking the warrants were not of the appropriate level of seniority; that it was irrational of the judge to grant a warrant without inquiring as to how the police proposed to deal with the situation of the elderly bed-ridden man who was one of the occupiers; and that the tone and speed of the hearing before the judge were inappropriate. They also complained that there was excessive seizure of material when the various warrants were executed, with the result that seizures unauthorised by the warrants took place, and that the warrants were executed in an oppressive way, with too many officers and overbearing conduct.
The police and HMRC contended that the claims were out of time because they had not been issued promptly, that there was a concern about service of a notice of application on the solicitors' offices because the solicitors had acted for P on a number of occasions and that there had been no breach of the requirements of the 1984 Act.
Keene LJ:
Introduction
1. This is the judgment of the court. These are 9 associated applications for permission to apply for judicial review, and if granted, applications for judicial review relating to the issue of search warrants pursuant to s9 and Sched 1 (Applications 1, 2 and 3) and to s8 (Applications 4-9) of the Police and Criminal Evidence Act 1984 [PACE]. 8 warrants were issued on 31 March 2008 and the 9th on 3 April 2008 at the Crown Court at Preston by HHJ Brown. The warrants were executed on 3 April 2008. It is also sought to challenge their execution for excessive seizure and oppression.
2. The claimants are members of closely-related families with the surname Patel living in the Preston area of Lancashire, companies controlled by them and an accountant, Anil Hindocha trading as Hindocha and Company. The companies, to which we shall refer as the "Faisaltex companies", are Faisaltex Ltd, Faisaltex Manufacturing Ltd and Faisal Imports Ltd.
3. The Faisaltex companies are the claimants in the first application, which concerns a search warrant for the offices of Hill Dickinson LLP, solicitors, at 1 St Paul's Square, Liverpool.
4. The claimants in the second application are Anil Hindocha and the Faisaltex companies. This concerns a warrant in respect of the office premises of Hindocha &Co at 19 Harewood Road.
5. The same claimants make the third application, which relates to a search warrant issued on 3 April 2008 for the office premises of Hindocha &Co at 17, Harewood Road and other premises.
6. The fourth application is made by the Faisaltex companies in respect of the search warrant for Faisal House, Fairways Office Park, Olivers Place.
7. Claimants 5-9 are Faisal Patel in respect of the search warrant for 4 Sharoe Green Park, Preston, Munaf Patel in respect of the search warrant for 6 Sharoe Green Park, Preston, Arif Patel in respect of the search warrant for 6 Acres, 100 Sharoe Green Lane, Preston, Arif Patel, in respect of the search warrant for 3 Sharoe Green Park, Preston and Faisal Patel in respect of the search warrant for 11 Sharoe Green Park, Preston. There is an application for leave to amend application 8 to add Umarji Patel and Bibi Patel, the parents of Arif, Munaf and Faisal Patel and the occupiers of 3 Sharoe Green Park, as claimants.
8. The First Defendant is the Crown Court sitting at Preston ["the Crown Court"], the Second Defendant is the Chief Constable of the Lancashire Constabulary ["the Police"], whose officers were responsible for the applications for the search warrants and their execution, and the interested party is HM Revenue and Customs ["HMRC"], who were parties to the applications for the search warrants. The Crown Court has not appeared.
9. The claims, which were issued on 30 June 2008, seek: -
(1) Judicial review of the decision of the Crown Court to issue the warrants to enter and search the properties in question, the decision of the Police to apply for those search warrants, and the execution of the warrants, the search of each of
those properties and the seizure of property therefrom.
(2) Orders quashing each warrant and the decisions to apply for each warrant.
(3) Declarations that the entry and searches on 3 April 2008 of the properties of each of the application premises were unlawful.
(4) Mandatory Orders directing the Police to restore all property seized and/or copies of property seized on 3 April 2008 to the Claimants.
(5) Costs
(6) Damages
10. By Application Notices dated 18 July 2008, the claimants applied pursuant to CPR Part 25 for interim injunctions or standstill pending the determination of the applications for judicial review. Their applications were listed before Blake J in the Administrative Court on 29 July 2008 when no order was made, upon the court accepting undertakings given by the Police and HMRC. The effect of those undertakings was that no one acting on or behalf of the Police or HMRC would access, view, inspect or use (i) any of the seized material, in whatever form until the conclusion of the applications for judicial review or further order, save that arrangements could be made for the scanning and creating of digital images of the material by a contractor independent of the Police in accordance with the agreed protocol in Sched 2 to the order; (ii) any digital storage devices, material stored thereon and any copies of that material save that the Police are entitled to deliver the thumb drive seized from the offices of Hill Dickinson LLP to a contractor independent of the Police...
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...claims made for legal professional privilege, without prejudice to the right of the person being searched to go to the court. 265 In R (Faisaltex) to which we have referred at paragraph 171, an issue which the court considered was whether barristers who came from the same chambers as others......
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