R (on the application of Mills) v Sussex Police
| Jurisdiction | England & Wales |
| Judge | Lord Justice Elias,Mr Justice Ouseley |
| Judgment Date | 25 July 2014 |
| Neutral Citation | [2014] EWHC 2523 (Admin) |
| Docket Number | Case No: CO/13308/2013 |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 25 July 2014 |
[2014] EWHC 2523 (Admin)
Lord Justice Elias
Mr Justice Ouseley
Case No: CO/13308/2013
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
IN THE MATTER OF AN APPLICATION FOR JUDICIAL REVIEW
Royal Courts of Justice
Strand, London, WC2A 2LL
Mr Tim Owen QC and Mr Mark Summers QC (instructed by Stokoe Partnership) for the Claimants
Mr Martin Downs (instructed by Sussex Police) for the First Defendant
Hearing date: 5 June 2014
David Mills, the first claimant, faces charges of corruption, fraudulent trading, and money laundering. It is alleged that he conspired with others to corrupt an officer of the Halifax Bank of Scotland over a period of more than ten years to secure certain contracts for his company, Quayside Corporate Services.
The second claimant, his wife Alison Mills, is alleged to have been a party to the money laundering only. There are a number of other individuals who face similar charges arising out of these matters, but they are not concerned with this application.
This judicial review application relates to a search and seizure warrant which was issued by the Southwark Crown Court on 11 June 2013 ("the search warrant") and executed at the claimants' home address, which is also their business address. A large quantity of material was seized under the warrant and pursuant to the power conferred by section 50 of the Criminal Justice and Police Act 2001 ("the 2001 Act"). The claimants contend that the warrant was unlawfully issued and the documents therefore wrongly taken. They seek a return of all materials seized, plus any copies, and declarations of unlawfulness, together with damages and costs.
Background
The successful application was made by the Sussex Police South East Regional Organised Crime Unit. The application was made under sections 352–353 of the Proceeds of Crime Act 2002 Act ("the 2002 Act"). Section 352 requires the warrant to be for the purposes of a confiscation investigation. This is defined by section 341 as "an investigation into whether a person has benefited from his criminal conduct or the extent or whereabouts of any such benefit." This goes beyond the restraining or identifying of current assets. It also encompasses identifying the sources of such assets, and other assets which may have been disposed of before current assets were restrained. So potentially a wide range of documentary material may need to be seen.
The first claimant had been arrested and interviewed on 1 October 2010 in respect of these matters. He answered questions and was subsequently bailed. His home, which is the subject of the search warrant, was extensively searched at that time by the police and a detailed record was made of its contents.
The confiscation investigation was conducted alongside the criminal investigation. It was at that time under the auspices of the Thames Valley Police Assets Recovery Unit (although the CPS Proceeds of Crime Unit in fact acted on its behalf).
As part of that investigation, on 16 November 2010 a restraint order was obtained ex parte from the Southwark Crown Court pursuant to section 40 of the 2002 Act. The application lodged by the police to obtain that order stated in terms, with respect to the first claimant:
"There appears to have been no attempt to dissipate assets since the date of his arrest."
The restraint order did not apply to all assets of the claimants. It identified specific assets and chattels only. This was a deliberate decision by the police, as the application for the restraint order made clear, because it was the early stages of the investigation and it was recognised that a full restraint order may have damaged the claimants' legitimate business and therefore been disproportionate. The order was served on the claimants on 19 November 2010.
When the restraint order was granted on 16 November, the court also imposed a wide disclosure obligation which took effect as part of the order. Indeed, the CPS justified this in part on the basis that the restraint order itself was of narrow ambit and therefore the CPS was entitled to know the extent and whereabouts of the claimants' assets not subject to the order. This obligation was, by agreement, subsequently limited to providing details of assets of over £5000. The first claimant provided a full written disclosure of these assets on 21 January 2011 and he gave further information on 31 January 2011 in accordance with the terms of the extended restraint order.
The claimants through their solicitor assert — and this has not been disputed — that they have at all times co-operated with the investigation, including providing voluntary disclosure about certain of their assets and business activities. They have been in regular and open correspondence with the CPS Proceeds of Crime Unit concerning their dealings not only with respect to the restrained assets, but also the unrestrained assets. For example, they have notified the police about when there has been refinancing of property; the sale of certain restrained cars and replacement vehicles; the granting of further tenancies in respect of restrained properties; and a proposed sale of certain restrained shares. Moreover, the restraint order was extended ex parte on 19 January 2011 to encompass further assets, namely the proceeds of certain share sales, although the police were still not seeking to impose an all assets restraint.
Throughout this period the conduct of the confiscation investigation had been conducted by the Thames Valley Police. However, it was transferred to the Sussex Police on 23 April 2013. This change of responsibility appears to have been a trigger for the application for the search warrant.
The statutory provisions
There are various methods by which the police may obtain evidence from defendants to pursue confiscation proceedings. A voluntary request may exceptionally suffice but usually some form of compulsion will be necessary. By section 345 of the 2002 Act the police may obtain a production order against the subject of a confiscation investigation, although the order must be sought "in relation to material or material of a description specified in the application". It must therefore be possible to "specify" the material sought, although precisely what degree of particularity that requires remains somewhat opaque. The order may either require the subject of the application to produce the material for the appropriate officer to take it away, or to give the appropriate officer access to the material (section 345(4)). If the production order is of the latter kind, it may be reinforced with an order to grant entry under section 347. The effect of an order under that section is to require the subject to allow the appropriate officer onto the premises.
The search and seizure warrant issued pursuant to section 352 is the most intrusive of the orders available to the police. The police can enter the premises and seize material without consent and even without the subject being present.
Given the serious infringement of liberties involved in executing such a warrant, Parliament has required stringent conditions to be satisfied before the warrant is issued.
By section 352(1) a judge may issue a search and seizure warrant on the application of an appropriate officer "if satisfied that either of the requirements for issuing the warrant is fulfilled". Certain matters must be expressly stated in the application before the warrant can be granted to satisfy the court that there is a proper basis for the application: section 352(2) and (3).
The requirements referred to in subsection (1) are specified in subsection (6). They are as follows:
"(6) The requirements for the issue of a search and seizure warrant are —
(a) that a production order made in relation to material has not been complied with and there are reasonable grounds for believing that the material is on the premises specified in the application for the warrant, or
(b) that section 353 is satisfied in relation to the warrant."
Subsection (6)(a) was not applicable here because no production order was ever sought. The police relied upon subsection (6)(b). Therefore it was necessary for section 353 to be satisfied in relation to the warrant. Section 353(1) is as follows:
"(1) This section is satisfied in relation to a search and seizure warrant if—
(a) subsection (2) applies, and
(b) either the first or the second set of conditions is complied with."
Subsection (2) requires, inter alia, that there must be reasonable grounds for suspecting that the person specified in the application for the warrant has benefited from criminal conduct or, in the case of money laundering, has committed a money laundering offence. It is not disputed that these conditions are satisfied here.
There are two potential sets of conditions, one of which must be satisfied. The first set of conditions is set out in subsection (3), which must be read together with subsection (4):
"(3) The first set of conditions is that there are reasonable grounds for believing that —
(a) any material on the premises specified in the application for the warrant is likely to be of substantial value (whether or not by itself) to the investigation for the purposes of which the warrant is sought,
(b) it is in the public interest for the material to be obtained, having regard to the benefit likely to accrue to the investigation if the material is obtained, and
(c) it would...
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