R (on the application of El-Kurd) v Winchester Crown Court
| Jurisdiction | England & Wales |
| Judge | Lord Justice Laws,The Hon. Mr. Justice Stadlen |
| Judgment Date | 15 July 2011 |
| Neutral Citation | [2011] EWHC 1853 (Admin) |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 15 July 2011 |
| Docket Number | Case No: CO/855/2011 |
[2011] EWHC 1853 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
The Rt. Hon. Lord Justice Laws
The Hon. Mr. Justice Stadlen
Case No: CO/855/2011
Mr. Andrew Bodnar (instructed by Morgan Rose Solicitors) for the Claimant
Mr. Kennedy Talbot (instructed by SOCA) for the Interested Party
Hearing dates: 19 th April
This is a claim for judicial review of a decision by HH Judge Cutler CBE, sitting at the Winchester Crown Court, the Respondent, on 25 August 2010, to authorise the retention by the Serious Organised Crime Agency ("SOCA"), the Interested Party, of material seized by it pursuant to a warrant which, by reason of a technical defect on its face, was admitted by SOCA to be unlawful. The decision which is challenged was made pursuant to Section 59 (6) of the Criminal Justice and Police Act 2001 ("the 2001 Act") in response to an application by SOCA made under Section 59 (5) (b) of the 2001 Act. The claim raises an important issue as to the scope of the power of the court to authorise retention under Section59 (6) of the 2001 Act of property which has been unlawfully seized on the application of the party who has unlawfully seized it.
The Facts
The Claimant was convicted in 1999 of conspiring to commit money laundering offences under either the Drug Trafficking Act 1994 or the Criminal Justice Act 1988 and sentenced to 14 years imprisonment. He appealed against conviction without success on the ground that such a charge was bad in law. However, following a reference by the Criminal Cases Review Commission, his conviction was quashed and a re-trial ordered. At the subsequent re-trial the Claimant was acquitted following a successful application to stay the indictment.
On 5 July 2010 SOCA obtained a warrant to search business premises at 146 Kensington Church Street, London W8 belonging to K.C. Service, Ltd. ("KCSL"). The Claimant is the Company Secretary of KCSL and his wife is listed as the director and sole share holder thereof. Its stated business activity is other monetary intermediation.
The warrant was obtained ex parte on the strength of information verified by a financial investigator of SOCA, Mr Anthony Breslin, and supplied to the Court in support of an application made by SOCA under Section 378 of the Proceeds of Crime Act 2002. According to that information a pro-active money laundering investigation conducted by SOCA indicated that substantial money laundering for organised crime groups was being facilitated via a money service bureau operated and controlled by the Claimant. There were reasonable grounds for suspecting that the Claimant had committed a money laundering offence and it was said to be necessary to establish evidence of his acquisition of criminal property and the use of corporate structures to facilitate his money laundering activities. The material sought, which was said to be likely to be of substantial value to the investigation in respect of which the application was made, constituted "all material relating to the affairs, financial or otherwise including travel documentation, communications, business documents, documents relating to any other premises or properties, vehicles and assets of KCSL and/or [the Claimant"].
On 6 July 2010 the warrant was executed and records were seized pursuant to it. The Claimant was arrested at the business premises of KCSL on suspicion of money laundering.
On 9 July 2010 on its own initiative SOCA reviewed the warrant which had been obtained and executed having been notified by the National Policing Improvement Agency of a defect in the template used for such warrants. The defect consisted of a failure to indicate on the face of the warrant the nature of the investigation which it was issued to facilitate, as required by Section 15 (6) (a) (iii) of the Police and Criminal Evidence Act 1984 (PACE) as modified by the Proceeds of Crime Act 2002 (Application of Police and Criminal Evidence Act 1984 and Police and Criminal Evidence (Northern Ireland) Order 1980 Order 2003). Accordingly SOCA concluded that the warrant was unlawful having regard to S.15 (1) of PACE.
On 13 July 2010 SOCA applied ex-parte and obtained from the Respondent a further search warrant authorising any officer of SOCA to search the KCSL premises at 146 Kensington Church Street and seize and retain material defined in the same way as the material identified in the 5 July 2010 warrant. Unlike the 5 July warrant the 13 July 2010 warrant identified the investigation in respect of which the application for the warrant was made and thus was designed to comply with Section 15 (6) (a) (iii) of PACE. It has not been suggested by the Claimant that it did not comply with that section. The information verified by Mr. Breslin in support of the 13 July 2010 warrant set out for the court an explanation of the discovery by SOCA of the technical invalidity of the 5 July 2010 warrant. It was stated that following the identification of the deficiencies in the original warrant procedures had been adopted to ensure that those items seized under the authority of the defective warrant remained untouched within their original seals and that on 12 July 2010 a court listing had been sought at Winchester Crown Court to alert HH Judge Cutler to the deficiencies in the original application.
In a letter dated 16 July 2010 SOCA informed the Claimant's solicitors of its discovery of the technical defect in the 5 July 2010 warrant and of the fact that on 13 July 2010 a fresh warrant had been applied for by SOCA and granted by HH Judge Cutler. The letter stated that all items seized on 6 July 2010 from the premises of Kensington Money Exchange, apparently the name by which the business premises of KCSL were known, under the authority of the 5 July 2010 warrant remained in secure storage sealed in tamper proof exhibit bags and had not been subject to any further interference or examinations.
The letter stated that it was proposed that without further delay arrangements should be made to return the items seized under the 5 July 2010 warrant to the Claimant at the premises of Kensington Money Exchange whereupon they would immediately be subject to seizure under the authority of the warrant granted on 13 July 2010.
On 20 July 2010 the Claimant through his solicitors declined SOCA's invitation.
On 17 August 2010 SOCA applied to the Winchester Crown Court under Section 59 (5) (b) of the 2001 Act for authority for the retention of property seized under the 5 July 2010 warrant. The information verified in support of the application stated that following the search conducted under authority of the 5 July 2010 warrant the following items were seized by SOCA: mobile phones and associated items, assorted documents, business records, computers, cheque books, two cash counting machines and a number of box files and contents. Additionally four files comprising a number of documents were seized under Section 50 of the 2001 Act for the purposes of being sifted subsequently.
The information also stated that a man named Charles Hart had been arrested having been observed visiting Kensington Money Exchange in circumstances which indicated that he had carried out a large cash transaction in furtherance of money laundering. A search of the vehicle occupied by him revealed €243,000 and £2,825. Mr. Hart was interviewed and was said to have admitted taking a large amount of sterling currency on behalf of other persons to Kensington Money Exchange where the Claimant exchanged it for euros. Mr. Hart was said to have believed the transaction to be unlawful as he believed the source of the sterling was criminal and that the Claimant made no proper record of the exchange. Mr. Hart was said to have subsequently pleaded guilty to money laundering and to be awaiting sentence at Southwark Crown Court.
It was recorded in the information that SOCA had received notice from the Claimant's solicitors of an application to the Winchester Crown Court to rescind the 13 July 2010 warrant but that that warrant would have expired before the first available date for the hearing of the application on 23/24 August 2010.
In support of its application under Section 59 (5) (b) it was stated that SOCA had taken all steps since becoming aware of the defect in the original warrant to regularise the situation in a transparent and proportionate way.
Relevant Provisions of the 2001 Act.
Section 59 of the 2001 Act appears in Part 2 which is headed: "Powers of Seizure". Under the heading "Additional Powers of Seizure" Sections. 50 and 51 create new powers of seizure respectively from premises and from the person.
The powers of seizure conferred by Sections 50 and 51 are additional powers in the sense that they are exercisable where it is not reasonably practicable to determine on searched premises (Section 50) or at the time and place of the search of a person (Section 51) whether existing powers of search or seizure specified in Part 1 of Schedule 1 of the Act (Section 50) or Part 2 of Schedule 1 (Section 51) would entitle the person armed with the power to seize particular things found in the course of his search. The additional powers authorise the seizure of things found to enable it subsequently to be determined whether the specified powers extend to some or all of that material. The additional powers also permit removal of things...
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