R (Van der Pijl and another) v Crown Court at Kingston
| Jurisdiction | England & Wales |
| Judge | Sir John Thomas, PQBD,Mr Justice Wilkie |
| Judgment Date | 21 December 2012 |
| Neutral Citation | [2012] EWHC 3745 (Admin) |
| Court | Queen's Bench Division (Administrative Court) |
| Docket Number | Case No: CO/6546/2011, CO/6547/2011,CO/6541/2011 |
| Date | 21 December 2012 |
[2012] EWHC 3745 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
DIVISIONAL COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
Sir John Thomas PQB
Mr Justice Wilkie
Case No: CO/6546/2011, CO/6547/2011,CO/6541/2011
And
And
Alun Jones QC (instructed by Kaim Todner) for the Claimants
James Lewis QC & James Hines (instructed by Director of Legal Services) for the 1 st Interested Party
Ben Watson (instructed by Treasury Solicitors) for the 2 nd Interested Party
Hearing date: 4 th December 2012
Approved Judgment
Introduction
This claim concerns the validity of a search warrant granted by the Crown Court to the Metropolitan Police Service (the MPS) pursuant to section 9(1) and Schedule 1 of the Police and Criminal Evidence Act 1984 (the 1984 Act) and the validity of orders of the Crown Court pursuant to section 59 of the Crime Justice and Police Act 2001 (the 2001 Act) permitting the MPS to retain material seized by it, purportedly pursuant to the search warrant. In each case the MPS was directed, pursuant to the provisions of the Crime International Cooperation Act 2003 (the 2003 Act), to make the applications by the United Kingdom Central Authority, a department of the Home Office, after receiving a request for mutual legal assistance from the Dutch authorities.
The claimants are Dutch nationals who reside in the United Kingdom at an address in West London from which they carry out business activities and at which they keep a large quantity of business records, in hard copy and computerised form.
On 25 th February 2011 the District Court in the Hague, on an application by the Public Prosecutor dated 21 st February, and based on a report drafted on 3 rd February, granted an application for an order that a search be carried out at the claimants' address in West London.
The examining Judge was of the opinion that there was "sufficient suspicion" that the Defendants were guilty of a violation of Sections 140 and 420 of the Dutch Criminal Code 420 to justify a search of the claimants' address. As that was in England, the order authorised a request that the English authorities carry out the search.
On the 2 nd March 2011 a request was made to the United Kingdom Central Authority for legal assistance, which included a police search of the claimants' address. The request asked the UK authority to pay specific attention to certain classes of material which were set out in seven categories. Those categories were reproduced, virtually verbatim, in the search warrant the subject of the first challenge.
The request identified a number of companies which were relevant to the investigation. It was supplemented, on the 9 th March 2011, by a further request which added three further companies to those previously identified.
The request, initially, went to the Judicial Co-operation Unit of the Home Office. Pursuant to its powers under Section 13 of the 2003 Act, on 7 April 2011 it directed the MPS to apply for a search warrant pursuant to Section 16 of the 2003 Act.
On 12 th April 2011 an application, supported by an information on oath, was made to the Kingston upon Thames Crown Court by Detective Constable Steeples for the issue of a warrant under Section 16 of the 2003 Act and Section 9(1) and Schedule 1 of the 1984 Act. Her Honour Judge Tapping granted the search warrant. That is the first decision subject to challenge.
The warrant was executed on the 27 th April 2011. On the same date the claimants were arrested, pursuant to a parallel European Arrest Warrant dated the 14 th April 2011.
On 4 th May 2011 an order for the claimants' extradition was made by the City of Westminster Magistrates Court. On 9 th May those orders were appealed but, on 8 th July, the appeals were withdrawn. They were duly extradited to the Netherlands on 25 th July where they were subject to investigatory interviews. After those interviews had been completed the claimants were released.
In the course of the search on 27 th April 2011 three categories of material were seized: (1) paper files covered by the warrant; (2) paper files marked "legal"; (3) computer images.
Categories 2 and 3 are said to have been seized pursuant to Section 50 of the 2001 Act.
The paper files which appeared to be covered by the warrant were transmitted to the Dutch authorities, with permission of the UKCA, on 28 th April 2011.
The paper files marked "legal" were seized for subsequent examination and sift pursuant to the 2001 Act. That material was intended not to be handed over to the Dutch police until the sift was completed.
The present position, following the grant of permission by Mr Justice Owen at an oral hearing on 29 th May 2012, in relation to these paper files is as follows:
a) A small number of documents which were acknowledged potentially to attract legal professional privilege were returned to the claimants. There are no outstanding issues of legal professional privilege.
b) Documents acknowledged to be irrelevant to the case were returned to the claimants.
c) Documents falling within the terms of the search warrant of 12 th April 2011 were retained by the police. This material is currently the subject of an application by the claimants for its return pursuant to s.59 of the 2001 Act.
d) Documents which, though not within the terms of the search warrant, were caught by an order made on 6 July 2011 by Kingston Crown Court pursuant to section 59 of the 2001 Act, were retained by the MPS pending determination by the Crown Court of the claimants' s.59 application.
The computers were all imaged at the scene of the search by a digital examiner pursuant to Section 20 of the Police and Criminal Evidence Act 2001. The images were handed to the officer in charge of the search, Detective Sergeant Coutts. Those image files were taken to the Netherlands and a sift conducted there between the 26 th– 30 th June 2011 in the presence of independent counsel. She removed any files deemed to be governed by legal professional privilege.
It became apparent, in the course of that sifting process, that some material on the computer related to other companies which were neither identified on the warrant nor in the request for legal assistance. DS Coutts informed the Dutch authorities that they could not have that material as it was not covered by the warrant. That material was removed and stored separately. The Dutch authorities were informed that, if they wanted to have that material, they should submit a further letter of request to the UKCA seeking the seizure of material relating to these companies.
On the 4 th July 2011 the Dutch authorities issued to the UKCA a letter of request for material identified in the sift as not covered by the original warrant. On 8 th July that new request was approved by the UKCA and was passed to the MPS. In the meantime, on the 6 th July, an application was made by the MPS, without notice to the claimants, to Kingston Crown Court seeking orders pursuant to Section 50 and 59 (1)(6)(7) of the 2001 Act. The orders sought were to authorise retention of, respectively, the computer images which were taken from the claimants' address on 27 th April 2011 and any material seized during the search at these premises which relates to companies owned, controlled or utilised by the claimants.
Those applications were supported by a statement of Detective Sergeant Coutts dated 6 th July. DS Coutts stated that he attached the supplemental request which had been provided by the Dutch authorities. It appears that this statement was inaccurate. That request, though received by UKCA on 4 th July, was not formally passed on to the MPS until 8 th July. It is unnecessary for us to reach any final conclusions on this aspect of the case, which has not been the subject of detailed submissions.
The orders made by the Kingston Crown Court on 6 th July, pursuant to the 2001 Act, are the subject of the other challenges.
On 14 th July 2011 judicial review claims were issued in respect of all three decisions. Mr Justice Holman granted an interim injunction restraining the MPS from handing over any of the retained material to the Dutch authorities.
On 20 th January 2012, Mr Justice Burnett, on the papers, refused permission to apply for judicial review. Amongst other reasons, he concluded that the challenge to the retention of the material still held in the UK should be made to the Crown Court pursuant to s.59 of the 2001 Act which, he said, provided a suitable alternative remedy
On 3 rd February 2012 notice of renewal of the application for permission was lodged and, on 29 th May 2012, Mr Justice Owen gave permission: in respect of the search warrant, on one of the two grounds; and in respect of the s.59 orders, on the basis that, if the search warrant application were to succeed, then there could be no lawful basis for the s.59 orders. Beyond that, he did not indicate the extent to which the grounds put forward in respect of the s.59 order were arguable.
In the meantime, an application had been made to the Crown Court by the claimants pursuant to s.59 for the return of the material seized. A hearing of this application was held before HHJ Price QC on 26 March 2012. That hearing was adjourned part heard pending the sift of material to which I have referred above and the oral permission hearing in these proceedings. It appears that on 1 May 2012, the claimants made a further application to the Crown Court, pursuant to s.59, for the return of material seized. Both those applications...
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