Singh v Hm Advocate
| Jurisdiction | Scotland |
| Judgment Date | 26 April 2001 |
| Date | 26 April 2001 |
| Docket Number | No 21 |
| Court | High Court of Justiciary |
JC
Lord Cameron of Lochbroom, Lord Macfadyen and Lord Weir
Justiciary—Search Warrants under Value Added Tax Act 1983—Adherence to restrictions contained in warrant—Power to recover documents when offence suspected—Value Added Tax Act 1983 (cap 55), sched 7, paras 8 and 10A1
The Value Added Tax Act 1983 (“the 1983 Act”) statesinter alia in sched 7, para 10(3): “If a…justice…is satisfied on information on oath that there is reasonable ground for suspecting that a fraud offence, which appears to be of a serious nature, is being, has been or is about to be committed on any premises or that evidence of the commission of such an offence is to be found there, he may issue a warrant in writing authorising, subject to subparagraphs (5) and (6) below, any authorised person to enter those premises, if necessary by force at any time within one month from the time of the issue of the warrant and search them; and any person who enters the premises under the authority of the warrant may—(a) take with him such other persons as appear to him to be necessary....” Paragraph 10(5) states inter alia:“The powers conferred by a warrant under this paragraph shall not be exercisable—(a) by more than such number of authorised persons as may be specified in the warrant; nor (b) outside such times of day as may be so specified;…”
Paragraph 8 of sched 7 to the 1983 Act provides inter alia:“(2) Every person who is concerned (in whatever capacity) in the supply of goods or services in the course or furtherance of a business or to whom such a supply is made, every person who is concerned (in whatever capacity) in the acquisition of goods from another member State and every person who is concerned (in whatever capacity) in the importation of goods from a place outside the member States in the course or furtherance of a business shall—(a) furnish to the Commissioners, within such time and in such form as they may reasonably require, such information relating to the goods or services or to the supply or acquisition or importation as the Commissioners may reasonably specify; and (b) upon demand made by an authorised person, produce or cause to be produced for inspection by that person, (i) at the principal place of business of the person upon whom the demand is made or at such other place as the authorised person may reasonably require; and (ii) at such time as the authorised person may reasonably require[,] any document relating to the goods or services or to the supply, acquisition or importation.”“(3) Where, by virtue of subparagraph (2) above, an authorised person has power to require the production of any documents from any such person as is referred to in that subparagraph, he shall have the like power to require production of the documents concerned from any other person who appears to the authorised person to be in possession of them; but where any such other person claims a lien on any document produced by him, the production shall be without prejudice to the lien”.... “(4B) if it appears to him to be necessary to do so, an authorised person may, at a reasonable time and for a reasonable period, remove any document produced under subparagraph (2) or subparagraph (3) above and shall, on request, provide a receipt for any document so removed; and where a lien is claimed on a document produced under subparagraph (3) above, the removal of the document under this subparagraph shall not be regarded as breaking the lien.”“(4C) Where a
document removed by an authorised person under subparagraph (4B) above is reasonably required for the proper conduct of a business he shall, as soon as practicable, provide a copy of the document free of charge, to the person by whom it was produced or caused to be produced.”Paragraph 10A of sched 7 to the 1983 Act provides: “(1) Where, on an application by an authorised person, a…justice is satisfied that there are reasonable grounds for believing—(a) that an offence in connection with the tax has been or is about to be committed; and (b) that any recorded information (including any document of any nature whatsoever) which may be required as evidence for the purpose of any proceedings in respect of such an offence is in the possession of any person he may make an order under this paragraph. (2) An order under this paragraph is an order that the person who appears to the justice to be in possession of the recorded information to which the application relates shall:—(a) give an authorised person access to it, and (b) permit an authorised person to remove and take away any of it which he reasonably considers necessary, not later than the end of the period of seven days beginning on the date of the order or the end of such longer period as the order may specify.”
The appellants, a married couple who were restaurant owners, stood trial on indictment on inter alia a charge of fraudulent evasion of Value Added Tax. At trial, the Crown sought to lead evidence of meal bills recovered from the appellants' house. The bills were recovered in the course of a search under a warrant obtained by a customs officer under the 1983 Act. The officer had craved the grant of a warrant authorising up to four authorised persons to enter the house, together with such other persons (not being authorised persons) as appeared to be necessary. The warrant was granted as craved. In the course of the trial, the appellants objected to the admissibility of evidence obtained in the search. The ground of the objection was that eight customs officers attended at the house and thus that the terms of the warrant were not adhered to. The objection was repelled, and evidence recovered in the course of the search was led. The Crown also sought to lead evidence of VAT books relating to the appellants' business obtained from the appellants' accountant. These books were recovered from the accountant's office after the search warrant relating to the appellants' house had been executed, and after the interview of the first appellant had commenced. The appellants objected to the leading of this evidence on the grounds that it had not been recovered under a search warrant. At the conclusion of the trial the appellants were convicted of fraud. The appellants appealed against conviction. In respect of the documents recovered from the house, they argued: (a) that each of the eight officers was an authorised person, and thus that the scope of the warrant had been exceeded; that there was no evidence that any of the officers were “necessary”, rather than “authorised” persons; (b) that the defect was not technical, and that there was no material upon which the trial judge could conclude that the irregularity was excusable; and (c) that the search breached the provisions of Art 8 of the European Convention on Human Rights providing for the right to respect for a person's private and family life. In response, the Crown argued: (a) that although there was an irregularity in the search, in that eight officers entered the house, only four officers had carried out the search; (b) that there had been no bad faith or deception, and (c) that the irregularity was excusable, and did not lead to a miscarriage of justice. In respect of the documents recovered from the accountant the appellants argued that the sheriff had erred in deciding that the officers had power under para 8 (2)(b) of the 1983 Act to remove documents from the accountant, it being clear that the purpose of the seizure was in connection with a suspected offence, which was not covered by that paragraph. The Crown argued that the powers under para 8 of sched 7 to the 1983 Act were sufficiently wide to justify the removal of the documents from the accountant, and that the evidence was admissible.
Held (1) that the provisions of the 1983 Act were intended to enable the sheriff to place restrictions on the exercise of powers conferred by the search warrant in relation to the number of authorised persons who could carry out the search and the times of the day during which the powers could be exercised, and that these powers were conceived in favour of the persons whose rights were affected by the execution of the warrant; and that all eight customs officers were authorised persons; and accordingly that the warrant had been unlawfully executed (p 195C–196B); (2) that the powers granted under para 8(3) of the 1983 Act are for inspection in connection with an investigation where there is no suspicion of an offence; whereas the powers under para 10A are for investigation where there are reasonable grounds to believe that an offence has been or is about to be committed; and as the investigation of an offence was under way at the time the customs officers visited the accountant's premises, the power to inspect under para 8(3) was not available; and the removal of the documents from the accountant was illegal (p 196C–197H); and appeals allowed and convictions quashed.
Manjit Singh and Jaswinder Singh were charged on indictment at the instance of the Right Honourable The Lord Hardie, Her Majesty's Advocate. Both appellants were charged with fraudulent evasion of Value Added Tax amounting to £167,030.77 contrary to sec 72(1) of the Value Added Tax Act 1994. The second appellant also faced a second charge of defrauding the Board of Inland Revenue of income tax and national insurance contributions of £123,031.87. The trial took place at Paisley Sheriff Court before Sheriff David Pender and a jury, commencing on 26 October 1998. Before the close of the Crown case, the first charge was amended to substitute for the sum libelled reference to “an unknown amount of Value Added Tax”, and the Procurator Fiscal Depute indicated that he would not seek a conviction in respect of the second charge. Both appellants were found guilty by majority on the first charge on 28 May 1999. The first appellant was also convicted of contempt of court. The case was remitted to the High Court of...
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