Superior Import / Export Ltd and Others v The Commissioners for HM Revenue and Customs and Another
| Jurisdiction | England & Wales |
| Judge | Mrs Justice Carr,Gross LJ |
| Judgment Date | 11 December 2017 |
| Neutral Citation | [2017] EWHC 3172 (Admin) |
| Docket Number | Case No: CO/3197/2017 |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 11 December 2017 |
[2017] EWHC 3172 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
The Right Honourable Lord Justice Gross
The Honourable Mrs Justice Carr
Case No: CO/3197/2017
The Queen (on the application of)
Mr Alun Jones QC, Mr David BedenhamandMr Ben Cooper (instructed by Messrs Rainer Hughes Solicitors) for the Claimants
Mr James Fletcher (instructed by Her Majesty's Revenue and Customs) for the First Defendants
The Second Defendant was not represented and did not appear
Hearing date: 15 th November 2017
Judgment Approved
Introduction
This is a challenge by the Claimants to the lawfulness of the decision on 7 th June 2017 by a Justice of the Peace ("the Justice") sitting at the Second Defendant, Birmingham Magistrates' Court ("the BMC") to grant 3 search warrants ("the warrants") under s. 8 of the Police and Criminal Evidence Act 1984 ("PACE") in relation to premises owned or occupied by them. The warrants were issued on the application of an officer of Her Majesty's Revenue & Customs ("HMRC"). The Claimants also challenge the lawfulness of the subsequent execution of the warrants by HMRC on 15 th June 2017.
The warrants authorised the entry and search of the following premises:
a) Crown House, Home Gardens, Dartford, Kent DA1 1DZ ("the Crown House premises"). The Crown House Premises are occupied by the First Claimant, Superior Import/Export Ltd ("Superior"). The sole director of Superior is Mr Harpreet Singh Johal ("Mr Harpreet Johal");
b) The Priory, Swanley Village Road, Swanley, Kent BR8 7NU ("the Priory premises"). The Priory premises are owned by the Second Claimant, Mr Balbir Singh Johal ("Mr Balbir Johal"), who is the father of Mr Harpreet Johal;
c) 98 Rochester Road, Gravesend, Kent DA12 2 HZ ("the Rochester Road premises"). The Rochester Road premises are owned by the Third Claimant, Mrs Gurdev Kaur Johal ("Mrs Gurdev Johal"), who is the grandmother of Mr Harpreet Johal.
HMRC's application for the warrants was made against the background of an agreement entered into between the United Kingdom, the Crown Prosecution Service ("the CPS") and HMRC on the one hand, and the Examining Magistrate in the Tribunal of Lille on the other, for the purpose of establishing a joint investigation team between France and the United Kingdom in accordance with Article 13 of the Convention of 29 th May 2000 relating to Mutual Assistance in Criminal Matters between the member states of the European Union ("the Convention") and/or the Framework Decision of the Council of 13 th June 2001 relating to Joint Investigation Teams ("the JIT agreement"). The JIT agreement was disclosed late in these proceedings (on 9 th November 2017) pursuant to an order of McGowan J on 2 nd November 2017, when the CPS was also joined as an Interested Party to cover the possibility of a public interest immunity application. No such applicatio in fact been pursued and the CPS is by consent now removed from the proceedings.
Subsequent to the issue of these proceedings on 7 th July 2017, on 11 th July 2017 Mr Harpreet Johal was arrested (in England) under a European Arrest Warrant ("EAW") issued in the Lille courts on 26 th June 2017 and based on a French domestic warrant dated 21 st June 2017. Extradition proceedings against Mr Harpreet Johal are currently part-heard in Westminster Magistrates' Court and due to resume on 13 th December 2017. This claim has been heard on an expedited basis.
Factual summary
HMRC has been undertaking a criminal investigation called "Operation Bowshot" concerning potential large scale excise duty evasion and the subsequent laundering of the criminal funds generated, undertaken by an organised crime group in the West Midlands and London areas. The laundered monies were suspected to be derived from the sale of illicit alcohol imported from the continent and other organised crime groups across the UK. The total tax loss to HMRC since April 2010 was estimated at over £440 million.
The JIT agreement was directed at setting up a joint investigation team in charge of the French investigation into a fraudulent organisation in France specialising in alcoholic beverages and the UK investigation in Operation Bowshot. It recorded that links between the French and British investigations had been established and expanded to link Mr Harpreet Johal to the financing of " illicit undutied loads of alcohol", with Mr Harpreet Johal being suspected of contacting a French national suspected to have control of a bonded warehouse from which " frequent loads of undutied alcohol" were sent. The purpose of the joint investigation team was to facilitate the investigations in France and the UK. The term of the JIT agreement was one year from the date of signature, extendable by written consent of the parties.
The JIT contained a series of provisions for mutual co-operation between the French and English authorities, including the following:
"2.2 Purpose of the joint investigation team:
…
In particular, the JIT aims to:
—gather evidence and facilitate the exchange of information between investigative teams….;
—facilitate the involvement of investigators from one Member State in the investigations being pursued by the other;…
—identify the instruments and proceeds of crime;
—use the evidence gathered for the purposes of prosecution, and the restraint and confiscation of the proceeds of crime in France and the United Kingdom."
And:
"9. EVIDENCE
…The JIT leaders shall agree the processes and procedures to be followed regarding the sharing between them of evidence obtained pursuant to the JIT in each Member State…."
And:
"13. 2 Recording of and use of information obtained during the JIT
…Without prejudice to Article 13 and subject to the law of the Member State in which material is obtained, the JIT members and prosecution authorities may use as evidence in criminal proceedings all information exchanged in the framework of the JIT, unless the providing party imposes conditions or restrictions on the use of specified material….
13.3 Consultation with regard to legal proceedings
The Parties to the agreement designated…will ensure they consult each other, in agreement with the appropriate authorities of their State, on the timing and method of intervention by the investigators and on the best manner in which to undertake eventual legal proceedings."
The JIT also provided:
"10. GENERAL CONDITIONS OF THE AGREEMENT
In general, the conditions laid down in Article 13 of the Convention… shall apply as implemented by each Member State in which the JIT operates."
The application
In the morning of 7 th June 2017 Ms Helen Wilkes of the HMRC ("Ms Wilkes") presented to the BMC an application for 21 warrants to enter and search various properties and vehicles, including for the warrants under present scrutiny ("the application").
The application was on the standard form for an application under s.8 of PACE (as stated in the heading of the document itself). It was signed by Ms Wilkes and the senior reviewing officer, Mr David Homans ("Mr Homans") at HMRC in the late afternoon of 6 th June 2017.
It indicated at the outset that Ms Wilkes was not a constable but another person authorised to apply for a search warrant. (Clarification of that authority was given later in box 1b): Ms Wilkes was a duly authorised officer of HMRC pursuant to s. 114(2)(a) of PACE and the PACE (Application to Revenue and Customs) Order SI 2015/1783 as amended. The application had been authorised by a senior officer of HMRC with grade equivalent to the rank of Superintendent.) Ms Wilkes also indicated that she expected any warrant to be executed on 15 th June 2017.
In Box 1 Ms Wilkes identified the offences under investigation as:
"—Being knowingly concerned in the fraudulent evasion of Excise Duty contrary to section 170(2) of the Customs and Excise Management Act 1979
—Conspiracy to commit fraud contrary to section 1 of the Criminal Law Act 1977
—Money laundering offences contrary to sections 327, 328 and 329 of the Proceeds of Crime Act 2002."
In Box 2, Ms Wilkes set out a lengthy explanation of the investigation with particulars of the case against 8 named individuals, including Mr Harpreet Johal. After a brief introductory overview of Operation Bowshot Ms Wilkes identified the JIT agreement as follows:
"3) The investigation is being carried out in conjunction with an ongoing French Judicial Customs (SNDJ) operation, codenamed 'Operation Eurostock' and a Joint Investigation Team (JIT) agreement was created at Eurojust on 21/07/16. This has allowed the two departments to work in tandem and to freely exchange information in relation to the fraud, in order to substantiate the links between the criminal organisations involved and to use any evidence gathered, for the purposes of prosecution and the restraint and confiscation of the proceeds of crime in both France and the UK."
The case against Mr Harpreet Johal was particularised in paragraphs 37 to 45 of Box 2. At paragraph 47 Ms Wilkes stated:
"47) The evidence obtained so far during this investigation as explained above strongly suggests that the individuals:..SALH….PAUL…SINGH…JOHAL…DHANDA….CONLON…MOHAMMAD…. DARBAR, each played a pivotal role in this suspected complex fraud and together they have defrauded [HMRC] of approximately £441,584,000 between the period 01/04/10 to date."
Mr Harpreet Johal's individual role was then described in the following terms:
"JOHAL is suspected of being in overall control of the fraud in the London area and...
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