Terence William Norman v Di Yoni Adler
| Jurisdiction | England & Wales |
| Judge | Lady Justice Thirlwall,Lady Justice Nicolas Davies,Lord Justice Bean |
| Judgment Date | 07 July 2023 |
| Neutral Citation | [2023] EWCA Civ 785 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | Case No: CA-2021-003228 |
[2023] EWCA Civ 785
Lord Justice Bean
Lady Justice Thirlwall
and
Lady Justice Nicola Davies
Case No: CA-2021-003228
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE,
KING'S BENCH DIVISION (ADMINISTRATIVE COURT)
Mr Justice Kerr
CO/353/2021
Royal Courts of Justice
Strand, London, WC2A 2LL
Anthony Metzer KC and Alexander dos Santos (instructed by Paul Martin and Co Solicitors) for the First Appellants
Sam Thomas (instructed by Penningtons Manches Cooper LLP) for the First and Second Respondents
Hearing date: 18.01.2023
Approved Judgment
This judgment was handed down remotely at 11:00am on Friday, 7 July 2023 by circulation to the parties or their representatives by e-mail and by release to the National Archives.
The appellants seek to commit two police officers for contempt of court on the grounds that they knowingly or recklessly misled the Crown Court when applying for search warrants. Kerr J refused their application for permission to apply for an order of committal under CPR 81. This is their appeal from that decision, brought with the leave of Stuart Smith LJ.
Kerr J's refusal after a hearing on 12 November 2021 was preceded by a decision on the papers to the same effect by Sir Ross Cranston, sitting as a High Court Judge.
The appellants are married to each other. Mr Norman runs a business in the fintech sector. The respondents are officers of Essex Police. Yoni Adler, DI Adler is the more senior officer, a Detective Inspector. Gail Wilkinson, DC Wilkinson is a Detective Constable. They are sued for contempt in their personal capacity for actions taken in the course of their duties as police officers.
On 9 April 2019, The Honorary Recorder of Chelmsford issued search warrants on the application of DC Wilkinson who was acting under the direction of DI Adler. One warrant was directed to office premises, the other to the home of the appellants. On 16 April 2019 the police attempted to execute both warrants. They were unsuccessful at the office premises because the address was not that of the first appellant's business but of a firm of accountants who provided services to the first appellant's business. The accountants refused entry to their premises. The other warrant was executed at the appellants' home. They and their son were arrested.
This is the third set of proceedings in respect of the warrants. They were quashed by agreement and criminal proceedings discontinued as part of the resolution of the applicants' claims for judicial review of the lawfulness of the warrants.
The appellants then brought a claim for wrongful arrest which was heard and dismissed by the Divisional Court in 2020.
We are grateful to Mr Metzer KC and Mr dos Santos, counsel for the appellants and to Mr Thomas, counsel for the respondents, for their clear and helpful written and oral submissions.
Background
The first appellant has for some time operated an investment scheme known as “Blue Tractor”. There are a number of Blue Tractor companies. At Kerr J's request the parties provided an agreed form of words to describe Blue Tractor's business. It reads:
“Blue Tractor was created to develop novel intellectual property (“IP”) that would allow it to obtain exemptive relief from the SEC [ Securities and Exchange Commission] in the USA to trade in non-transparent exchange traded funds on USA markets. Exemptive relief was granted for Blue Tractor which allows it to license its novel IP to third parties who trade on the NASDAQ [ National Association of Securities Dealers Automated Quotations] and NYSE [ New York Stock Exchange].”
It is plain that the police officers in this case did not understand what Blue Tractor did. This is not surprising. It is niche and highly complex. To those outside the fintech sector the meaning of the agreed form of words may be opaque.
For the detailed background we adopt, as Kerr J did, detailed passages from the judgment of the Divisional Court (Dingemans LJ and Davis J) in R(Norman) v Crown Court at Chelmsford and the Chief Constable of Essex Police [2020] EWHC 3456 (Admin), dismissing claims by the appellants, for a declaration that their arrests were unlawful and their claims for damages for false imprisonment.
“7. In February 2019 Essex police received intelligence suggesting that Mr Norman was running an investment scheme called “Blue Tractor” which was a vehicle for fraud. In addition, on 4 September 2018 a financial institution had reported to a law enforcement agency that concerns had been raised about a deposit of cash made into a bank account by one person for a friend to purchase shares in Blue Tractor (UK) Limited (“Blue Tractor UK”). Essex police made inquiries which showed that Mr Norman had not been employed since 2008 and had paid no income tax since 2008. Bank accounts associated with him and his companies had a turnover in excess of £1 million. A personal bank account had a balance of £202,000 and a turnover in the period February 2018 to February 2019 of £640,000. Companies controlled by Mr Norman were Blue Tractor Europe Limited (“Blue Tractor Europe”) which was dormant, and Global Financial Solutions Limited (“GFS”), Blue Tractor UK and Towergate Consultants Limited (“Towergate”) which had no turnover. Vehicles with an estimated value of £1 million were registered at Mr and Mrs Norman's home which was called Ropers Farm situated in Essex. Ropers Farm was a substantial property with no mortgage. A website for Blue Tractor UK and other internet reports suggested that financial algorithms were being developed.
8. Detective Sergeant Adler (now Detective Inspector Adler) (“DI Adler”) decided to apply for search warrants. On 19 March 2019 an application was made to Her Honour Judge Lynch QC in the Crown Court at Chelmsford for a search warrant under the special procedure in schedule 1 of PACE. The warrant was issued but it was noticed that there was an error in the address for Ropers Farm and a new warrant was applied for and granted on 25 March 2019 by HHJ Lynch.
9. On 27 March 2019 DI Adler set out in a policy decision dated 27 March 2019 a decision to arrest “all adult members of family present at Ropers Farm on the day of the warrant for the money laundering offences”. The rationale was recorded as:
“there is sufficient grounds to suggest that all adult members of the family [Mr and Mrs Norman, their adult sons and adult daughters] have benefitted from the offences. All live on the property and the vehicles are in their names. There are huge amounts of financial transactions through the various accounts and very little in the way of HMRC declarations, certainly not consistent with their wealth. ….
10. On 2 April 2019 an application was made to His Honour Judge Gratwicke for a fresh warrant under section 352 of the Proceeds of Crime Act 2002 (“ POCA”). However the draft warrants had the wrong heading and he refused the application, and discharged the earlier warrants.
11. On 9 April 2019 successful applications were made for search and seizure warrants issued pursuant to section 352 of the Proceeds of Crime Act 2002 (“ POCA”) in respect of two properties being: (1) Ropers Farm; and (2) offices at 4 Hadleigh Business Centre, 351 London Road, Benfleet, Essex (“the offices”) by the Crown Court at Chelmsford.
12. At some stage it was decided to arrest only Mr Norman on the execution of the warrants.
The arrests
13. The warrants were executed on 16 April 2019 at 7.30 am at Ropers Farm. DI Adler pressed the intercom on electric gates at the end of the drive at Ropers Farm. There was a delay and the intercom was answered and DI Adler reported that he had a warrant to search the premises. There was then a further delay of several minutes and the gates were opened. Mr and Mrs Norman's son was located in a bungalow and he was arrested. Mr Norman showed DI Adler around the house and opened a safe containing money and he was arrested at 0737 hours on suspicion of fraud and money-laundering. PC Bridge and DS Robson found carrier bags containing cash concealed in bushes at the back of the garden. Footmarks were said to be noted in the dew on the lawn leading from the kitchen across the garden to the gate at the end of the garden near to the bushes. A pair of ladies' trainers were found which were wet and with grass cuttings, with the heels turned down which was said to suggest that they had been put on and taken off in a hurry. Mrs Norman was the only adult female who was up and seemed to have dressed hurriedly. DI Adler and DC O'Toole suspected that Mrs Norman had placed the bags of cash in the hedge to conceal them from police officers conducting the search. At 0910 hours Mrs Norman was arrested on suspicion of fraud and money-laundering.
14. Various documents, cash, jewellery, a piano and vehicles were seized. It was common ground that the seizure of the jewellery, piano and cash was not covered by the terms of the warrant. Mrs Norman made a complaint that she was advised to remove jewellery on arrest so that it could be safely left in the house, and it was then seized. About £100,000 in cash was found in the house and in the bushes.
15. …
16. Attempts were made to enforce the warrant at the offices. The offices were in fact the address of a firm of chartered accountants who provided accountancy services to Mr Norman and the companies. The police were refused access by the accountants because it did not appear that the police had even realised that the offices were the accountants' offices.”
Kerr J continued,
“Materially for present purposes, the Divisional Court found the following facts (at [74] and [75]):
“74. … DI...
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