Cook & Anor v Serious Organised Crime Agency [2010] EWHC 2119 (Admin)

Case No CO/6300/2010[2010] EWHC 2119 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
DIVISIONAL COURT
Venue Royal Courts of JusticeDate Tuesday, 27 July 2010
Strand
London WC2A 2LL
B e f o r e:
LORD JUSTICE LEVESON
MR JUSTICE OUSELEY
Between
SAM ANTHONY COOKClaimantROBERT DONALD COOKClaimantv
Between
SERIOUS ORGANISED CRIME AGENCYDefendant
Computer-Aided Transcript of the Stenograph Notes ofWordWave International LimitedA Merrill Communications Company165 Fleet Street London EC4A 2DYTel No: 020 7404 1400 Fax No: 020 7404 1424(Official Shorthand Writers to the Court)
Mr Rupert Bowers (Instructed By Faradays Solicitors, London, N7) Appeared for ClaimantsMiss Fiona Barton (Instructed By The Legal Department, Soca) Appeared for Defendant
J U D G M E N T

LORD JUSTICE LEVESON:

These

[1]claimants seek judicially to review a decision of the Serious Organised Crime Agency ("SOCA") to seize documents which have been the subject of the unlawful execution of a search warrant, purporting to act for this record seizure under section 19 of the Police and Criminal Evidence Act 1984 ("PACE"). SOCA, who for these purposes have identical powers to those of the police, acknowledge that the original seizure following the execution of search warrants was unlawful by reason of failure to comply with the law governing the drafting and execution of the warrants, but maintain that section 19 of PACE permits the subsequent seizure which they undertook. Although the issue can be stated simply it is clearly of real importance, both to the maintenance of appropriate safeguards surrounding the execution of search warrants but also to the wider administration of justice. The Facts[2]Following the recovery of documents in the course of the interception of a cargo of cannabis, SOCA commenced an investigation into fraud upon the Ministry of Justice by persons involved in two companies, Bells Cargo Express Ltd and Jedco Ltd. This investigation has led to a prosecution of the two claimants, along with three others, for the offence of conspiracy to defraud, the particulars being that between 10 July 2009 and 18 February 2010 they conspired together to defraud the Ministry of Justice by submitting invoices amounting to £256,776.75 for works never completed. That prosecution is proceeding in the Crown Court at Blackfriars. It consists at this stage of an allegation only. It is important to underline that it is contested by the claimants.[3]The documents having come to the notice of SOCA, an investigation commenced into the sending and receiving of fraudulent invoices by Jedco Ltd, its directors and employees. Pursuant to that investigation, on 15 April 2010 officers attended Aldershot Magistrates' Court and obtained three search warrants. The first was to seize business documentation, correspondence, communications records, computer records, and telephone data at 26 Tomswood Road, Chigwell, Essex, the home of the first claimant. The second concerned business documentation, correspondence, communication records, computer records and telephone data at 21C Woodford road, London, E18, the home address of the second claimant. The final warrant related to Suite 315, Langton Road, Abridge, Essex, the premises of Jedco and concerned business documentation, correspondence, communication records, computer records, and telephone data relating to dealings with the Ministry of justice, JMP Ltd, MJ Ferguson, DTZ, Terrace Consultants, Bells Cargo Ltd, David Linkson and Peter Auld.[4]On 20 April 2010 the first claimant was arrested at 26 Tomswood Road and the three warrants were executed. During the execution of the warrants no schedule signed by a justice specifying the address was left at 26 Tomswood Road where a laptop was seized. A signed schedule specifying the address was left at 21C Woodford Road where various paperwork was seized. No schedule signed by a justice and specifying the address was left at Suite 315, Langton Road, where various paperwork, two computers and some keys were seized. On 27 April 2010, a letter before action was written on behalf of the claimants challenging the obtaining of the warrants and their execution. On 13 May SOCA gave undertakings in support of the seized material. Although the papers filed in support of this application occasionally refer to Suite 315 as being the first claimant's business premises, those business premises were leased by Jedco, of which the first claimant is a director and the second claimant an employee.[5]The second claimant was arrested on 5 May 2010 and the claimants were charged in relation to him on 14 May and in relation to the first claimant on 2 June. On 26 May 2010 SOCA conceded that the execution of the warrants was unlawful because the warrants provided details of the premises to which they related only in a schedule, and further that proper schedules specifying the addresses had not been left at two of the premises. SOCA agreed to pay the claimants £1000 each together with their reasonable legal costs. However, SOCA indicated that it wished to have unrestricted access to the material in connection with the criminal proceedings that had by then been instituted and suggested that the claimants provide authority to that effect. In the absence of such agreement the defendant put the claimants on notice that it would seek to obtain the material lawfully by alternative means. Those means were not specified.[6]The claimants responded that the position into which SOCA had fallen could not be regularized, saying nothing about whether consent would be forthcoming, following which, on 28 May, SOCA wrote to say that an officer would be making contact to discuss the logistics of returning the seized material. In that letter the legal department go on:
"As your clients have indicated they do not consent to SOCA retaining material, please reiterate SOCA's intention to lawfully re-seize it as soon as practicable."
In the summary grounds of defence SOCA concede that this letter is inelegantly phrased. It is, to say the least, oblique and grammatically inappropriate, but in any event, as Mr. Bowers rightly argues, no warning was given of what was to come. Of course, had such warning been provided different steps would have followed.[7]The claimants wrote on 1 June to ask to be put on notice if SOCA intended to apply to a justice of the peace or to a judge for a further warrant. On 2nd June 2010 the first claimant attended Barkingside Police Station and met a SOCA officer. He there signed three receipts in respect of the property from the three addresses. He was then informed that certain paper exhibits were being seized under section 19(3) of PACE. In the event the first claimant was allowed to take away the laptop from 26 Tomswood Road, being the only item seized, and the computers from Suite 315. It is to the other items that this application for judicial review is directed. It is crystal clear that SOCA were acting in accordance with legal advice which they had received. For my part, I would reject the allegation of bad faith so liberally scattered about the claimants' documents. The Law[8]Part 11 of PACE covers powers of entry, search and seizure. Under the heading "Search Warrants", sections 8 to 9 deal with search warrants granted by magistrates and those which require special procedure under Schedule 1 of PACE, the relevant terms being defined by sections 10-14. Section 15 identifies safeguards, making it explicitly clear that an entry upon or a search of premises under a warrant is unlawful unless it complies with those provisions, and those of section 16 which deal with the manner in which the warrant must be exercised. These provisions are preceded by a heading "Entry without search warrant" which then (in sections 17-18) make provision for entry for the purpose of arrest etc, entry and search after arrest.[9]The next general heading is "Seizure etc" and comprises provisions dealing with the power of seizure (to which we shall return) and extension of powers of seizure to computerised information, access and copying and retention. Reverting to section 19, the general power of seizure relied on by SOCA in this case, it provides:
"(1) The powers conferred by subsections (2), (3) and (4) below are exercisable by a constable who is lawfully on any premises. (2) The constable may seize anything which is on the premises if he has reasonable grounds for believing: (a) that it has been obtained in consequence of the commission of an offence; and (b) that it is necessary to seize it in order to prevent it being concealed, lost, damaged, altered or destroyed. (3) The constable may seize anything which is on the premises if he has reasonable grounds for believing: (a) that it is evidence in relation to an offence which he is investigating or any other offence; and (b) that it is necessary to seize it in order to prevent the evidence being concealed, lost, altered or destroyed. (4) The constable may require any information which is stored in any electronic form and is accessible from the premises to be produced in a form in which it can be taken away and in which it is visible and legible [or from which it can readily be produced in a visible and legible form] if he has reasonable grounds for believing: (a) that… (i) it is evidence in relation to an offence which he is investigating or any other offence; or (ii) it has been obtained in consequence of the commission of an offence; and (b) that it is necessary to do so in order to prevent it being concealed, lost, tampered with or destroyed. (5) The powers conferred by this section are in addition to any power otherwise conferred. (6) No power of seizure conferred on a constable under any enactment (including an enactment contained in an Act passed after this Act) is to be taken to authorise the seizure of an item which the constable exercising the power has reasonable grounds for believing to be subject to legal privilege."
[10]Mr Rupert Bowers for the claimants argues that this provision will usually be exercised when, during the course of the execution of a search warrant for one type of property, such as stolen goods, the officer comes across another type not covered by the warrant, such as a firearm or dangerous drugs. The prerequisite, however, is that the officer is lawfully on the premises, so that section 19 will not validate the seizure of property unlawfully issued. In that regard he relies on Bates v Chief Constable of Avon and Somerset [2009] EWHC 942 (Admin), in which the Divisional Court made it clear (at para 29 per Owen J):
"... if the warrant was not lawfully issued, it could not have been extended under s.19; and it follows that the seizure of the materials the subject of the purported extension was also unlawful."
[11]He submits that because the warrants did not lawfully authorise entry and seizure, no power under section 19 arose at the time and thus no power later arose. The claimants were entitled to the unconditional return of their property (see Bhatti and Others v Croydon Magistrates' Court and Others [2010] EWHC 522 (Admin), and the device of obtaining a receipt did not fulfil that requirement and section 19 does not permit seizure in these circumstances.[12]For SOCA Miss Fiona Barton argues that section 19 is clearly apposite to cover such circumstances. The word "premises" in section 19 is widely defined (see section 23 of PACE). It is beyond argument that the SOCA officers were lawfully on the premises (namely the police station) and that the property which they wished to seize was at the police station. Further, it is clear from section 19(5) that the power is additional to any other powers of seizure that may exist. The goods were restored when a receipt for them was signed and there were ample reasonable grounds for the exercise of the power. Thus, the preconditions in section 19 were satisfied. Finally, and in any event, there is no doubt but that property seized under one police power may be re-seized under another: see Chief Constable of Merseyside v Hickman [2006] EWHC 451 (Admin), although that case concerned a sum of money originally lawfully seized under section 19 of PACE and relevant to a prosecution for possession of drugs with intent to supply, which it was held was lawfully re-seized under the Proceeds of Crime Act 2002 after a conviction for simple possession.[13]I readily accept that the words of section 19 are, on their face, sufficient to justify the further seizure of the property seized during the course of the execution of search warrants which it is conceded was unlawful. That construction, however, is to deny the structure of the legislation and to fail entirely to have regard to the way in which the serious interference, which is the power to enter premises and seize property, is controlled. For my part, I reject the proposition (which is the natural corollary of the power for which Miss Barton contends) that however unlawful the seizure of property, provided it ends up on premises at which the presence of a police officer is lawful, that officer can then convert what is unlawful possession into lawful possession.[14]Neither do I accept that it is different whether or not a receipt has been signed for the property. What matters is physical possession. If the warrant does not comply with the law and seized goods have to be returned, before they can be lawfully re-seized (assuming the power to do so) they must be restored into the possession of the person from whom they are taken. On the other hand, a further warrant could be sought and obtained and, although the background would have to be disclosed to the magistrate or judge, I reject the suggestion made by the claimants' solicitors in correspondence that the fact of the failed warrants would necessarily adversely affect the grant of new warrants if grounds are properly established.[15]Whether or not any other steps can be taken to ensure that the documents remain safe, however, the complications arising only serve to underline the very real care that must be taken when drafting, applying for and executing search warrants, and if this case does no more than convey that message it will have achieved a great deal.[16]Criminal litigation is not, however, a game. Although the police (or in this case SOCA) cannot escape the consequence of the illegality of the warrant, there is no reason why they should be placed in a worse position than if the warrant had never been sought or, conversely, why those, the subject of a warrant, (even if unlawful) should be in a better position to protect themselves from prosecution for unlawful conduct. Although SOCA cannot enforce the voluntary production of these papers, if a further warrant (or any other step lawfully taken) does not produce the documents, the fact that they have not been disclosed would not be irrelevant in any prosecution. If the documents show that the allegation of fraud is utterly without foundation it is simply inconceivable that anyone would want to prevent the authorities from examining them and reaching that conclusion. The only basis on which it would obviously be sensible to prevent such an examination is that they are in some way incriminating.[17]Furthermore, although I am not in possession of all the facts and, in any event, it is not for me to reach any conclusion, if either a production order or a further warrant was properly sought and granted, addressed to any premises occupied or controlled by a specified person (see section 8(1)(b) and 8(1A)(b) of PACE as amended by section 113(4) of the Serious Organised Crime and Police Act 2005) and executed where such business documents are appropriately kept, which did not lead to their production, I see no reason why that fact would not be capable of proof in any ensuing prosecution. I can readily envisage an argument that one (if not the only) appropriate inference is adverse to those who have kept them away from the prosecuting authorities. On any showing, I would not be at all surprised if a jury was extremely sceptical of a defence which had deliberately kept relevant material from the investigating officers.[18]The relief sought is the return of the documents which I would grant. Mr Bowers seeks destruction of all the copies and an order that no derivative use be made of any knowledge gained as a result of the unlawful search and seizure. In relation to copies of the documents no authority has been cited for the proposition sought. Mr Bowers, who has considerable expertise, makes it clear that he knows of no authority, save that on occasion such orders have been made, although Miss Barton, who also refers to no authorities, points to examples where it has been conceded that documents can be kept. As Ouseley J expounded in argument, there is a difference between the documents themselves and the information which the documents contain.[19]Mr Bowers points to Article 8 of the European Convention on Human Rights which contains the well known principle:
"Everyone has the right to respect for his private and family life, his home and his correspondence. There shall be no interference by a public authority with the exercise of this right except such as in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder of crime, for the protection of health or morals, or for the protection of the rights and freedoms of others."
[20]He argues that these documents have not been seized in accordance with the law and therefore their use cannot be justified. On the other hand, he concedes that the common law does permit the use of unlawfully seized material in certain circumstances which therefore would generate the balancing exercise which the exception in relation to the prevention of disorder or crime creates. We have not been shown the documents which were seized and absent any further investigation, I am not prepared to go further.[21]It is clear from the fact that there is no freestanding application for the return of documents on the frauds that they are not said to be relevant to a criminal investigation that, prima facie, we could conclude that all are. Without a detailed examination it would obviously not be appropriate for this court to consider any type of balancing exercise. Equally, is it not appropriate to do so without a detailed analysis of the extent to which the confidentiality of the documents is also protected. Neither is the claimant left without a remedy in these circumstances, as Mr Bowers submitted. I have no doubt that section 78 of PACE controls the use to which any copies of documents can be put, bearing in mind that the deployment of unlawfully obtained evidence is not necessarily and inevitably prohibited irrespective of the circumstances (see R v Sang (1980) AC 402 and the many cases that develop the exclusionary principles which follow both from that decision and section 78.[22]As to the derivative use of knowledge, if I understand the meaning of the phrase, there is a real risk of allowing the subject of an unlawful search a protection from an investigation which is not warranted. For my part, I would not be prepared to make an order that would encourage satellite litigation either in a civil or criminal context as to the origin of lawfully obtained evidence. Thus, assume a prosecution is mounted using a witness who can lawfully prove a material fact. I would reject the proposition that the court should enquire whether the train of inquiry to that witness started as a result of what resulted from the unlawful seizure or in some other way and doubt the utility of an investigation of the many steps in what are sometimes complex criminal inquiries.[23]At this stage I conclude that SOCA were not entitled to use section 19 of PACE to keep documents that had been unlawfully seized simply by seeking a receipt for their return. I would allow this application and invite the parties to submit an order which reflects this decision.[24]MR. JUSTICE OUSELEY: I agree. I add a few words. It is clear that the police officer in question was lawfully at the police station. It is not suggested that the material he purported to seize fell outside the scope of section 19(2)(a) and (b). It is not disputed but that section 19 permits the seizure of material which is already in the physical possession of the police (see Hickman already cited). The question is: does section 19 permit the seizure at the police station of material unlawfully obtained pursuant to an unlawful seizure and unlawfully brought to the police station? For the reasons given by my Lord I agree that section 19 cannot be interpreted so as to permit its powers to be exercised in that way. Were that to be the true ambit of section 19 I would have expected Parliamentary provision for what would amount to a considerable limitation of the safeguards in the Police and Criminal Evidence Act. I agree that SOCA must return the documents which it has.[25]In addition to the adverse inferences which might be drawn from the non-production of documents, it may be the case that where a person in possession of such documents knows that they are potential evidence in a case a relevant to an investigation but destroys or conceals them, the inference may be drawn that that was done with the intention of perverting the course of justice. That may or may not be the case but those who receive the documents back ought to be alerted to that possibility.[26]The Serious Organised Crime Agency object to any further relief as sought by Mr Bowers. He seeks the destruction of copies made of the documents and a prohibition on the use of the information contained in them. His concern is with the information rather than with the physical documents on which the copies have been made and which do not belong to him at all. He submits that further relief in the form of an order for their destruction and for a prohibition on the use of the knowledge or information contained in them is necessary for an effective remedy in relation to the unlawful search and retention of the documents, in addition to the order for the return of the document and damages.[27]Although we have not seen the documents, as I have said, it has not been suggested that they fall outside the scope of section 19(2). It is not suggested that they were legally professional privileged, which might override any disclosure provisions. It is not suggested that they contain purely private information or have a confidential quality that might override what would otherwise be the plain inference that they are relevant to a criminal investigation falling within section 19(2). It is well recognized at common law that material that has been unlawfully obtained may be admitted in evidence and subject to control by section 78 of PACE. Where the common law permits evidence to be admitted in those circumstances, it is plain that the common law does not require the material to be destroyed beforehand and the information contained within it not to be used. Quite the contrary. The common law contemplates that the information will be available for use in order for it to be produced in evidence at all. For there to be a case that Article 8 required the court to order destruction, a great deal more would have to be shown in relation to what the documents were for the balance to be struck by this court.[28]In any event, the proportionality remedy in relation to that aspect of the unlawful obtaining and retention of documents lies in the use of section 78 in relation to admissibility in a criminal trial. For these reasons I agree with the order proposed by my Lord.

Cited in 19 later judgments

and 10 more of the most senior