Dulai & Ors, R (on the application of) v Chelmsford Magistrates' Court & Anor [2012] EWHC 1055 (Admin)

Neutral Citation Number: 2012 EWHC 1055 (Admin)Case Nos: CO/2034/2011 & CO/6962/2011
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
DIVISIONAL COURT
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate 26 April, 2012
Before
LORD JUSTICE STANLEY BURNTONMR JUSTICE TREACY
Between
R (on the application of)Claimants(1) Mr. SUKHJIT DULAIClaimant(2) HARRY DULAIClaimant(3) FLYING TRADE LIMITEDClaimant(4) SURYA RICE LIMITEDClaimant(5) SCREWED LIMITEDClaimant(1) CHELMSFORD MAGISTRATES’ COURTDefendants(2) ESSEX COUNTY COUNCILDefendantR (on the application of)ClaimantESSEX COUNTY COUNCILClaimantCHELMSFORD CROWN COURTDefendantSUKHJIT DULAIInterested PartiesHARJIT DULAIInterested PartyFLYING TRADE LTDInterested PartySURYA RICE LTDInterested PartySCREWED LTDInterested Party
Juan Lopez (instructed by Gates & Partners) for Claimants in CO/2034/2011 and the Interested Parties (other than Essex Magistrates’ Court) in CO/6962/2011Charles Bourne (instructed by Essex County Council) for Essex County Council for Essex Magistrates’ Court and Chelmsford Crown Court did not appear and were not represented.Hearing Hearing date: Friday 2 nd March 2012
Judgment

Introduction

[1]This case raises some difficult questions arising under Part 2 of the Criminal Justice and Police Act 2001 (“the CJPA”).[2]On 17 February 2011, Essex County Council (“the Council”), an authority charged with the maintenance of trading standards and the prosecution of breaches, applied under section 32(2) of the Food Safety Act 1990 (“the FSA”) to District Judge (Magistrates’ Court) Hall, sitting in Chelmsford Magistrates’ Court, for a warrant authorising it to enter the “premises … at Europa House, Unit 4, Europa Way, Parkeston, Essex CO12 4PT and any associated outbuildings and vehicles”, to carry out a search and to seize property described in the warrant. I shall refer to the premises described in the warrant as “the premises”.[3]Following an oral hearing, the District Judge granted the warrant in the terms sought.[4]The premises were occupied by Surya Rice Ltd (“SRL”), Flying Trade Ltd (“FTL”) and Screwed Ltd (“SL”). Mr Sukhjit Dulai and Mr Harjit Dulai are directors of FTL; Mr Sukhjit Dulai is a director of SRL and SL. I shall refer to them collectively as “the Traders”.[5]The Council executed the warrant on 23 February 2011 and seized various items.[6]On 4 March 2011, the Traders issued proceedings seeking judicial review of the decision of District Judge Hall to issue the warrant and of the Council’s entry to the premises and seizure of their property and refusal to return it. On the same day, they applied for interim relief, and Edwards-Stuart J granted an injunction restraining the Council from accessing property seized and ordering the return of specified items. That injunction was subsequently continued.[7]In addition, FTL and Sukhjit Dulai applied to the Crown Court under section 59 of the CJPA for the return of the property seized by the Council, on the ground that the warrant was unlawful and should not have been issued. On 23 March 2011 Her Honour Judge Walden-Smith granted the application and ordered the return of the property seized by the Council.[8]On 20 July 2011, the Council issued a claim for judicial review of the order made by Her Honour Judge Walden-Smith, on the ground that the Crown Court did not have jurisdiction to consider the lawfulness of the warrant, and that in any event her reasons for making the order were irrational and her order unlawful.[9]Both of the Traders’ and the Council’s claims for judicial review came before us on 2 March 2012. This is my judgment on their claims.

The facts

[10]SRL and FTL are companies engaged in the business of food packing and distribution. SRL’s business relates to rice. FTL’s is more general.[11]The Council applied for the search warrant because it suspected that SRL had sold and was selling rice described as basmati rice that did not comply with that description, because it contained a high proportion of ordinary rice. In 2006 SRL had pleaded guilty to an offence under section 14(1) of the Food Safety Act 1990 committed by its sale of rice described as basmati rice but in fact containing 75 per cent non-basmati varieties. The Council believed that SRL and FTL were associated companies. In 2008, FTL had been convicted of offences under the General Food Regulations 2004. In July 2010, FTL had been issued with a formal caution for various breaches of food regulations. According to the Council’s evidence, a feature of that investigation was a lack of cooperation, which Richard Power, the officer of the Council who was in charge of the investigation of SRL and FTL and their activities, describes in his affidavit as “deliberate obfuscation rather than obstruction”. In addition, the Council had been informed that in 2005 the Environmental Health Department of Sandwell Metropolitan Borough Council had issued a formal caution to FTL for breaches of the Food Safety (General Food Hygiene) Regulations 1995. Sandwell was also prosecuting FTL and Sukhjit Dulai in relation to food-connected matters.[12]Between January 2009 and November 2010, Trading Standards officers of the Council visited the premises on 7 occasions. They were allowed entry without a warrant, and according to Mr Sukhjit Dulai were given access to the warehouse and disclosure of relevant paperwork.[13]Officers of the Council had visited the premises of SRL and FTL on 13 December 2010. They included Jonathan Dyer, a trading standards officer. They had introduced themselves to Harry Dulai, presumably an employee, and explained that the purpose of their visit was to take samples of basmati rice from the warehouse for authenticity analysis. They went to the warehouse with Trevor Holmes, described as Quality Assurance Manager, where they took samples of rice in packs described as basmati rice packed by SRL. Mr Dyer requested, and was provided with, documents relating to the importation of the batch of rice from which the samples had been taken.[14]On 21 January 2011, Mr Dyer received reports of the analysis of the samples taken on 13 December 2010. They showed that the samples contained respectively 20 per cent, 46 per cent and 43 per cent non-basmati varieties. He concluded, not surprisingly, that they were not of the quality described. In consequence, Mr Dyer decided to investigate the matter further, “in relation to offences under sections 14(1) and 15(1)(b) of the Food Safety Act 1990 and section 2 of the Fraud Act 2006”, and to apply for the warrant that is the subject of these proceedings.[15]According to Mr Dyer’s witness statement of 12 August 2011, made for the purposes of the judicial review proceedings brought by the Traders:
“In the past the company has failed to provide me with information I have requested and have been generally uncooperative in previous food safety and food labelling investigations. I believed that a warrant was required in view of my previous inspections and investigations of Surya Rice Ltd and Flying Trade Ltd where often I had been kept waiting either in the reception area or meeting room for sometime before a representative of the company would see me. I believed that in view of this, entry to the office area at the premises may be refused or delayed which could result in important evidence being lost.”
[16]The Council’s application for the warrant was supported by a written information made by Mr Dyer, in which he stated:
“Where I have reasonable grounds for believing that there are certain goods, books, documents and records, including computer records in relation to the importation, purchasing, processing, packing and sale of basmati and non basmati rice along with other items in breach of the legislation and any associated documentation, which duly authorised officers of the Essex County Council Trading Standards Service have powers under Section 32(5) of the said Act to inspect and that their inspection is likely to disclose evidence of the commission of offences And there are no reasonable grounds to believe that the material sought consists of or includes items subject to legal privilege, excluded material or special procedure material. AND THAT an application for admission to the premises, or the giving of such a notice, would defeat the object of the entry.”
[17]In addition, Mr Dyer signed a witness statement that included the section 9 of the Criminal Justice Act 1967 acknowledgment. He read it to the District Judge. In it he referred to the complaint he had received that 3 samples of what were described as basmati rice, imported, packed and sold by SRL, included between 26 and 30 per cent non-basmati rice varieties. He pointed out that the code of practice published by the British Rice Millers Association and the British Retail Consortium states that the non-basmati content of rice described as basmati rice must not exceed 7 per cent. He continued:
“I visited the premises of Surya Rice Ltd, t/a Surya Foods, Europa House, Unit 4, Europa Way, Parkeston, Essex, CO12 4PT with colleagues from Essex Trading Standards Service on 13th December 2010. During this visit, I took 3 representative formal samples of difference batches of ‘Laila’ brand basmati rice from the premises. These representative samples were taken from 1kg, 2kg and 5kg retail packs which had been packed by the company and stored on site at their warehouse. All of these packs bore the details Surya Foods, Europa House, Europa Way, Harwich, CO12 4PT. The three samples were submitted to our Public Analyst, Worcestershire Scientific Services, which reported that the three samples of basmati rice were found to contain non basmati rice varieties present at levels of 20%, 43%, and 46%. Such levels of adulteration not only mislead consumers who are paying premium prices for an alleged premium product, constituting offences under the Food Safety Act 1990, but also constitute food fraud on large scale. The three batches of Laila basmati rice sampled by Essex Trading Standards were, based on importation documents, part of a 230 tonne consignment of basmati imported by the company. Based on a calculation of an average adulteration level of 36% for this consignment and the difference in retail prices between basmati and non basmati rice, this equates to an approximate monetary gain to the company of over £34,000 for this consignment, I respectfully ask today that you grant this warrant ”
[18]On the basis of this evidence the District Judge decided to issue the warrant. It referred to the premises to be searched as “premises … at Europa House, Unit 4, Europa Way, Parkeston, Essex CO12 4PT and any associated outbuildings and vehicles within the boundary of that site” and stated:
“… there are reasonable grounds to believe that upon [the] premises there are certain goods, books and documents, namely records, including computer records in relation to the importation, purchasing, processing, packing and sale of basmati and non basmati rice along with other items in breach of the legislation and any associated documentation, which a duly authorised officer has power under section 32(5) of the said Act to inspect and that their inspection is likely to disclose evidence of the commission of offences.”
[19]During the course of the search carried out pursuant to the warrant, the Council’s officers decided to exercise the power conferred by section 50 of the Criminal Justice and Police Act 2001 in order to remove large quantities of documents and records relating to rice in order to decide whether they were required as evidence in proceedings. Martin Hickey, one of the Council’s officers, completed a notice of the exercise of the section 50 power. In the box headed “Description of property seized” he wrote:
“A schedule of property seized can be supplied on request.”
[20]Mr Dyer and a colleague, Martin Hickey, left the premises at about 3.30 pm and went to Clacton Police Station to conduct a formal interview of Mr Sukhjit Dulai. The section 50 notice was given to the solicitor for Mr Sukhjit Dulai at the police station, where the interview began at 6.45 pm.[21]Before us, the Council conceded that it had not complied with the duty imposed by section 52 in that: i) It had not served the written notice required by that section on exercising the power of seizure. It did so subsequently, at the police station to which Mr Sukhjit Dulai had been taken for interview. ii) The notice it served did not specify what had been seized, as required by subsection (1)(a).[22]Mr Sukhjit Dulai exhibited to his affidavit sworn on 7 March 2011 the schedule provided by the Council specifying the property taken from the premises. He made no complaint as to the form of the section 50 notice or the time of its service, and did not suggest that any prejudice had been caused by those defects.[23]On 28 February 2011, the Traders applied to the Crown Court at Chelmsford for an order under section 59 of the 2001 Act for the return of the seized property.[24]On 4 March 2011, the Traders issued proceedings against the Council in the Administrative Court seeking judicial review of the magistrate’s decision to issue the search warrant, and of the Council’s entry upon and search of the premises and removal of documents and computers. In these proceedings, the Traders claim quashing orders, declaratory relief and damages. They applied for, and as mentioned above obtained, injunctions by way of interim relief.[25]The Traders’ application under section 59 was heard by Her Honour Judge Walden-Smith on 18 March 2011. She gave judgment on 23 March 2011 granting the relief sought. In summary, she found: i) The evidence put before the magistrate on the application for the search warrant did not satisfy the requirements of section 32(2)(a) or (b) of the FSA. In relation to paragraph (b), there was no basis for a finding that an application for admission to the premises would defeat the object of the entry. ii) The Council had not provided full disclosure to the magistrate: specifically, it had failed to inform the magistrate that there had been numerous occasions in the past when the Traders had admitted the Council’s officers to the premises without any warrant. iii) It followed that the warrant should not have been granted; the search and removal of documents were therefore unlawful. The judge therefore ordered the return of the property taken by the Council. Her order was complied with.[26]As mentioned above, on 20 July 2011, the Council issued judicial review proceedings challenging the order made by Her Honour Judge Walden-Smith.[27]Although the property taken by the Council has been returned, both the Council and the Traders have continued their respective judicial review proceedings, which came before us for hearing on 2 March 2012.

The statutory provisions

[28]Section 32 of the Food Safety Act 1990, so far as relevant, is as follows: 32 Powers of entry.(1) An authorised officer of an enforcement authority shall, on producing, if so required, some duly authenticated document showing his authority, have a right at all reasonable hours— (a) to enter any premises within the authority’s area for the purpose of ascertaining whether there is or has been on the premises any contravention of the provisions of this Act, or of regulations or orders made under it; and (b) to enter any business premises, whether within or outside the authority’s area, for the purpose of ascertaining whether there is on the premises any evidence of any contravention within that area of any of such provisions; and (c) in the case of an authorised officer of a food authority, to enter any premises for the purpose of the performance by the authority of their functions under this Act; ….(2) If a justice of the peace, on sworn information in writing, is satisfied that there is reasonable ground for entry into any premises for any such purpose as is mentioned in subsection (1) above and either— (a) that admission to the premises has been refused, or a refusal is apprehended, and that notice of the intention to apply for a warrant has been given to the occupier; or (b) that an application for admission, or the giving of such a notice, would defeat the object of the entry, or that the case is one of urgency, or that the premises are unoccupied or the occupier temporarily absent, the justice may by warrant signed by him authorise the authorised officer to enter the premises, if need be by reasonable force.(3) Every warrant granted under this section shall continue in force for a period of one month.(4) An authorised officer entering any premises by virtue of this section, or of a warrant issued under it, may take with him such other persons as he considers necessary, and on leaving any unoccupied premises which he has entered by virtue of such a warrant shall leave them as effectively secured against unauthorised entry as he found them.(5) An authorised officer entering premises by virtue of this section, or of a warrant issued under it, may inspect any records (in whatever form they are held) relating to a food business and, where any such records are stored in any electronic form— (a) may have access to, and inspect and check the operation of, any computer and any associated apparatus or material which is or has been in use in connection with the records; and (b) may require any person having charge of, or otherwise concerned with the operation of, the computer, apparatus or material to afford him such assistance as he may reasonably require.(6) Any officer exercising any power conferred by subsection (5) above may— (a) seize and detain any records which he has reason to believe may be required as evidence in proceedings under any of the provisions of this Act or of regulations or orders made under it; and (b) where the records are [stored in any electronic form], may require the records to be produced in a form in which they may be taken away.” (a) to enter any premises within the authority’s area for the purpose of ascertaining whether there is or has been on the premises any contravention of the provisions of this Act, or of regulations or orders made under it; and (b) to enter any business premises, whether within or outside the authority’s area, for the purpose of ascertaining whether there is on the premises any evidence of any contravention within that area of any of such provisions; and (c) in the case of an authorised officer of a food authority, to enter any premises for the purpose of the performance by the authority of their functions under this Act; (a) that admission to the premises has been refused, or a refusal is apprehended, and that notice of the intention to apply for a warrant has been given to the occupier; or (b) that an application for admission, or the giving of such a notice, would defeat the object of the entry, or that the case is one of urgency, or that the premises are unoccupied or the occupier temporarily absent,[29]The Council is both an enforcement authority and a food authority (as to which see section 6(1)) for the purposes of the Act.[30]Section 50 of the Criminal Justice and Police Act 2001, so far as material, is as follows: 50. Additional powers of seizure from premises(1) Where-- (a) a person who is lawfully on any premises finds anything on those premises that he has reasonable grounds for believing may be or may contain something for which he is authorised to search on those premises, (b) a power of seizure to which this section applies or the power conferred by subsection (2) would entitle him, if he found it, to seize whatever it is that he has grounds for believing that thing to be or to contain, and (c) in all the circumstances, it is not reasonably practicable for it to be determined, on those premises-- (i) whether what he has found is something that he is entitled to seize, or (ii) the extent to which what he has found contains something that he is entitled to seize, that person's powers of seizure shall include power under this section to seize so much of what he has found as it is necessary to remove from the premises to enable that to be determined.(2) Where-- (a) a person who is lawfully on any premises finds anything on those premises ("the seizable property") which he would be entitled to seize but for its being comprised in something else that he has (apart from this subsection) no power to seize, (b) the power under which that person would have power to seize the seizable property is a power to which this section applies, and (c) in all the circumstances it is not reasonably practicable for the seizable property to be separated, on those premises, from that in which it is comprised, that person's powers of seizure shall include power under this section to seize both the seizable property and that from which it is not reasonably practicable to separate it.(3) The factors to be taken into account in considering, for the purposes of this section, whether or not it is reasonably practicable on particular premises for something to be determined, or for something to be separated from something else, shall be confined to the following-- (a) how long it would take to carry out the determination or separation on those premises; (b) the number of persons that would be required to carry out that determination or separation on those premises within a reasonable period; (c) whether the determination or separation would (or would if carried out on those premises) involve damage to property; (d) the apparatus or equipment that it would be necessary or appropriate to use for the carrying out of the determination or separation; and (e) in the case of separation, whether the separation-- (i) would be likely, or (ii) if carried out by the only means that are reasonably practicable on those premises, would be likely, to prejudice the use of some or all of the separated seizable property for a purpose for which something seized under the power in question is capable of being used. … (5) This section applies to each of the powers of seizure specified in Part 1 of Schedule 1. … (a) a person who is lawfully on any premises finds anything on those premises that he has reasonable grounds for believing may be or may contain something for which he is authorised to search on those premises, (b) a power of seizure to which this section applies or the power conferred by subsection (2) would entitle him, if he found it, to seize whatever it is that he has grounds for believing that thing to be or to contain, and (c) in all the circumstances, it is not reasonably practicable for it to be determined, on those premises-- (i) whether what he has found is something that he is entitled to seize, or (ii) the extent to which what he has found contains something that he is entitled to seize, (a) a person who is lawfully on any premises finds anything on those premises ("the seizable property") which he would be entitled to seize but for its being comprised in something else that he has (apart from this subsection) no power to seize, (b) the power under which that person would have power to seize the seizable property is a power to which this section applies, and (c) in all the circumstances it is not reasonably practicable for the seizable property to be separated, on those premises, from that in which it is comprised, (a) how long it would take to carry out the determination or separation on those premises; (b) the number of persons that would be required to carry out that determination or separation on those premises within a reasonable period; (c) whether the determination or separation would (or would if carried out on those premises) involve damage to property; (d) the apparatus or equipment that it would be necessary or appropriate to use for the carrying out of the determination or separation; and (e) in the case of separation, whether the separation-- (i) would be likely, or (ii) if carried out by the only means that are reasonably practicable on those premises, would be likely, to prejudice the use of some or all of the separated seizable property for a purpose for which something seized under the power in question is capable of being used.[31]Section 50 applies to a search authorised under section 32(2) of the Food Safety Act 1990. Section 51 confers a similar additional power of seizure where the original lawful search is of a person rather than premises. Section 52 is as follows: 52 Notice of exercise of power under s 50 or 51(1) Where a person exercises a power of seizure conferred by section 50, it shall (subject to subsections (2) and (3)) be his duty, on doing so, to give to the occupier of the premises a written notice-- (a) specifying what has been seized in reliance on the powers conferred by that section; (b) specifying the grounds on which those powers have been exercised; (c) setting out the effect of sections 59 to 61; (d) specifying the name and address of the person to whom notice of an application under section 59(2) to the appropriate judicial authority in respect of any of the seized property must be given; and (e) specifying the name and address of the person to whom an application may be made to be allowed to attend the initial examination required by any arrangements made for the purposes of section 53(2).(2) Where it appears to the person exercising on any premises a power of seizure conferred by section 50-- (a) that the occupier of the premises is not present on the premises at the time of the exercise of the power, but (b) that there is some other person present on the premises who is in charge of the premises, subsection (1) of this section shall have effect as if it required the notice under that subsection to be given to that other person.(3) Where it appears to the person exercising a power of seizure conferred by section 50 that there is no one present on the premises to whom he may give a notice for the purposes of complying with subsection (1) of this section, he shall, before leaving the premises, instead of complying with that subsection, attach a notice such as is mentioned in that subsection in a prominent place to the premises.(4) Where a person exercises a power of seizure conferred by section 51 it shall be his duty, on doing so, to give a written notice to the person from whom the seizure is made-- (a) specifying what has been seized in reliance on the powers conferred by that section; (b) specifying the grounds on which those powers have been exercised; (c) setting out the effect of sections 59 to 61; (d) specifying the name and address of the person to whom notice of any application under section 59(2) to the appropriate judicial authority in respect of any of the seized property must be given; and (e) specifying the name and address of the person to whom an application may be made to be allowed to attend the initial examination required by any arrangements made for the purposes of section 53(2). (a) specifying what has been seized in reliance on the powers conferred by that section; (b) specifying the grounds on which those powers have been exercised; (c) setting out the effect of sections 59 to 61; (d) specifying the name and address of the person to whom notice of an application under section 59(2) to the appropriate judicial authority in respect of any of the seized property must be given; and (e) specifying the name and address of the person to whom an application may be made to be allowed to attend the initial examination required by any arrangements made for the purposes of section 53(2). (a) that the occupier of the premises is not present on the premises at the time of the exercise of the power, but (b) that there is some other person present on the premises who is in charge of the premises, (a) specifying what has been seized in reliance on the powers conferred by that section; (b) specifying the grounds on which those powers have been exercised; (c) setting out the effect of sections 59 to 61; (d) specifying the name and address of the person to whom notice of any application under section 59(2) to the appropriate judicial authority in respect of any of the seized property must be given; and (e) specifying the name and address of the person to whom an application may be made to be allowed to attend the initial examination required by any arrangements made for the purposes of section 53(2).[32]Section 53 makes provision for the examination of seized property. Section 59 of the 2001 Act, so far as is relevant, is as follows: “59 Application to the appropriate judicial authority(1) This section applies where anything has been seized in exercise, or purported exercise, of a relevant power of seizure.(2) Any person with a relevant interest in the seized property may apply to the appropriate judicial authority, on one or more of the grounds mentioned in subsection (3), for the return of the whole or a part of the seized property.(3) Those grounds are-- (a) that there was no power to make the seizure; (b) that the seized property is or contains an item subject to legal privilege that is not comprised in property falling within section 54(2); (c) that the seized property is or contains any excluded material or special procedure material which-- (i) has been seized under a power to which section 55 applies; (ii) is not comprised in property falling within section 55(2) or (3); and (iii) is not property the retention of which is authorised by section 56; (d) that the seized property is or contains something seized under section 50 or 51 which does not fall within section 53(3); and subsections (5) and (6) of section 55 shall apply for the purposes of paragraph (c) as they apply for the purposes of that section.(4) Subject to subsection (6), the appropriate judicial authority, on an application under subsection (2), shall-- (a) if satisfied as to any of the matters mentioned in subsection (3), order the return of so much of the seized property as is property in relation to which the authority is so satisfied; and (b) to the extent that that authority is not so satisfied, dismiss the application.(5) The appropriate judicial authority-- (a) on an application under subsection (2), (b) on an application made by the person for the time being having possession of anything in consequence of its seizure under a relevant power of seizure, or (c) on an application made-- (i) by a person with a relevant interest in anything seized under section 50 or 51, and (ii) on the grounds that the requirements of section 53(2) have not been or are not being complied with, may give such directions as the authority thinks fit as to the examination, retention, separation or return of the whole or any part of the seized property.(6) On any application under this section, the appropriate judicial authority may authorise the retention of any property which-- (a) has been seized in exercise, or purported exercise, of a relevant power of seizure, and (b) would otherwise fall to be returned, if that authority is satisfied that the retention of the property is justified on grounds falling within subsection (7).(7) Those grounds are that (if the property were returned) it would immediately become appropriate-- (a) to issue, on the application of the person who is in possession of the property at the time of the application under this section, a warrant in pursuance of which, or of the exercise of which, it would be lawful to seize the property; or (b) to make an order under-- (i) paragraph 4 of Schedule 1 to the 1984 Act, (ii) paragraph 4 of Schedule 1 to the Police and Criminal Evidence (Northern Ireland) Order 1989 (SI 1989/1341 (NI 12)), (iii) section 20BA of the Taxes Management Act 1970 (c 9), or (iv) paragraph 5 of Schedule 5 to the Terrorism Act 2000 (c 11), under which the property would fall to be delivered up or produced to the person mentioned in paragraph (a).(8) Where any property which has been seized in exercise, or purported exercise, of a relevant power of seizure has parts ("part A" and "part B") comprised in it such that-- (a) it would be inappropriate, if the property were returned, to take any action such as is mentioned in subsection (7) in relation to part A, (b) it would (or would but for the facts mentioned in paragraph (a)) be appropriate, if the property were returned, to take such action in relation to part B, and (c) in all the circumstances, it is not reasonably practicable to separate part A from part B without prejudicing the use of part B for purposes for which it is lawful to use property seized under the power in question, the facts mentioned in paragraph (a) shall not be taken into account by the appropriate judicial authority in deciding whether the retention of the property is justified on grounds falling within subsection (7).(9) If a person fails to comply with any order or direction made or given by a judge of the Crown Court in exercise of any jurisdiction under this section-- (a) the authority may deal with him as if he had committed a contempt of the Crown Court; and (b) any enactment relating to contempt of the Crown Court shall have effect in relation to the failure as if it were such a contempt.(10) The relevant powers of seizure for the purposes of this section are-- (a) the powers of seizure conferred by sections 50 and 51; (b) each of the powers of seizure specified in Parts 1 and 2 of Schedule 1; and (c) any power of seizure (not falling within paragraph (a) or (b)) conferred on a constable by or under any enactment, including an enactment passed after this Act.(11) References in this section to a person with a relevant interest in seized property are references to-- (a) the person from whom it was seized; (b) any person with an interest in the property; or (c) any person, not falling within paragraph (a) or (b), who had custody or control of the property immediately before the seizure.(12) For the purposes of subsection (11)(b), the persons who have an interest in seized property shall, in the case of property which is or contains an item subject to legal privilege, be taken to include the person in whose favour that privilege is conferred.” (a) that there was no power to make the seizure; (b) that the seized property is or contains an item subject to legal privilege that is not comprised in property falling within section 54(2); (c) that the seized property is or contains any excluded material or special procedure material which-- (i) has been seized under a power to which section 55 applies; (ii) is not comprised in property falling within section 55(2) or (3); and (iii) is not property the retention of which is authorised by section 56; (d) that the seized property is or contains something seized under section 50 or 51 which does not fall within section 53(3); (a) if satisfied as to any of the matters mentioned in subsection (3), order the return of so much of the seized property as is property in relation to which the authority is so satisfied; and (b) to the extent that that authority is not so satisfied, dismiss the application. (a) on an application under subsection (2), (b) on an application made by the person for the time being having possession of anything in consequence of its seizure under a relevant power of seizure, or (c) on an application made-- (i) by a person with a relevant interest in anything seized under section 50 or 51, and (ii) on the grounds that the requirements of section 53(2) have not been or are not being complied with, (a) has been seized in exercise, or purported exercise, of a relevant power of seizure, and (b) would otherwise fall to be returned, (a) to issue, on the application of the person who is in possession of the property at the time of the application under this section, a warrant in pursuance of which, or of the exercise of which, it would be lawful to seize the property; or (b) to make an order under-- (i) paragraph 4 of Schedule 1 to the 1984 Act, (ii) paragraph 4 of Schedule 1 to the Police and Criminal Evidence (Northern Ireland) Order 1989 (SI 1989/1341 (NI 12)), (iii) section 20BA of the Taxes Management Act 1970 (c 9), or (iv) paragraph 5 of Schedule 5 to the Terrorism Act 2000 (c 11), (a) it would be inappropriate, if the property were returned, to take any action such as is mentioned in subsection (7) in relation to part A, (b) it would (or would but for the facts mentioned in paragraph (a)) be appropriate, if the property were returned, to take such action in relation to part B, and (c) in all the circumstances, it is not reasonably practicable to separate part A from part B without prejudicing the use of part B for purposes for which it is lawful to use property seized under the power in question, (a) the authority may deal with him as if he had committed a contempt of the Crown Court; and (b) any enactment relating to contempt of the Crown Court shall have effect in relation to the failure as if it were such a contempt. (a) the powers of seizure conferred by sections 50 and 51; (b) each of the powers of seizure specified in Parts 1 and 2 of Schedule 1; and (c) any power of seizure (not falling within paragraph (a) or (b)) conferred on a constable by or under any enactment, including an enactment passed after this Act. (a) the person from whom it was seized; (b) any person with an interest in the property; or (c) any person, not falling within paragraph (a) or (b), who had custody or control of the property immediately before the seizure.

The contentions of the parties

[33]For the Council, it was submitted: i) The Crown Court had no jurisdiction to make the findings and the order made by Her Honour Judge Walden-Smith. Under section 59, in the present case, where no question arose as to legally privileged property or excluded material or special procedure material, the Court may make an order only if there was no power to make the seizure. Since the Council entered under a warrant, which had not been set aside, it had power to enter and to make the seizure. The remedy of the Traders was in the judicial review proceedings they had brought, in which they could seek an order quashing the warrant. ii) Her Honour Judge Walden-Smith had erred in finding that the Council had not put before the magistrate sufficient information to justify the issue of the warrant. iii) The judge had also erred in finding that the warrant was unlawful because the Council had failed to put material information before the magistrate. iv) The Council’s breaches of the duty imposed by section 52 did not invalidate its seizure of property under section 50.[34]For the Traders, it was submitted: i) A seizure purportedly made under section 50 is made without power within the meaning of section 59 if entry was made in reliance on a warrant that should not lawfully have been issued, even if it has not been quashed. ii) The judge’s findings were correct. In any event, in order to succeed in its judicial review claim, the Council had to show that the judge had erred in law or that her findings were Wednesbury unreasonable. They could do neither. iii) The Council’s failure to fulfil the section 52 duty rendered its seizure unlawful.[35]Because of the lack of any authority cited to us during the hearing directly in point on the question whether a seizure pursuant to a warrant that is liable to be set aside is a seizure without authority for the purposes of section 59, we allowed both parties to file and exchange written submissions subsequently. The Council’s submissions were served first. In their submissions in reply, the Traders sought to raise an issue that had not featured in their skeleton argument and had not been raised orally before us, namely that the Council’s seizure of documents relating to FTL “and other legal organisations than SR” was in any event unlawful. In my judgment, it was too late to raise this issue before us. Discussion Issue (1): Did the Council’s officers have power to seize the Traders’ property?

Discussion

[36]In the present case, the relevant power of seizure within the meaning of section 59(1) was that conferred by section 50. The lawful exercise of the section 50 power of seizure in turn depends on whether the officers of the Council who entered the premises did so lawfully. It was not suggested on behalf of the Traders (except as mentioned in paragraph 35 above) that if the Council’s officers did enter the premises lawfully, the other requirements of section 50(1) and (2) were not satisfied in relation to the property seized. Thus the question is whether a person who entered premises under a search warrant that was liable to be quashed had power to make that seizure within the meaning of section 50 when that warrant has not been set aside. If such a person exercises the power to seize, is the seizure such that he had no power to make the seizure within the meaning of section 59?[37]Parliament’s object in conferring the section 59 power on the Crown Court was to provide a speedy and relatively cheap means to challenge the exercise of the relevant powers of seizure and to seek the return of property seized. On any basis, the Crown Court has power to determine whether the requirements of a lawful seizure other than the validity of a search warrant have been satisfied (for example, whether it was reasonably practicable to determine at the time of the search whether what had been found was evidence of a crime), including, in the case of an entry to premises without a warrant, whether that entry (which may have been made in order to effect an arrest rather than to effect a search) was lawful. The effect of the Council’s submission is that where a warrant has been issued, the lawfulness of its issue is the only issue that the Crown Court cannot address. If this is right, there is an unfortunate division of jurisdiction: in cases in which there is a challenge to a relevant warrant, the claimant must bring proceedings for judicial review in the Administrative Court to quash the warrant; in all other cases the Crown Court has complete jurisdiction.[38]Because of my conclusion on Issue (2) below, with which I understand that Treacy J, who has read my judgment in draft, agrees, it is unnecessary to determine Issue (1), and I think it better to leave it to be decided in a case in which it is necessary to determine it. I would point out, however, that a judge of the Administrative Court may also act as a judge of the Crown Court, and in an appropriate case determine both whether a search warrant should be set aside (and make any consequential orders resulting from that decision) and exercise the section 59 power.

Issue (2) Was the warrant regularly issued?

[39]The next question I wish to consider is whether the warrant was regularly issued. If, contrary to my view, the judge had jurisdiction to investigate the circumstances of its issue, her order is liable to be set aside only if the Council can show that she made a legal error or that her decision was Wednesbury unreasonable.[40]The case for the Council is that the facts put before the magistrate were such that there were reasonable grounds to believe that the giving of advance notice of the proposed search of the Traders’ premises “would defeat the object of the entry”. There was evidence, set out by Mr Dyer in the statement he read to the magistrate and set out at paragraph 17 above, of extensive and profitable fraud. Anyone committing such fraud would wish to destroy or to remove evidence of his fraud if he were given notice of an impending search by the Council. The Traders knew that the Council’s officers had taken samples of what was described as basmati rice that was not properly so described. If they were given notice of an impending search, they would know why the Council was returning and could be expected to do what they could to avoid the Council finding incriminating documents and materials.[41]For the Traders, Mr Lopez submitted that the risk of action by the occupiers that would defeat the object of the search was not an obvious inference from the information put before the magistrate.[42]In my judgment, the Council’s case on this issue is well-founded, for the reasons given by Mr Bourne, which I have sought to summarise. Her Honour Judge Walden-Smith did not address in her judgment the inference to be drawn from Mr Dyer’s evidence to the magistrate. She simply found:
“… the evidence provided to the magistrate or district judge, both in the form of the information and the statement of Mr Dyer, fails to establish [the requirements of section 2(b) of the FSA].”
She held:
“There is nothing in either the information or the statement of Mr Dyer of 17th February 2011 provided to the magistrate before the grant of this warrant which could have enabled him to be satisfied that a warrant should be issued.”
[43]It is not clear to me that the judge addressed the question whether, if Mr Dyer’s suspicions, for which he had reasonable grounds, were well-founded, there were reasonable grounds to believe that notice of a visit and search would defeat their object. I do not think it was necessary, although it would have been highly desirable, for Mr Dyer to explain why he considered that notice would defeat the object of the visit and search. The point was obvious. Furthermore, I think that some caution is required before concluding that the magistrate issued the warrant, with the express statement as to the feared consequences of giving notice of the search, without turning his mind to the issue. In my judgment, the judge’s decision on this point cannot be supported. It was obviously wrong, and Wednesbury unreasonable.[44]The second basis on which the judge held that the warrant was irregular was that the Council had not made full disclosure to the magistrate. Mr Dyer should have informed the magistrate of all of the previous visits made by the Council to the premises, and the fact that they had been allowed in without a warrant.[45]The question for this court, in judicial review proceedings, is whether the information that it is alleged should have been given to the magistrate might reasonably have led him to refuse to issue the warrant.[46]I accept that the information that there had been 7 previous visits to the premises, without a warrant, and that the Council’s officers had been given entry, and had been given relevant documentation, should have been given to the magistrate. Had that information stood alone, it might have led to the refusal of the warrant. However, if Mr Dyer had disclosed that there had been such visits, it would have been proper for him to comment on them. What he would have said is what he subsequently said in his witness statement of 12 August 2011 as set out at paragraph 15 above. I appreciate that his statement is disputed by the Traders; but it is not suggested that it is not his honest and genuine evidence. If Mr Dyer had made this statement to the magistrate, I do not think that he could reasonably have refused to issue the warrant. In other words, the disclosure that would have been made would not have been material.[47]The judge dealt with this point too quite briefly. She said, at page 23 of her judgment, that there had been “a failure to provide full disclosure in the sense of setting out to the district judge the circumstances in which entry had been properly granted without the need for a warrant in the past, ….” This was not entirely true. Mr Dyer’s statement, which he read to the magistrate, referred to the visit of 13 December 2010 and the fact that he had been able to take samples. Be that as it may, the judge failed to take account of the fact that Mr Dyer had concerns about the previous visits that he explained in his later witness statement. The fact that that witness statement was not before the magistrate did not mean that, if Mr Dyer had informed the magistrate of the earlier visits, he could not properly have given an account of those concerns. Incidentally, it does not mean, either, that Mr Dyer could not have mentioned the matters mentioned in paragraph 11 above.[48]In my judgment, the judge applied a wrong test to the alleged non-disclosure by the Council, in failing to take account of what Mr Dyer could and would have said about the earlier visits. It follows that this finding too cannot be supported.

Issue (3): The alleged defects in the warrant

[49]The Traders contend that the premises that were to be searched were too vaguely described in the warrant, by reason of the inclusion of the words “and any associated outbuildings and vehicles within the boundary of that site”. I reject this contention for two reasons. First, there is no uncertainty as to what is included by these words, which restrict the outbuildings and vehicles that may be searched to those within the boundary of the site. Secondly, as a matter of fact, there were no outbuildings within the site, and no place for vehicles. It follows that the words were surplusage, without any effect, and irrelevant.[50]Secondly, it is contended that Mr Dyer failed to specify the substantive offence or offences for which the warrant was sought. I reject this contention too. It was obvious from the information and his statement that offences of fraud and misdescription of foodstuffs were suspected.

Issue (4): The consequences of the failure to comply with section 52

[51]Section 52 of the CJPA imposes a duty on those seizing property in the exercise of the powers conferred by sections 50 or 51. Somewhat surprisingly, it does not specify what is the sanction for a failure by the person exercising the power of seizure conferred by those provisions. There are really only two possibilities. The first is that any breach, or at least any significant breach, of section 52 renders the seizure unlawful. The second is that the consequences of a breach of section 52 will depend on the gravity of the breach and its consequences, and will be taken into account by the Crown Court on an application under section 59 for the return, or the retention, of the seized property, or by the Administrative Court in judicial review proceedings, or under section 78 of the Police and Criminal Evidence Act 1984 in any trial. The Traders contend that the first alternative is the law; the Council the second.[52]I have not found this an easy issue to decide. Any search, and equally any seizure of property, is a serious infringement of the rights of the occupier of the premises searched and those who own or are interested in the property seized. Section 52 provides a valuable safeguard for those persons. A notice served under it provides a record of what has been seized, gives the ground for the seizure and the information required to challenge it. I would therefore have expected Parliament to provide that substantial compliance is a condition of the lawfulness of a seizure.[53]The strongest argument of the Traders is that it is difficult to see any effective sanction for breach of the section 52 duty if the Council’s contention is well founded. Mr Bourne’s answer was that a person aggrieved could apply to the Administrative Court for an order by way of interim relief requiring immediate performance of the statutory duty. However, that is not entirely straightforward. If no one is in the premises searched at the time of the exercise of the power of seizure, the duty is to attach a notice “in a prominent place to the premises”. However, a person aggrieved wants the notice given to him or his lawyers, not affixed to the premises. This may, however, be an overly formalistic approach to the interim relief that the Administrative Court would grant.[54]However, Parliament did not in terms provide that compliance with the section 52 duty is a condition of a lawful seizure. I think it necessary to bear in mind not only that it would have been obvious and easy so to provide, but also that Parliament had the precedent of legislation in this area in which it had so provided. Section 15 of PACE is headed “Search warrants – safeguards”, and subsection (1) provides:
“This section and section 16 below have effect in relation to the issue to constables under any enactment, including an enactment contained in an Act passed after this Act, of warrants to enter and search premises; and an entry on or search of premises under a warrant is unlawful unless it complies with this section and section 16 below.”
[55]A different, but equally clear and effective, drafting technique is to be found in section 28(3):
“(3) Subject to subsection (5) below, no arrest is lawful unless the person arrested is informed of the ground for the arrest at the time of, or as soon as is practicable after, the arrest.”
[56]Conversely, section 21 of PACE imposes a duty on a constable who seizes anything in the exercise of a statutory power, on request, to provide a record of what he seizes. No sanction is imposed for breach of this duty, and it must I think follow that Parliament did not intend the fulfilment of the duty to be a condition of the lawfulness of the seizure. Under section 21 the record must be provided within a reasonable time of the request, whereas under section 52 the notice must be given on exercising the power of seizure, but the similarities between the provisions are nonetheless obvious. Section 18(7) imposes a duty on a police officer authorising a search of premises under that section to make a record in writing of the grounds for the search and the nature of the evidence sought. That duty has been held to be directory rather than a precondition of the lawful exercise of the power of search authorised: Krohn v DPP [1997] C.O.D. 345.[57]The Explanatory Notes for section 52 of the CJPA do not suggest that compliance is a condition of a lawful seizure:
“Subsections (1)–(4) deal with the requirement to give the occupier and/or some other person or persons from whom material has been seized under section 50 or 51 a notice specifying what has been seized and the grounds on which it has been seized, as well as information about the scope to apply to a judge for the return of seized material and about applying to attend any examination of the material seized. Subsections (5)–(7) gives the power to prescribe that notices may be given to other persons. For example, where the power under section 50 is exercised by the DTI in reliance on s.447 of the Companies Act 1985 the DTI might wish to provide that notice is also served on the registered office of the company who appears to own the premises.”
[58]There are, I think, additional indications that Parliament did not intend that compliance with the section 52 duty is a precondition of a lawful seizure. Part 2 of the CJPA includes other provisions imposing duties in similar terms (“It shall be the duty”) on those making seizures, in circumstances in which it is far more difficult to conclude that performance of the duty is a condition of a lawful seizure: for example, sections 53, 54 and 55. Those duties are to be complied with after a seizure rather than at the same time as the seizure, but given the similarity of wording, it is difficult to conclude that Parliament made different provision for the consequences of breach of the duty in those cases on the one hand, and in section 52 on the other.[59]Lastly, the question of compliance with the section 52 duty may involve difficult issues of fact and degree. What is a sufficient specification of the grounds for the exercise of the power conferred by section 50 or 51? Does the notice sufficiently specify what has been seized, or is the description of what has been seized too vague? What if one or more items are accidentally omitted from the specification of items seized? What if a compliant notice is given to someone who is mistakenly believed by the person effecting the seizure to be in charge of the premises? It seems to me that such questions are inappropriate for a provision strict compliance with which is a precondition of a lawful seizure.[60]My conclusion is that non-compliance with section 52 does not necessarily render a seizure under section 50 unlawful. It is a matter to be taken into account on an application under section 59 or in judicial review proceedings or under section 78 of PACE.[61]In the present case, it is not suggested that officers of the Council deliberately flouted their section 59 duty. The inference I draw is that they considered what they did as a sensible and practical means of providing the information required by that section. They failed to comply with their section 59 duty because they failed to pay due attention to its provisions, or were incorrectly advised as to its requirements. It is not suggested that the Traders suffered any prejudice as a result of the Council’s officers’ breaches of the section 59 duty. In these circumstances, I would hold that their breaches did not render the seizure unlawful.

Conclusions

[62]For the reasons I have given, I would dismiss the Traders’ claim for judicial review. I would grant the Council’s claim for judicial review and quash the order made by Her Honour Judge Walden-Smith.[63]I agree.

Cited in 10 later judgments

and 1 more case