Global Cash & Carry Ltd, R (on the application of) v Birmingham Magistrates' Court & Ors [2013] EWHC 528 (Admin)

Case No CO/3560/2012[2013] EWHC 528 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Venue Royal Courts of JusticeDate Tuesday 19 February 2013
The Strand
London
WC2A 2LL
B e f o r e:
LORD JUSTICE MOSES
and
MR JUSTICE KENNETH PARKER
Between
The Queen on the application ofClaimantGLOBAL CASH & CARRY LIMITEDClaimant
B E T W E E N:
- v -
Between
BIRMINGHAM MAGISTRATES' COURTDefendantTHE CHIEF CONSTABLE OF THE WEST MIDLANDS POLICEDefendantTHE COMMISSIONERS FOR REVENUE & CUSTOMSInterested Party
Computer Aided Transcription byWordwave International Ltd (a Merrill Communications Company)190 Fleet Street, London EC4Telephone No: 020 7421 4040(Official Shorthand Writers to the Court
Mr Alun Jones QC (instructed by Kaim Todner)appeared for ClaimantMr Russell Fortt (instructed by West Midlands Police)appeared for Second DefendantJ U D G M E N TTuesday 19 February 2013
[1]This is an application by Global Cash and Carry Limited ("Global") for an order quashing a search warrant issued by the first defendant, the Birmingham Magistrates' Court on 20 February 2012, for a declaration that the subsequent entry on searches and seizures at Global's premises by the second defendant, the Chief Constable of West Midlands Police, was unlawful, and for costs and damages.

The Background

[2]On 20 February 2012 DC Mark Lucas of West Midlands Police applied to Birmingham Magistrates' Court for a warrant to enter and search premises under section 8 of the Police and Criminal Evidence Act 1984. The warrant application stated that it was:
"..... for the issue of a specific premises warrant; .... (a) that an indictable offence, namely .... Possess forged/counterfeit goods, contrary to section 170(1)(a), (3) and (4A) of the Customs and Excise Management Act 1979. Possession of a controlled drug with intent to supply contrary to the Misuse of Drugs Act 1971, has been committed; (b) that there is on the sets of premises described in the Schedule attached: material that is likely to be relevant evidence and of substantial value to the investigation of the offence and does not consist of or include items subject to legal privilege, excluding material or special procedure material [items identified]."
Under "FURTHER INFORMATION" the following was stated: 3. "Information to Police and HMRC is that the owners/occupiers of the premises set out in the attached schedule are importing and supplying to the local community large quantities of counterfeit items such as alcohol and tobacco, controlled drugs and fake goods. This information as stated is to Police and HMRC. Information also indicates that the owners/users of Global Cash and Carry also use adjacent units to their own premises to store goods. This information has been verified by previous searches of the premises by HMRC, a recent interception of a lorry load of counterfeit Vodka has also been undertaken by HMRC. 4. For the purpose of this warrant Intelligence indicates that the areas lined on the attached map are the units that the owners of Global Cash and Carry also have control of. Other than the 2nd address listed on the warrant there is no information available as to the companies using the estate and further information has shown that there is no visible indication on the exterior of these units indicating ownership. The map is set out to assist in the areas that the warrant is required to cover."[3]According to his witness statement made in these proceedings, at the oral hearing of the application for the warrant on 20 February 2012 DC Lucas gave evidence which included sensitive information. The magistrate was satisfied that the warrant should be issued.[4]In its grounds responding to this application, Birmingham Magistrates' Court summarised the further information provided by DC Lucas as follows:
"DC Lucas confirmed orally information to the effect that there were reasonable grounds for believing that an offence of possession of forged or counterfeit goods contrary to section 27D(1)(a), (3) and (4A) of the Customs and Excise Management Act 1979 and possession of a controlled drug with intent to supply contrary to the Misuse of Drugs Act 1971 had been committed and that there was on the sets of premises described in the schedule material that was likely to be relevant evidence and be of substantial value to the investigation of the offence and did not consist of or include items subject to legal privilege, excluded material, namely items in relation to the above offences likely to be relevant to the alleged offences on named premises and addresses the information specified. The officer produced a map to the justice to assist in the identification of units under the control of Global Cash and Carry. A copy was not retained. The officer gave evidence that Banga and Gill Properties Limited owned a large number of properties, that Shakil Khan Banga and Gulziman Khan ran Global Cash and Carry Limited and F3 wind turbine business."
[5]The warrant that was issued stated that the premises to be searched were described in an attached schedule. The premises to be searched were set out in the schedule at the time that the warrant was issued and were not added subsequently. One of those premises was Global Cash and Carry, Harvills Hawthorne Industrial Estate B70 OUH.[6]The warrant also stated that the search was authorised in respect of:
"Items in relation to the offences sought, contrary to section 170(1)(a), (3) and (4A) of the Customs and Excise Management Act 1979. Possession of a controlled drug with intent to supply contrary to the Misuse of Drugs Act 1971. Counterfeit goods, controlled drugs, financial documentation, mobile phones, computers and devices which would facilitate the commission of the above offences."
[7]At about 12.35pm on 23 February 2012 uniformed and plain clothed officers of the West Midlands Police entered the trading estate to execute the warrant. DC Wilson and DC Orme produced witness statements in these proceedings setting out the events of the search. DC Wilson was at the back of the long column of police vehicles as they entered the trading estate. He saw a Bentley motor car enter the estate. Mr Khan, Global's director, got out of the car in an apparently agitated state, waving his arms. He walked into the premises and DC Wilson followed him into an upstairs office.[8]Inside the office, Mr Khan apparently began to shout and swear at the officers and would not calm down when asked to do so. He was therefore hand-cuffed to the front. Mr Khan asked to see the warrant. He was told that a warrant was on its way. DC Orme, who was in another part of the very large premises, brought the warrant. A copy of the warrant was provided to Mr Khan at approximately 12.45pm. The copy did not include the schedule. The search then began at about 1.00pm.

The Relevant Legislative Provisions

[9]Section 8 of the Police and Criminal Evidence Act 1984 provides:
"(1) If on an application made by a constable a justice of the peace is satisfied that there are reasonable ground for believing -- (a) that [an indictable offence] has been committed; and (b) that there is material on premises [mentioned in subsection (1A) below] which is likely to be of substantial value (whether by itself or together with other material) to the investigation of the offence; and (c) that the material is likely to be relevant evidence; and (d) that it does not consist of or include items subject to legal privilege, excluded material or special procedural material; and (e) that any of the conditions specified in subsection (3) below applies [in relation to each set of premises specified in the application], he may issue a warrant authorising a constable to enter and search the premises. 1(1A) The premises referred to in subsection (1)(b) above are -- (a) one or more sets of premises specified in the application (in which case the application is for a 'specific premises warrant'); .... (3) The conditions mentioned in subsection (1)(e) above are -- (a) that it is not practicable to communicate with any person entitled to grant entry to the premises; (b) that it is practicable to communicate with a person entitled to grant entry to the premises but it is not practicable to communicate with a person entitled to grant access to the evidence; (c) that entry to the premises will not be granted unless a warrant is produced; (d) that the purpose of a search may be frustrated or seriously prejudiced unless a constable arriving at the premises can secure immediate entry to them. (4) In this Act 'relevant evidence', in relation to an offence, means anything that would be admissible in evidence at a trial for the offence."
[10]Also relevant is section 15, the material parts of which state:
"15 Search warrants -- safeguards (1) 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. .... (6) A warrant -- (a) shall specify -- (i) the name of the person who applies for it; (ii) the date on which it is issued; (iii) the enactment under which it is issued; and [(iv) each set of premises to be searched, or (in the case of an all premises warrant) the person who is in occupation or control of premises to be searched, together with any premises under his occupation or control which can be specified and which are to be searched; and] (b) shall identify, so far as is practicable, the articles or persons to be sought. ...."
[11]Section 16 of the Police and Criminal Evidence Act 1984 deals with the execution of warrants. As relevant, it provides:
"(5) Where the occupier of premises which are to be entered and searched is present at the time when a constable seeks to execute a warrant to enter and search them, the constable -- (a) shall identify himself to the occupier and, if not in uniform, shall produce to him documentary evidence that he is a constable; (b) shall produce the warrant to him; and (c) shall supply him with a copy of it. (6) Where -- (a) the occupier of such premises is not present at the time when a constable seeks to execute such a warrant; but (b) some other person who appears to the constable to be in charge of the premises is present, subsection (5) above shall have effect as if any reference to the occupier were a reference to that other person. (7) If there is no person present who appears to the constable to be in charge of the premises, he shall leave a copy of the warrant in a prominent place on the premises. (8) A search under a warrant may only be a search to the extent required for the purpose for which the warrant was issued."

The Grounds of Claim

[12]The first ground of challenge is that the warrant was defective as to the identity of the premises to be searched. The warrant as issued identified the premises in the schedule attached to the warrant. So long as the schedule identifying the premises is attached to the warrant authorising the search, the warrant satisfies the requirements of section 15: see R v Chief Constable of Lancashire, ex parte Parker [1993] QB 577. However, Mr Alun Jones QC, on behalf of Global, submitted, first, that the warrant produced to Mr Khan on 23 February 2012, pursuant to section 16(5)(b) was not, as shown by the evidence, the warrant in fact issued, but was in a slightly different form. In the light of the other submissions made on this ground by Mr Jones, it is unnecessary, in my judgment, to deal with that specific point.[13]Secondly, however, and perhaps more substantially, Mr Jones submits in any event that the copy of the warrant supplied to Mr Khan was incomplete and defective because it did not include the schedule identifying the premises to be searched. There was, therefore, a failure to comply with section 16(5)(e) of PACE.[14]Mr Jones relies upon R(Redknapp and Another) v Commissioner of the City of London Police and Another [2008] EWHC 1177 (Admin), [2009] 1 WLR 2091, and R(Bhatti and Others) v Croydon Magistrates' Court and Others [2010] EWHC 522 (Admin), [2011] 1 WLR 948, for the proposition that a copy of the warrant, including particulars of the premises to be searched must be supplied to the occupier as a mandatory requirement and that a failure to do so renders the search and seizure unlawful.[15]In Bhatti Elias LJ, with whom Calvert-Smith J agreed, stated:
"21. .... It [Parliament] has stipulated what the householder should be told by way of assurance that the searches have the authority they claim, and it has done so by requiring a copy of the warrant, not a copy of part only supplemented by further information provided by the executing officer, which is in essence what the current practice provides." "31. .... the wording of section 15(1) is plain and non-compliance renders entry, search and seizure unlawful."
[16]Mr Fortt, on behalf of the Chief Constable of West Midlands Police, accepts that a copy of the warrant in the form required by section 15 was not supplied to Mr Khan. The copy that was supplied did not have attached the schedule particularising the premises to be searched. That was precisely the failure identified in Redknapp and Bhatti. However, Mr Fortt argues that relief should be confined to a declaration that there has been a breach of section 16(5)(c), as in R(Glenn & Co (Essex) Ltd and Others) v Her Majesty's Commissioners for Revenue and Customs and Another [2011] EWHC 2998 (Admin), [2012] 1 Cr App R 22. To confine the relief to a declaration would mean that this court would make no order quashing the warrant.[17]In Glenn there was a valid copy of the warrant, in contrast to the position in ex parte Parker and Bhatti. Furthermore, the warrant was produced for the inspection of the occupier and held out so that he could read it. The occupier in that case, therefore, knew at the time immediately before the search that there was a warrant which referred specifically to that occupier's address.[18]In this case the evidence coming from the magistrates' court makes plain that valid copies, verified as required by the Act, were made in this case. One was retained, as required by the Act, by the magistrates' court; and one was given to the police officer. However, the evidence does not suggest that a copy of the complete warrant (that is the first page of the warrant and the schedule) was at any material time (that is at a time before the search began) shown to the occupant.[19]I have carefully considered the evidence contained in the statements of the police officers in this case. I can find no indication in that evidence that that was done. Mr Fortt, quite properly, has not suggested that that step which had been taken in Glenn had, in fact, been followed. Therefore it seems to me that the case is governed by what the court said in Redknapp and Bhatti. There has been a failure to comply with section 15. That renders the warrant itself unlawful.[20]In a case where the rationale of the requirements of section 15 has, in fact, been respected, it may be that this court would as a matter of discretion not grant relief beyond a declaration. However, this is a case where neither the form nor the rationale of section 15 has been complied with. I would see no good ground, therefore, for distinguishing this case in any way from the relief that was granted in Redknapp and Bhatti. Accordingly, for my part, I would make both a declaration that the procedures have not been complied with and an order quashing the warrant on that ground.[21]The second ground advanced by Mr Jones is that there was an alleged breach of section 15(6)(b): that the warrant should "identify so far as is practicable the articles for persons to be sought". Mr Jones relies in particular upon PCJ van der Pijl and JPM de Greef v Crown Court at Kingston [2012] EWHC 3745 (Admin), where the proper approach was summarised in this context at paragraph 53 by reference to citations from the relevant authorities. In giving the leading judgment, with which Sir John Thomas (President of the Queen's Bench Division) agreed, Wilkie J said:
"53. The proper approach to this question is not in dispute and can be summarised by reference to a number of citations from the relevant authorities. These are: McGrath v Chief Constable of the Royal Ulster Constabulary [2001] UKHL 39, Lord Clyde (in the context of an arrest warrant) said at paragraph 18: "
The warrants must be sufficiently clear and precise in their terms so that all those interested in their execution may know precisely what are the limits of the power which has been granted." In R(Energy Financing Team Ltd) v Director of the SFO [2005] EWHC 1626 (at paragraph 24, conclusion (5)),

Lord Justice Kennedy said:

".... The warrant needs to be drafted with sufficient precision to enable both those who execute it and those whose property is affected by it to know whether any individual document or class of document falls within it. If that is done it seems to me that the specifically required will be no less than would be required for a notice under section 2(3) were it practicable to serve such a notice and although the terms of the warrant may be wide it will not simply be fishing if it is directed to support an investigation which has apparent merit."
In the same case at paragraph 37, Mr

Justice Crane said:

".... a warrant should be capable of being understood by those carrying out the search and by those whose premises are being searched without reference to any other document."
In the case of R(Anand) v HMRC [2012] EWHC 2989 (Admin), a review of the authorities was undertaken. It was pointed out that the approach of Lord Justice Kennedy and Mr Justice Crane in Energy Financing Team Ltd had been followed in the case of Gittins v Central Criminal Court [2011] EWHC 131 (Admin) and Power-Hynes and Another v Norwich Magistrates and Another [2009] EWHC 1512 (Admin). The court in Anand, accordingly, followed it ...."[22]In the light of the finding in relation to the first ground, I do not believe it is necessary to reach any concluded view on this second ground. However, looked at on a provisional basis, I was not immediately attracted by this ground because it appeared to me that the offences were specified with sufficient particularity and the items that were to be obtained in the search appeared to me to relate to the offences so specified.[23]The third ground advanced by Mr Jones is that, in any event, the magistrates' court applied the wrong test. The test that the magistrates' court applied can be seen from their summary grounds, where the court said:
"The justice was satisfied on the basis of the information provided to him that the grounds existed for the issue of the warrant. In particular, he was satisfied: (a) that the premises were sufficiently and clearly identified (in particular by the use of the map); (b) that an indictable offence was being investigated."
The condition specified in PACE is, of course, that the magistrate must be satisfied that there are reasonable grounds to believe that an indicatable offence had been committed, not that such an offence was simply being investigated. Mr Jones therefore submits that, on the face of this document there was a clear failure to apply the fundamental test for the issue of a warrant. Accordingly, on that ground also the warrant should be quashed.[24]In response, Mr Fortt makes two points. He says that if one has regard to the grounds generally filed by the magistrates' court, it can be seen that there was material before them that would have justified the grant of the warrant on the correct legal test. The second point that he makes is that, according to a recent witness statement filed for these proceedings again by DC Lucas, he specifically refers to further information that he gave to the magistrates as the basis for the issue of the warrant. In effect, Mr Fortt invites this court to review material that might have been before the magistrates and could have formed the basis of a lawful search warrant.[25]I do not believe that in these circumstances it is for this court to review material in the way that Mr Fortt suggests. The test laid down by Parliament in this context is clear and the magistrates must apply that test. Where, as here, they appear to have applied a fundamentally different test, it appears to me that the only correct remedy is to quash the warrant.[26]There are available procedures in other legislation which would be open to those who had acquired the warrant to take remedial steps in circumstances that Mr Fortt said arose here. However, for the reasons given I do not believe that this court should examine that matter on a claim of this nature. I therefore accept also the third ground advanced by Mr Jones, that the incorrect test was applied and that the warrant should be quashed on that basis as well.[27]A further matter arises in relation to damages. We have heard argument this morning on that question. Mr Fortt has submitted that this is plainly a case where there would be only nominal damages, and no substantive damages awarded. Mr Jones has submitted to the contrary, that this is similar to previous cases where warrants have been quashed in similar circumstances and the court has remitted the matter to the Queen's Bench Division for the determination of damages. Interesting though this argument has been, it appears to me that it is unnecessary to resolve the points that have been raised. They can be raised in the further proceedings relating to the award of damages, but for my part I would remit this matter to the Queen's Bench Division for damages to be determined.

LORD JUSTICE MOSES:

[28]I agree that the warrant should be quashed on the grounds identified by my Lord and the reasons for quashing it. I also agree with the orders that he has proposed.[29]Accordingly, the warrant will be quashed. The court directs that the question of damages will be considered by the Queen's Bench Division. MR JONES: My Lord, I would apply for costs. LORD JUSTICE MOSES: Is there anything you want to say about that? MR FORTT: Well, my Lord, given that the issue of damages has yet to be determined, I say that application ought to be made at the conclusion of these proceedings in their entirety. LORD JUSTICE MOSES: No, we shall order that you should have your costs. MR JONES: Thank you, my Lord. My Lord, the court does have power to make an interim order. This case has been going on now for a year. My Lord, I would invite the court to say in its discretion that an interim order would be appropriate and I respectfully ask for the sum of £10,000. LORD JUSTICE MOSES: Have we seen your schedule, and have you served it on the other side? MR JONES: We have, my Lord, yes. (Schedule handed to court) 33. (The court conferred) LORD JUSTICE MOSES: At the moment we are up to £7,500 as an interim order. What would you say to that? MR FORTT: I do not think I can oppose the application for an interim order in that sum. LORD JUSTICE MOSES: £7,500 interim order to be paid within fourteen days. Thank you very much.

Cited in 1 later judgment