Cabot Global Ltd & Ors v Barkingside Magistrates' Court & Ors [2015] EWHC 1458 (Admin)

Case No CO/1405/2014[2015] EWHC 1458 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate 20/05/2015
Before
THE RIGHT HONOURABLE LORD JUSTICE FULFORD
Between
Cabot Global LtdClaimantsRizwan HussainClaimantZeeshan HussainClaimantImran HussainClaimant
Mr Alun Jones QC (instructed by Rainer Hughes Solicitors) for ClaimantsMr Paul Stagg (instructed by instructed by Directorate of Legal Services, Metropolitan Police Service) for 2nd DefendantMr. Kris Berlevy (instructed by The London Borough of Redbridge) for Interested PartyHearing Hearing date: 29 January 2015
JudgmentLord Justice Fulford :The Background
[1]On 16 January 2014 four warrants were granted by the first defendant (Barkingside Magistrates’ Court) pursuant to section 8 Police and Criminal Evidence Act 1984 following an application made by DC Jones of SCO7 of the Criminal Finance Team based at Edmonton Police Station on behalf of the second defendant (The Commissioner of Police of the Metropolis). The premises to which they related were: i) 8 Woodgreen Road, Waltham Abbey, Essex, EN9 3SA (the home of Rizwan Hussain, the second claimant) ii) 52 Highlands Gardens, Ilford, Essex IG1 3LD (the home of Zeeshan Hussain, the third claimant) iii) 12 Preston Gardens, Ilford, Essex, IG1 30Q (the home of Imran Hussain, the fourth claimant) iv) Cabot Global Ltd, Unit 28 – 29, Highway Business Park, Heckford Street, London, E1W 3HR[2]Section 8 Police and Criminal Evidence Act 1984 provides: Power of justice of the peace to authorise entry and search of premises 8 (1) If on an application made by a constable a justice of the peace is satisfied that there are reasonable grounds 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 procedure 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. (…) (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.[3]The principal safeguard in this context is provided by section 15 of the Police and Criminal Evidence Act 1984: Search warrants – safeguards 15 (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 – (b) shall identify, so far as is practicable, the articles or person to be sought.[4]Section 20 Police and Criminal Evidence Act 1984 additionally provides: Extension of powers of seizure to computerised information. (1) Every power of seizure which is conferred by an enactment to which this section applies on a constable who has entered premises in the exercise of a power conferred by an enactment shall be construed as including a power to require any information stored in any electronic form contained in a computer and 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.

(b) to sections 8 and 18 above;

[5]The warrants were issued on 16 January 2014. They were executed on 21 January 2014.[6]The authority given under the four warrants was in the following identical terms: I authorise the person or persons identified beneath (viz. any police constable accompanied by Trading Standards Officers) to enter the specified premises, on the number of occasions indicated (viz. one) to search for: any documentation relating to vehicles owned by SVL and used by Cabot Global and the current vehicle mileage on the odometer of those vehicles, computer equipment, mobile phones, items used to change the vehicle odometer and cash representing the proceeds of criminal activity. (emphasis added, identifying the items relevant to this application)[7]The first claimant (Cabot Global Ltd) leases vehicles which it uses for a chauffeur company that it runs. It leases motor cars from a company called Star Vehicle Leasing that is owned by the second and third claimants (Rizwan and Zeeshan Hussain, respectively). The fourth claimant (Imran Hussain) was not mentioned in the application for a warrant. The second, third and fourth claimants are brothers.[8]The background to this case relates to an investigation, which was initiated by the London Borough of Redbridge and later taken over by the Metropolitan Police, into allegations of the sale of “clocked” motor vehicles (viz. the illegal alteration of mileage odometers). The second and third claimants were suspected of involvement in offences of this kind. The second defendant suggests that the first claimant was involved in the sale of relevant vehicles. The essence of the alleged fraud is that the Star Vehicle companies bought executive vehicles in bulk directly from BMW UK at a vastly reduced price. They leased them thereafter to Cabot Global (which ran an executive chauffeur company). After a period of 12 – 18 months during which 12 motor cars were driven extensively and accrued higher than expected mileage, they were sold or offered for sale by Zeeshan Hussain to members of the public by Cabot Global with amended (“clocked”) mileage, thereby increasing the sale value of each car by approximately £5,000. A further motor car (LC12UWU) was still in the possession of Cabot Global, which was showing a significantly reduced mileage. It is unnecessary to set out the material relevant to each individual motor car but the evidence supporting these allegations is based on service records or inconsistent sale adverts which indicated earlier higher mileage.[9]Summarising particular aspects of the background of this case to the extent that is necessary for the purposes of this judgment, DC Jones, in advance of applying for the search warrants, conducted investigations that led him to the following evidence: a) Rizwan Hussain was the Director of Star Vehicle Leasing. Mohammed Farooq Saleem (the Director of Cabot Global Limited) was a former Director of Star Vehicle Leasing. Rizwan Hussain was the Director of Operations of Cabot Global, and he supervised the operation of the fleet of cars, client services, accounts and recruitment. b) In July 2012 Cabot Global Ltd (the first claimant) purchased Sovereign Executive Cars (London) Limited. c) Star Vehicle Leasing owned over 130 expensive motor cars which were registered at either Unit 2 – 3 or Unit 28 – 29 The Highway Trading Centre, Heckford Street, London E1W 3HR, which corresponds to the trading address of Cabot Global. d) Star Vehicle Management Limited had ceased trading – indeed, it had been dissolved on 29 October 2013. Zeeshan Hussain had been the Company Secretary and Director. e) Luke McFadyen, who was a Director of East Midlands Auto Sales Limited, was contacted by Liam Gibson of Sovereign Motor Sales. Mr Gibson was offering a number of BMW series 5 motor cars for sale, albeit the vendor was said to be Zeeshan Hussain of 12 Preston Gardens, Ilford, Essex IG1 3QG. McFadyen and Zeeshan Hussain spoke, and agreed an overall figure of £97,000. Before completing the sale, McFadyen visited 12 Preston Gardens where he met Zeeshan Hussain and saw the motor cars, which he noticed had a Cabot Global sign attached to the wiper stalks. Payment was to be made into a Barclays bank account in the name of Zeeshan Hussain. The mileage shown on the odometers of the 5 motor cars had been reduced. In due course, McFadyen was told by an employee of Cabot Global that Zeeshan Hussain was the fleet manager. f) Mike Baldry of Astle BMW provided evidence concerning the altered odometers of these vehicles. g) Paul Murphy bought a vehicle from Zeeshan Hussain, having seen it advertised in Autotrader. He discovered the mileage had been altered. Zeeshan Hussain described himself as the Fleet Manager for Cabot Global, and he gave the address 12 Preston Gardens, Ilford, Essex, IG1 3QG. h) There were financial links between Zeeshan Hussain, Rizwan Hussain, Jahanzeb Khan and Imran Hussain and 52 Highlands Gardens, Ilford, Essex 1G1 3DL. Similarly, Rizwan Hussain was linked with 177 and 179 Burrow Road, Chigwell, Essex 1G7 4NF, as well as with 8 Woodgreen Road Waltham Abbey, Essex EN9 3SA. Imran Hussain has financial links with 12 Preston Gardens (along with Iram Hussain). He is shown as the proprietor of that property. i) Zeeshan and Rizwan Hussain are brothers, and they may be related to Imran Hussain. In any event, there are links between the three men and a family home: 52 Highlands Gardens, Ilford, Essex IG1 3LD. j) There is evidence that Zeeshan Hussain submitted a number of adverts selling motor cars with Autotrader. k) Vehicles connected to Cabot Global which were the subject of this investigation were included in invoices by way of a variety of names and addresses: Mr R Hussain of Cabot Global, 28 – 29 Highway Business Park, Heckford Street, London E1W 3HR SVL Ltd Cabot Global, 28 – 29 Highway Business Park, Heckford Street, London E1W 3HR Mr J Khan of 52 Highlands Gardens, Ilford, Essex, IG1 3LD Mr C Autos of Cabot Autos, 400 Hoe Street, London E17 9AA S Limited of Unit 2 – 3, The Highway Trading Centre, Heckford Street, London, E1W 3HR. l) There is evidence from a bank account held by Zeeshan Hussain at Barclays that shortly after the motor cars had been purchased, a lower figure (reflecting their true mileage) was paid into an account using the reference Star Vehicle. The Director of this company is Rizwan Hussain who had access to the vehicles and any profit that was generated from these transactions.[10]The prosecution contended that the motor cars owned by Star Vehicle Leasing were leased to Cabot Global who in turn rented them to their drivers.[11]As set out above, on the basis of the evidence that he had gathered, DC Jones applied for the warrants to search and enter the premises identified above (and any unidentified premises which – if located – satisfied certain criteria) for the following reasons: 1. Unit 2 – 3 The Highway Trading Centre, Heckford Street, London E1W 3HR on the basis that it was the registered address of a large number of Star Vehicle Leasing vehicles; 2. 12 Preston Gardens, Ilford, Essex, IG1 30Q because it was an address to which Zeeshan Hussain appeared to have access, and from where a number of the relevant vehicles were collected having been viewed; 3. 52 Highlands Gardens, Ilford, Essex IG1 3LD and 8 Woodgreen Road, Waltham Abbey, Essex, EN9 3SA as the homes of Zeeshan and Rizwan Hussain respectively; and 4. Unit 28 – 29 The Highway Trading Centre, Heckford Street, London E1W 3HR, which was the trading address of Cabot Global and the place of work of Zeeshan and Rizwan Hussain, as well as the registered address of the majority of the vehicles held by Star Vehicle Leasing.[12]Put generally, it was suggested that it was necessary to search these particular premises because of the links between various members of this family and the likelihood that material relevant to this investigation would be found at those locations (given they were work and home addresses, or locations identified as having been used during the commission of relevant criminal offences).

The Claim for Judicial Review

[13]The four claimants have sought to challenge the warrants by way of an application for judicial review. Although in the Claim Form five separate grounds of challenge were relied on, Laws LJ and Cranston J on 12 June 2014 granted permission on Ground 1 alone. The arguments on this application have been limited to that sole ground. In the original Grounds, it was formulated as follows: The warrants did not comply with section 15(6)(b) of PACE. As a result the warrants authorised the seizure of material was not “relevant evidence” (section 8(1)(c) of PACE).[14]Mr Alun Jones Q.C. in his skeleton argument dated 16 January 2015 on behalf of the claimants, has divided and rephrased the ground: The warrants failed to comply with the requirement set out in section 15(6)(b) of the Police and Criminal Evidence Act 1984 in that the material which might be searched for was not identified as far as was practicable; they permitted the search for “computer equipment, mobile phones, and any cash representing the proceeds of criminal activity”; accordingly, by virtue of section 15(1) of that Act, the entries, searches and seizures of property were unlawful. Alternatively, so far as “computer equipment, mobile phones” are concerned, there was also no jurisdiction under section 8 of the Police and Criminal Evidence Act 1984 to issue warrants to search and seize them, because there were no reasonable grounds for believing that such items were likely to be relevant evidence as required by section 8(1)(d), as defined by section 8(4), of the Act.[15]The principal submissions can be subdivided as follows. The warrants failed to identify, so far as is practicable, the articles to be sought[16]It is submitted that the warrants are too broad and DC Jones failed to particularise, insofar as was practicable, what was sought at each of the addresses. As already indicated above, the items identified in the warrants about which there is complaint are the computer equipment, the mobile phones and the cash representing the proceeds of criminal activity. It is suggested by way of example that the following items were impermissibly taken from the four addresses: i) 8 Woodgreen Road, Waltham Abbey, Essex, EN9 3SA: 2 hard drives, a “kids” iMac Air, a black iPad belonging to a child, a mini iPad and approximately £10,000 in cash. ii) 52 Highlands Gardens, Ilford, Essex IG1 3LD: 2 hard drives and 3 or 4 laptops, iii) 12 Preston Gardens, Ilford, Essex, IG1 30Q: three laptops belonging to children, and iPhone and a Nokia telephone. iv) Cabot Global Ltd, Unit 28 – 29, Highway Business Park, Heckford Street, London, E1W 3HR: a laptop.[17]It is contended that the officers additionally took items from Unit 26 (an address which was not named in the warrant) which included a number of iPads and two mobile telephones.[18]As regards the items about which there is complaint (viz. the computer equipment, mobile telephones and the cash representing the proceeds of criminal activity), DC Jones described the justification in the following way in the applications before the district judge: The computer equipment and mobile phones will assist in determining whether evidence exists relating to the sale of the identified vehicles and the way in which the company deals with the vehicles whilst in their possession and by checking the mileage of each car it will determine whether they are in breach of legislation governing their PCO licence and support the assertion that vehicles are being driven that had their mileage changed. The offences we are investigating are committed to ensure a financial benefit to those persons committing them. Any cash obtained as a result of these activities would represent the proceeds of their crimes and we would wish to seize them as evidence of the offences.[19]DC Jones sought to explain taking the disputed items in his witness statement dated 14 July 2014: Reference to ‘Computer Equipment and Mobile Phones’20. Having reviewed the information available to me at the time of making the application for the warrants I considered the most reasonable and appropriate way in which to achieve my aims. With the advent of smartphones and tablets some of the features previously just expected of computers can now be completed by all types of device including emails, word processing and access to the internet. Items such as mobile phones, smartphones, tablets and laptops all have some kind of data storage facility and can potentially be moved between sites. Similarly, the way of accessing these devices can also be quite fluid and they can be used via mobile signal, wi-fi and a hard wired internet connection to access these features. Therefore, without actually accessing the locations before it is impossible to establish what devices are likely to be on premises and what devices are likely to be have been used for business purposes and those that are not. Any devices which might contain relevant data would need to be seized for examination and, if relevant data was found, would have to be retained in order to ensure that it could be proved that the relevant data was contained on the devices when they were seized.21. To me, it was clear throughout the course of the alleged offences that emails and different mobile telephone numbers and possibly different mobile handsets featured throughout. They had been used to make contact between the parties involved and documentation provided to the purchasers were not hand written and had been produced using some kind of computer device. I used the terms Computer Equipment and Mobile Phones to ensure that the warrants sufficiently covered the types of devices that could contain evidence of the offenses I was investigating. I also ensured that the reference was made for each address I was to asking authority to search and enter as it was possible that the items could have been at any one of the locations. Cash Representing the Proceeds of Criminal Activity22. I suspect that the driving force for these alleged offences was a desire to obtain a criminal benefit and gain financially from their activities. Both Zeeshan and Rizwan HUSSAIN are inextricably linked to what are, on the face of it, actively trading and successful companies. Their companies have access to bank accounts and their financial turnover subject of yearly accounts and possible audit. To enable them to benefit from their alleged criminal activity they have to be in a position to deal with any criminal gain in cash before it ever made its way to a company bank account and could then be subject of suspicion. With this in mind my application specifically used the phrase ‘cash representing the proceeds of their criminal activity’ because I had to consider that we could search and recover money that had been obtained as a result of the alleged offences. In using this term I was trying to act in a reasonable manner and exclude what would appear to be legitimate cash reasonably expected to be found in a residential properties or trading address. I anticipated that a decision whether or not to seize a sum of cash found would be made based upon the amount of cash found, location recovered, any explanation provided and how it was being stored.[20]Mr Jones makes a limited concession, namely that there are certain rare situations in which use of the phrase "computer equipment, mobile phones" would not involve unacceptable imprecision. By way of example, he suggests that if computers and mobile telephones were taken during a burglary, it will be appropriate when framing a warrant to use a generic expression of this kind. This concession is qualified, however, in the sense that Mr Jones asserts that if the manufacturer’s details are available in instances of this kind, more precise identification of the goods sought would be necessary because of the terms of section 15(6) (see above).[21]Mr Jones argues that in the present case the police were not interested in the computers and the mobile telephones, and instead they wished to gain access to the information and documents located therein.[22]The claimants urge the court to adopt the approach of the Commissioner of Police for the Metropolis in R (F,J and K) v Blackfriars Crown Court [2014] EWHC 1541 (Admin), a case in which the Commissioner conceded that the reference in a warrant to "any computer hard-drive or other information storage device capable of storing the above information" (emphasis added)was too wide. The case concerned an alleged series of claims that had been submitted for the reimbursement of legal costs when privately represented defendants had been acquitted in criminal proceedings and thereafter had been granted defendants’ costs orders. Those involved in the case included an acquitted defendant, a costs draftsman and his company, his wife and a solicitor. There were indications that the company was being operated from the home address of the directors. The material sought included "all correspondence, documents, case files, fee notes and invoice" in relation to at least four specified cases and any other case that had resulted in a defendant’s costs order. The premises were identified as being the offices of the company and "any other identified storage facility". In the course of his judgment, Elias LJ described the concession made by the Metropolitan Police in the following terms: 35. The first ground is that the warrant was unlawfully issued because it allowed material to be seized which ought not to have been taken. In the hearing this morning, Mr Evans, counsel for the police, has in fact conceded that the warrant does indeed go further than can be permitted. He accepts specifically that the reference “any computer hard-drive or other information storage device capable of storing the above information” is too wide. There is no guarantee that the computer hard-drive or other storage device contains any of the relevant information at all. Where it does so, it is likely to contain, in addition, all sorts of material not covered by the terms of the warrant, including perhaps files on totally different subjects.[23]Kenneth Parker J, in his concurring judgment, added: 60. I agree. I agree in particular with what my Lord has said as to the consequence of the concession made by Mr Evans. He conceded that the us relevant evidence, but was apt to apply to all material.[24]It is to be noted immediately, therefore, that the wording of the warrant in R (F,J and K) v Blackfriars Crown Court was extremely wide – it seemingly embraced any computer with the capacity of storing the relevant information – and, in any event, the point at issue in the present proceedings was not argued before the court because it was conceded by the Commissioner of Police for the Metropolis.[25]Mr Jones submits, however, that the concession was correctly made in R (F,J and K) v Blackfriars Crown Court, and that it would be disproportionate and a breach of Article 8 of the European Convention on Human Rights to uphold an order in these terms when, if the material sought had been identified with greater particularity, the officers would have been obliged to invoke the protections provided by section 50 Criminal Justice and Police Act 2001 (see below).[26]It is contended that section 15(6)(b) is to be strictly construed, and that the warrants ought to have specified the items within the computers and mobile telephones which were sought. Furthermore, it is suggested that the expression “cash representing the proceeds of criminal activity” likewise infringed the requirement that the warrant “shall identify, so far as is practicable, the articles or person to be sought”. The Commissioner should have relied on sections 19 or 20 of PACE or section 50 CJPA 2001[27]Mr Jones argues that if the relevant information had been described without reference to the devices within which they were alleged to be contained, the police would have been presented with two options. First, they could have required production of the relevant material under section 19 (General Power of Seizure) or section 20 (Extension of powers of seizure to computerised information) of the Police and Criminal Evidence Act 1984 (set out above). The terms of section 19 are as follows: General power of seizure etc.(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.[28]The terms of section 20 are set out in [4] above.[29]On the basis of these provisions, it is the claimants’ case that the police, having identified the relevant documents, could have removed them in paper form or on a memory stick.[30]The second suggested option is that provided by section 50 Criminal Justice and Police Act 2001 (Additional powers of seizure from premises). The section contains, inter alia, the following:(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.[31]It is highlighted that a notable feature of the power contained in this section is that it operates subject to what are described as the tight controls set out in section 53 (Examination and return of property seized under s.50 or 51):(1) This section applies where anything has been seized under a power conferred by section 50 or 51.(2) It shall be the duty of the person for the time being in possession of the seized property in consequence of the exercise of that power to secure that there are arrangements in force which (subject to section 61) ensure— (a) that an initial examination of the property is carried out as soon as reasonably practicable after the seizure; (b) that that examination is confined to whatever is necessary for determining how much of the property falls within subsection (3); (c) that anything which is found, on that examination, not to fall within subsection (3) is separated from the rest of the seized property and is returned as soon as reasonably practicable after the examination of all the seized property has been completed; and (d) that, until the initial examination of all the seized property has been completed and anything which does not fall within subsection (3) has been returned, the seized property is kept separate from anything seized under any other power.(3) The seized property falls within this subsection to the extent only— (a) that it is property for which the person seizing it had power to search when he made the seizure but is not property the return of which is required by section 54; (b) that it is property the retention of which is authorised by section 56; or (c) that it is something which, in all the circumstances, it will not be reasonably practicable, following the examination, to separate from property falling within paragraph (a) or (b).(4) In determining for the purposes of this section the earliest practicable time for the carrying out of an initial examination of the seized property, due regard shall be had to the desirability of allowing the person from whom it was seized, or a person with an interest in that property, an opportunity of being present or (if he chooses) of being represented at the examination.(5) In this section, references to whether or not it is reasonably practicable to separate part of the seized property from the rest of it are references to whether or not it is reasonably practicable[32]At the core of Mr Jones’s submissions as regards section 50 is the contention that it is objectionable in principle to permit the general seizure of electronic devices without the protections of the kind provided by section 53, on the basis that it results in the law enforcement agencies coming into possession of very large quantities of personal, sensitive, business or other material simply because they are seeking particular information that may also have been stored on the device. It is suggested additionally that if Parliament had intended that draconian result it would have been unnecessary to enact section 19(4) and 20 of the 1984 Act.

Discussion

[33]It has been unnecessary to rehearse the submissions of the second defendant because, in broad outline, they are reflected in the conclusions that I have reached, as expressed below. The warrants failed to identify, so far as is practicable, the articles to be sought[34]The arguments advanced by Mr Jones under this heading mirror, to a very significant extent, issues that have been considered and resolved in earlier cases. In particular, in R (Faisaltex Ltd) v Preston Crown Court and others [2008] EWHC 2832 (Admin); [2009] 1 Cr. App. R. 37 (page 549); [2009] 1 W.L.R. 1687 (a case in which Mr Jones appeared for the claimants) some of the central arguments raised in these proceedings were addressed by this court. The Divisional Court thenobserved that the key concept in section 8(1) of the Police and Criminal Evidence Act 1984 is the identification of any material that was likely to be relevant evidence. “Material” has been accorded a broad meaning within the statute, given it is not distinguished from other expressions used in the Police and Criminal Evidence Act such as “articles” and “anything”. Therefore, the word “material” in section 8 is capable of covering a computer and its hard disk, which the court held to be a single item or thing, not a container of a number of things. As a result, a warrant could properly authorise seizure of the whole computer or hard disk even though they might contain irrelevant material. The critical passages in this regard in the judgment of Keene LJ (who gave the judgment of the court) are as follows: 74. (…) Section 8(1) of PACE refers to “material” which is likely to be relevant evidence, and “material” clearly has a wide meaning under that statute: for example, the definition of “excluded material” in s.11(1) shows that material will prima facie include human tissue, and “material” is used virtually interchangeably in PACE with words like “articles” (s.15(2)(b) ) and “anything” ( s.8(2) ). So the word “material” can itself cover a computer and, for that matter, its hard disk. Keene LJ approved and adopted a passage from the judgment of Stanley Burnton J in R (H) v Inland Revenue Commissioners [2002] EWHC 2164 (Admin); [2002] STC 1354 in which it was observed at [37]: These facts show that the comparison of a hard disk with a filing cabinet is inexact and may be misleading. For some purposes no doubt the files on a hard disk may be regarded as separate documents. But a hard disk cannot be regarded as simply a container of the files visible to the computer's operating system. It is a single object: a single thing. I see no basis, therefore, for a computer not being considered a “thing” within the meaning of section 20C(3)(b) of the Taxes Management Act 1970. If there is incriminating (in the normal sense of the word) material on the hard disk, and if it is assumed that the hard disk is not copied, the computer itself may be used, and may be required, as evidence in order to prove the existence of the incriminating material on the defendant's computer. The fact that there is also on the hard disk material that is irrelevant, and not evidence of anything, does not make the computer any less of a thing that may be required as evidence for the purposes of criminal proceedings.” Keene LJ thereafter concluded (on this issue): 78. While that was a decision on a different statutory provision, we can see no reason to adopt a different approach under s.8 of PACE , nor is there any justification for construing words in s.8 such as “material” and “anything” more narrowly than the word “thing” in the Taxes Management Act 1970 . A similar approach was adopted in Kent Pharmaceuticals Ltd v Director of Serious Fraud Office and Others [2002] EWHC 3023 Admin when dealing with s.2 of the Criminal Justice Act 1987. Lord Woolf C.J., held that the hard drive of a computer would be “a document” and, whilst it is true that s.2(18) defined “document” in broad terms, s.8 of PACE is at least as wide in its use of the word “material”.[35]Mr Jones sought to suggest that the decision in Faisaltex is not fatal to his submissions because the court failed to grapple with the potential impact of section 15(6). For my part, I consider this argument is without real substance. Keene LJ expressly indicated that he had the potential impact of section 15(6) in mind: 58. A number of other arguments are advanced by the claimants as to the validity of those two warrants. It is contended that they were too widely drawn in several respects. First, it is said that they were too imprecise to meet the requirements of section 15(6)(b), which states that a warrant “shall identify, so far as practicable, the articles … to be sought. (…)” Having reviewed two particular authorities referred to by Mr Jones, Keene LJ concluded that the investigations giving rise to the applications for the warrants in those cases were relatively narrow and that: This was a complex and far-reaching investigation into conspiracy to distribute counterfeit goods, cheating the revenue and money-laundering. It is true that the warrants here did not specify a date, further back than which documents would not be relevant and should not be seized, but the limitation of the materials covered by the warrants to documents concerning the business activities of the named individuals, partnership and companies was sufficient to impose such a starting point by implication (…). We have consequently concluded that the two (… ) warrants did identify the articles to be sought “so far as practicable”.[36]It is right to note that these observations by Keene LJ were made during a passage of the judgment in which warrants issued pursuant to section 9 and Schedule 1 to the Police and Criminal Evidence Act 1984 were being addressed, as opposed to warrants under section 8 of the 1984 Act. Section 9 provides the route by which a constable may obtain access to excluded material and special procedure material for the purposes of a criminal investigation, namely by an application under Schedule 1. It is clear, however, that the Keene LJ had in mind the wider applicability of this provision, and he did not limit its relevance to Schedule 1: 22. Section 15 sets out certain safeguards applicable to the issuing of a search warrant, and section 15(1) states that:
“an entry on or search of premises under a warrant is unlawful unless it complies with this section and section 16 below. Amongst the section 15 safeguards it is appropriate to note the following provisions: by section 15(2), it is the duty of a constable applying for a search warrant: (a) to state: (i) the ground on which he makes the application; (ii) the enactment under which the warrant would be issued; … (c) to identify, so far as is practicable, the articles or persons to be sought. 23. Section 15(3) states that: “An application for such a warrant shall be made ex parte and supported by an information in writing.”
The constable is required by section 15(4) to answer on oath any question that the justice of the peace or judge hearing the application asks him. By section 15(6) : “A warrant- (a) shall specify- (i) the name of the person who applies for it; (ii) the date on which it issued; (iii) the enactment under which it is issued; and (iv) each set of premises to be searched … (b) shall identify, so far as is practicable, the articles or persons to be sought.” (i) the name of the person who applies for it; (ii) the date on which it issued; (iii) the enactment under which it is issued; and (iv) each set of premises to be searched …[37]Those observations about section 15 formed part of a section of the judgment in which Keene LJ was addressing both section 8 and Schedule 1 applications. He concluded this part of the judgment as follows: 29. The requirements which have to be met for the issue of a search warrant, whether under section 8 of Pace or under Schedule 1 thereto may seem numerous and onerous. (…)[38]The attempt, therefore, to avoid the impact of the decision in Faisaltex on the basis that the judgment failed to “grapple with” the submissions under section 15(6)(b) is misconceived. For the reasons set out above, the court clearly considered the protection provided by the section (viz. that the warrant shall identify, so far as is practicable, the articles to be sought) andit directly addressed the main issue, namely that if there are reasonable grounds to believe that there was incriminating material on the computer, tablet, smart telephone or similar device, then it may constitute relevant evidence, thereby properly forming the subject of an order under section 8 Police and Criminal Evidence Act 1984. The fact that there may also be material that is irrelevant does not make the computer any less “material” which is likely to be of substantial value to the investigation, as well as likely to be relevant evidence.[39]In a similar vein, Mr Jones has previously advanced a broader argument that computers and mobile telephones should not be seized in these circumstances. This general contention was directly addressed by this court in R (on the application of Rabiul Hoque and Mridul Kanti Das) v City of London Police and The Commissioners of HM Revenue and Customs (2013) EWHC 725 (Admin) as follows in the judgment of Pitchford LJ: 15. The claimants' second ground of claim is that no justice of the peace could properly have concluded that “mobile telephone communications, including handsets, SIM cards, computer processing equipment, including portable storage records and media records” were likely to have been “relevant evidence” for the purpose of section 8(1)(c) and (iv) of the Act. This court has recognised in R(Faisaltex Ltd) v Preston Crown Court & Anor [2009] 1 WLR 1689 (Admin) that computers, if likely to contain relevant evidence, are likely also to contain evidence not relevant to an investigation. That does not mean that the constable enforcing the warrant is bound only to seize that which is relevant, since data stored on a computer is for practical purposes indivisible until it is examined and separated. The claimants contend that HMRC was not required by the justices during the application for the warrant to justify its application to recover electronic material, and it follows that the issue of relevance was not properly addressed. I do not accept these contentions. It seems to me to be obvious from the contents of the information that the HMRC investigation embraced not only the business records of the claimants and their companies but also communications between the claimants themselves and between the claimants respectively and their senior employees. HMRC had cause to believe that the claimants were not merely acting coincidentally in their efforts to cheat the Revenue but were acting in concert. That being the case, computer and telephone equipment was likely to reveal the association between the two men and the coordination of their activities. I do not consider for these reasons that ground 2 is made out.[40]The same considerations apply in this case, in that the investigating authorities would have been interested not only in any records relating to the transactions, but they would equally have been concerned to establish the timings, the pattern and the content of any communications between the suspects. The evidence relied on by DC Jones was clearly sufficient to justify these search warrants, and it was open to the court in this case to issue warrants pursuant to section 8 for computer equipment, mobile phones, and cash representing the proceeds of criminal activity. The Commissioner should have relied on sections 19 or 20 of PACE, or section 50 CJPA 2001[41]The arguments concerning sections 19 and 20 of the Police and Criminal Evidence Act 1984 and section 50 Criminal Justice and Police Act 2001 are equally misconceived. These sections are concerned not with powers of search but instead with powers of seizure, and there is no sustainable basis for suggestion that the police were obliged to resort to section 19(4), section 20 or section 50.[42]As set out above, Mr Jones suggests that the critical consequence of sections 19 and 20 is that “it is possible to take away relevant material from a computer in paper form or on memory sticks”. In my judgment, it would have been unrealistic to expect the officers to act in the manner suggested. The devices were likely to contain a very considerable amount of information and it would have taken a significant length of time to identify any relevant documents, for instance by way of visual searches or by utilising particular search terms. The police officers would not have known where any relevant item was located, and it may have been necessary to interrogate the device in order to establish the circumstances in which the document came to be stored within it. Given the nature of the present investigation, the police may well have wished to look at relevant “deleted documents”, or earlier versions of the documents. Until the police attended at the premises they would be unaware of the equipment they might need to take with them in order to produce any particular documents in a visible and legible form for removal. Many devices do not support paper printing or the use of standard USB memory sticks. The suggestion, therefore, that the police should not have sought to remove the computers or mobile telephones, but instead should have requested copies of particular documents or other information contained within them, ignores the very considerable practical problems that would have confronted the officers conducting these particular searches.[43]Section 50 enables a person who is already lawfully on premises and to whom a power of seizure applies, to seize the whole or part of a suspect item so as to remove it from the premises for the purpose of determining whether it falls within the power of seizure. In my judgment, the existence of this provision does not render the seizure of computers or mobile telephones under section 8 Police and Criminal Evidence Act 1984 unlawful: the additional power of seizure from premises under section 50 does not invalidate the act of taking devices of this kind under a warrant issued under section 8 if there are reasonable grounds for believing that they may contain relevant evidence, albeit that they might also contain irrelevant material.[44]In any event, Mr Jones’s submission in this regard has been dealt with in R (Glenn & Co (Essex) Ltd and others) v HM Commissioners for Revenue and Customs and another (2011) EWHC 2998 (Admin); (2012) 1 CR App R 22. In that case two officers of HMRC were being investigated for alleged corruption. The two men were suspected of receiving payments for providing confidential information and improper assistance to organized crime groups in order to assist in or facilitate excise fraud. The application for search warrants was made under s.8 Police and Criminal Evidence Act 1984, and the material that was considered likely to be relevant included computers, hard disk drives, memory sticks, memory cards, floppy disks, CD-ROMs, DVDs, fax machines, mobile telephones and mobile Sim cards. The claimant’s submissions in that case (as relevant to the present context) were described by Simon J as follows: 45. The inclusion of computers should have been given particular attention. Although the computers might contain material which was relevant and to which s. 50 of CJPA would apply, this did not absolve an applicant for a warrant from properly describing the material which might be contained on such a device, or indeed other material. The warrant failed to do this; and as a result it permitted the seizure and retention of much material which could not contain conceivably relevant material.[45]This contention was disposed of by Simon J:57. I am doubtful that the argument based on s.50 of CJPA assists the claimants in this case. The fact that there may be legally privileged or irrelevant material on a computer does not mean that the warrants should not specify computers among the material to be seen used, if there were reasonable grounds for believing that they contained relevant material, see Faisaltex (above).58. In this type of case, there will often be two competing factors.59. The first is the important consideration that the warrant should be sufficiently clear and precise for those interested in their execution to know precisely what are the limits of the power, see Lord Clyde in McGrath v. Chief Constable of the Royal Ulster Constabulary [2001] 2 AC 731 at 738g in the context of an arrest warrant.60. The second is the nature of the investigation. The broad scope of an investigation may require a correspondingly broad power of search, and make it less ‘practicable’ (to use the word in section 15(2)(b) and (6)(b)) to identify the articles sought. This point was noted by Lord Woolf CJ in Kent Pharmaceuticals Ltd v. Serious Fraud Office [2002] EWHC 3023 (Admin), at [24]. “There is clearly difficulty in drafting a warrant when the scale of the investigation is of the nature of that in which the SFO is at present engaged …”61. Kennedy LJ referred to the balance between these two competing considerations in the context of a search warrant, in R (Energy Financing Team Ltd) v. Bow Street Magistrates Court and others [2006] 1 WLR 1316 at 1325d at [24(5)] When there is an ongoing investigation into, for example, the affairs of a company such as EPRS, which appears to have been at the centre of a fraud, it will always be difficult to say precisely what documentation of value to the inquiry may be recovered from those who are justifiably suspected of being in contact with the main target company, but nevertheless 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 specificity 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.62. In the Burgin case a complaint was made that a warrant which had included the phrase, ‘any document which evidences possible money-laundering offences under the Proceeds of Crime Act 2002 ’, was expressed too broadly. The Court held at [86] that the warrant had to be considered as a whole, and that it must be approached with a sense of proportion to the type of issues embraced by the investigation.63. It is necessary to bear in mind the nature of the enquiry in the present case. This was not a narrow investigation where it would be possible to say precisely what relevant material might be discovered, see Energy Financing Team Ltd case. Nor is it easy to see how research could be narrowed by reference to specific offences, as happened in part of the warrant in the Birgin case.64. In my view, where the question of where the balance lines in an individual case will not be answered by reference to authority, since each case is likely to turn on particular facts. It will be answered by considering whether the warrant has identified the articles sought “so far as practicable” in the circumstances. The present case was a wide ranging, and necessarily broad, investigation into the corruption by two HMRC offices in relation to OCGs (including the second to fourth claimants).[46]The present case involved a similar wide-ranging and broad investigation into a significant number of alleged individual acts of dishonesty. As in Glenn, it is not easy to see how the search warrant could have been satisfactorily narrowed by reference to specific documents, types of documents or other detailed description of the material that was sought. It would have been impossible for the officers to know in advance what kind of documentation, or the different types of evidence, that would have been created on, or transferred to, computers or mobile telephones in the furtherance of this alleged illegal activity. This was, critically, not a case in which officers, whilst lawfully on premises, find objects that may contain something for which they are authorised to search. Instead the warrants had lawfully specified computer equipment and mobile phones as items to be seized in relation to this alleged criminal activity. Section 50 simply did not apply because the computers and the mobile phones were amongst the items specified in the warrant.[47]The decision in Glenn did not involve, moreover, a “softening” of the approach on the courts in these circumstances as Mr Jones submitted: the relevant authorities – and most particularly Faisaltex – were applied without any attempt to limit their effect. Instead, Simon J merely referred to the statutory requirement set out in section 15(6) that the warrant must identify the articles sought “so far as practicable” ([64]).[48]I am equally unimpressed by the suggestion that the officers ought simply to have ignored any computers or mobile telephones that they found in rooms which appeared to be the bedrooms occupied by children. In my view, it is unrealistic to suggest that because a device is discovered in a child’s bedroom it necessarily falls outside the ambit of a warrant granted under section 8. It is self-evident that computers and telephones are frequently shared by a number of users.[49]In this case the officer, when applying for the warrants, identified with care the nature of the alleged offending, the individuals who were said to be involved and the premises that were linked either to the suspects or the offences. Against that background, the warrants were sufficiently clear and precise in their terms so that anyone interested in their execution would have known precisely the limits of the power which had been granted, without reference to any other document (see McGrath v Chief Constable of the Royal Ulster Constabulary (2001) 2 AC 731, at paragraph 18). These warrants were not objectionably broad or ill-defined in the sense described by this court in R (on the application of Anand) v Her Majesty’s Revenue and Customs (2012) EWHC 2989 (Admin) by Pitchford LJ: 29. I do not accept the submission made on behalf of HMRC that this warrant came anywhere near identifying the articles sort “so far as practicable”. It is clear from the terms of the information provided to the Justices that it would have been a simple matter to specify the true scope of the material sort. The warrant was, in important respects, unlimited in its scope. It did not, so far as practicable, identify the articles which the information revealed were being sought.[50]Finally under this heading, Mr Jones sought to suggest that it was impermissible to issue a warrant seeking “cash representing the proceeds of criminal activity” either because of a lack of precision (thereby offending section 15(6)) or because of limitations that it is suggested have been imposed by section 19(2) Police and Criminal Evidence Act 1984. In my judgment, permitting the police to seize cash that represented the proceeds of criminal activity in this context was a precise and reasonable description of the extent to which the police could seize monies. To reiterate, under section 19(2), a constable who is already lawfully on premises can seize anything if he has reasonable grounds for believing it had been obtained in consequence of the commission of an offence. The simple flaw in Mr Jones’s argument is that whatever protections may be provided by section 19(2), it does not govern the circumstances in which justices of the peace are able to authorise entry into, and the search of, premises under section 8.

Conclusion

[51]In my judgment, it was not “practicable” (within the meaning of section 15(6)(b)) to specify the items within the computers and mobile telephones to which the search under section 8 Police and Criminal Evidence Act 1984 related. As Simon J observed in Glenn at [63] “the question of where the balance lines in an individual case will not be answered by reference to authority, since each case is likely to turn on particular facts. It will be answered by considering whether the warrant has identified the articles sought “so far as practicable” in the circumstances”. It was not feasible to provide greater specificity in this case, and it was unrealistic to expect the officers to take away any relevant material from a computer (or other storage device) in paper form or on memory sticks. Furthermore, for the reasons set out above, I am unable to accept Mr Jones’s contention that it is impermissible to order the seizure of electronic storage devices or their contents in circumstances such as these without invoking sections 19 or 20 of the Police and Criminal Evidence Act 1984 or section 50 Criminal Justice and Police Act 2001, and the protections provided thereunder. Finally, I reject the submission that the expression “cash representing the proceeds of criminal activity” failed to identify, so far as is practicable, the articles sought or that it should only have been seized under the powers contained in section 19(2) Police and Criminal Evidence Act 1984.[52]For my part I would dismiss this application for judicial review. Mr Justice Jay[53]I agree.

Cited in 4 later judgments