Hecke v Manchester & Salford Magistrates Court & Ors [2015] EWHC 4124 (Admin)

Case No CO/3312/2014[2015] EWHC 4124 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
DIVISIONAL COURT
Venue Manchester Civil and Family Justice Centre
1 Bridge Street West
Venue Manchester, Greater ManchesterDate Thursday, 2nd July 2015
M60 9DJ
B e f o r e:
LORD JUSTICE TREACY
MR JUSTICE EDIS
Between
MARIE LOUISE VAN HECKEClaimantv
Between
MANCHESTER & SALFORD MAGISTRATES COURT & ORSDefendant
Digital Audio Transcript ofWordWave International Limited Trading as DTI165 Fleet Street London EC4A 2DYTel No: 020 7404 1400 Fax No: 020 7831 8838(Official Shorthand Writers to the Court)
Mr N Brubeck appeared for Claimant
J U D G M E N T (Approved)
[1]MR JUSTICE EDIS: This is a renewed application for permission to bring judicial review proceedings after refusal by Hickinbottom J on 6th October 2014.[2]The proceedings seek to challenge the issue of two search warrants by the first defendant on 26th March 2014 on the application of the second defendant. The first defendant takes no active part in these proceedings. The proceedings also seek (or sought) to challenge the execution of those search warrants by the second defendant's officers on 27th March 2014 in certain respects. Factual Background[3]The claimant is the director of a limited company now called A & ML Properties Ltd. Until a change of name on 3rd March 2011 it was called A & G Diamond Drilling and Building Services Ltd. The company owns The Gallery Health Club and Sauna at 145-147 Liverpool Road, Cadishead, Salford, which is called "The Gallery".[4]The claimant lives at 125 Stonepitt, Croft, in Cheshire. By a witness statement made in support of this claim, dated 25th June 2014, she appears to accept that she is involved in the management of The Gallery. The business there long preceded the use of the company to manage its affairs which appears to have been adopted quite recently for VAT purposes. She refers to the management of the business in the first person plural saying for example that "we have always co-operated with the police and the authorities". This must therefore include her and she does not identify anyone else who might also be included. She does not identify either the nature of the business operated by the Gallery but the warrants were obtained in this case in the course of an investigation into the suggestion that it is or was a brothel. She does not deny this allegation but rather says:
"The place was considered by all authorities to be one of the cleanest and best run in the Manchester area."
She does not there or elsewhere actually describe the category of business in which hers was so widely acclaimed.[5]It is therefore reasonable to approach this application on the basis that it is accepted that there were reasonable grounds for the police to suspect in March 2014 that the Gallery was being run by the claimant as a brothel. If proved that conduct would constitute an offence under section 33A of the Sexual Offences Act 1956, for which the Sentencing Council Guideline effective from April 2014 suggests a starting point of 3 years' imprisonment and a range of 2 to 5 years in a case lacking serious aggravating features but involving activity on a substantial commercial scale. It is therefore an allegation of serious crime.[6]The second defendant first applied for warrants on 21st March 2014 and they were granted. But they specified a particular person who could execute them and this was operationally inconvenient. Therefore the applications were made again on 26th March 2014 and were granted again.[7]It is this second pair of warrants which was executed on the following day. The warrants were applied for and issued under section 8 of the Police and Criminal Evidence Act 1984 and each warrant specified the premises to which it related. There was one warrant for the business premises and another for the home address of the claimant, the suspected brothel keeper. Both warrants authorised any police officer or Constable of the Greater Manchester Police to enter on one occasion to search for "items of a sexual nature, computers, mobile phones, memory cards, PDQ etc, bank details, diaries and associated relevant paper in relation to The Gallery and other linked businesses".[8]The information on which the warrants were granted was contained in written applications signed by an officer under a declaration as to the truth of the contents and countersigned by an authorising officer. They used the form then required by rule 6.30 of the Criminal Procedure Rules for applications under section 8. The information was confirmed on oath by the applicant who was available to answer any questions. The grounds for the belief that The Gallery was a brothel, managed by the claimant are not the subject of challenge.[9]Certain relevant extracts from the application in relation to the claimant's home are as follows:
"The Gallery Health Club and Sauna is an establishment that has been in business and has developed a reputation among the community for being a brothel. This business is run from 145-147 Liverpool Road Cadishead, Salford. The owner lives at the address for which this warrant is applied for. Several pieces of intelligence state that the business is a brothel and that illegal immigrants are working there. Information has also been received to suggest that the sex workers are being exploited in that they only receive minimal pay for services provided."
Business rates are paid for the Gallery premises by A & G Drilling Trading as "The Gallery". A check at Companies House revealed that A & G Diamond Drilling is not a listed company.[10]In October 2013 Greater Manchester Police's sexual crime unit carried out a harm reduction visit to the business premises and updated their records with details of the brothel. The owner, manageress and one or two sex workers were spoken to and at that time no human trafficking was evidenced.[11]Department of Work and Pensions check and council tax check shows the address for the warrant relating to the claimant’s home to be owned by Marie Louise Van Hecke, the owner of the brothel, and the person paying business rates at The Gallery (given that the company does not apparently exist).[12]After setting out the description of the material sought this application set out the justification for seeking it:
"All of the material will prove that the business is a brothel and assist with the prosecution of anyone concerned in the management or running of the brothel also if applicable evidence to support offences of trafficking as described in intelligence logs."
Asked by the form to state whether there was "any reason to think that the material for which you want to search consists of or includes items subject to legal privilege excluded material or special procedure material" the applicant had written "no items subject to legal privilege is likely to be seized".[13]There are four access conditions contained in section 8(3) of the Police and Criminal Evidence Act 1984, at least one of which must be satisfied before a warrant can be issued these 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 any person entitled to grant excess to the evidence.(c) that entry to the premises will not be granted unless a warrant is produced and(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.[14]These access conditions are set out on the form and the applicant should tick a box beside anyone which is said to be met. On these forms the boxes were not ticked but the following words have been entered in the box where the applicant is required to explain briefly why she or he believes that any condition which has been ticked applies. These words equate to ticking boxes (c) and (d) in my judgment. They read as follows:
"As the day-to-day business at the premises is illegal accessing without a warrant would not be appropriate. Entry to the premises would be refused and evidence destroyed or removed. Immediate secured entry will ascertain any offences of human trafficking or exploitation."
[15]Part 8 of the form relates to the duty of disclosure and refers to guidance note 11 attached to the form. The form asks this question:
"Is there anything of which you are aware that might reasonably be considered capable of undermining any of the grounds of this application or which for some other reason might affect the court's decision. Include anything that might reasonably call into question the credibility of information you have received and explain why you have decided that the information can still be relied upon."
The applicant said in answer to that question "no".[16]Each of the two applications had a list of premises attached in each case with only one entry filled in.

(b) :

"Reasons for believing material is on the premises. Intelligence logs received and harm reduction visit confirms that the premises is a brothel and also confirmed that the owner lives at this address. Checks confirm this. (c) Reasons for believing access conditions met due to the nature of the business access would be refused without a warrant."
[17]There was some oral evidence given of the applications which the legal adviser to the magistrates noted briefly on the form. The Grounds of Challenge[18]The warrants are said to have been unlawful because first, the second defendant failed to make a full and frank disclosure of the previous co-operation with the police by The Gallery. The claimant's evidence in her witness statement of 25th June 2014 is that over many years she had co-operated with the police and they had even assisted her in an application for planning permission on one occasion. She says that this should have been drawn to the attention of the magistrates who might then have concluded that no warrant was necessary because she would allow the police to enter the business premises if they only asked. She does not say that she would have allowed them access to her home address on request or that she had done that in the past. She does not say that she would have allowed them to take material for use as evidence in an investigation into suspected criminal behaviour either. Nor does she say that she has done that in the past.[19]The next grounds of challenge we record simply to illustrate the history of these proceedings because they have been recently abandoned. The first of these is that the warrants were drawn too widely so that they resulted in the seizure of legally privileged, excluded or special procedure materials. That ground was relied upon but is now not pursued because of the decision of the Divisional Court in R (on the application of Cabot Global Ltd and others) v Barkingside Magistrates Court and others [2015] EWHC 1458 (Admin), in which Fulford LJ handed down judgment on 20th May 2015. The second of the now abandoned grounds of challenge is that the warrants were issued contrary to the Chief Constable's policy on policing brothels. This is said to be a breach of his obligations to act in accordance with his published policy and to have denied the claimant the legitimate expectation that she would be dealt with in accordance with that policy. It was also said that this gave rise to a further breach of the duty to give frank disclosure of relevant matters because the policy was not drawn to the attention of the magistrate.[20]This is not now pursued because the second defendant has recently served extensive evidence proving that he does not have and never has had a policy which operates as a de facto licensing system for brothels in his area. It appears that one Divisional Commander some years ago issued an operational instruction to his neighbourhood inspectors specifying the circumstances in which an investigation of potential prosecution of a brothel would be appropriate. In the light of this concession it is not necessary to rehearse the detail of this allegation, but the fact that it was made and is not pursued and the reason why it is not pursued ought briefly publicly to be recorded.[21]Finally, and against the second defendant only, the claimant alleged that the material which was seized went beyond the authority of the warrant and was not recorded with sufficient particularity. This is not a complaint which is advanced by Mr Nicolas Brubeck, on behalf of the claimant in his skeleton argument of 30th June 2015, and we treat it as abandoned. It is primarily a matter of fact and the claimant is entitled to the ,return of anything which was seized which was not within the terms of the warrant or which was legally privileged. The second defendant accepted this by paragraphs 22, 23 and 43 of his response to the application for judicial review at pages 401 and 409 of the bundle. We expect that any such issues have long since been resolved by agreement. Non Disclosure[22]The allegation of non disclosure now relates simply to the alleged failure to disclose the long history of co-operation by The Gallery with the police and the wrongful certification that the access conditions were met. In truth, it is said that there was no proper basis for seeking a warrant. As I have indicated above, in the passages I have quoted from the warrant the harm reduction visit in October 2013 was revealed to the magistrate. That was carried out without a warrant but it was not an attempt to secure evidence to support a prosecution. As I have recorded, the claimant does not alleged that she had ever consented to what was done on 27th March 2014 and her persistence in these proceedings is, if nothing else, strong evidence that she is unlikely to have done so.[23]The claimant alleges also that there was non disclosure of the fact that her home was not being run as a brothel - put another way she claims the applications falsely asserted she was running a brothel from her home. This allegation fails on a plain reading of the documents, the relevant parts of which are set out above. The extracts set out in this judgment are from the application in relation to the home premises because they make it clear that the business was run from The Gallery premises and owner of the business lived at the home premises in the village of Croft. That is the true position and on that reading of the documents it was disclosed accurately.[24]The claimant records in her witness statement that she was traumatised by the false allegation that she was running a brothel from her village home. In my judgment, if she had read the papers with care she would have appreciated that was not the allegation at all. That is the basis on which Hickinbottom J refused this application and he was right to do so. In truth, this argument depends entirely upon taking the words which were used in the explanation for the meeting of the access conditions on the form applying for the warrant for the home premises out of context. It is true that if they stood alone they might involve representation that the brothel was being run from a little house in a village in Cheshire but taking the whole of the documentation it is quite clear that is not what was being said.[25]The claimant also alleges that court was misled by the reference to the company named on the records of the local authority as owning The Gallery for business rates premises which have said not to be registered. It is not clear how this information could be material to the outcome and it is any event true. The relevant company had in fact changed its name at Companies House.[26]In his helpful skeleton dated 30th June 2015 Mr Brubeck, on behalf of the claimant, has narrowed the complaint substantially in the way that I have described. He sets out the law helpfully and at some length although he also points out it is well established and not in dispute. There is a duty on the police when applying for a warrant under section 8 of the Police and Criminal Evidence Act 1984 to disclose "all known information that may be material to the court's decision, ie that might affect the court's decision". The police should consider what any other interested person would if present wish to adduce by way of fact, or say in answer to the application. It is sometimes put in a well-known phrase: the prosecutor seeking an ex parte order must put his defence hat on and ask himself what he would wish to say in those circumstances.[27]The source for these propositions and for two further propositions is a distillation of a line of authority which is helpfully collected at paragraph 106 of (Chatwani & Ors, R (on the application of) v The National Crime Agency & Anor [2015] EWHC 1283. These two further propositions are first, that the duty requires particular skill and experience in cases involving complex financial matters. The court then had in mind the case of Tchenguiz, the case involving the collapse of the banking system in Iceland. This was not such a case. The issue here was whether or not the claimant was running a brothel in Manchester and, if so, how she recruited and treated the women she employed.[28]The second proposition is this. If the written application, which should be comprehensive, is supplemented orally this should be either tape recorded or, if this is not possible, the applicant should prepare a note of what has been said in evidence and submit it to the court for approval. This did not happen in this case. The legal adviser to the Justices made some notes on the application forms, but these are brief and her memory does not enable her to be absolutely clear about what was said in addition to the written application.[29]The applicant, that is to say the police, did not submit a note for approval and the record of the hearing is therefore less reliable than it should be. In itself this is not relied upon as an objection to the lawfulness of these warrants but it is a matter of practice which it is worth re-emphasising.[30]Having set out the law Mr Brubeck then makes the following short points. First, the police should have set enough information to enable the magistrates to decide whether a warrant was required to search the business premises. This would include a history of all the previous visits by the police where they had been admitted to the premises by consent. It would therefore include the evidence that during the harm reduction visit the previous October, a notice in writing had been left at the premises warning the occupants that they would be prosecuted if they did not stop running a brothel. In view of the intelligence that they had not stopped this fact, which was not drawn to the attention of the magistrates by the police, would actually tend to support the need for a warrant. The magistrate was informed about that visit but not the notice.[31]Although the claimant's evidence is to the effect that previous visits had been received with full co-operation she does not suggest that any of them was intended to further a criminal investigation. Secondly, he says that the search warrant application in respect of the claimant's home fails to provide the information set out at paragraphs 9 and 10 of the witness statement. Those paragraphs include her denial that she exploited the women who worked at her unspecified business and her assertion that she was always "very careful about who was at The Gallery". It also includes her horror at the suggestion, which had not actually been made, that she was running a brothel from her home in Croft, which we have dealt with above. In relation to that clearly the police did not know what the claimant would say if asked about her suspected exploitation of women. They could not therefore disclose that to the magistrates. What they could say was what was set out at paragraph 5 and above in this judgment namely, that the information that women may be illegal immigrants and may be exploited is based on intelligence only and was not confirmed by a visit by the police in October 2013. Therefore, if it was a occurring it had not been detected by that consensual visit. As we have noted above, some detail of the source of that intelligence was apparently provided orally in evidence by the magistrate so that its cogency could be assessed.[32]The real issue in this application therefore is whether the police had a duty to explain to the magistrate the full extent of the contact between the police and the claimant and their business. If so it appears to be accepted that there was contact beyond that which is referred to in the application.[33]The existence of the duty to give full and frank disclosure is an important one. We have identified its legal basis and extent above. This court will review the exercise of that duty judging whether objectively the police officer in applying for the warrants in this case complied with it or not.[34]The position appears to be that there had been a series of visits by the police in which it had been apparent to them that a brothel was being run from the business premises and the claimant was the owner. No evidence had ever been seized which was capable of establishing those facts or the level of financial benefit which she derived from it. The magistrate was told of one visit but not more than one visit. In my judgment, that is sufficient information to enable the court to assess whether the justification for the application for the warrant access condition (c) and (d) of section 8(3) were made out or not. There is no evidence that the claimant would have consented to a systematic search of her premises and seizure of material which was likely to be relevant evidence. She had never done so before. There was therefore no evidence of previous consent to what was actually proposed which required disclosure.[35]The position in respect of the home premises even clearer. It is not suggested that she had ever freely allowed the police to enter her home in order to investigate her business. In that respect there was simply no information to disclose.[36]I have observed above that the claimant's contention that she would have consented to the searches is undermined by her persistence in these proceedings. That is not a factor of which either defendant could have known when the warrants were granted. Its relevance is that it illustrates the falsity of the claim now being advanced. The claimant had consented to what had happened before but not to what was planned for 27th March 2014, which had never happened before. It appears the defendants were, as it turned out, right to believe that this was the position. There was no information known to the second defendant which should have been disclosed which was capable of showing that it was not so. Delay[37]These warrants were executed on 27th March 2014 and the claimant was immediately aware of this fact because she was arrested. No doubt she took legal advice immediately as well. The first inkling of the issue of these proceedings or any other public law complaint about the warrants came on 4th June 2014 when her current solicitors wrote to the Magistrates' Court asking for documents and telling the court that they had only just been instructed. The first intimation to the police was by letter dated 9th June 2014 which was sent by e-mail. Civil Procedure Rules 54.5 provides:
"(1) The claim form must be filed. (a) promptly and. (b) in any event not later than 3 months after the grounds to make the claim first arose."
[38]The witness statement dated 25th June 2014 is replete with expressions of horror of the conduct of police but entirely lacking in any explanation of the claimant's conduct in allowing all but two-and-half weeks of the 3 month period to elapse before making any complaint to them or about them. This claim was not brought promptly. In fact, the concerns expressed by the claimant in her solicitor's correspondence and in her witness statement about documents taken in excess of those covered by the warrants could and should have been solved by discussion in the immediate aftermath of their execution. It is impossible to imagine any person who was truly concerned that the police had recovered material subject to legal professional privilege failing to take immediate action to correct the position. The word "promptly", in the context of a claim of this kind, means exactly what it says: it is to be expected that investigating authorities who seek and execute warrants will seek to use the resulting material for the purposes of their investigation without delay thereafter. It is also therefore to be expected that if there is an objection to their doing so it will be made promptly to avoid the investigation being tainted by any illegality.[39]In this particular context therefore there is a particular need for the claimant to act promptly. The court will expect that any claim which is not made promptly will be accompanied by some cogent evidence as to why it should nevertheless be allowed to proceed.[40]The only attempt to address this issue which the claimant has condescended to make is a paragraph in counsel's reply to the second defendant's summary grounds of residence which reads:
"The claim was made within the normal 3 month time limit for judicial review and the claimant complied with the pre-action protocol. The defendant has identified no reason why in the circumstances of this case this was not sufficiently prompt. In particular given the specialist nature of the claim and the other issues affecting the claimant in context of the search."
This places the onus in the wrong place; it was the claimant who failed to bring the claim promptly and it is for her to show why it nevertheless should be allowed proceed. The fact that a claim may be specialist is not a reason for delay. Specialist lawyers are able to react at least as promptly as others. Since they are specialist, they may even be able to act more promptly than others.[41]We cannot pay regard to the other issues referred to because there is no evidence about what they are. If it is a reference to the arrest, investigation and cessation of the claimant's business, in my judgment, those are all reasons why the court might reasonably expect expedition rather than permit delay.[42]We are told that a restraint order prevented the claimant from access to her means as from 9th April 2014 until an application was made to vary it to permit funds to be released for investigation for the judicial review. We have no evidence about the time that was taken in that regard but in itself, in my judgment, that does not justify the delay which has taken place in this case. Conclusion.[43]For those reasons I would therefore dismiss this claim on the ground that it was not brought promptly after 27th March 2014 and is out of time and I would in any event also refuse permission to bring judicial review proceedings on the merits.

LORD JUSTICE TREACY: I agree both in relation to the absence of merit in the substantial claim and also in relation to the question of delay.