R v Inland Revenue Commissioners, ex p. Rossminster Ltd [1979] UKHL 5

House of Lords

Between

RAppellant

Inland Revenue Commissioners, ex p. Rossminster LtdRespondent

Before

Lord Wilberforce Viscount Dilhorne

Lord Diplock

Lord Salmon

Lord Scarman

LORD DIPLOCK

My Lords,

The organised searches by officers of the Inland Revenue on Friday, 13 July 1979, on the respondents' office and private premises were carried out under powers claimed to be conferred by Act of Parliament—the Finance Act 1976, section 57, and Schedule 6, paragraph 20c amending the Taxes Management Act 1970, section 20.

The integrity and privacy of a man's home, and of his place of business, an important human right has. since the second world war, been eroded by a number of statutes passed by Parliament in the belief, presumably, that this right of privacy ought in some cases to be over-ridden by the interest which the public has in preventing evasions of the law. Some of these powers of search are reflections of dirigisme and of heavy taxation, others of changes in mores. Examples of them are to be found in the Exchange Control Act 1947. the Finance Act 1972 (in relation to VAT) and in statutes about gaming or the use of drugs. A formidable number of officials now have powers to enter people's premises, and to take property away, and these powers are frequently exercised, sometimes on a large scale. Many people, as well as the respondents, think that this process has gone too far; that is an issue to be debated in Parliament and in the Press.

The courts have the duty to supervise, I would say critically, even jealously, the legality of any purported exercise of these powers. They are the guardians of the citizens' right to privacy. But they must do this in the context of the times, i.e., of increasing Parliamentary intervention, and of the modern power of judicial review. In my respectful opinion appeals to 18th century precedents of arbitrary action by Secretaries of State and references to general warrants do nothing to throw light on the issue. Furthermore, while the courts may look critically at legislation which impairs the rights of citizens and should resolve any doubt in interpretation in their favour, it is no part of their duty, or power, to restrict or impede the working of legislation, even of unpopular legislation; to do so would be to weaken rather than to advance the democratic process.

It is necessary to be clear at once that Parliament, in conferring these wide powers, has introduced substantial safeguards. Those relevant to this case are three:

No action can be taken under section 20C without the approval of the Board of Inland Revenue—viz., two members, at least, acting personally. This Board consists of senior and responsible officials expert in the subject matter, who must be expected to weigh carefully the issues of public interest involved.

No warrant to enter can be issued except by a Circuit judge, not, as is usually the case, by a magistrate. There has to be laid before him information on oath, and on this he must be satisfied that there is reasonable ground for suspecting the commission of a " tax fraud " and that evidence of it is to be found in the premises sought to be searched. If the judge does his duty (and we must assume that the learned Common Serjeant did in the present case) he must carefully consider for himself the grounds put forward by the Revenue officer and judicially satisfy himself, in relation to each of the premises concerned, that these amount to reasonable grounds for suspecting, etc. It would be quite wrong to suppose that he acts simply as a rubber stamp on the Revenue's application.

The courts retain their full powers of supervision of judicial and executive action. There is nothing in section 20C which cuts these down: on the contrary, Parliament, by using such phrases as " is satisfied ", " has " reasonable cause to believe " must be taken to accept the restraints which courts in many cases have held to be inherent in them. The courts are concerned, in this case, only with two matters bearing upon legality.

First, were the warrants valid? Secondly, can the actual action taken under subsection (3) be challenged on the ground that the officers did not have, or could not have had, reasonable cause to believe that the documents they seized might be required as evidence for the purposes of proceedings in respect of a " tax fraud "? A third possible issue, namely, that there was not before the judge sufficient material on which to be satisfied as the section requires was not pursued, nor thought sustainable by the Court of Appeal. It is not an issue now.

The two first mentioned are the only issues in the case. Three judges have decided them in favour of each side. For myself I have no doubt that the view taken by the Divisional Court on each was correct and I am willing to adopt their judgment. I add a few observations of my own.

I. I can understand very well the perplexity, and indeed indignation, of those present on the premises, when they were searched. Beyond knowing, as appears in the warrant, that the search is in connection with a " tax fraud ", they were not told what the precise nature of the fraud was, when it was committed, or by whom it was committed. In the case of a concern with numerous clients, for example, a bank, without this knowledge the occupier of the premises is totally unable to protect his customers' confidential information from investigation and seizure. I cannot believe that this does not call for a fresh look by Parliament. But, on the plain words of the enactment, the officers are entitled if they can persuade the Board and the judge, to enter and search premises regardless of whom they belong to: a warrant which confers this power is strictly and exactly within the Parliament- any authority, and the occupier has no answer to it. I accept that some information as regards the person(s) who are alleged to have committed an offence and possibly as to the approximate dates of the offences must almost certainly have been laid before the Board and the judge. But the occupier has no right to be told of this at this stage, nor has he the right to be informed of the " reasonable grounds " of which the judge was satisfied. Both courts agree as to this: all this information is clearly protected by the public interest immunity which covers investigations into possible criminal offences. With reference to the police, Lord Reid stated this in these words: " The police are carrying on an unending war with criminals many of " whom are today highly intelligent. So it is essential that there should " be no disclosure of anything which might give any useful information

" to those who organise criminal activities. And it would generally be " wrong to require disclosure in a civil case of anything which might be " material in a pending prosecution; but after a verdict has been given or " it has been decided to take no proceedings there is not the same need " for secrecy.". (Conway v. Rimmer [19681 A.C. 910, 953.)

The Court of Appeal took the view that the warrants were invalid because they did not sufficiently particularise the alleged offence(s). The court did not make clear exactly what particulars should have been given—and indeed I think that this cannot be done. The warrant followed the wording of the statute " fraud in connection with or in relation to tax ": a portmanteau description which covers a number of common law (cheating) and statutory offences (under the Theft Act 1968 et. al.). To require specification at this investigatory stage would be impracticable given the complexity of " tax " frauds " and the different persons who may be involved (companies, officers of companies, accountants, tax consultants, taxpayers, wives of taxpayers etc.). Moreover, particularisation, if required, would no doubt take the form of a listing of one offence and/or another or others and so would be of little help to those concerned. Finally, there would clearly be power, on principles well accepted in the common law, after entry had been made in connection with one particular offence, to seize material bearing upon other offences within the portmanteau. So, particularisation, even if practicable, would not help the occupier.

I am unable, therefore, to escape the conclusion, that adherence to the statutory formula is sufficient.

The warrants, being valid, confer an authority to enter and search: see section 20C (1). This being in terms stated in the Act, I do not appreciate the relevance of an enquiry into the form of search warrants at common law (which in any case admitted of some flexibility in operation) still less into that of warrants of arrest. There is no mystery about the word " warrant ": it simply means a document issued by a person in authority under power conferred in that behalf authorising the doing of an act which would otherwise be illegal. The person affected, of course, has the right to be satisfied that the power to issue it exists: therefore the warrant should (and did) contain a reference to that power. It would be wise to add to it a statement of satisfaction on the part of the judicial authority as to the matters on which he must be satisfied but this is not a requirement and its absence does not go to validity. To complain of its absence in the present case when, as is admitted, no challenge can be made as to the satisfaction, in fact, of the judge, would be technical and indeed irrational. I can find no ground for holding these warrants invalid.

2. The second matter, on which the intervention of the court may be called for, arises under section 20C (3). This confers a statutory power independent of any authority in the warrant to size and remove. Like all statutory powers conferred on executive officers it is subject to supervision by the courts exercising their classic and traditional powers of judicial review. It is undisputed that the words " has reasonable cause to believe " are open to examination in spite of their subjective form (see Nakkuda Ali v. Jayaratne

[1951] AC 66

et.al.). The existence of this reasonable cause, and of the belief founded upon it is ultimately a question of fact to be tried on evidence.

So far as regards these appeals this issue is complicated in three ways. First, it has been raised at an interlocutory stage, and at the very beginning of the investigation, upon affidavit evidence. Secondly, the Revenue have refused, so far, to disclose their reasonable grounds, claiming immunity from so doing, on the grounds stated above. Thirdly, the defendants being, in effect, the Crown or Crown servants, an interlocutory injunction cannot be granted (section 21 of the Crown Proceedings Act 1947).

The Court of Appeal sought to meet this situation by granting a declaration: and recognising, rightly in my opinion, that an interim declaration could not be granted, gave a final declaration in effect that the Revenue had exceeded their powers. I regret that I cannot agree that this

was correct. It is to me apparent that there was a substantial conflict of evidence as to the manner in which the searches were carried out, the respondents broadly contending that the officers gave no real consideration to the question whether individual documents might be required as evidence: the Revenue asserting that they had detailed instructions what to look for and seize and that these were complied with. I shall not further analyse this issue which was fully and satisfactorily treated by the Divisional Court, for I am satisfied that even if, which I doubt, there might have been enough evidence to justify the granting of interlocutory relief, this fell very far short of supporting a final declaration. I believe that the Court of Appeal was itself really of this opinion. The final declaration granted must clearly be set aside.

Two remarks in conclusion. First, I would wish to make it clear that the failure of the respondents at this stage is not necessarily the end of the matter. They can proceed with an action against the Revenue for, in effect, excess of power and for trespass and any aggravation can be taken into account. At some stage, which cannot be particularised now with precision but which broadly would be when criminal proceedings are over, or, within a reasonable time, are not taken, the immunity which exists at the stage of initial investigation will lapse. Then the Revenue will have to make good and specify the existence and cause of their belief that things removed might be required as evidence for the purpose of " tax fraud " proceedings and the issue will be tried in a normal manner. Secondly, I must express reservations as to the suggestion that the law ought to be changed so as to allow interim declarations to be granted. As regards persons other than the Crown, I see no need for this head of relief, given the power to grant interim injunctions. As regards the Crown I can see that there may be formidable objections against allowing, on incomplete evidence, a form of relief which, in effect, may have much the same effect as an injunction. As I have already commented in another context, sensible limits have to be set upon the courts' powers of judicial review of administrative action: these I think, as at present advised, are satisfactorily set by the law as it stands.

The appeals must be allowed and the judgment and orders of the Court of Appeal set aside.

Viscount Dilhorne

My Lords,

On the 12th July 1979 the Common Serjeant at the instance of the appellants issued four warrants under section 20C of the Taxes Management Act 1970 as amended, authorising the search of four premises named in the warrants by the appellant Mr. Raymond Quinlan, a Senior Inspector of Taxes and other persons named in each warrant. The four premises were the homes of Mr. Ronald Arthur Plummer, managing director of Rossminster Ltd., and of Mr. Roy Clifford Turner and the offices of Rossminster Ltd., at 1 Hanover Square London W.1 and the adjoining offices of A.J.R. Financial Services at 19/24 St. George Street. Each warrant was in similar form. That in relation to Rossminster's offices authorised their search by Mr. Quinlan and 63 other officers of the Inland Revenue.

The next day, the 13th July at 7 a.m., named officers of the Inland Revenue accompanied by police officers came to Mr. Plummer's and Mr. Tucker's homes to execute the search warrants relating to those premises. At the same time other officers of the Inland Revenue accom- panied by police officers went to Rossminster's offices and those of A.J.R. Financial Services. There they waited until an employee arrived to let them in but at Mr. Plummer's and Mr. Tucker's homes they demanded admittance at 7 a.m.

The Revenue sought to justify this early visit on the ground that they wanted to get to these homes while someone was at home so as to avoid having to force an entry. This does not appear to me to be a good ground

for arriving at that time. If they had come a little later, they might have caused less disturbance and distress and still have found someone at home. It cannot, however, be said that they acted illegally by demanding entry at that time for a warrant issued under section 20C authorises entry ' at any ' time' even in the middle of the night. If this section is revised, consider- ation might be given to restricting the time within which such a search warrant can be executed, as is done by some other Acts.

The search and seizure of documents and things in the offices of Rossminster and A. J. R. Financial Services continued throughout the day but came to an end that evening on it being learnt that at the instance of Mr. Plummer, Mr. Tucker, Rossminster and A. J. R. Financial Services, Walton J. had granted an injunction against the appellants. In view of the terms of section 21 of the Crown Proceedings Act 1947, this injunction should not have been granted.

On the 16th July 1979 the respondents issued a writ in the Chancery Division against the appellants claiming damages for wrongful interference with their goods, an injunction and delivery up of anything removed by an officer of the Inland Revenue in respect of which that officer had not reasonable cause for belief that it might be required as evidence for the purpose of proceedings in respect of an offence involving fraud in connection with or in relation to tax.

On the 17th July the respondents obtained the leave of the Divisional Court to move that court for an order of mandamus, an injunction and a declaration that the appellants were not entitled to remove and were bound to deliver up all documents and other things in respect of which there was no reasonable cause for belief that they might be required as evidence in such proceedings.

That motion was heard by the Divisional Court (Eveleigh L.J., Park and Woolf JJ.) on the 1st August 1979 and dismissed. The respondents' appeal from that decision was allowed by the Court of Appeal (Lord Denning M.R., Browne and Goff L.J.J.) on the 16th August 1979. That court made orders of certiorari quashing the search warrants and granted a declaration, not to take effect until the appeal to this House had been heard or abandoned, that Mr. Quinlan and the other officers of the Inland Revenue were not entitled to remove the documents and other things taken from the premises searched and ought to deliver them up and to destroy all copies, all extracts and notes etc. they had made.

The warrant authorising the search of Rossminster's offices was in the following terms :-

" IN THE CENTRAL CRIMINAL COURT

"SEARCH WARRANT

" TO: RAYMOND QUINLAN

" AND TO THE PERSONS NAMED IN THE FIRST " SCHEDULE ANNEXED TO THIS WARRANT

" officers of the Board of Inland Revenue

" INFORMATION on oath having been laid this day by Raymond " Quinlan in accordance with the provisions of Section 20C of the Taxes " Management Act 1970 stating that there is reasonable ground for " suspecting that an offence involving fraud in connection with or in " relation to tax has been committed and that evidence of it is to be " found on the premises described in the second schedule annexed " hereto. YOU ARE HEREBY AUTHORISED to enter those " premises, together with all or any of the officers of the Board of " Inland Revenue named in the first schedule hereto and together with " such constables as you may require, if necessary by force, at any time " within 14 days from the time of issue of this Warrant, and search " them; and on entering those premises with this Warrant you may

" seize and remove any things whatsoever found there which you have " reasonable cause to believe may be required as evidence for the " purposes of proceedings in respect of such an offence.

" DATED THIS 12th DAY OF JULY 1979 " Sd. John Leonard " CIRCUIT JUDGE

"THE FIRST SCHEDULE"

(63 names)

" THE SECOND SCHEDULE " 1 Hanover Square London W1R 9RD

"DATED 12th July 1979 " Sd. John Leonard " Circuit Judge."

Section 20C, subsections (1) and (2), reads as follows: -

"(1) If the appropriate judicial authority is satisfied on information " on oath given by an officer of the Board that—

" (a) there is reasonable ground for suspecting that an offence "involving any form of fraud in connection with, or in relation " to, tax has been committed and that evidence of it is to be found " on premises specified in the information; and

" (b) in applying under this section, the officer acts with the approval " of the Board given in relation to the particular case,

" the authority may issue a warrant in writing authorising an officer of " the Board to enter the premises, if necessary by force, at any time " within 14 days from the time of issue of the warrant, and search them.

" (2) Section 4A of the Inland Revenue Regulation Act 1890 (Board's " functions to be exercisable by an officer acting under their authority) " does not apply to the giving of Board approval under this section."

Section 20D provides that a Circuit judge is the appropriate judicial authority in England and Wales for the purposes of section 20C, a section which is free from any kind of ambiguity and in my opinion a model of clarity.

If the terms of this section are reconsidered by Parliament, it might be thought desirable to replace a Circuit judge by a High Court judge as the appropriate judicial authority. The power given by section 20C to seize and remove other person's property and the fact that tax frauds more often than not are of great complexity suggest that it should be the responsibility of a High Court judge to satisfy himself of the matters specified in subsection (1) (a) and (b). In saying that I do not wish to cast any reflection on the Common Serjeant. As the requirement that a judge should be so satisfied is the final safeguard against abuse of the powers given by the section, it might be preferable to place the responsibility for their exercise on a more senior judge.

The Act does not prescribe that such a warrant must be in any particular form. It does not say that it must state that requirements for its issue have been complied with. If the warrants in this case had omitted their first paragraphs and after stating to whom the warrants were addressed, had just stated that the persons named in it were authorised to enter and to search the premises named, I can see no ground on which their validity could have been successfully challenged.

These warrants, however, no doubt with the intention of showing that the requirements for their issue had been complied with, said that infor- mation on oath had been laid in accordance with the provisions of section 20C " stating that there is reasonable ground for suspecting that an offence " involving fraud " had been committed and that evidence of it was to be found on the premises named.

It cannot in my view be emphasised too strongly that the section requires that the appropriate judicial authority should himself be satisfied of these matters and that it does not suffice for the person laying the information to say that he is.

Does the fact that the warrants did not state that the Common Serjeant had satisfied himself of these matters lead to the conclusion that the warrants were in law invalid? That in my opinion would be so if the omission meant that he had not done so. Applications for the issue of warrants under this section cannot, I think, be so very frequent that Circuit judges are familiar with the terms of the section. I do not doubt that before issuing these warrants authorising such extensive searches the Common Serjeant would have looked at the section. If he did, he must have realised that he had to be satisfied and that he was not empowered to act on another person being satisfied. The warrants were not, I expect, drawn up by him and when he signed them, it is much more likely that he failed to notice the omission than that he failed to discharge the duty laid upon him. I see no grounds whatsoever for assuming or inferring that the Common Serjeant misconstrued the section. If he thought—and there is no ground for thinking that he did—that he was entitled to authorise the issue of the warrants merely in reliance on Mr. Quinlan stating on oath that there was reasonable ground for the Board's suspicions, then indeed he would be blameworthy having regard to the clear language of the section.

Although it is not made necessary by the section, I think that it is most desirable that a warrant issued under this section should make it clear that the statutory conditions precedent to the issue of a valid warrant have been complied with, and also that the warrant should state accurately what it authorises to be done.

The issue of a warrant only authorises entry and search. It does not authorise seizure and removal of anything. The power to seize and remove is given by section 20C (3) which is in the following terms:-

" (3) On entering the premises with a warrant under this section, " the officer may seize and remove any things whatsoever found there " which he has reasonable cause to believe may be required as " evidence for the purposes of proceedings in respect of such an " offence as is mentioned in subsection (1) above."

Anyone reading the warrants issued in this case might reasonably conclude that the warrants themselves authorised seizure and removal. If lhat were the case, then it might lend some force to the contention that the warrants should give some indication of the nature of the things which might be seized and removed. Strictly I see no need for the warrant to refer at all to the power to seize and remove but if it is thought desirable to do so, then it should be stated that the power of seizure and removal is exerciseable by virtue of this subsection.

The respondents contend that the warrants should have given some indication of what was being searched for. To be valid, they say, the warrants should have specified or sufficiently identified the nature of the offence or offences suspected. They say that the information contained in the warrants was not specific enough to enable the officers of the Board, the owners of the documents and the respondents to know what the officers were authorised to search for, seize and remove or to enable a court to determine whether the officers had had belief and reasonable cause to believe that a document might be required as evidence.

These contentions found favour in the Court of Appeal, the Master of the Rolls saying that to be valid, a warrant must specify the offence suspected and that " the seizure is limited to those things authorised by " the warrant." Browne L.J. held that a warrant must specify at least the general nature of the offence or offences suspected and Goff L.J. that to be valid, it must state on its face " that it relates to all or to some one or " more " of the criminal offences to which a tax fraud could give rise.

My Lords,

I do not find myself able to agree. The section does not require the warrant to state what criminal offence or offences are suspected. Officers of the Board when making their searches and deciding what to seize, act in accordance with the instructions they have received and do not rely on the terms of the warrant for guidance. The warrant does not authorise seizure or say what may be seized. It is subsection (3) that does that. Tax frauds may take many forms and lead to a variety of criminal charges. If the Court of Appeal is right, it means that before any evidence secured by the search has been considered and when the Circuit judge has only to be satisfied that there is reasonable ground for suspecting the commission of ' an ' offence involving a tax fraud, for the warrant the section then authorises him to issue to be valid, it must specify the offence or offences suspected.

My Lords,

I do not think that these contentions of the respondents and the conclusions of the Court of Appeal on this are right. A warrant issued under the section will be invalid if the provisions of the section are not complied with or if there is some rule of law independent of the section that requires the particular offence or offences to be stated. These warrants did comply with the section and I know of no rule of law that requires that. In the course of the argument reference was made to general warrants. The Master of the Rolls also referred to them. In my view the old well-known cases on general warrants really have no reference to this case. Here the warrants were not general. They authorised named persons to enter named premises and to search them. On entry with such a warrant, their power of seizure and removal was limited by, controlled by and authorised by subsection (3). It may be that there are many persons who think that in 1976 too wide a power was given to the Revenue. If it was, and I express no opinion on that, it must be left to Parliament to narrow the power it gave. That, in my view, cannot be done by judicial interpretation when the language of the enactment is clear and does not warrant it and when that cannot be done in accordance with any rule of law.

For these reasons in my opinion the warrants were not invalid and should not have been held to be.

The respondents also contended that the way in which the search was conducted showed that the officers searching could not reasonably have formed the belief in respect of many of the documents seized that they might be required as evidence in criminal proceedings. Affidavits were sworn by Mr. Plummer, Mr. Tucker and others to establish this and affidavits were tiled in reply by a number of officers of the Inland Revenue. It would not serve any useful purpose to summarise the contents of these affidavits. It suffices to say that there was a conflict of evidence on a number of matters and that the main contention of the respondents was that the times of seizure of the various documents and files shown on lists prepared by the Revenue's officers showed that a great many of them could not possibly have been examined before seizure, and in the absence of examination there could not have been any reasonable belief that they might be required as evidence.

A great many documents were seized and removed. Many officers were employed in the operation. Lists were made up of what was seized and the time of seizure recorded. A short interval of time between two entries on a list would be a strong indication that there could not have been a proper examination, if one officer dealt with the documents referred to in those two entries, but with a number of officers searching and examining documents, the times of seizure do not in my opinion provide the slightest Indication of whether or not before seizure there was examination. The time necessary to form a view whether a file or a document might be required as evidence would vary. If the fraud suspected involved inter-company transactions between a large number of companies, it would not take up much time to decide that a file relating to one of the companies might reasonably be believed as likely to contain material which might be required as evidence; and such a conclusion might properly be reached without looking at every document in the file.

The respondents satisfied the Court of Appeal that the seizure and removal were unlawful. When taking so many documents as were taken in this case, mistakes may occur and some documents be taken that should not have been. But the fact that they should not have been does not, in my opinion, justify the conclusion that the other documents taken were not taken after adequate examination and in the belief that they might be required in evidence. Omnia praesumuntur rite esse acta. If the respondents claimed the entry into their premises was a trespass, they would be met with the answer that the warrants made the entry legal. If they assert that following a lawful entry, documents and things were seized and removed when there was no right to take them, the onus, in my opinion, lies on them to establish a prima facie case of that and that, in my opinion, they have not done.

In these proceedings for a judicial review the Court of Appeal made a final declaration that the appellants should deliver up all they had taken. No injunction can be granted against the Crown but one would expect the Crown to comply with any declaration made. No interim declaration can be made, and while I do not wish to express an opinion on the point, I doubt very much whether it would be advisable that the courts should have power to grant one affecting the Crown which would have much the same effect as an interim injunction.

The Court of Appeal, not having power to make an interim declaration, made a final one. While I would not go so far as to say that there can never be a case where on a judical review a final declaration against the Crown can properly be made, such a case should, I think, be very exceptional. Such a declaration should not be made unless there is no dispute as to the material facts, which is not the case here, or unless the dispute as to the facts has been determined after something in the nature of a trial, which again did not happen here.

In my opinion no final declaration should have been made.

One does not know the nature of the tax fraud, the commission of which the Common Serjeant was satisfied there were reasonable grounds to suspect. It may have been, one does not know, a tax fraud of great magnitude, involving a number of persons and a lot of money. The purpose of the warrants was to enable entry to be made on to premises where it was thought evidence of the fraud might be found.

The effect of the Court of Appeal's order was to prevent evidence which might be required for a criminal prosecution being secured.

If this appeal is allowed, it will not prevent the respondents continuing their action for damages for the wrongful seizure of documents, though if there is a prosecution, it may well be desirable that that action should not be tried until after the conclusion of the criminal case.

In my opinion, for the reasons I have stated, this appeal should be allowed.

Lord Diplock

my lords.

All the events with which this appeal is concerned took place in the course of an investigation by officers of the Board of Inland Revenue into suspected criminal offences. Two competing public interests are involved: that offences involving lax frauds should be detected and punished; and that the right of the individual to the protection of the law from unjustified interference with his use and enjoyment of his private property, should be upheld. What underlies the questions of law which this House must now determine is how those two competing, and at times conflicting, public interests can be reconciled under the new procedure for judicial review for which Order 53 of the Rules of the Supreme Court now provides.

Three questions of law are raised in this appeal.

(1) The first is how much information must be disclosed upon the face of a search warrant issued by a Circuit judge under section 20C(1) of the Taxes Management Act 1970;

(2) the second is: whether upon an application for judicial review of acts of an officer of the Board of Inland Revenue in seizing and removing documents under section 20C(3) any onus lies upon the applicant to show that the officer did not have reasonable grounds for believing that the documents seized might be required as evidence for the purpose of such proceedings as are referred to in that subsection; and

(3) the third is: whether if there is an unresolved conflict of affidavit evidence of relevant fact, it is nevertheless a proper exercise of judicial discretion to make a final declaration in favour of the applicant.

The Validity of the Warrant.

What has to be disclosed upon the face of the search warrant depends upon the true construction of the statute. The construing court ought, no doubt, to remind itself, if reminder should be necessary, that entering a man's house or office, searching it and seizing his goods against his will are tortious acts against which he is entitled to the protection of the court unless the acts can be justified either at common law or under some statutory authority. So if the statutory words relied upon as authorising the acts are ambiguous or obscure, a construction should be placed upon them that is least restrictive of individual rights which would otherwise enjoy the protection of the common law. But judges in performing their constitutional function of expounding what words used by parliament in legislation, mean, must not be over-zealous to search for ambiguities or obscurities in words which on the face of them are plain, simply because the members of the court are out of sympathy with the policy to which the Act appears to give effect.

My Lords,

it does not seem to me that in construing section 20C of the Taxes Management Act 1970 any assistance is to be gained from a consideration of those mid-eighteenth century cases centering on John Wilkes and culminating in Entick v. Carrington (1765) 2 Wils KB 275 , which established the illegality of " general warrants" and were cited by the Master of the Rolls in his judgment in the instant case. The King v. John Wilkes (1763) 2 Wils. K.B. 151 was not concerned with a warrant for arrest and seizure of documents but with a warrant of commitment to the Tower of London of John Wilkes by name and was decided on a point of parliamentary privilege from arrest alone. Huckle v. Money (1763) 2 Wils. K.B. 205 was a case reported on the question of the right of the Court of Common Pleas to order a new trial on the ground that excessive damages had been awarded by a jury. It was an action for false imprisonment brought by a journeyman printer who apparently had played no part in printing the famous issue No. 45 of " The North Briton " but had been arrested under a warrant issued by a Secretary of State authorising a King's messenger to arrest the authors, printers and publishers of that issue (without naming or identifying any of them), to seize all their papers and to bring them before the Secretary of State to be examined by him. Chief Justice Pratt referred to the fact that in this particular case the warrant did not name the persons to be arrested under it as a matter which might be taken into account in aggravation of damages; but as was ultimately held in Entick v. Carrington the invalidity of warrants of this kind did not depend on the absence of the name of the person to be arrested, for Entick was so named. Their invalidity was more fundamental; a Secretary of State, it was held, did not have any power at common law or under the prerogative to order the arrest of any citizen or the seizure of any of his property for the purpose of discovering whether he was guilty of publishing a seditious libel.

In the instant case the search warrant did not purport to be issued by the Circuit judge under any common law or prerogative power but pursuant to section 20C(1) of the Taxes Management Act 1970, alone. That subsection makes it a condition precedent to the issue of the warrant that the Circuit

judge should himself be satisfied by information upon oath that facts exist which constitute reasonable ground for suspecting that an offence involving some form of fraud in connection with or in relation to tax has been committed, and also for suspecting that evidence of the offence is to be found on the premises in respect of which the warrant to search is sought. It is not, in my view, open to your Lordships to approach the instant case on the assumption that the Common Serjeant did not satisfy himself on both these matters, or to imagine circumstances which might have led him to commit so grave a dereliction of his judicial duties. The presumption is that he acted lawfully and properly; and it is only fair to him to say that, in my view, there is nothing in the evidence before your Lordships to suggest the contrary; nor, indeed, have the respondents themselves so contended.

All that the subsection expressly requires shall be specified in the warrant are the address of the premises to be searched and the name of the officer or officers of the Board who are authorised to search them. The premises need not be in the occupation of the person suspected of the offence; they may be premises of some wholly innocent custodian or third party. The matter is still at the investigatory stage; good grounds must exist for suspecting that a tax fraud has been committed, but as yet there is not sufficient evidence in a form admissible at a criminal trial to prove it. The sole purpose of the search is to obtain such evidence.

Even though the statute may not strictly so require (a matter on which I express no concluded opinion) the warrant in my view ought to state upon its face the statutory authority under which it has been issued. This the form of warrant issued in the instant case does, though I agree with my noble and learned friend, Viscount Dilhorne, that the wording of the recital of the fulfilment of the two statutory conditions precedent to its issue might he improved. But for the reference to section 20C in accordance with whose provisions the information is stated to have been laid, the wording of the warrant would be consistent with its meaning that the information had not specified for consideration by the judge the grounds of suspicion on which the informant relied; but the express reference to the section, in my view, resolves any ambiguity and makes untenable the suggestion that the preamble to the warrant constitutes an admission by the judge that he had adopted blindly a statement of the informant that there existed some reasonable grounds for suspicion the nature of which, however, was not disclosed. This was not a contention that the respondents were willing to advance. The warrant, in my view, ought also to state what are the things found on the premises that the searching officers are entitled to seize and to remove, i.e. potential evidence of a particular category of offences. This form of warrant in the instant case also does by reproducing the terms of section 20C(3).

Ought it to disclose more in order to be a valid warrant under the section? It was submitted on behalf of the respondents that it was defective in three respects. First, it was said, it ought to identify the suspected offender, secondly, it ought to specify which one or more of the six or more species of offences which fall within the genus " an offence involving any " form of fraud in connection with, or in relation to, tax ", the suspect is suspected of having committed, and thirdly it ought to state the date of any offences of which he is suspected.

My Lords,

if the subsection does indeed require that any of this additional information should be disclosed upon the face of the warrant, this must be by necessary implication only. There is no express requirement; and for my part I cannot see that any such implication is justified. The information would not protect the innocent; it might well assist the guilty to destroy or to remove beyond the jurisdiction of the court of trial the documentary evidence of their tax frauds. Tax frauds generally involve the use of con- federates, whether ignorant of or parties to the fraud. To identify a suspect where the search extends to premises that are not in his personal occupation is to alert him to the suspicions of the Revenue and if they are well founded, it may be give him an opportunity of covering his tracks; while if the

suspicions ultimately turn out to be groundless, his reputation with those whose premises have been searched will be unnecessarily besmirched. It is to be observed that the form of warrant at common law to search premises for stolen goods does not state who is alleged to have been the thief. As regards more detailed specification in the warrant of the offence of which the Circuit judge was satisfied that there were reasonable grounds for suspecting had been committed this would not help the person whose premises were searched to know what documents were liable to be seized, since the right of seizure under subsection (3) is not limited to documents that may be required as evidence in proceedings for that offence alone but, on the true construction of the subsection, extends to documents that may be required as evidence in proceedings for any other offence that falls within the genus of offences " involving any kind of fraud in connection with, or " in relation to, tax ". This, as it seems to me, is the plain meaning of the words " such an offence as is mentioned in subsection (1) above." Nor do I find it surprising that Parliament should grant a power of search under the warrant wider in its scope than those things which it was already suspected would be found on the premises when the warrant was issued. Even at common law as it had developed by the time the Act was passed a warrant to search premises for stolen goods particularised in the warrant justified seizure of other goods found upon the premises at the time the warrant was executed if there were reasonable grounds for believing that those other goods were stolen. Chic Fashions Ltd. v. Jones [19681 2 Q.B. 299.

In agreement with the Divisional Court I would accordingly uphold the sufficiency and validity of the search warrant.

The Onus of Proof on an Application for Judicial Review.

With the issue of the warrant the functions and responsibilities of the Circuit judge come to an end. The power of the officer of the Board to seize and remove things that he finds upon the premises which the warrant authorises him to enter and search, is conferred directly upon him by subsection (3) which limits his powers of seizure and removal to things " which he has reasonable cause to believe may be required as " evidence for the purposes of proceedings " for an offence involving a tax fraud. These words appearing in a statute do not make conclusive the officer's own honest opinion, that he has reasonable cause for the prescribed belief. The grounds on which the officer acted must be sufficient to induce in a reasonable person the required belief before he can validly seize and remove anything under the subsection. This was affirmed in Nakkuda Ali v. Jayaratne [1951] A.C.66, a decision of the Privy Council in which Lord Radcliffe writing for the Board expressed the view that the majority speeches in Liversidge v. Anderson [1942] A.C.206, in which a contrary construction had been placed on similar words in the wartime Emergency Regulations 18B, should be regarded as an authority for the meaning of that phrase in that particular regulation alone. For my part I think the time has come to acknowledge openly that the majority of this House in Liversidge v. Anderson were expediently and, at that time, perhaps, excusably, wrong and the dissenting speech of Lord Atkin was right.

I would also accept that since the act of handling a man's goods without his permission is prima facie tortious, at the trial of a civil action for trespass to goods based on the seizure and removal of things by an officer of the Board in purported exercise of his powers under the subsection, the onus would be upon the officer to satisfy the court that there did in fact exist reasonable grounds that were known to him for believing that the documents he removed might be required as evidence in proceedings for some offence involving a tax fraud—not that they would be so required, for that the seizing officer could not know, but that they might be required if sufficient admissible evidence were ultimately forthcoming to support a prosecution for the offence and it were decided to prosecute. But although this onus would lie upon the officer at the trial, there remains the question : At what stage in the civil action is the officer bound to disclose the grounds of his belief? It is at this point that the problem is reached of reconciling

the two competing and conflicting public interests which I mentioned at the outset that offences involving tax frauds should be detected and punished, and that the right of the individual to the protection of the law from unjustified interference with his private property should be upheld.

What is required for the protection of the former public interest was stated by Lord Reid in that part of his speech in Conway v. Rimmer [1968] A.C.910 at pp. 935/4, which dealt with public interest immunity from discovery in civil actions of documents and information in the hands of the police. What he said appears to me to apply with equal force to the Board of Inland Revenue as to the police and to those who perpetrate tax frauds as it does to those who organise other criminal activities.

" The police are carrying on an unending war with criminals many " of whom are to-day highly intelligent. So it is essential that there " should be no disclosure of anything which might give any useful " information to those who organise criminal activities. And it " would generally be wrong to require disclosure in a civil case of " anything which might be material in a pending prosecution; but " after a verdict has been given or it has been decided to take no " proceedings there is not the same need for secrecy."

The public interest in immunity from disclosure of the grounds of the officer's belief that a document that he seized may be required as evidence in a future prosecution for an offence involving a tax fraud, is thus, in general, temporary in its nature, except as regards identity of informants c.f. D. v. N.S.P.C.C. [1977] A.C. 602 and possibly new and unusual methods of investigation used by the Inland Revenue. This, as it seems to me, provides an obvious method of reconciling the two conflicting public interests where an ordinary civil action is involved. If there is to be a criminal prosecution it is, in my view, clearly in the public interest in the proper administration of justice, both criminal and civil, that the civil action should not proceed to trial until the criminal trial is over; so discovery, whether of documents or by interrogatories, directed to eliciting the factual grounds for the officer's belief, can be deferred at least until the Inland Revenue have had a reasonable time to complete their investigations into suspected tax frauds and to decide whether to bring criminal proceedings at all and, if so, for what offences. If they decide to bring proceedings the public interest immunity would continue to apply until the conclusion of the criminal trial; if they decide not to bring any criminal proceedings the public interest immunity would come to an end with that decision. The court in the civil action could and should be vigilant to see that the Inland Revenue proceeded with their investigations with reasonable dispatch and reached their decision whether to prosecute or not without unreasonable delay. If this were not done the court could properly hold continuation of the immunity to be no longer justified in the public interest, and allow discovery to go ahead.

In cases where those claiming a public interest immunity against premature disclosure of information relating to criminal investigations or pending prosecutions are not (unlike the appellants in the instant case) protected against injunctive relief by section 21 of the Crown Proceedings Act 1947, the immunity would, in my view, extend to applications for an interlocutory mandatory order for return of the documents seized. Despite the fact that when the action came to be tried the onus would lie upon the defendant to show that there existed reasonable grounds for his belief that they might be required as evidence in criminal proceedings, the court should not require him to disclose the grounds of his belief in opposition to the claim for interlocutory relief, but should be satisfied with his statement on affidavit that he had reasonable grounds for his belief, unless the other evidence on the application was strong enough to justify the inference that no reasonable person could have thought so. It is to be borne in mind that if at the trial it should turn out that the defendant was unable to satisfy the onus of proving that reasonable grounds did in fact exist, the plaintiff has the advantage that the action falls into one of those exceptional categories in which punitive damages may still be awarded. Rookes v. Barnard

[1964] AC 1129

; Broome v. Cassell & Co. Ltd.

[1972] AC 1027

In the same way, it would not in my view be open to a person claiming to have been injured by the purported but unlawful exercise by a public officer of statutory powers, to circumvent the public interest immunity against premature disclosure of the grounds on which the officer's exercise of the power was based, by applying under Order 53 of the Rules of the Supreme Court for judicial review instead of bringing a civil action. Order 53 amends and simplifies the procedure for obtaining on a single application the kind of relief that was formerly obtainable only in an ordinary civil action against a public officer or authority and the kind of relief that was formerly obtain- able only upon an application for a prerogative order of mandamus, pro- hibition or certiorari; but it does not alter the differing roles played by the court in applications for these two categories of relief.

Seizure of documents by an officer of the Board under section 20C (3) involves a decision by the officer as to what documents he may seize. The subsection prescribes what the state of mind of the officer must be in order to make it lawful for him to decide to seize a document: he must believe that the document may be required as evidence in criminal proceedings for some form of tax fraud and that belief must be based on reasonable grounds. The decision-making power is conferred by the statute upon the officer of the Board. He is not required to give any reasons for his decision and the public interest immunity provides justification for any refusal to do so. Since he does not disclose his reasons there can be no question of setting aside his decision for error of law on the face of the record and the only ground upon which it can be attacked upon judicial review is that it was ultra vires because a condition precedent to his forming the belief which the statute prescribes, viz. that it should be based upon reasonable grounds, was not satisfied. Where Parliament has designated a public officer us decision-maker for a particular class of decisions the High Court, acting as a reviewing court under Order 53, is not a court of appeal. It must proceed on the presumption omnia praesumuntur rite esse acta until that presumption can be displaced by the applicant for review—upon whom the onus lies of doing so. Since no reasons have been given by the decision-maker and no unfavourable inference can be drawn for this fact because there is obvious justification for his failure to do so, the presumption that he acted intra vires can only be displaced by evidence of facts which cannot be reconciled with there having been reasonable cause for his belief that the documents might be required as evidence or alternatively which cannot be reconciled with his having held such belief at all.

I agree with my noble and learned friend Viscount Dilhorne that the evidence filed on behalf of the applicants in the instant case would have fallen short of that even if there had been no affidavits in answer filed on behalf of the Board to throw a different light upon the matter. So I would hold, as the Divisional Court did, that the respondents have failed to establish upon their application for judicial review that the officers of the Board acted ultra vires or otherwise unlawfully in seizing any of the documents that they seized.

The Final Declaration.

There was a clear conflict of affidavit evidence of relevant facts before the Court of Appeal as to the time spent by officers in examining individual documents and files before deciding to seize them. The respondents contend the time spent on examining at any rate some of the documents seized was too short to enable the officer concerned to consider whether or not there was reasonable cause to believe that the document might be required as evidence in criminal proceedings; the appellants deny this. Clearly there are issues of fact to be resolved which cannot with justice be disposed of on the existing affidavit evidence.

The Court of Appeal were of opinion, which I do not share, that on the affidavit evidence before them the respondents had made out a prima facie case that all the documents had been seized unlawfully and ought to be delivered up to the respondents. But for the fact that the appellants were

officers of the Crown against whom there was no jurisdiction to grant injunctive relief, it would appear that the Court of Appeal would have thought it appropriate to grant an interlocutory injunction only, leaving the question of whether the respondents were entitled to a final injunction to be decided on full oral evidence at the trial. However, section 21 of the Crown Proceedings Act 1947 permits only a declaration of the rights of the parties in lieu of an injunction against officers of the Crown and it has been held, in my continued view correctly, that this does not empower the court to grant interlocutory declarations which would be a contradiction in terms. International General Electric Co. of New York Ltd. v. Commissioners of Customs and Excise

[1962] 1 Ch. 784

. Faced with this dilemma the Court of Appeal made a final declaration instead.

In so far as this declaration was based upon the quashing of the search warrant only it may be that a final declaration was appropriate, though I express no concluded view on that; but in so far as it was based in the alternative upon the court's prima facie view only, formed upon conflicting affidavit evidence, that even if the warrant were valid the actual seizure of documents by the officers of the Board was unlawful, it was, in my view, clearly wrong to make a final declaration which would have the effect of making this hotly disputed issue res judicata between the parties without any proper trial.

My Lords,

this serves once again to draw attention to what, for my part, I regard as a serious procedural defect in the English system of administrative law: it provides no means of obtaining interlocutory relief against the Crown and its officers. The useful reforms effected by the amendment to the Rules of Court by substituting the new Order 53 for the old system of prerogative orders, could not overcome this procedural defect, which would require primary legislation. Such legislation has been recommended in the Report of the Law Commission on which the revision of Order 53 was based. It is greatly to be hoped that the recommendation will not continue to fall upon deaf parliamentary ears.

Lord Salmon

my lords.

It is very much in the public interest that anyone who commits an offence involving any form of fraud in relation to tax—a very grave offence—should be brought to justice. It is at least equally in the public interest that individual liberty should be protected by the judges who have the traditional right and duty to protect individuals from an abuse of power by the executive. Accordingly, at common law, it would be unlawful for any officer of the Inland Revenue or any member of the police to force his way into the home or business premises of any person and search for and seize any documents he might find there, even if he believed that there was reasonable ground for suspecting that an offence involving any form of fraud in relation to tax had been committed and that the documents seized might be required as evidence for the purpose of proceedings in respect of the offence which he suspected.

The uncontradicted evidence shows that in the early morning of Friday, 13th July 1979,

(a) several officers of the Inland Revenue and a detective inspector entered 27, Radnor Place, London, W.2. the home of Mr. R. A. Plummer, on a warrant (to which I shall refer later). Mr. Plummer is a chartered accountant, a Fellow of the Institute of Taxation and the Managing Director of Rossminster Ltd. This company carries on business as a bank and is a member of the Rossminster Group of companies. Virtually all the papers and documents which Mr. Plummer's house contained were seized and removed.

A large number of officers of the Inland Revenue and of the police entered the Rossminster Bank on a warrant and took away van loads of documents leaving very few behind them. They remained in the premises all day and left them shortly after 6 p.m. The banking business of Rossminster Ltd. was carried on in a separate part of the premises at 1, Hanover Square, London, W.1. Other parts of those premises were occupied by other companies of the Rossminster Group whose business it was to devise lawful schemes to enable clients lawfully to avoid tax.

Much the same as occurred at 1, Hanover Square occurred at the premises of A. J. R. Financial Services Ltd. at 19/24, St. George Street, London, W.1. A. J. R. carries on the business of providing secretarial and accounting services to several hundred clients. The Rossminster group of companies is one of its best clients but otherwise has no connection with it.

(d) Much the same occurred at Mr. R. C. Tucker's house as occurred at Mr. Plummer's. Mr. Tucker, who is a chartered accountant, has had a close business relationship with the Rossminster Group of companies for some time. Recently, before the 13th July, he left his own offices which he had occupied for seven years and moved into 1, Hanover Square for the time being.

The Inland Revenue was asked by or on behalf of everyone whose home or offices were searched and whose papers and documents were seized, what offence was alleged to have been committed and by whom. The Inland Revenue refused to give any answer to either part of that question.

It seems to me to be obvious that the news of the events I have described must have spread like wild fire and been a calamity for those who experienced them. Their names must have been seriously tarnished and they have no doubt suffered serious financial loss. This must apply also to the Rossminster Group of companies; in particular those companies in the Group whose business was to devise lawful schemes for avoiding tax which would otherwise have been exigible from their clients. No sensible client would be likely to continue to employ anyone to draw up such a scheme for him if he contemplated that the scheme might land him in prison.

On Friday the 13th July the Bank had an issued share capital of £1,250,000, about one thousand customers with current accounts and more than £6,000,000 held for customers on deposit. On Monday, 16th July there was a run on the bank; on that day, £1,956,695 was withdrawn by customers and instructions given for the withdrawal of over £400,000 on the following day; these instructions were obeyed.

The Bank had intended to apply to the Bank of England for an important licence under the Banking Act 1979 and had been reporting quarterly to the Bank of England on its financial position since its inception.

On the afternoon of Monday, 16th July Mr. Roper of the Bank of England telephoned a director of the Bank enquiring about the circumstances surrounding the Inland Revenue's seizure of the Bank's documents on the previous Friday. The director explained what had happened and Mr. Roper informed him that it was unlikely that the Bank of England would entertain any application for a licence until the situation with the Inland Revenue had been clarified.

It is impossible at this stage to know when the prosecution (if there is to be a prosecution) will take place or, if there is to be no prosecution, when the Inland Revenue will announce its decision. More than four months have already gone by and no decision has been made—and none may be made for years. In the meantime, vast sums of money may be lost as a result of the acts done by the Inland Revenue on 13th July 1979; and the persons concerned may be ruined. Moreover, I doubt whether these persons will ever be able to recover the loss they will have suffered even if the search warrants are invalid. The Inland Revenue would no doubt put

forward the defence to any proceedings brought against them for damages for entering the premises concerned, that they had entered on the authority of a warrant permitting them to enter and issued on 12th July 1979 by a Circuit judge.

I express no concluded view as to whether the plaintiffs would be able to discharge the onus of proof (which would undoubtedly be upon them) of showing, maybe many years after 12th July 1979

(a) that on that date, there had been no reasonable ground for suspecting that an offence involving any form of fraud in relation to tax had been committed and

(b) that the Inland Revenue had no reasonable cause to believe that the documents which they seized and removed might be required in respect of an offence of the kind I have mentioned.

Prior to 1976 I should have thought that the law afforded the Inland Revenue ample power to detect offences involving any form of fraud in relation to tax. Nevertheless section 20C inserted into the Taxes Manage- ment Act 1970 by section 57 of the Finance Act 1976 greatly increased the Inland Revenue's pre-1976 powers by introducing what I regard as an altogether unnecessary power which, in my view, dangerously encroaches on individual liberty.

Section 20C (ibid), so far as relevant, reads as follows:

" (1) If the appropriate judicial authority is satisfied on information " on oath given by an officer of the Board that—

" (a) there is reasonable ground for suspecting that an offence " involving any form of fraud in connection with, or in relation " to, tax has been committed and that evidence of it is to be " found on premises specified in the information; and

" (b) in applying under this section, the officer acts with the approval " of the Board given in relation to the particular case,

" (3) On entering the premises with a warrant under this section, the " officer may seize and remove any things whatsoever found there which " he has reasonable cause to believe may be required as evidence for " the purposes of proceedings in respect of such an offence as is " mentioned in subsection (1) above ".

However much the courts may deprecate an Act they must apply it. It is not possible by torturing its language or by any other means to construe it so as to give it a meaning which Parliament clearly did not intend it to bear. I am certain my noble and learned friend Lord Denning, M.R. was not departing from that principle when he said: " Once great power is " granted, there is a danger of it being abused. Rather than risk such " abuse, it is ... the duty of the courts so to construe the statute as to " see that it encroaches as little as possible upon the liberties of the people " of England ".

I respectfully agree with this passage which I think is consistent with the view that the courts should construe a statute which encroaches upon liberty so that it encroaches upon it no more than the statute allows, expressly or by necessary implication.

Section 20C says nothing more in express terms about the contents of a warrant than that the appropriate judicial authority " may issue a warrant " in writing authorising an officer of the Board to enter the premises, if " necessary by force, at any time within 14 days from the time of issue of " the warrant, and search them ".

It may be that a warrant is valid which says nothing more than that it authorises officers of the Inland Revenue Board to enter the premises and search them. Such a warrant may be sufficient to state by implication

that the important conditions in section 20(C)(1) (a) and (b) have been complied with. I express no concluded view on this topic because the warrants in the present case are very different in form from those that I have postulated. In my view, they show that section 20(C)(1) (a) was not complied with for reasons which I shall presently explain.

To issue search warrants which are based on no more than suspicion can lead to disastrous results for persons who may be innocent of fraud. Suspicion can easily be aroused, and honestly aroused in some more easily than in others—without any reasonable ground to support it. Officers of the Inland Revenue Board are not immune from having such suspicions any more than many other highly respectable bodies of people. That, I think, is why Parliament, certainly not as clearly as it should have done, laid down in 20C (1) (a) that if officers of the Board require search warrants, they must give evidence on oath laying before a Circuit judge the grounds for their suspicion and that the duty of the judge must then be to consider the evidence and decide whether he (the judge) is satisfied that it establishes reasonable ground for the Board's suspicion. In a complicated case such as the present, it would probably take a long time for the judge, before reaching his decision, to sift and weigh the evidence laid before him on oath.

In the present case the judge to whom the application for the warrants was made held the distinguished office of Common Serjeant at the Central Criminal Court. He. like all other Circuit judges trying crime are kept extremely busy, particularly at the Old Bailey. Issuing ordinary search warrants is not regarded as being a matter which takes up more than a few minutes. They are normally issued by Justices of the Peace.

We do not know whether the Common Serjeant was told anything in advance to suggest that the application for the search warrants in the present case was likely to take a long time. It may well be that no papers had been submitted before the application and that all the Common Serjeant had been told was that the Board were going to apply to him for some search warrants under the Taxes Management Act 1970. I should be surprised if any copy of that Act is to be found in the Old Bailey's Library.

Mr. Raymond Quinlan, one of the Board's inspectors, represented the Board on the application for the warrants. He probably handed the judge a copy of the Act. His affidavit, sworn in the present proceedings, shows that he had made a thorough investigation of the activities of the Rossminster Group of companies and other persons and bodies with whom the Group had special relationships. He informed the Common Serjeant on oath (as the warrant signed by the Common Serjeant shows) that he had reasonable ground for suspecting that an offence involving fraud in relation to tax had been committed and that evidence establishing fraud might be found on the premises described later in the Second Schedule annexed to the warrants. No one could blame the Common Serjeant for thinking that Mr. Quinlan's oath stating that there was reasonable ground for the Board's suspicion was something on which he could and indeed should rely; and he accordingly signed the search warrants. I would like to make it plain that, in my respectful view, no blame of any kind can be attributed to the learned judge. Section 20C is by no means as clear as it should be, and there is no reason to suppose that the judge had had sufficient opportunity to study it at length before the application in the present case was made.

The section is, in my view, so drafted that if an officer of the Inland Revenue who had made a long and careful investigation of the respondents' affairs, informed the judge on oath that there is reasonable ground for suspecting that an offence or offences involving fraud in relation to tax had been committed etc., the judge might well make the mistake of misconstruing section 20C as meaning that the information given on oath was sufficient to satisfy him that there was reasonable ground for suspicion and to empower him to issue the warrants.

Each of the warrants read as follows: —

" Search Warrant. To: Raymond Quinlan and to the persons " named in the first schedule annexed to this warrant Officers of the " Board of Inland Revenue

" Information on oath having been laid this day by Raymond " Quinlan in accordance with the provisions of Section 20C of the " Taxes Management Act 1970 stating (the underlining is mine) that " there is reasonable ground for suspecting that an offence involving " fraud in connection with or in relation to tax has been committed " and that evidence of it is to be found on the premises described in " the second schedule annexed hereto.

" You are hereby authorised to enter those premises, together with " all or any of the officers of the Board of Inland Revenue named in " the first schedule hereto and together with such constables as you " may require, if necessary by force, at any time within 14 days from " the time of issue of this Warrant, and search them; and on entering " those premises with this Warrant you may seize and remove any " things whatsoever found there which you have reasonable cause to " believe may be required as evidence for the purposes of proceedings " in respect of such an offence.

"Dated this 12th day of July 1979"—signed by the Circuit judge.

The first part of the warrant explains the grounds on which the warrant is issued. In my view, this part of the warrant makes it plain that the warrant was issued on the faith of the information on oath by Raymond Quinlan stating that there was reasonable ground for suspecting, etc. It follows therefore that section 20C(l) (a) was not complied with. If it had been, the first part of the warrant would have read quite differently, perhaps somewhat as follows:

" Evidence on oath which establishes that there is reasonable " ground for suspecting etc. having been laid before me this day by " Raymond Quinlan, I am satisfied in accordance with the provisions " of section 20C of the Taxes Management Act 1970 that there is " reasonable ground for suspecting etc. . . .".

Section 20C makes a wide inroad into the citizen's basic human rights, the right to privacy in his own home and business premises and the right to keep what belongs to him. It allows the Inland Revenue the power to force its way into a man's home or offices and deprive him of his private papers and books. In my view, it provides only one real safeguard against an abuse of power. That safeguard is not that the Inland Revenue is satisfied that there is reasonable ground for suspecting that an offence involving fraud in relation to tax has been committed, but that the judge who issues the search warrant is so satisfied after he has been told on oath by the Inland Revenue full details of the facts which it has discovered. That is why I am inclined to the view that it is implicit in section 20C that a search warrant signed by the judge should state that he is so satisfied, i.e. that the warrant should always give the reason for its issue. In any event, I hope that in the future the practice will always be that such warrants state plainly that the judge who signed them is so satisfied.

I am, however, convinced that search warrants like the present are invalid because they recite as the reason for their issue only that an officer of the Inland Revenue has stated on oath that there is reasonable ground for suspecting that an offence involving fraud in relation to tax has been committed. If the judge gives that as his reason for issuing a warrant, it seems to me to follow that his reason for issuing it cannot be that he is so satisfied by the information given to him on oath by an officer of the Inland Revenue of the detailed facts which the officer has ascertained; but that the judge's reason for issuing the warrant was because the officer had stated on oath that there is reasonable ground to suspect, etc. I am afraid that I do not agree that the warrants in the present case make it clear that they were issued by the judge pursuant to the powers conferred on him by section 20C. Indeed, for the reasons I have given, I consider that the exact contrary is made clear by these warrants.

It had never occurred to me before reading some of your Lordships' speeches that anyone could imagine that I was suggesting that this highly respected judge had acted improperly and unfairly. I had hoped that I had made it crystal clear that I was suggesting no more than that, in my opinion, the judge had misconstrued a statutory provision (section 20C) whose meaning was not very clear—the sort of mistake which every judge, except perhaps the infallible, would agree that he has made at some time during his career. To make such a mistake surely cannot be regarded as improper or unfair, still less as a dereliction by the judge of his judicial duties.

I think that the point that I have been making is covered by the following words in the Notice pursuant to Order 53 rule 6(3) dated the 23rd July, 1979:

" That the learned judge erred in law ... in issuing the said " warrants in that he was not satisfied . . . that there was reasonable " ground for suspecting that any . . . person had at any . . . time " done any . . . act such as to constitute an act involving fraud . . . " in relation to tax."

This point, however, was not argued in the Divisional Court nor in the Court of Appeal nor in your Lordships' House, nor did it appear in the respondents case. I did, however, put it to counsel for the appellants in the course of his argument.

I recognise, of course, that in any ordinary case between litigant and litigant the point could not be allowed to be relied on now. This, however, is by no means any ordinary case. It is a case of great constitutional importance which can seriously affect individual liberty. The point which I have ventured to make, as I have already said, in my opinion affords the only real safeguard against an abuse of power by the Inland Revenue. I recognise that section 20C, not very clearly, indicates that a warrant is invalid if it shows on its face (as, in my opinion, each of the four relevant warrants do) that it was issued by the judge not because he was satisfied by any evidence of facts discovered by the Inland Revenue and put before him on oath that there was reasonable ground for suspecting that an offence involving fraud relating to tax had been committed, etc. but because he was told on oath by an officer of the Inland Revenue that there was reasonable ground for suspecting that such an offence had been committed. In my view, the judge misconstrued section 20C by thinking that it laid down that what he had been told on oath by the officer of the Inland Revenue was .sufficient to allow the warrants to be issued.

I entirely agree with your Lordships for the reasons which you have given that the warrants cannot be successfully attacked on the ground that they do not sufficiently particularise the offences to which they refer; and that the well-known mid-eighteenth century authorities on which the Court of Appeal relied lend no real support to the contrary view.

The genus of the offences specified in section 20C is specified in the warrants. There are six or more species of that genus. If the warrants were to set out these species in the alternative to each other, as they might do, they could not help the persons whose homes or offices were entered and searched.

I agree for the reasons stated by my noble and learned friend Viscount Dilhorne that so long as section 20C remains on the Statute Book, it is highly desirable that it should be amended so that the application for a warrant should be made to a High Court judge. This is certainly not out of any disrespect for the Circuit judges but because of the enormous powers conferred upon the Inland Revenue under section 20C, the great harm it may do to individual liberty and the ruin it may inflict upon those upon whom it is exercised, however innocent they may be.

I also agree that having regard to the conflicting affidavit evidence, it was wrong to hold that, even if the warrants were valid, the seizure of documents by the officers of the Board was unlawful because their failure

properly to examine the documents which they seized made it impossible for them to have reasonable cause to believe that the documents might be required as evidence. Such an issue could only be properly decided by a judge at an ordinary trial after he had seen the witnesses on each side examined and cross-examined. This however is of no great importance since section 20C(3) empowers an officer " on entering the premises with " a warrant under this section " to seize and remove documents which he has reasonable cause to believe might be required as evidence. The warrant referred to in subsection (3) must, in my view, be a valid warrant. And accordingly the powers conferred by the subsection cannot operate if the warrants were invalid as, in my opinion, they were.

My Lords,

for the reasons I have stated I would dismiss the appeal.

Lord Scarman

My Lords,

These appeals raise two questions:— the validity of the search warrants issued by the Common Serjeant, and the legality of the seizure and removal by officers of the Inland Revenue of the documents found on the premises searched. The respondents are applicants for judicial review of the validity of the warrants and of the legality of the seizure. They attack the warrants by seeking an order of certiorari to remove them into the Queen's Bench Division so that they may be quashed: and they seek a declaration that the seizure and removal of the documents were unlawful. If they fail in their case against the warrants, they may yet succeed in their case against the seizure and removal of the documents. But, if they succeed against the warrants, it does not necessarily follow that they must succeed in their attack upon the seizure and removal of the documents. Both forms of relief were sought, as is now possible, by applying for judicial review. The Divisional Court refused the applicants any relief. The Court of Appeal upheld the applicants' appeal, quashing the warrants and declaring that the officers of the Inland Revenue " were at no material time entitled to " remove " the documents and things taken from the premises searched.

My Lords,

I agree that these appeals should be allowed and add some observations only because of the importance of the issues raised, and because I share the anxieties felt by the Court of Appeal. If power exists for officers of the Board of Inland Revenue to enter premises, if by necessary by force, at any time of the day or night and then seize and remove any things whatsoever found there which they have reasonable cause to believe may be required as evidence for the purposes of proceedings in respect of any offence or offences involving any form of fraud in connection with, or in relation to, tax, it is the duty of the courts to see that it is not abused: for it is a breath-taking inroad upon the individual's right of privacy and right of property. Important as is the public interest in the detection and punishment of tax frauds, it is not to be compared with the public interest in the right of men and women to be secure in the privacy of their homes, their offices, and their papers. Yet if the law is that no particulars of the offence or offences suspected, other than that they are offences of tax fraud, need be given, how can the householder, or occupier of premises, hope to obtain an effective judicial review of the entry, search and seizure at the time of the events or shortly thereafter? And telling the victim that long after the event he may go to law and recover damages if he can prove the Revenue acted unlawfully is cold comfort—even if he can afford it.

It is therefore with regret that I have to accept that, if the requirements of section 20C of the Taxes Management Act 1970, a section which entered the law as an amendment introduced by section 57 of the Finance Act 1976, are met, the power exists to enter, and search premises, and seize and remove things there found and that the prospect of an immediate judicial review of the exercise of the power is dim. Nevertheless, what Lord Camden C.J. said in Entick v. Carrington in 1765, 19 State Trials

Column 1066, remains good law today. "No man can set his foot upon " my ground without my licence, but he is liable to an action, though the " damage be nothing ... If he admits the fact, he is bound to shew by " way of justification, that some positive law has empowered or excused " him ". The positive law relied on in this case is the statute. If the requirements of the statute have been met, there is justification: but, if they have not, there is none.

The essential requirement of the statute is the issue under subsection (1) of the section by a judicial authority of a warrant in writing authorising an officer of the Board to enter the premises, if necessary by force, at any time within 14 days from the time of issue of the warrant and search them. The subsection provides that the appropriate judicial authority (in England and Wales, a Circuit judge) may issue a warrant only if satisfied on information on oath given by an officer of the Board of two matters:- first, that there is reasonable ground for suspecting that an offence involving a tax fraud has been committed and that evidence of it is to be found on premises specified in the information: and secondly, that in making his application the officer has the approval of the Board given (by at least two members) in relation to the particular case.

The judge must himself be satisfied. It is not enough that the officer should state on oath that he is satisfied, which is all that the warrants say in the present case. The issue of the warrant is a judicial act, and must be preceded by a judicial inquiry which satisfies the judge that the requirements for its issue have been met.

There is no reason to believe, nor is it possible, as counsel for the respondents properly conceded, to suggest, that in this case the Common Serjeant failed in his judicial duty. I cannot agree with my noble and learned friend. Lord Salmon, that the words of the warrant make clear that the Common Serjeant was content to rely solely on Mr. Quinlan's oath, and so neglected to satisfy himself. They do not even, in my view raise a doubt. It is not to be supposed, in the absence of evidence, that a Circuit judge will have been so careless of the rights of citizens as to fail to carry out his duty, when a statute plainly requires him to act as the protector of those rights. Neither in the Divisional Court where the respondents lost, nor in the Court of Appeal where they succeeded, was any such suggestion made, though it had found a place in the amended statement filed by the respondents in support of their application for judicial review. The point which the respondents have taken on the four warrants is a different one, namely that the warrants did not state by whom and when there are reasonable grounds for suspecting an offence has been committed or the precise nature or the particular acts constituting the suspected offence.

It is, therefore, necessary to approach the case upon the basis that the judge did satisfy himself upon the matters which he was required to be satisfied before issuing the warrants.

The only warrant required by the statute is one authorising entry and search. Clearly it must specify the premises to be entered and searched. But that is the limit of the authority given by the warrant. The judge's warrant is not the authority for seizing and removing things found on the premises. That power is conferred by the statute, i.e. subsection (3). As the Divisional Court well said, the warrant is only the key of the door. it does not confer the power to seize and remove, although, until and unless it opens the door, the power to seize and remove does not arise.

Each of the four warrants which the judge issued did in terms authorise the officers it named to enter and search the premises which it identified. Each warrant also made clear that it was issued by the judge pursuant to section 20C of the Taxes Managements Act 1970. The warrants therefore contained sufficient information to enable an occupier of premises to know that they were issued under subsection (1) of the section and to identify the premises to be searched.

If the warrant to be valid must also contain particulars of the offences suspected, I would have expected to find this requirement expressly stated in, or necessarily to be implied from the language of, subsection (3) which confers the power to seize and remove things of possible evidential value. But in my judgment, subsection (3) says nothing of the sort. An officer can enter only if armed with a warrant issued under subsection (1), i.e. a warrant authorising entry and search. Having entered, he may seize and remove anything which he has reasonable cause to believe may be required as evidence "... in respect of such an offence as is mentioned " in subsection (1) above." I construe these words as a reference to the kind of offence there mentioned and not limited to the particular offences suspected, i.e. to any offence involving any form of fraud in connection with or in relation to tax. Such a construction is, as my noble and learned Iriend, Lord Diplock, points out, consistent with the power of seizure of szoods other than those mentioned in the warrant conferred by a common law warrant to search premises for stolen goods: Chic Fashions Ltd. v. Jones

[1968] 2 QB 299

, 314. There being nothing in the section to require the warrant to give particulars of the offences suspected, does the general law import the requirement? For the reasons given by my noble and learned friends I think not. Indeed, I would think it a wrong approach to modern legislation to reason by analogy from common law powers. The relevance of Entick v. Carrington is that it recognises, loc cit ., that, where the justification for what would otherwise be a trespass is a statute, the judge must look to the statute. Today that means looking to the legislative purpose of the enactment as well as the words and context of the specific provision. If that approach be adopted, there are strong grounds for holding that the statute does not require the Revenue, before it has decided to take proceedings and when it is still at the investigatory stage of a case, to reveal to a possible wrong-doer its suspicions or the extent of its knowledge.

I therefore reject the submission of counsel for the respondents that the warrants should have given particulars of the offences suspected. One criticism may, however, fairly be made, but was not made by counsel for the respondents, of the warrants in this case. It is that they fail to recite that the judge was himself satisfied as to the matters upon which he has to be satisfied. No doubt, and absolutely correctly, counsel took the view that the omission was not fatal to the validity of the warrants. Nevertheless the recital in the warrants is incomplete. If anything was going to be recited as to the proceedings before the judge, the fact that the judge was satisfied should have been. In a matter of such importance as the issue of these warrants it is, I think, desirable to include a recital of the essential fact that the judge was satisfied that there were reasonable grounds for suspicion and that the Board itself had authorised the application.

For these reasons I conclude that the warrants, which are the only record of the judge's decision to issue them, disclose on their face no error of law. Certiorari, therefore, does not lie. But, even if there was error of law in their issue, it would not necessarily follow that the actions of the officers of the Inland Revenue in entering the premises and exercising their statutory powers of seizure were unlawful. Like my noble and learned friend, Lord Diplock, I would not wish to pre-judge a question not raised in this appeal, namely whether an entry and seizure made in the bona fide belief that the warrant was properly issued would be illegal, provided always the appropriate judicial authority had issued the warrant and the officer, who had entered relying on it, had reasonable cause to believe that what he seized might be required as evidence.

The main thrust of the respondents' submissions in your Lordships' House was directed against the lawfulness of the seizure and removal of the respondents' papers. Subsection (3) provides that an officer may seize and remove anything which he has reasonable cause to believe may be required as evidence. The Revenue conceded that the officer must in fact have had reasonable cause for this belief and that it is not enough merely to show that he honestly believed he had such cause. The ghost of 24

Liversidge v. Anderson therefore casts no shadow upon this statute. And I would think it need no longer haunt the law. It was laid to rest by Lord Radcliffe in Nakkuda Ali v. M. F. de S. Jayaratne

[1951] AC 66

at page 77, and no one in this case has sought to revive it. It is now beyond recall.

There being, therefore, no challenge to the requirement of an objective test of reasonable cause, the respondents seek a judicial review of the exercise of the power of seizure. They say there was an abuse of power and that the evidence does not support the Revenue's assertion that the officers who conducted the search had reasonable cause for their belief. They have endeavoured to support the submission by an analysis of the available evidence to show that the officers seized a great quantity of documents without reading them, or even looking at some of them.

The Divisional Court held that the question of reasonable cause could not be decided upon the basis of contested affidavits and, in effect, dismissed as premature the application for judicial review. The Court of Appeal, noting that the Revenue refuses to disclose the grounds for believing that the documents seized may be required as evidence, concluded that, since in many instances the officers seized documents without reading them, the existence of reasonable cause for their belief could not be proved, and that the quantity of such unexamined material was such that the whole exercise of seizure and removal must be held illegal—the " all or nothing " argument, as it was described.

The application for judicial review is a recent procedural innovation in our law. It is governed by R.S.C. Order 53 rule 2 which was introduced in 1977. The rule made no alteration to the substantive law; nor did it introduce any new remedy. But the procedural reforms introduced are significant and valuable. Judicial review is now the procedure for obtaining relief by way of prerogative order, i.e. mandamus, prohibition or certiorari. But it is not confined to such relief: an applicant may now obtain a declaration or injunction in any case where in the opinion of the court " it would be just and convenient for the declaration or injunction to " be granted on an application for judicial review". Further, on an application, the court may award damages, provided that the court is satisfied that damages could have been awarded, had the applicant proceeded by action. The rule also makes available at the court's discretion discovery, interrogatories, and cross-examination of deponents. And, where the relief sought is a declaration, an injunction, or damages but the court considers it should not be granted on an application for judicial review, the court may order the proceedings to continue as if they had been begun by writ.

Thus the application for judicial review, where a declaration, an injunction, or damages are sought, is a summary way of obtaining a remedy which could be obtained at trial in an action begun by writ: and it is available only where in all the circumstances it is just and convenient. If issues of fact, or law and fact, are raised which it is neither just nor convenient to decide without the full trial process, the court may dismiss the application or order, in effect, a trial. In the present case there are, in my judgment, insuperable objections to the granting of a declaration in proceedings for judicial review. With all respect to the Court of Appeal, the evidence is not such that a court could safely say at this stage that the officers had no reasonable cause to believe that what they seized might be required as evidence. A trial is necessary, if justice is to be done. The applicants could have asked for the proceedings to be continued as if begun by writ, but did not—no doubt, because they have already begun proceedings by writ issued in the Chancery Division. I agree with the views expressed by the Divisional Court on this point as well as on the point relating to the validity of the warrants.

At the end of the day one fundamental issue divides the parties and calls for the decision of the House. Is it a requirement of the law that particulars of the offences suspected to have been committed be shown either on the face of the warrant or by the Revenue, if challenged, in proceedings for

judicial review? The statute contains no express provision spelling out such a requirement. Is the requirement to be implied? I know of no common law rule which compels the implication. Indeed, the common law supports the converse: for the nearest common law analogy is the rule, based on public policy, which protects from disclosure police sources of information: Home v. Bentinck 2 Brod. and B. 130. Talk of " general " warrants" is beside the point: these warrants make clear that they are issued by judicial authority in the exercise of the power conferred in the statute. When one turns from the common law to consider the legislative purpose of the section, it is plain that the purpose could be defeated if a warrant must particularise the offences suspected: for warrants are issued at the stage of investigation when secrecy may be vital to the success of detection. But can the Revenue, if their seizure be challenged in proceedings for judicial review, refuse at that stage to disclose particulars of the offences suspected? That is a matter for their decision. If the Revenue chooses, as in this case, not to disclose them, it runs the risk of failing to show that there is a triable issue as to " reasonable cause ". But if, as in the present case, the affidavits disclose evidence sufficient to show a triable issue, it is " just and convenient" to leave the issue to trial. And, as my noble and learned friends Lords Wilberforce and Diplock have emphasised, trial (or an investigation in substitute for trial, if undertaken in the proceedings for judicial review) should ordinarily be delayed until after criminal proceedings have been completed or abandoned or, if none are begun, after a reasonable period, in which to take a decision whether or not to institute such proceedings, has elapsed.

Two questions were canvassed in the course of argument, upon which I wish to comment. The first was the suggestion that the burden of proving the legality of the seizure was upon the Revenue. The suggestion rests on a misunderstanding. An applicant for judicial review has to satisfy the court that he has a case. If he proves that his house has been entered or his documents seized without his consent, he establishes a prima facie case. But as soon as the respondent pleads justification, e.g. in this case the statute, and leads evidence to show that he has acted within the power conferred on him by law, issue is joined and the prima facie case has to be judged against the strength of the matters urged in defence. Unless the court on judicial review can safely say that the defence will surely fail, it cannot be just to grant final relief, and it must be convenient to allow the issue to go to trial. The summary proceedings are a substitute for trial only if the court can be confident that the trial is unnecessary. The only rider I would add is that the court can, if it thinks fit, grant an interlocutory injunction (save against the Crown) or test evidence by allowing discovery, interrogatories, or cross-examination, in which case it may be able to reach a decision without the need of sending the case to trial by a single judge. But these are powers to be sparingly used, if the new procedure is to be a success.

The second point on which I desire to comment is as to the possibility of an " interim declaration ". Under existing law only a final and conclusive declaration may be granted by a court. This means that, where the Crown is defendant or respondent, relief analogous to an interim injunction is not available. Many commentators, including the Law Commission, recommend that interim relief should be available against the Crown and that an " interim declaration " would be the appropriate way of providing it. I gravely doubt the wisdom of interim relief against the Crown. The state's decisions must be respected unless and until they are shown to be wrong. Judges neither govern nor administer the state: they adjudicate when required to do so. The value of judicial review, which is high, should not be allowed to obscure the fundamental limits of the judicial function. And, if interim relief against the Crown be acceptable, the interlocutory declaration is not the way to provide it. For myself, I find absurd the posture of a court declaring one day in interlocutory proceedings that an applicant has certain rights and upon a later day that he has not. Something less risible must be devised.

For these reasons I would allow the appeals.

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