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You are here: BAILII >> Databases >> England and Wales Court of Appeal (Civil Division) Decisions >> Malik & Ors v Manchester And Salford Magistrates' Court & Ors [2018] EWCA Civ 815 (21 February 2018) URL: https://www.bailii.org/ew/cases/EWCA/Civ/2018/815.html Cite as: [2018] EWCA Civ 815 |
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ON APPEAL FROM ADMINISTRATIVE COURT
Strand, London, WC2A 2LL |
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B e f o r e :
LADY JUSTICE SHARP
Between:
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LIAQAT MALIK (1) IRFAN MALIK (2) DM BROADCASTING NETWORK LTD (3) |
Applicants |
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- and - |
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MANCHESTER AND SALFORD MAGISTRATES' COURT (1) TRAFFORD MAGISTRATES' COURT (2) THE SECRETARY OF STATE FOR THE HOME DEPARTMENT (3) |
Respondents |
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8th Floor, 165 Fleet Street, London EC4A 2DY
Tel No: 020 7404 1400 Fax No: 020 704 1424
Web: www.DTIGlobal.com Email: TTP@dtiglobal.eu
(Official Shorthand Writers to the Court)
Mr Andrew Bird (instructed by G L D) appeared on behalf of the Third Respondent
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Crown Copyright ©
LORD JUSTICE DAVIS:
Introduction
"1. No appeal shall lie to the Court of Appeal (a) except as provided by the Administration of Justice Act 1960, from any judgment of the High Court in any criminal cause or matter ..."
There can be no doubt that the proposed appeal is from a judgment of the High Court. The question is whether it is from a judgment of the High Court "in any criminal cause or matter." I note that "cause" and "matter" have the wide definitions provided in section 151 of the 1981 Act.
Background
"1. A declaration that the entries, search and seizures made pursuant to the warrant were all unlawful;
2. An order quashing the warrants;
3. A mandatory order for the return of all material seized in the execution of the warrants and the destruction of all and any copies;
4. An order that no use be made of any knowledge gained from the unlawful searches and seizures;
5. Damages for trespass and wrongful interference with goods and/or under theHuman Rights Act 1998;
6) Costs."
It is to be noted that it has throughout been accepted, and rightly so, that such judicial review proceedings constituted a criminal cause or matter for the purposes of section 18(1)(a) of the 1981 Act.
"(3) The Third Defendant shall return to the Claimants all original property seized under the Warrants within 56 days of this Order unless prior to that date the Third Defendant files an application in the Manchester Crown Court for relief under s.59(5) and (6) of the Criminal Justice and Police Act 2001, in which case paragraph (4) applies.
(4) In the event that such an application is made then the obligation to return original property seized shall be subject to any decision to the contrary of the Crown Court in the s.59 proceedings, and the decision of the Crown Court shall be in substitution for (3) above."
Amongst other things, therefore, this order had the consequence that an application to the Manchester Crown Court under section 59 of the Criminal Justice and Police Act 2001 had to be filed by the third defendant by, as it was calculated, 24 January 2017. The third defendant did not do that. (Furthermore, it has been said that the third defendant also failed to return by the due date all the original property which had been seized under the search warrants). It appears that the third defendant only made its application to the Crown Court one day thereafter and moreover did so, it appears, by email and without any supporting materials or evidence. At all events, that application under section 59 having been made out of time to the Manchester Crown Court, the claimants filed grounds of opposition to that section 59 application. Amongst other things, those grounds of opposition specifically identified the point that the section 59 application had been filed out of time and contrary to the terms of the order of 29 November 2016.
Decision on Jurisdiction
"Looking at it afresh, I have no doubt whatsoever that an order or a refusal of an order under the Act of 1984 and all subsequent proceedings relating to such an order or refusal are properly to be characterised as orders in a criminal cause or matter, and it would follow from that we have no jurisdiction."
The words "and all subsequent proceedings relating to such an order or refusal" are to be noted.
"The language of the Ordinance directs attention, not to the proceedings which led to the order from which the appeal is brought, but to the nature of the cause or matter 'in' which the appeal is brought. If the cause or matter is properly characterised as criminal, it cannot lose that character simply because at one stage it is carried forward by techniques which closely resemble those employed in civil matters, or which lead to relief often granted in civil matters, or which are available in civil or criminal matters alike; any more than, having gained this new character by the employment of such techniques, it would revert to its former status when the deployment of the techniques came to an end."
Likewise in the case of R (Panesar) v Central Criminal Court [2015] 1 WLR 2577 the focus of the court was on the "underlying proceedings". In that case it was confirmed, applying the reasoning in Carr v Atkins, that proceedings under section 59 of the 2001 Act, just as much as proceedings under section 8 or section 9 of the 1984 Act, were, even where the underlying warrants had been quashed, a "criminal cause or matter". Yet further illustration of the general position taken by the courts can be found in the recent case of Darroch v Football Association Premier League [2017] 4 WLR 6.
Conclusion
LADY JUSTICE SHARP:
Order: Application refused. Permission granted to cite this decision.