![]() |
[Home] [Databases] [World Law] [Multidatabase Search] [Help] [Feedback] [DONATE] | |||||||||
England and Wales High Court (Administrative Court) Decisions |
||||||||||
PLEASE SUPPORT BAILII & FREE ACCESS TO LAW
To maintain its current level of service, BAILII urgently needs the support of its users.
Since you use the site, please consider making a donation to celebrate BAILII's 25 years of providing free access to law. No contribution is too small. If every visitor this month gives just £5, it will have a significant impact on BAILII's ability to continue providing this vital service.
Thank you for your support! | ||||||||||
You are here: BAILII >> Databases >> England and Wales High Court (Administrative Court) Decisions >> Glenn & Co (Essex) Ltd & Ors v HM Commissioners for Revenue and Customs & Anor [2011] EWHC 2998 (Admin) (16 November 2011) URL: https://www.bailii.org/ew/cases/EWHC/Admin/2011/2998.html Cite as: [2012] Lloyd's Rep FC 115, (2012) 176 JP 65, [2011] EWHC 2998 (Admin), [2012] Crim LR 464, [2012] ACD 5, [2012] 1 Cr App R 22, 176 JP 65 |
[New search]
[Context]
[View without highlighting]
[Printable RTF version]
[Help]
QUEEN'S BENCH DIVISION
DIVISIONAL COURT
Strand, London, WC2A 2LL |
||
B e f o r e :
and
MR JUSTICE SIMON
____________________
(1) ![]() ![]() (2) Manjit Singh Deol (3) Shammi Atwal (4) Surjit Singh Deol (5) Medway Soft Drinks Ltd (6) Dale Wholesale Ltd |
Claimants |
|
and |
||
Her Majesty's Commissioners for Revenue and Customs East Berkshire Magistrate's Court |
Defendants |
____________________
Bowers
for the 1st and 3rd Claimants (instructed by Rainer Hughes)
Mr Andrew Bird (instructed by Solicitor's Office HMRC) for the 1st Defendant
Hearing date: 11 October 2011
____________________
Crown Copyright ©
Mr Justice Simon:
Introduction
(1) If on an application made by a constable a justice of the peace is satisfied that there are reasonable grounds for believing
(a) that an indictable offence has been committed; and
(b) that there is material on premises ... which is likely to be of substantial value (whether by itself or together with other material) to the investigation of the offence; and
(c) that the material is likely to be relevant evidence; and
(d) that it does not consist of or include items subject to legal privilege, excluded material or special procedure material; and
(e) that any of the conditions specified in subsection (3) below applies in relation to each set of premises specified in the application,
(f) he may issue a warrant authorising a constable to enter and search the premises.
(c) that entry to the premises will not be granted unless a warrant is produced; and
(d) that the purpose of a search may be frustrated or seriously prejudiced unless a constable arriving at the premises can secure immediate entry to them.
The Applicant says on oath that there are reasonable grounds for believing:
(a) that indictable offences: Cheating the Public Revenue contrary to Section 1(1) Criminal Law Act 1977 and Money Laundering contrary to s.327, 328 and 329 of the Proceeds of Crime 2002, Unauthorised disclosure of HM Revenue & Customs data contrary to s.19 of the Commissioners of Revenue and Customs Act 2005 (CRCA) and that at the residential premises detailed on the attached schedule there is material that is likely to be relevant evidence and be of substantial value to the investigation of the offences and does not consist of or include items subject to legal privilege, excluded material or special procedure material, namely:
any document relating to Excise Warehousing, HM Revenue and Customs, Customs and Excise duties, non UK duty paid alcohol and tobacco products, cash and carry traders, accounting documentation, business records, bank and building society statements, bank cards and credit cards, computers, hard disk drives, memory sticks, memory cards, floppy disks, CD ROMs, DVDs, FAX machines, mobile phones, mobile phone SIM cards, travel documents and passports, cash, stocks and share certificates, property situated within the United Kingdom and elsewhere, documents relating to the rental of property, deeds, leasehold agreements, rent books, rental agreements, Companies House documentation, overseas business transactions and documentation.
(c)
(i) that it is not practicable to communicate with any person entitled to grant entry to the premises,
(ii) that entry to the premises will not be granted unless a warrant is produced,
(iii) that the purpose of a search may be frustrated or seriously prejudiced unless a constable arriving at the premises can secure immediate entry to them ...
10. [X] has been observed depositing cash into his personal bank account. Investigators have obtained Court Production orders relating to bank accounts operated by [X]. Inspection of the last six years of these records reveals that in excess of £500,000 of unexplained funds have been credited to the accounts. It is strongly suspected that these funds are derived from payments made to [X] in return for his corrupt activities. It is suspected that [X] has utilised online gambling facilities in order to launder these proceeds.
11. It is suspected that [X] assisted an individual named Shammi Atwal and his businesses with an appeal against a HMRC seizure of alcohol. [X] and Shammi ATWAL have been observed meeting on many occasions outside of the work environment including on a number of occasions following the seizure of alcohol believed to be attributed to Shammi Atwal. During these meetings Officers have observed documents being examined by [X] and Shammi Atwal.
...
12. [X] and the second Officer [Y] have been observed outside of the work environment in car parks, vehicles and restaurants in the company of another cash and carry trader named [ ]. Investigating Officers observed [X] being taken to the [ ]. [Y] has been observed meeting with [ ] on a number of occasions and is suspected to have passed [ ] details of a cash and carry run by a man named Manjit Singh Deol and his brother Surjit Singh Deol. During one meeting [ ] passing on details of the Deol's business on a mobile phone. The Deols who are convicted excise fraudsters are suspected to be currently involved in excise fraud. [Y] has been observed meeting the Deols in car parks and hotels outside of the work environment. [Y] has also been observed meeting other persons linked to the Deols who have been the subject of HMRC enforcement action where large amounts of alcohol, tobacco and suspected criminal proceeds were seized.
...
15. It is suspected that [Y] has recently used criminal proceeds to purchase a motor car and carry out a number of improvements to his home.
16. High quality evidence has been recovered [ ] of a conversation between the two HMRC Officers [X] and [Y]. During the hour long conversation the Officers discuss facilitating the suspected criminal activities of many of the cash and carry traders mentioned in this application, selling sensitive intelligence and HMRC information to the traders, facilitating the granting of excise traders licences for money and a plan to intercept and keep cash from the proceeds of crime under the guise of a genuine HMRC operation. Frequently during the conversation the Officers discussed opportunities to make money from their criminal venture.
12. I swore the information under oath and was the only person to make oral submissions to the Judge. I read the information presented in the application in its entirety including details of what I expected to find at the premises.
13. The hearing lasted about an hour.
14. The Judge asked whether I suspected serious indictable offences had been committed and I replied that I did. He asked whether I had any suspicion that material subject to legal privilege would be discovered at the premises and I informed him that I had not found anything to suggest that it would ...
The History of the Judicial Review Proceedings
My remarks are to answer so far as possible the immediate questions raised in your letter of 20 September 2011 but, in the time available to respond and in the light of the appearance by HMRC at the hearing tomorrow, this response will not be as full as requested. If the matter moves to a full Judicial Review I will of course provide a more detailed response ...
...
I considered a specific premises search warrant application under section 8 PACE 1984 and the application was made orally, on oath, in full as set out in the original nine page information. Further oral evidence was given in answer to my specific questions on the nature of the evidence available to the Revenue, the extent to which the identified premises would be searched and the covert and secret nature of much of the evidence received from authorised telephone surveillance and video recordings of meetings between the suspects and persons mentioned in the information. I was aware that the suspects of the Revenue's investigation were employees of HMRC and the 56 premises and 48 motor vehicles identified meant a very large enquiry into the offences of Cheating the Public Revenue, Unauthorised Disclosure of HMRC Data and Money Laundering, contrary to the Proceeds of Crime Act 2002. I specifically enquired about and was satisfied that there would be no material removed that was subject to Legal Professional Privilege or Special Procedure material. The nature of the applications before me in the Thames Valley rather than in East London, indicated a measure of concern as to the security of this investigation. I gave my reasons orally, which were recorded by my legal Adviser and covered the indictable offences, the strength of the evidence, the impact of this operation upon the Human Rights of the individuals…
The Grounds of Challenge
(1) Whether HMRC had reasonable grounds for believing that the five specified conditions in section 8(1)(a)-(e) were satisfied; and whether the Magistrate failed to consider the statutory criteria and/or decide how they were satisfied.
On this day application supported by an information was made by Adrian De Ath, an officer of HM Revenue and Customs, for the issue of warrant under section 8 of the Police and Criminal Evidence Act 1984 to enter:
As per attached schedule
and search for:
any document relating to Excise Warehousing, HM Revenue and Customs, Customs and Excise duties, non UK duty paid alcohol and tobacco products, cash and carry traders, accounting documentation, business records, bank and building society statements, bank cards and credit cards, computers, hard disk drives, memory sticks, memory cards, floppy disks, CD ROMs, DVDs, FAX machines, mobile phones, mobile phone SIM cards, travel documents and passports, cash, stocks and share certificates, property situated within the United Kingdom and elsewhere, documents relating to the rental of property, deeds, leasehold agreements, rent books, rental agreements, Companies House documentation, overseas business transactions and documentation.
Authority is hereby given for any officer of Revenue and Customs, accompanied by such person or persons as are necessary for the purposes of the search, to enter the said premises on the number of occasions specified below within three months from the date of issue of this warrant and on each such occasion to search for the material in respect of which the application is made.
Number of occasions that each set of premises may be entered and searched under this warrant is: on ONE occasion only.
The document was signed District Judge Vickers.
The Claimants submissions on deficiency of reasons
The Defendants' submissions in reply
Discussion and conclusion on deficiency of reasons
i) As has been repeatedly stressed, the safeguard against the unlawful invasion of premises is the strict application of the statutory criteria.
ii) There is nothing in PACE which requires the court to give reasons why it is satisfied that there are reasonable grounds for believing the matters set out in section 8(1)(a)-(e); and in some cases, it may be unnecessary to do so. One example would be where the written Information was compelling as to the grounds for a belief, and clearly addressed the specific matters which are required to be addressed in section 8(1)(a)-(d), see for example Lord Woolf CJ in Cronin (above) at [15]
... On examination of the information it would be possible to say, if the matter had to be reviewed by a court, whether there was material on which a justice could be satisfied. Therefore, without any more, it would be possible for a court to scrutinise the question whether this was a case where, prima facie, the warrant had or had not been lawfully issued.
iii) In most cases, and particularly where the information is given or supplemented orally, Magistrates should ensure that:
a) Reasons for their decision are given, see for example R v. Lewes Crown Court and Chief Constable of Sussex Police, ex. p. Nigel Weller and Co [1999] EWHC 424 (Admin) Kennedy LJ at [6],
The reality is that (1) the person or persons against whom an order is made are entitled to know why it is made; (2) the requirement to give reasons should help ensure that a judge does, as he must, address each of the statutory requirements before making the order, and (3) if it is necessary to review an order in this court reasons will be of great assistance. We will know why the judge decided as he did;
b) Those reasons are recorded at the time, see Wood v. North Avon Magistrates Court [2009] EWHC 3614, Moses LJ at [25]
If reasons are recorded at the time, then not only a Complainant will be in a position to understand why his premises had been raided, but also there will exist the powerful discipline for the decision-maker of knowing and having to record why the warrant was issued.
Grounds 2 & 3: Whether the warrant was overdrawn and badly drafted; and whether there was a failure by HMRC in respect of its obligation under section 15(2)(c) of PACE and as a result the warrant did not satisfy s.15(6)(b).
(1) This section and section 16 below have the effect in relation to the issue to constables under any enactment ... of warrants to enter and search premises; and an entry on or search of premises under a warrant is unlawful unless it complies with this section and section 16 below
(2) Where a constable applies for any such warrant, it shall be his duty –
…
(c) to identify, so far as practicable, the articles or persons to be sought.
…
(6) A warrant
...
(b) shall identify, so far as practicable, the articles or the persons to be sought.
(8) A search under a warrant may only be a search to the extent required for the purpose for which the warrant was issued.
Claimants' submissions
I have no doubt that the description in the warrant of the articles to be sought was too vague and did not identify so far as practical the articles to be sought, as required by section 15(6)(b) of PACE.
The Defendants' submissions
We conclude therefore that, once the judge was satisfied on the issue of legally privileged material, there was no reason why section 8 warrants should not specify computers and similar items amongst the material to be seized if there were reasonable grounds for believing that they contained relevant evidence, albeit they might also contain irrelevant material.
Discussion and conclusion on Grounds 2 and 3
There is clearly difficulty in drafting a warrant when the scale of the investigation is of the nature of that in which the SFO is at present engaged ...
When there is an ongoing investigation into, for example, the affairs of a company such as EPRS, which appears to have been at the centre of a fraud, it will always be difficult to say precisely what documentation of value to the inquiry may be recovered from those who are justifiably suspected of being in contact with the main target company, but nevertheless the warrant needs to be drafted with sufficient precision to enable both those who execute it and those whose property is affected by it to know whether any individual document or class of document falls within it. If that is done it seems to me that the specificity required will be no less than would be required for a notice under section 2(3) were it practicable to serve such a notice, and although the terms of the warrant may be wide it will not simply be fishing if it is directed to support an investigation which has apparent merit.
It may well be that in many cases it would be impossible to draw a clear line between what was and what was not practicable in the particular case.
Ground (4), The Warrant was not given to the 3rd Claimant until the searches and seizures had been completed.
(5) where the occupier of premises which are to be entered and searched is present at the time when a constable seeks to execute a warrant to enter and search, the constable –
(a) shall identify himself to the occupier and, if not in uniform, shall produce to him documentary evidence that he is a constable;
(b) shall produce the warrant to him; and
(c) shall supply him with a copy.
The 3rd Claimant's submissions
It is further agreed that the second Claimant was not shown that her address was on was on the warrant. The police explained this by saying that they did not wish her to know what other addresses were being searched. In my view that is no answer. The second claimant was entitled to be shown the warrant. What any householder wants to be satisfied about if his house is to be searched is not only that there is a warrant in existence, but also that it refers to his or her address ... In my judgment, accordingly, the execution of the warrant was not valid; the requirements of section 16(5) of PACE were not satisfied.
In that case the Court quashed the warrant.
It seems to me that the wording of section 15(1) is plain and non-compliance renders entry, search and seizure unlawful. Whether or not the property can be admitted in a criminal trial raises separate issues. It depends on whether the property is available to the prosecution at that time and admissibility will be determined in the normal way, subject to section 78 of the 1984 Act.
HMRC's submissions
Discussion and Conclusion on Ground 4
Ground (5). HMRC's decision (a) refusing to give an undertaking not to examine or copy seized material, and (b) copying the material, when on notice of the claim was irrational and unreasonable and designed to frustrate any remedy sought by the Claimants.
The Claimants' arguments
HMRC's response
The officers' duty was to execute the warrant, not to back off because a suspect or his solicitors (or even counsel) made representations to them.
Discussion and Conclusion on Ground 5
Conclusion
Lord Justice Laws: