Case No: CO/855/2011
Neutral Citation Number: [2011] EWHC 1853 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
Date: 15/07/2011
Before :
THE RT. HON. LORD JUSTICE LAWS
THE HON. MR. JUSTICE STADLEN
--------------------Between :
The Queen
(On the application of Ussama El-Kurd)
- and -

Claimant

Winchester Crown Court
-and-

Defendant

Serious Organised Crime Agency

Interested
Party

--------------------(Transcript of the Handed Down Judgment of
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--------------------Mr. Andrew Bodnar (instructed by Morgan Rose Solicitors) for the Claimant
Mr. Kennedy Talbot (instructed by SOCA) for the Interested Party
Hearing dates: 19th April
---------------------

 JudgmentThe Hon. Mr. Justice Stadlen:
1.This is a claim for judicial review of a decision by HH Judge Cutler CBE, sitting at the
Winchester Crown Court, the Respondent, on 25 August 2010, to authorise the
retention by the Serious Organised Crime Agency (“SOCA”), the Interested
Party, of material seized by it pursuant to a warrant which, by reason of a
technical defect on its face, was admitted by SOCA to be unlawful. The decision
which is challenged was made pursuant to Section 59(6) of the Criminal Justice
and Police Act 2001 (“the 2001 Act”) in response to an application by SOCA
made under Section 59(5)(b) of the 2001 Act. The claim raises an important
issue as to the scope of the power of the court to authorise retention under
Section59(6) of the 2001 Act of property which has been unlawfully seized on
the application of the party who has unlawfully seized it.
The Facts
2.

The Claimant was convicted in 1999 of conspiring to commit money laundering
offences under either the Drug Trafficking Act 1994 or the Criminal Justice Act
1988 and sentenced to 14 years imprisonment. He appealed against conviction
without success on the ground that such a charge was bad in law. However,
following a reference by the Criminal Cases Review Commission, his conviction
was quashed and a re-trial ordered. At the subsequent re-trial the Claimant was
acquitted following a successful application to stay the indictment.

3.

On 5 July 2010 SOCA obtained a warrant to search business premises at 146
Kensington Church Street, London W8 belonging to K.C. Service, Ltd.
(“KCSL”). The Claimant is the Company Secretary of KCSL and his wife is
listed as the director and sole share holder thereof. Its stated business activity is
other monetary intermediation.

4.

The warrant was obtained ex parte on the strength of information verified by a
financial investigator of SOCA, Mr Anthony Breslin, and supplied to the Court
in support of an application made by SOCA under Section 378 of the Proceeds of
Crime Act 2002. According to that information a pro-active money laundering
investigation conducted by SOCA indicated that substantial money laundering
for organised crime groups was being facilitated via a money service bureau
operated and controlled by the Claimant. There were reasonable grounds for
suspecting that the Claimant had committed a money laundering offence and it
was said to be necessary to establish evidence of his acquisition of criminal
property and the use of corporate structures to facilitate his money laundering
activities. The material sought, which was said to be likely to be of substantial
value to the investigation in respect of which the application was made,
constituted “all material relating to the affairs, financial or otherwise including

 travel documentation, communications, business documents, documents relating
to any other premises or properties, vehicles and assets of KCSL and/or [the
Claimant”].
5.

On 6 July 2010 the warrant was executed and records were seized pursuant to it.
The Claimant was arrested at the business premises of KCSL on suspicion of
money laundering.

6.

On 9 July 2010 on its own initiative SOCA reviewed the warrant which had been
obtained and executed having been notified by the National Policing
Improvement Agency of a defect in the template used for such warrants. The
defect consisted of a failure to indicate on the face of the warrant the nature of
the investigation which it was issued to facilitate, as required by Section 15(6)(a)
(iii) of the Police and Criminal Evidence Act 1984 (PACE) as modified by the
Proceeds of Crime Act 2002 (Application of Police and Criminal Evidence Act
1984 and Police and Criminal Evidence (Northern Ireland) Order 1980 Order
2003). Accordingly SOCA concluded that the warrant was unlawful having
regard to S.15(1) of PACE.

7.

On 13 July 2010 SOCA applied ex-parte and obtained from the Respondent a
further search warrant authorising any officer of SOCA to search the KCSL
premises at 146 Kensington Church Street and seize and retain material defined
in the same way as the material identified in the 5 July 2010 warrant. Unlike the
5 July warrant the 13 July 2010 warrant identified the investigation in respect of
which the application for the warrant was made and thus was designed to comply
with Section 15(6)(a)(iii) of PACE. It has not been suggested by the Claimant
that it did not comply with that section. The information verified by Mr. Breslin
in support of the 13 July 2010 warrant set out for the court an explanation of the
discovery by SOCA of the technical invalidity of the 5 July 2010 warrant. It was
stated that following the identification of the deficiencies in the original warrant
procedures had been adopted to ensure that those items seized under the
authority of the defective warrant remained untouched within their original seals
and that on 12 July 2010 a court listing had been sought at Winchester Crown
Court to alert HH Judge Cutler to the deficiencies in the original application.

8.

In a letter dated 16 July 2010 SOCA informed the Claimant’s solicitors of its
discovery of the technical defect in the 5 July 2010 warrant and of the fact that
on 13 July 2010 a fresh warrant had been applied for by SOCA and granted by
HH Judge Cutler. The letter stated that all items seized on 6 July 2010 from the
premises of Kensington Money Exchange, apparently the name by which the
business premises of KCSL were known, under the authority of the 5 July 2010
warrant remained in secure storage sealed in tamper proof exhibit bags and had
not been subject to any further interference or examinations.

 9.

The letter stated that it was proposed that without further delay arrangements
should be made to return the items seized under the 5 July 2010 warrant to the
Claimant at the premises of Kensington Money Exchange whereupon they
would immediately be subject to seizure under the authority of the warrant
granted on 13 July 2010.

10.

On 20 July 2010 the Claimant through his solicitors declined SOCA’s invitation.

11.

On 17 August 2010 SOCA applied to the Winchester Crown Court under Section
59(5)(b) of the 2001 Act for authority for the retention of property seized under
the 5 July 2010 warrant. The information verified in support of the application
stated that following the search conducted under authority of the 5 July 2010
warrant the following items were seized by SOCA: mobile phones and
associated items, assorted documents, business records, computers, cheque
books, two cash counting machines and a number of box files and contents.
Additionally four files comprising a number of documents were seized under
Section 50 of the 2001 Act for the purposes of being sifted subsequently.

12.

The information also stated that a man named Charles Hart had been arrested
having been observed visiting Kensington Money Exchange in circumstances
which indicated that he had carried out a large cash transaction in furtherance of
money laundering. A search of the vehicle occupied by him revealed €243,000
and £2,825. Mr. Hart was interviewed and was said to have admitted taking a
large amount of sterling currency on behalf of other persons to Kensington
Money Exchange where the Claimant exchanged it for euros. Mr. Hart was said
to have believed the transaction to be unlawful as he believed the source of the
sterling was criminal and that the Claimant made no proper record of the
exchange. Mr. Hart was said to have subsequently pleaded guilty to money
laundering and to be awaiting sentence at Southwark Crown Court.

13.

It was recorded in the information that SOCA had received notice from the
Claimant’s solicitors of an application to the Winchester Crown Court to rescind
the 13 July 2010 warrant but that that warrant would have expired before the
first available date for the hearing of the application on 23/24 August 2010.

14.

In support of its application under Section 59(5)(b) it was stated that SOCA had
taken all steps since becoming aware of the defect in the original warrant to
regularise the situation in a transparent and proportionate way.

Relevant Provisions of the 2001 Act.
15.

Section 59 of the 2001 Act appears in Part 2 which is headed:

“Powers of

 Seizure”. Under the heading “Additional Powers of Seizure” Sections. 50 and
51 create new powers of seizure respectively from premises and from the person.
16.

The powers of seizure conferred by Sections 50 and 51 are additional powers in
the sense that they are exercisable where it is not reasonably practicable to
determine on searched premises (Section 50) or at the time and place of the
search of a person (Section 51) whether existing powers of search or seizure
specified in Part 1 of Schedule 1 of the Act (Section 50) or Part 2 of Schedule 1
(Section 51) would entitle the person armed with the power to seize particular
things found in the course of his search. The additional powers authorise the
seizure of things found to enable it subsequently to be determined whether the
specified powers extend to some or all of that material. The additional powers
also permit removal of things which it is not reasonably practicable to separate
from other things the seizure of which is authorised by one or other of the
powers specified in Part 1 or Part 2 of Schedule 1.

17.

Under the heading “Return or Retention of Seized Property” Section 53
provides for the examination and return of property seized under Section 50 or
Section 51 if, upon initial examination, it is found not to fall within one or other
of the three categories specified in Section 53(3)(a)–(c), that is to say property
for which the person seizing it had power to search when he made the seizure
and whose return is not required by the provisions relating to legal professional
privilege set out in Section 54, property the retention of which is authorised by
Section56 or property which in the circumstances it will not be reasonably
practicable following the examination to separate from property falling within
the first two categories.

18.

Also under that heading Section 54 makes provision for the return as soon as
reasonably practicable of items seized in exercise of a power of seizure to which
the section applies, if it appears to the person having possession of them that they
are or have comprised within them items subject to legal privilege. The section
applies not only to powers of seizure conferred by Sections 50 and 51 but also to
each of the powers of seizure specified in Parts 1 and 2 of Schedule 1 of the Act
and to any other power of seizure conferred on a constable by any enactment
including one passed after the 2001 Act.

19.

Section 55 provides for the return as soon as reasonably practicable of property
seized in exercise of a power to which the section applies if it appears to the
person having possession of it that it is or has comprised in it excluded or special
procedure material. Section 56 applies to each of the powers of seizure specified
in Part 3 of Schedule 1 to the 2001 Act and thus creates obligations in respect of
material seized pursuant to powers other than those conferred by Sections 50 and
51.

 20.

Under the same heading Section 56 authorises the retention of property seized on
premises by a constable who is lawfully on the premises or by a relevant person
who was on the premises accompanied by a constable and property seized by a
constable carrying out a lawful search of any person if there are reasonable
grounds for believing that it is property obtained in consequence of the
commission of an offence or evidence in relation to any offence and that it is
necessary for it to be retained in order to prevent its being concealed, lost,
damaged, altered or destroyed.

21.

Under the same heading Section 57 has effect in relation to various specified
provisions in a series of statutes relating to the retention of items which have
been seized. Section 57 provides that those relevant provisions shall apply in
relation to any property seized in exercise of a power conferred by Sections 50 or
51 as if the property had been seized under the power of seizure by reference to
which the power under that section was exercised in relation to that property.

22.

Finally under that heading Section 58 provides that that where anything has been
seized in exercise of any power of seizure and there is an obligation under Part 2
of the 2001 Act for the whole or any part of the seized property to be returned the
obligation to return it shall be an obligation to return it to the person from whom
it was seized or to the person appearing under the obligation to return it to have
the best right to the thing in question.

23.

Section 59 appears under the heading “Remedies and Safeguards”.

24.

Part 1 of Schedule 1 to the 2001 Act lists the powers of seizure conferred by a
series of statutes to which Section 50 of the Act applies. Part 2 of Schedule 1
specifies the powers of seizure conferred by various statutes to which Section 51
applies. Part 3 of Schedule 1 specifies the powers of seizure conferred by
various statutes to which Section 55 applies.

25.

The following provisions of the 2001 Act are relevant for the present purposes:

“50.
Additional powers of seizure from premisesE+W+S+N.I.
This section has no associated Explanatory Notes
(1) Where—
(a) a person who is lawfully on any premises finds anything on those
premises that he has reasonable grounds for believing may be or may contain
something for which he is authorised to search on those premises,
(b) a power of seizure to which this section applies or the power conferred
by subsection (2) would entitle him, if he found it, to seize whatever it is
that he has grounds for believing that thing to be or to contain, and

 (c) in all the circumstances, it is not reasonably practicable for it to be
determined, on those premises—
(i) whether what he has found is something that he is entitled to seize, or
(ii)

the extent to which what he has found contains something that he is
entitled to seize,

that person’s powers of seizure shall include power under this section to seize so
much of what he has found as it is necessary to remove from the premises to
enable that to be determined.
(2)

Where—
(a) a person who is lawfully on any premises finds anything on those
premises (“the seizable property”) which he would be entitled to seize but for its
being comprised in something else that he has (apart from this subsection) no
power to seize,
(b) the power under which that person would have power to seize the
seizable property is a power to which this section applies, and
(c) in all the circumstances it is not reasonably practicable for the seizable
property to be separated, on those premises, from that in which it is
comprised,
that person’s powers of seizure shall include power under this section to seize both
the seizable property and that from which it is not reasonably practicable to
separate it. …..

(5) This section applies to each of the powers of seizure specified in Part 1 of
Schedule 1. …..
51.

Additional powers of seizure from the personE+W+S+N.I.

This section has no associated Explanatory Notes
(1)
Where—
(a)

a person carrying out a lawful search of any person finds something that he
has reasonable grounds for believing may be or may contain something for
which he is authorised to search,

(b)

a power of seizure to which this section applies or the power conferred
by subsection (2) would entitle him, if he found it, to seize whatever it is
that he has grounds for believing that thing to be or to contain, and

(c) in all the circumstances it is not reasonably practicable for it to be
determined, at the time and place of the search—
(i)

whether what he has found is something that he is entitled to seize,
or

(ii)

the extent to which what he has found contains something that he is
entitled to seize,

 that person’s powers of seizure shall include power under this section to
seize so much of what he has found as it is necessary to remove from that
place to enable that to be determined.
(2)

Where—
(a) a person carrying out a lawful search of any person finds something
(“the seizable property”) which he would be entitled to seize but for its being
comprised in something else that he has (apart from this subsection) no power
to seize,
(b) the power under which that person would have power to seize the
seizable property is a power to which this section applies, and
(c) in all the circumstances it is not reasonably practicable for the seizable
property to be separated, at the time and place of the search, from that in
which it is comprised,

that person’s powers of seizure shall include power under this section to
seize both the seizable property and that from which it is not reasonably practicable to
separate it. …..
(5) This section applies to each of the powers of seizure specified in Part 2 of
Schedule 1. …..
53
+N.I.

Examination and return of property seized under Sections 50 or 51E+W+S
This section has no associated Explanatory Notes
(1) This section applies where anything has been seized under a power
conferred by section 50 or 51.
(2) It shall be the duty of the person for the time being in possession of the
seized property in consequence of the exercise of that power to secure that
there are arrangements in force which (subject to section 61) ensure—
(a)

that an initial examination of the property is carried out as soon as
reasonably practicable after the seizure;

(b) that that examination is confined to whatever is necessary for
determining how much of the property falls within subsection (3);
(c)

that anything which is found, on that examination, not to fall within
subsection (3) is separated from the rest of the seized property and
is returned as soon as reasonably practicable after the examination
of all the seized property has been completed; and

(d)

that, until the initial examination of all the seized property has been
completed and anything which does not fall within subsection (3)
has been returned, the seized property is kept separate from
anything seized under any other power.
(3)

The seized property falls within this subsection to the extent only—
(a)

that it is property for which the person seizing it had power to

 search when he made the seizure but is not property the return of
required by section 54;
(b)

which is

that it is property the retention of which is authorised by section 56;
or

(c) that it is something which, in all the circumstances, it will not be
reasonably practicable, following the examination, to separate from
property
falling within paragraph (a) or (b). …..
54

Obligation to return items subject to legal privilegeE+W+S+N.I.

This section has no associated Explanatory Notes
(1)
If, at any time after a seizure of anything has been made in exercise of
power of seizure to which this section applies—
(a)

a

it appears to the person for the time being having possession of the
seized property in consequence of the seizure that the property—
(i)

is an item subject to legal privilege, or

(ii)

has such an item comprised in it,

and
(b)

in a case where the item is comprised in something else which has been
lawfully seized, it is not comprised in property falling within subsection
(2),

it shall be the duty of that person to secure that the item is returned as soon as
reasonably practicable after the seizure.
(2)
Property in which an item subject to legal privilege is comprised falls within this
subsection if—
(a) the whole or a part of the rest of the property is property falling within
subsection (3) or property the retention of which is authorised by section
56; and
(b) in all the circumstances, it is not reasonably practicable for that item to
be separated from the rest of that property (or, as the case may be, from
that part of it) without prejudicing the use of the rest of that property, or
that part of it, for purposes for which (disregarding that item) its use, if
retained, would be lawful.
(3)
Property falls within this subsection to the extent that it is property for which the
person seizing it had power to search when he made the seizure, but is not
property
which is required to be returned under this section or section 55.
(4)

This section applies—
(a)

to the powers of seizure conferred by sections 50 and 51;

(b)

to each of the powers of seizure specified in Parts 1 and 2 of Schedule 1;
and

 (c) to any power of seizure (not falling within paragraph (a) or (b))
conferred on a constable by or under any enactment, including an
enactment passed after this Act. …..
55.

Obligation to return excluded and special procedure materialE+W+S
+N.I.This section has no associated Explanatory Notes
(1)

If, at any time after a seizure of anything has been made in exercise of a power
to which this section applies—
(a)

it appears to the person for the time being having possession of the
seized property in consequence of the seizure that the property—
(i) is excluded material or special procedure material, or
has any excluded material or any special procedure material
comprised in it,
(b)

(ii)

its retention is not authorised by section 56, and

(c) in a case where the material is comprised in something else which has
been lawfully seized, it is not comprised in property falling within
subsection (2) or (3),
it shall be the duty of that person to secure that the item is returned as soon as
reasonably practicable after the seizure.
(2)
Property in which any excluded material or special procedure material is
comprised falls within this subsection if—
(a) the whole or a part of the rest of the property is property for which the
person seizing it had power to search when he made the seizure but is
not
property the return of which is required by this section or section 54;
and
(b) in all the
circumstances, it is not reasonably practicable for that material
to be separated
from the rest of that property (or, as the case may be,
from that part of it)
without prejudicing the use of the rest of that
property, or that part of it,
for purposes for which (disregarding that
material) its use, if retained,
would be lawful.
(3)
Property in which any excluded material or special procedure material is
comprised falls within this subsection if—

(4)

(a)

the whole or a part of the rest of the property is property the retention of
which is authorised by section 56; and

(b)

in all the circumstances, it is not reasonably practicable for that material to
be separated from the rest of that property (or, as the case may be, from
that part of it) without prejudicing the use of the rest of that property, or
that part of it, for purposes for which (disregarding that material) its use, if
retained, would be lawful.

This section applies (subject to subsection (5)) to each of the powers of seizure
specified in Part 3 of Schedule 1.

 56

Property seized by constables etc.E+W+S+N.I.

This section has no associated Explanatory Notes
(1)
The retention of—
(a)

property seized on any premises by a constable who was lawfully on the
premises,

(b) property seized on any premises by a relevant person who was on the
premises accompanied by a constable, and
(c)

property seized by a constable carrying out a lawful search of any person
is authorised by this section if the property falls within subsection (2)
or (3).
(2)
Property falls within this subsection to the extent that there are reasonable
grounds for believing—
(a)

that it is property obtained in consequence of the commission of an
offence; and

(b)

that it is necessary for it to be retained in order to prevent its being
concealed, lost, damaged, altered or destroyed.

(3)
Property falls within this subsection to the extent that there are reasonable
grounds for believing—
(a)

that it is evidence in relation to any offence; and

(b)

that it is necessary for it to be retained in order to prevent its being
concealed, lost, altered or destroyed.

(4)

Nothing in this section authorises the retention (except in pursuance of section
54(2)) of anything at any time when its return is required by section 54. …

(5)

In subsection (1)(b) the reference to a relevant person’s being on any premises
accompanied by a constable is a reference only to a person who was so on the
premises under the authority of—
(a) a warrant under section 448 of the Companies Act 1985 (c. 6)
authorising him to exercise together with a constable the powers conferred
subsection (3) of that section; …..

by

Section 57 Retention of seized items
(1)

This section has effect in relation to the following provisions (which are about
the retention of items which have been seized and are referred to in this
section as “the relevant provisions”)— ….
(2)
The relevant provisions shall apply in relation to any property seized in
exercise of a power conferred by section 50 or 51 as if the property had been seized
under the power of seizure by reference to which the power under that section was

 exercised in relation to that property. ….
59 Application to the appropriate judicial authorityE+W+S+N.I.This section has no
associated Explanatory Notes
(1)
(2)

(3)

This section applies where anything has been seized in exercise, or purported
exercise, of a relevant power of seizure.
Any person with a relevant interest in the seized property may apply to the
appropriate judicial authority, on one or more of the grounds mentioned in
subsection (3), for the return of the whole or a part of the seized property.
Those grounds are—
(a)

that there was no power to make the seizure;

(b) that the seized property is or contains an item subject to legal privilege
that is not comprised in property falling within section 54(2);
(c) that the seized property is or contains any excluded material or special
procedure material which—
(i)

has been seized under a power to which section 55 applies;

(ii)

is not comprised in property falling within section 55(2) or (3); and

(iii) is not property the retention of which is authorised by section 56;
(d)

that the seized property is or contains something seized under section 50
or 51 which does not fall within section 53(3);

and subsections (5) and (6) of section 55 shall apply for the purposes
paragraph (c) as they apply for the purposes of that section.
(4)

of

Subject to subsection (6), the appropriate judicial authority, on an application
under subsection (2), shall—
(a) if satisfied as to any of the matters mentioned in subsection (3), order
the return of so much of the seized property as is property in relation to
which the authority is so satisfied; and
(b)

(5)

to the extent that that authority is not so satisfied, dismiss the
application.

The appropriate judicial authority—
(a)

on an application under subsection (2),

(b) on an application made by the person for the time being having
possession of anything in consequence of its seizure under a relevant
power of seizure, or
(c)

on an application made—
(i)

by a person with a relevant interest in anything seized under
section 50 or 51, and

(ii)

on the grounds that the requirements of section 53(2) have not been

 or are not being complied with,
may give such directions as the authority thinks fit as to the examination,
retention, separation or return of the whole or any part of the seized property.
(6)
On any application under this section, the appropriate judicial authority may
authorise the retention of any property which—
(a)

has been seized in exercise, or purported exercise, of a relevant power of
seizure, and

(b)

would otherwise fall to be returned,

if that authority is satisfied that the retention of the property is justified on
grounds falling within subsection (7).
(7)
Those grounds are that (if the property were returned) it would immediately
become appropriate—
(a)

to issue, on the application of the person who is in possession of the
property at the time of the application under this section, a warrant in
pursuance of which, or of the exercise of which, it would be lawful to
seize the property; or
(b)

to make an order under—
(i)

paragraph 4 of Schedule 1 to the 1984 Act,

(ii)

paragraph 4 of Schedule 1 to the Police and Criminal Evidence
(Northern Ireland) Order 1989 (S.I. 1989 1341 (N.I. 12)),

(iii) section 20BA of the Taxes Management Act 1970 (c. 9), or
(iv) paragraph 5 of Schedule 5 to the Terrorism Act 2000 (c. 11),
under which the property would fall to be delivered up or produced to the person
mentioned in paragraph (a).
(8)

Where any property which has been seized in exercise, or purported exercise,
of a relevant power of seizure has parts (“part A” and “part B”) comprised in it
such that—
(a)

it would be inappropriate, if the property were returned, to take any
action such as is mentioned in subsection (7) in relation to part A,

(b)

it would (or would but for the facts mentioned in paragraph (a)) be
appropriate, if the property were returned, to take such action in relation
to part B, and

(c) in all the circumstances, it is not reasonably practicable to separate part
A from part B without prejudicing the use of part B for purposes for
which it is lawful to use property seized under the power in question,
the facts mentioned in paragraph (a) shall not be taken into account by the
appropriate judicial authority in deciding whether the retention of the property is
justified on grounds falling within subsection (7).

 (9)
If a person fails to comply with any order or direction made or given by a
judge of the Crown Court in exercise of any jurisdiction under this section—
(a) the authority may deal with him as if he had committed a contempt of
the Crown Court; and
(b)
(10)

any enactment relating to contempt of the Crown Court shall have effect
in relation to the failure as if it were such a contempt.

The relevant powers of seizure for the purposes of this section are—
(a)

the powers of seizure conferred by sections 50 and 51;

(b) each of the powers of seizure specified in Parts 1 and 2 of Schedule 1;
and
(c) any power of seizure (not falling within paragraph (a) or (b)) conferred
on a constable by or under any enactment, including an enactment
passed after this Act.
(11) References in this section to a person with a relevant interest in seized property
are references to—
(a)

the person from whom it was seized;

(b)

any person with an interest in the property; or

(c) any person, not falling within paragraph (a) or (b), who had custody or
control of the property immediately before the seizure.
(12) For the purposes of subsection (11)(b), the persons who have an interest in
seized property shall, in the case of property which is or contains an item
subject to
legal privilege, be taken to include the person in whose favour that
privilege is
conferred. …..”
The decision of HH Judge Cutler
26.

In resisting SOCA’s application the Claimant had submitted that Section 59(6) of
the 2001 Act does not provide a free-standing power in the Court to order the
retention of property seized under an admittedly unlawful warrant. Its function
was limited to constituting a proviso to the general rule in Section 59(4) whereby
on an application under Section 59(2) made by a person with a relevant interest
in the seized property for its return in whole or part the Court shall either order
its return or dismiss the application.

27.

In rejecting the Claimant’s submissions HH Judge Cutler held that where SOCA
makes an application under Section 59(5) the Court has a discretion under
Section 59(6) to authorise the retention of property which has been unlawfully
seized and would otherwise fall to be returned if satisfied that its retention is
justified on grounds falling within Section 59(7). He accepted that in principle
where the rights of an individual or a company are interfered with the Court must

 exercise care and ensure that there are safeguards. Scope for such an approach is
provided by the discretion conferred on the Court by Section 59(6) and by the
requirement of demonstrating that if the property were returned it would
immediately become appropriate to issue, on the application of the person who is
in possession of it at the time of the application under Section 59, a warrant in
pursuance of which it would be lawful to seize it.
28.

He recorded that in argument the Claimant’s counsel conceded that there was no
great dispute on the merits. Having reviewed the evidence of Mr. Matthews,
who confirmed the information which he gave in support of the application and
which Mr. Breslin had given in his original information in support of the first
warrant, he held that the condition set out in Section 59(7) was satisfied and that
the requirements of Section 353(b) and (c) of the Proceeds of Crime Act 2002
were also satisfied in that it was in the public interest for the material to be
obtained having regard to the benefit likely to accrue to the investigation if it was
obtained and that it would not be appropriate to make a production order in
respect of it. In particular he was satisfied that it would not be appropriate given
the information before the court to make a production order because it would not
be practicable to communicate with UEK as entry would not be granted.

The grounds for Judicial Review
29.

The Claimant submitted that Section 59(5) – (7) of the 2001 Act, when read in its
proper context, is intended to provide a mechanism for the resolution of issues
concerning the return and retention of material seized under the extension to
seizure powers conferred by Sections 50 and 51. Consequently subsections (5)
to (7) do not provide a free-standing jurisdiction to permit the Court
retrospectively to legitimise a seizure of property under an unlawful warrant. In
any event applying the decision of this Court in R(Cook) v Serious Organised
Crime Agency [2010] EWHC (Admin) 2119, even if Section 59(6) is capable of
being read as founding the jurisdiction determined by the Judge to exist, it would
drive a coach and horses through the protection laid down by statute if a law
enforcement agency were permitted to ask a court retrospectively to legitimise an
unlawful seizure of property by reference to what has been or may be found
when that unlawfully seized property was or will be examined.

30.

Reliance was placed on a number of authorities which show that the execution of
a search warrant is a serious interference with the liberty and privacy of the
subject so that the requirements for its application, issue and execution must be
strictly complied with. See Williams v Somerfield [1972] 2QB 512 at 518, R v
Crown Court at Lewes ex-parte Hill [1991] 93 CR APPR 60 at 65-67, R(C) v
Chief Constable of A and Another [2006] EWHC 2352 (Admin) at Para 9, Bhatti
and others v Croydon Magistrates Court and another [2010] EWHC 522
(Admin), [2010] 3 All ER 671 at 678-679 and R(Cook) v Serious Organised

 Crime Agency [2010] EWHC (Admin) 2119 at Para 13.
31.

Reference was made to the statement in Cook by Leveson LJ that it is important
that SOCA and those responsible for drafting search warrants appreciate the
necessity of drafting such instruments with care. That statement was said to
reflect the clear and unequivocal statement of Latham LJ in Redknapp and
Redknapp v Commission of Police for the Metropolis and Others [2008] EWHC
1177 (Admin), [2008] 1 WLR 2091:
“13…. This Court has complained in the past of slip-shod completion of
application forms such as this, the last occasion being the judgment of
Underhill J in R(on the application of “C”) v the Chief Constable of “A”
Police and Another [2006] EWHC 2352 (Admin). The obtaining of a
search warrant is never to be treated as a formality.”
The Claimant submitted that that statement of principle should inform the
construction of Section 59(5) - (7) of the 2001 Act.

32.

The Claimant submitted that on its plain wording Section 59(6), taken together
with Section 59(1) – (4) constitutes a proviso to the general rule in Section 59(4)
under which the court has jurisdiction either to order the return of seized property
or to dismiss an application under Section 59(2). Therefore it was submitted
Section 59(6) does not provide a free-standing power in the Courts to order the
retention of property seized under an admittedly unlawful warrant.

33.

Section 59(5) makes no reference to Section 59(6) and (7). In contrast to Section
59(6), Section 59(5) does not empower the Court to “authorise” the retention of
seized property but merely to “give……directions” as to its retention. Had it
been intended that a law enforcement agency should be able to apply to the
Court to “regularise” an unlawful seizure of property by making application
under Section 59(5), the Claimant submitted that Parliament would have so
provided and would not have limited the jurisdiction of the court in such
circumstances to the giving of directions.

34.

Reliance was placed on paragraph 176 of the Explanatory Notes to the Bill
which became the 2001 Act. It was submitted that that paragraph indicated that
the intention of the drafters of the legislation was that Section 59 would provide
a mechanism whereby a person aggrieved at the seizure of his or her property
could challenge that seizure and for the police or other law enforcement agency
to invite the court to permit its retention of material notwithstanding that the
return of that material would otherwise be justified on an application under
Section 59(2). This was said to be another reason why Section 59(5) – (7) does

 not provide jurisdiction for a court retrospectively to legitimise the seizure of
property seized under an unlawful warrant on a free-standing application by a
law enforcement agency. The inference appeared to be an acceptance that the
court does have such jurisdiction provided that it is exercised in the context of an
application made by a person with an interest in the seized property under
Section 59(2) as distinct from an application made by the person having
possession of the material under Section 59(5)(b).
35.

Paragraph 176 of the Explanatory Notes is in these terms:
“This gives anyone with a relevant interest in the seized property the
right to apply to the appropriate judicial authority (as defined in section
64) for its return. It is hoped this will provide a quick and easy
mechanism for challenging both the use of the new powers and, in
certain circumstances, the exercise of existing powers. Subsection (3)
sets out the grounds on which an application for the return of the property
can be made. On such an application the court can order the return of
material or, amongst other things, order that it be examined, for example,
by an independent third party. Subsections (5)(b), (6) and (7) enable the
police or other body in possession of the property to make an application
to keep any material which they would otherwise be obliged to return if it
would immediately become appropriate to issue a warrant enabling them
to seize that material or to demand its production in the circumstances set
out in subsection (7)(b). This means, for example, that the police will not
have to return material which might be of value to them and then have to
immediately obtain a warrant to seize it back. Subsection (8) means that
the Court can also authorise the retention of not just what the police or
others could seize under a warrant but also any material which is
inextricably linked to it.”

36.

Further it was submitted that the jurisdiction conferred on the Crown Court by
Section 59 was intended to provide for a judicial mechanism to determine
disputes which arise on the application of the power to remove and sift material
under the earlier provisions of Part 2 of the 2001 Act. Since those provisions are
to be found in Sections 50 and 51 the inference appeared to be that the power to
make an order under Section 59(6) is confined to disputes arising out of the
exercise or purported exercise of the new powers conferred by Sections 50 and
51.

37.

Finally it was submitted that the construction contended for by SOCA would go
a long way to removing the prior control of the exercise of the power to enter and
search premises altogether. Taken to its logical conclusion that approach would
obviate the need for a law enforcement agency to apply for a warrant before
seizing property since it would in all cases be open to that agency to make an

 application under Section 59(5) – (7) retrospectively to regularise a plainly
unlawful seizure.
Discussion
38.

In my judgment Section 59(6) of the 2001 Act plainly conferred on the judge a
discretionary power to authorise the retention by SOCA of the property which
had been seized by it pursuant to the 5 July 2010 warrant in purported exercise of
the power of seizure conferred by Section 352 of the Proceeds of Crime Act
2002.

39.

The starting point, as it seems to me, is that this conclusion follows from the
clear language of Section 59(6). That language makes it clear that the discretion
to authorise retention is conferred on “the appropriate judicial authority” (defined
by Section 64(1)(a) to mean a judge of the Crown Court) “on any application
under this section” in respect of property which has been seized in exercise or
purported exercise of a relevant power of seizure and would otherwise fall to be
returned if it is satisfied that retention of the property is justified on grounds
falling within sub-section (7).

40.

As to “on any application under this section” Section 59 makes provision for
applications at the suit of three distinct categories of person. Under Section
59(2) any person with a relevant interest in the seized property may apply for the
return of the whole or a part of the seized property. Under Section 59(5) the
appropriate judicial authority may give directions on (a) an application under
sub-section (2) (that is to say one made by a person with a relevant interest in the
seized property), (b) an application made by the person for the time being having
possession of anything in consequence of its seizure under a relevant power of
seizure or (c) an application made by a person with a relevant interest in anything
seized under Section 50 or S.51 and on the grounds that the requirement of
Section 53(2) have not been or are not being complied with.

41.

Thus one of the circumstances in which the discretionary power arises is on an
application made by a person for the time being having possession of anything in
consequence of its seizure under a relevant power of seizure (Section 59(5)(b)).
The relevant powers of seizure for the purposes of Section 59 are defined by
Section 59(10) as (a) the powers of seizure conferred by Sections 50 and 51 and
(b) each of the powers of seizure specified in Parts 1 and 2 of Schedule 1. It is
thus clear that applications falling within Section 59(5)(b) are not confined to
those made by the person having possession of anything in consequence of its
seizure under the powers of seizure conferred by Sections 50 and 51. They
include applications made by a person having possession of anything in
consequence of its seizure under any of the powers of seizure specified in Parts 1

 and 2 of Schedule 1, including for present purposes the power of seizure
conferred by Section 352(4) of the Proceeds of Crime Act 2002. It is thus clear
that, contrary to the Claimant’s submissions, the discretionary power conferred
by Section 59(6) is not confined to cases where property has been seized
pursuant to Section 50 or 51 of the Act. Indeed this is demonstrably the case
irrespective of whether the applicant is, as here, the person for the time being
having possession of the material (subsection 5(b)) or a person with a relevant
interest in the seized property (subsection (2)). In the latter case that follows
from the fact that under Section 59(1) Section 59 applies where anything has
been seized in exercise or purported exercise of a relevant power of seizure
which under Section 59(10)(b) extends to powers of seizure other than those
conferred by Sections 50 and 51. It also follows by inference from the contrast
with applications made pursuant to Section 59(5)(c) which are expressly
confined to persons with a relevant interest in anything seized under Sections 50
or 51.
42.

It seems to me clear on the language of Section 59(6) that an application made
under Section 59(5)(b) by a person for the time being having possession of
anything in consequence of its seizure under a relevant power of seizure is “an
application under this section” within the meaning of Section 59(6). The
Claimant’s submission that that conclusion is wrong because Section 59(5)
makes no reference to Section 59(6) and (7) and that Section 59(5), in contrast to
Section 59(6) does not empower the court to authorise the retention of seized
property but merely to give directions as to its retention, is in my judgment
wrong. First it does not address the clear language of Section 59(6) to which I
have referred above. Second it is in my view based on a non-sequitur. The fact
that Section 59(5) provides that on an application made under Section 59(5)(b)
the appropriate judicial authority may give directions as to, among other things,
the retention of seized property is not in my view inconsistent with the
conclusion that Section 59(6) confers on the appropriate judicial authority on
such an application the power to authorise the retention of seized property in the
particular circumstances specified in that sub-section.

43.

Nor do I consider that it follows from the fact that Section 59(6) constitutes a
proviso to the general rule in Section 59(4) under which the Court has
jurisdiction on an application made under Section 59(2) either to order the return
of the seized property or to dismiss the application that Section 59(6) does not
also provide a free-standing power in the court to order the retention of property
seized under an admittedly unlawful warrant. That submission appeared to be
based on two propositions. The first was that because Section 59(6) constitutes a
proviso to the general rule in Section 59(4) on an application made under Section
59(2) it cannot for that reason also confer a discretion on the appropriate judicial
authority to be exercised on an application made under Section 59(5)(b) by a
person having possession of anything in consequence of its seizure under a
relevant power of seizure. That proposition seems to me logically flawed and in

 any event inconsistent with the clear words “on any application under this
section” in Section 59(6) which, as described, include an application made under
Section 59(5)(b).
44.

The second proposition appeared to proceed from the premise that where
property has been unlawfully seized the Court has power under Section 59(6) to
order its retention in the context of an application for its return made under
Section 59(2) by a person with an interest in it. Indeed it was expressly
conceded in oral argument by Mr Bodnar who appeared on behalf of the
Claimant that on an application under S.59(2) by a person with an interest in the
seized property the appropriate judicial authority does indeed have a
discretionary power under S.59(6) to order the retention of property seized under
an admittedly unlawful warrant. That concession, in my view rightly and
inevitably made undermines the submission that, whether as a matter of policy or
of construing Section 59(6) by reference to the purpose for which it was enacted,
Section 59(6) does not authorise the appropriate judicial authority to order, on an
application made under Section 59(5)(b) by the person seized with the property,
the retention of property which has been unlawfully seized. Once it is accepted
that there is no necessary inconsistency between policy and/or the purpose for
which Section 59(6) was enacted on the one hand and the creation of a power in
the court to authorise retention of unlawfully seized property, it does not seem to
me that such an inconsistency arises merely out of the fact that the order is made
on an application by the person who has seized the property rather than on an
application by the person who has an interest in it.

45.

If SOCA in resisting an application by the Claimant under Section 59(2) for
return of the property on the ground that it was unlawfully seized could invite the
Court under Section 59(6) to order its retention on the ground that if the property
were returned it would immediately become appropriate to issue a fresh warrant
for its seizure, I can see no reason of policy or statutory purpose why the same
result should not be permitted merely because the application is made by SOCA
rather than by the Claimant. Apart from anything else where, as here, SOCA
discovers that property has been unlawfully seized by it by a technical error in
the form of the warrant pursuant to which property has been seized by it, it
would in my view be anomalous if, in order to obtain an order under Section
59(6) for its retention it had to wait until the claimant made an application for the
return of the property under Section 59(2), at which point it could, as the
Claimant accepts, invite the court to make an order for retention of the property,
rather than, as happened in this case, take the proper and responsible step of
taking the initiative as soon as the error was discovered and seeking to regularise
the position by making its own application under Section 59(6).

46.

It is right to point out that different language is used in Section 59(5)(b) and
Section 59(6)(a) in relation to the power under which the property sought to be

 retained was seized. The former refers to an application made by the person for
the time being having possession of anything in consequence of its seizure under
a relevant power of seizure. The latter enables the appropriate judicial authority
to authorise the retention of any property which has been seized in exercise, or
purported exercise of a relevant power of seizure. Notwithstanding that
difference of language, it seems to me that the former should be construed as
including an application made by the person for the time being having
possession of anything in consequence of its seizure under the purported exercise
of a relevant power of seizure. That construction is in my view necessary to
make sense of the power conferred by Section 59(6), and follows from the fact
that one of the circumstances in which the latter power is exercisable is where (i)
an application has been made under Section 59(5)(b) (which is “an application
under this section”) and (ii) property has been seized in purported exercise (as
distinct from actual exercise) of a relevant power of seizure.
47.

As to the requirement in Section 59(6) that the property must have been seized in
exercise or purported exercise of “a relevant power of seizure”, for the reasons
already mentioned, it seems to me clear beyond argument that it is satisfied not
only in cases where property has been seized pursuant to the new powers
conferred by Sections 50 and 51 but also where it has been seized pursuant to
any of the large number of powers, existing and as yet un-enacted, specified in
Parts 1, 2 and 3 of Schedule 1. The Claimant’s submission to the contrary is in
my view untenable. That this is so follows from the definition of relevant
powers of seizure in Section 59(10).

48.

The Claimant sought to support his submission that the discretionary power
conferred by Section 59(6) is confined to property seized pursuant to Sections 50
or 51 by reference to the purpose for which Part 2 of the 2001 Act was enacted
and extracts from the explanatory notes which accompanied the Act. The
Claimant submitted that Part 2 was enacted to address the problem identified by
the Divisional Court in R v Chesterfield Justices and Chief Constable of
Derbyshire ex-parte Bramley [2000] QB 576.

49.

In Bramley the Divisional Court held that, where property is seized pursuant to a
warrant issued under the Police and Criminal Evidence Act 1984 (PACE), if it
subsequently turns out on examination that some of it falls outside the scope of
the warrant there is no defence for the constable who executed the warrant in a
subsequent action for trespass to goods based on unjustified seizure that he acted
in good faith. PACE was held to contain no power on the part of a person
executing a warrant issued under that Act to remove property from premises for
the purposes of sifting through it to identify that property which is covered by the
warrant and that which is not with a view to retaining the former and returning
the latter.

 50.

The Divisional Court expressed the view that nothing short of primary legislation
would entitle a constable to remove property for the purpose of sifting it as
between property covered and not covered under the warrant.
“To put the matter in terms which would meet the requirements of the
Convention it seems to me that if in a democratic society it is necessary
for the prevention of crime to invade privacy to a greater extent than is
spelled out in the Act of 1984, then the limits of the invasion must be
spelled out in the statute or in some regulations or code made thereunder,
and there must be a convenient forum available for dealing with disputes:
cf Mienietz v Germany (1992) 16 E.H.R.R. 97. Meanwhile, in order to
defend the right to privacy I see no escape from the proposition that the
words of the statute should be strictly applied.” (per Kennedy LJ. 587 EF).
“Like Kennedy LJ, therefore, I agree that further statutory power has to
be provided to cover the situation which I have considered above. For
my part, I doubt whether anything short of primary legislation would
suffice to meet the stringency of the requirement of the European
Convention for the Protection of Human Rights and Fundamental
Freedoms. Having regard to the practical implications of the result in this
case, it may be thought that the authorities should consider this matter
with a degree of urgency.” (per Turner, J. at 591 A-B).

51.

It is in my judgment clear that the new powers conferred by Sections 50 and 51
of the 2001 Act were enacted in response to the decision in Bramley with the
purpose of enabling constables and others to remove property for the purposes of
subsequent sifting. That is clear from the language of Sections 50 and 51. Were
there ambiguity in that conclusion, which in my judgment there is not, it is
clearly supported by the Explanatory Notes. Paragraphs 156 to 158 summarise
the decision in Bramley and state that Kennedy LJ. said, “Common sense would
suggest that a policeman executing a warrant should be able to do a preliminary
sift of documents and then take all or a large part of them to sort out properly
elsewhere.”

52.

Paragraph 159 states: “Whilst Bramley concerned the police and PACE, the
principle applies to the powers of seizure given to a range of law enforcement
agencies. The difficulty facing the police and these other law enforcement
agencies is that there are circumstances where it is not practicable to establish on
the premises subject to the search which material can be seized and which
cannot. This may be because of the simple bulk of the material. It may be
because relevant material is contained within the same document or set of
documents as material which is protected from seizure. The most difficult
circumstances relate to material held on computer media. It may be impossible to

 establish which material is relevant and seizable without processing the data
forensically. That may involve removing the computer and/or imaging the entire
contents of its hard disk and/or removing CD Roms or floppy disks.”
53.

Paragraph 160 states: “The new sections do two separate things. First they deal
with the problem identified by Bramley. They give the police and other law
enforcement agencies powers to remove material from premises so that they can
examine it elsewhere, where it is not possible to examine it properly on the
premises, due to constraints of time or technology. Second, they recognise the
fact that with the advent of modern technology and the expansion in the use of
computers, it is often important for investigators to be able to seize and
forensically examine an entire disk or hard drive, in order to determine when
individual documents have been created, amended and/or deleted. This
inevitably means retaining all the material on the hard drive, including possibly
legally privileged material. The new sections give the police and others the
power to retain this inextricably linked material. The sections also provide for a
number of safeguards to prevent abuse and to allow for a mechanism whereby an
application can be made to a judge for the return of material seized. In certain
circumstances there will be an obligation on the police and others to secure the
material in question pending the determination of such an application.”

54.

Paragraph 161 states: “Because the Bramley principle applies equally to all
powers of seizure given to the police and other law enforcement agencies the
new powers are free standing powers which can only be exercised where a
person could have exercised an existing power of seizure. Schedule 1 to the
sections lists all these existing powers. There are over 70 of them and in addition
to those used by the police they include powers available to the Serious Fraud
Office, the Financial Services Authority, the Inland Revenue, Customs & Excise,
the Department of Trade and Industry and the Office of Fair Trading. The
underlying policy is that whilst the police and others can use the new powers to
remove material to examine elsewhere they are only able to retain material
which they have power to seize under their existing powers. The only exception
to that is the new power to retain inextricably linked material.”

55.

On their face at first blush the last two sentences of paragraph 161 might seem to
be inconsistent with a construction of Section 59(6) as conferring on the
appropriate judicial authority a discretionary power to authorise the retention of
property unlawfully seized in purported exercise of a relevant power of seizure.
In my judgment there is no such inconsistency. It is plain on the wording of
some of the sections in Part 2 of the Act that Part 2 is not confined to conferring
and defining the new powers of sifting in Sections 50 and 51. Thus for example
the duty to secure the return of legally privileged material imposed by Section 54
applies not only to the powers of seizure conferred by Sections 50 and 51 but
also to each of the powers of each of the seizure specified in Parts 1 and 2 of

 Schedule 1 (see Section 54(4)). Similarly the duty to secure the return of
excluded material or special procedure material imposed by Section 55 applies to
the powers of seizure specified in Part 3 of Schedule 1. Nor is the authorisation
by Section 56 of the retention of property seized by a constable lawfully on
premises or by a relevant person who was on premises accompanied by a
constable confined to property seized pursuant to Sections 50 or 51.
56.

Further, and of particular relevance in the present context, as already explained
the provisions made by Section 59 for applications to be made and directions and
orders to be made apply not only to property seized pursuant to the powers of
seizure conferred by Sections 50 and 51 but also to property seized pursuant to
the powers of seizure specified in Parts 1 and 2 of Schedule 1.

57.

It is thus clear in my view that Part 2 of the 2001 Act was enacted not solely for
the purpose of providing new powers for removing material for the purpose of
sifting but for additional purposes as well. In Bramley Kennedy, LJ. stated: (at
588 E-G)
“That leaves the problem of what is to be done if a difference of opinion persists as
to whether an item seized was relevant (i.e. within the warrant) or was
subject to legal professional privilege (as qualified by section 10(2)) and, if
so, whether at the time of seizure the constable had reasonable grounds for
believing the item to be subject to legal professional privilege. In my
judgment as the law stands those issues can only be ventilated by means of
an action for trespass to goods, or perhaps in some cases by means of
proceedings for judicial review.
The latter course is not usually
satisfactory, and either course may tend to slow up a criminal investigation
which should be proceeding as quickly as possible. So there would seem
to be a need for a special inter partes procedure to bring the matter speedily
before a circuit judge. Protocols of the type shown to us in draft could
have a valuable role to play, not least in preserving the material in a
suitable state until it has been adjudicated upon, but in the end they cannot
provide a quick solution where there is a dispute.”

58.

In my view the need for an inter partes procedure identified by Kennedy LJ. was
not confined to cases where he considered that there should be a new power to
remove property for the purpose of sifting. Be that as it may, although the
statement in paragraph 160 of the Explanatory Notes that “the sections… allow
for a mechanism whereby an application can be made to a judge for the return of
material seized”, is made in the context of a discussion of the new powers of
seizure under Sections 50 and 51 which might on its face suggest that Section 59
is confined to property seized under the new powers under Sections 50 or 51, the
clear language of Section 59(10) makes it plain that that is not the case.

 59.

Moreover in my view paragraph 176 of the Explanatory Notes also supports this
view. Thus it expresses the hope that Section 59 would provide a quick and easy
mechanism for challenging not only the use of the new powers conferred by Part
2 of the Act but also in certain circumstances the exercise of existing powers. It
further states: “Subsections (5)(b),(6) and (7) enable the police or other body in
possession of the property to make an application to keep any material which
they would otherwise be obliged to return if it were to immediately become
appropriate to issue a warrant enabling them to seize that material or to demand
its production in the circumstances set out in sub-section (7)(b). This means for
example that the police would not have to return material which might be of
value to them and then have to immediately obtain a warrant to seize it
back.” (emphasis added).

60.

In my view this makes it plain that the relevant provisions of Section 59 are not
confined to property seized in the exercise or purported exercise of the powers
conferred by Sections 50 or 51. It also in my view supports the proposition that
the discretionary power to order retention of property seized in purported
exercise of a relevant power extends to property which has been unlawfully
seized. Such property is property which the police would otherwise be obliged
to return and as made clear by paragraph 176 the purpose of the new
discretionary power to order retention conferred by Section 59(6) is in an
appropriate case to avoid the police having to return property which it is not
otherwise entitled to retain if it would upon return be entitled to seize it pursuant
to a fresh warrant.

61.

In Cook v SOCA, SOCA seized documents pursuant to search warrants whose
execution it subsequently conceded was unlawful because the warrants provided
details of the premises to which they related only in a schedule and because
proper schedules specifying the addresses had not been left at two of the
searched premises.

62.

SOCA argued that once the documents which had been unlawfully seized pursuant
to admittedly defective warrants were in the police station it was entitled to seize
them pursuant to Section 19 of PACE on the ground that the power of seizure
under that section is exercisable by a constable who is lawfully on any premises
and SOCA were lawfully on the premises to which the documents had been
taken.

63.

Leveson, LJ. held: “I readily accept that the words of Section 19 are, on their face,
sufficient to justify the further seizure of the property seized during the course of
the execution of search warrants which it is conceded was unlawful. That
construction, however, is to deny the structure of the legislation and to fail
entirely to have regard to the way in which the serious interference, which is the
power to enter premises and seize property, is controlled. For my part I reject the

 proposition (which is the natural corollary of the power for which [counsel for
SOCA] contends) that however unlawful the seizure of property, provided it ends
up on premises at which the presence of a police officer is lawful, that officer can
then convert what is unlawful possession into lawful possession.”
64.

In my judgment Cook v SOCA does not assist the Claimant in his contention as to
the need to construe Section 59(6) in such a way as to avoid the conclusion that
the appropriate judicial authority on the application of a person in possession of
unlawfully seized property may authorise its retention. The critical difference
between the construction of Section 19 of PACE for which SOCA contended
unsuccessfully in Cook and the construction of Section 59(6) of the 2001 Act for
which it contends in this case is that the former allowed for no discretion on the
part of the Court or appropriate judicial authority to refuse to allow retention of
unlawfully seized property, whereas the latter does.

65.

As the judge whose decision is challenged in this case pointed out, the judicial
discretion built into the new scheme provided for by Section 59(6) of the 2001
Act provides a safeguard against abuse on the part of the police or other agencies
or the watering down of the high importance attached in the judicial
pronouncements referred to earlier in this judgment to the need for scrupulous
care and attention in the drawing and execution of search warrants. The
Claimant is in my view right to point to the undesirability of the police or other
agencies regarding the new power to apply for the retention of unlawfully seized
property as enabling them to adopt a more lax approach to complying with the
strict requirements imposed in relation to the drawing up and execution of search
warrants. However I have no doubt that in the exercise of the judicial discretion
conferred by Section 59(6) any court or other appropriate judicial authority faced
with an application for retention of unlawfully seized property will be astute to
subject to the most rigorous examination the circumstances leading up to and
surrounding the illegality of the initial seizure. Any suggestion of bad faith or
even that the police or other agency adopted a less than rigorous and scrupulous
approach to the drawing up and the execution of the initial warrant is likely to
weigh heavily against the exercise of the discretion in favour of authorising
retention.

66.

As already mentioned, in this case there is no suggestion either of bad faith or of
any lax approach on the part of SOCA to the drawing up and execution of the 5
July 2010 warrant. The illegality derived from a defect in the general template
for such warrants to which the attention of SOCA was by chance drawn shortly
after 5 July 2010. Immediately upon realising the defect and consequent
illegality, SOCA acted responsibly in drawing this to the attention of the
Claimant and seeking to draw up a fresh warrant. The Judge was entitled to
conclude as he did that the conditions of Section 59(7) were met in this case. As

 Leveson, LJ. said in Cook v SOCA:
“Criminal litigation is not, however, a game. Although the police (or this
case SOCA) cannot escape the consequence of the illegality of the warrant,
there is no reason why they should be placed in a worse position than if the
warrant had never been sought or, conversely, why those the subject of the
warrant, (even if unlawful) should be in a better position to protect
themselves from prosecution for unlawful conduct.” (Paragraph 16).
If the court did not have the power in this case to authorise the retention by
SOCA of the seized material so that it had to be returned to the Claimant, there
would inevitably be a risk that it would be destroyed. That would be to place the
Claimant in a better position and SOCA in a worse position than if it had not
issued and executed the 5 July 2010 warrant thereby putting the Claimant on
notice of SOCA’s investigation and its intention of searching the premises of
KCSL. The risk of destruction of the seized material is obvious.
Conclusion
67.

For these reasons in my judgment the challenge to the decision of the Judge fails
and this claim for judicial review should be dismissed.

Lord Justice Laws:
I agree entirely