| POLICE — Search, right of — Search warrant — Searches in connection with investigation of importation and exportation of counterfeit clothing — Whether search warrants wrongly issued — Whether procedure of production order should have been taken in respect of solicitors’ and accountant’s premises — Whether computer or its hard disk “material” — Whether single item or thing — Whether seizure barred because they might contain irrelevant material — Police and Criminal Evidence Act 1984, s 8(1)— Criminal Justice and Police Act 2001, s 51—CPR r 54.5(1)
R (Faisaltex Ltd and others) v Crown Court at Preston and another [2008] EWHC 2832 (Admin); [2008] WLR (D) 362
QBD: Keene LJ and Griffith Williams J : 21 November 2008
A computer, or its hard disk, fell within the meaning of “material” in s 8(1) of the Police and Criminal Evidence Act 1984 and was to be regarded as a single item or thing, rather than a container of a number of things, so that, where there were reasonable grounds for believing that it contained material evidence, a warrant under s 8 could properly specify a computer or similar item even if it were likely to contain irrelevant material.
The Divisional Court of the Queen’s Bench Division so held when allowing a claim by the claimants, Faisaltex Ltd and two other companies, for judicial review of a search warrant issued by the Crown Court at Preston on 31 March 2008 but refusing those claimants and others permission to proceed with claims for judicial review of seven other search warrants also issued on 31 March 2008 and a ninth warrant issued on 3 April 2008.
KEENE LJ, giving the judgment of the court, said that the claims concerned search warrants obtained and executed in relation to three sets of office premises (those of a firm of solicitors, of an accountant, and of three companies) and the five homes of members of closely-related families who controlled the companies. The warrants arose from an investigation of the importation and exportation of counterfeit clothing and related offences. The challenges were to the issue of the warrants by the Crown Court and their execution. The claims had not been issued promptly within CPR r 54.5(1) but that by itself did not mean that permission should be refused. In relation to the solicitors’ premises the main concern of the police, which had resulted in proceeding by search warrant rather than by production order, was that the solicitors had acted for the families on five appeals against the seizure and detention of counterfeit goods. The solicitors were reputable and would have been under a duty not to dispose of relevant material, so there had been no basis for the conclusion that proceeding by production order might seriously have prejudiced the investigation within the meaning of para 14(1)(d) of Sch 1 to the Police and Criminal Evidence Act 1984. The same result did not follow in relation to the accountant because of his closer connection with the families and their business. Of the many other grounds of challenge, none of which could be accepted, two related to computers. First, a computer and its hard disk were within the wide definition of “material” in s 8(1) of the 1984 Act, so it had not been necessary for the police to use the power in s 51 Criminal Justice and Police Act 2001 (seizure where it is not reasonably practicable to determine at the time and place of the search whether or to what extent a thing contains something which the police officer is entitled to seize). Secondly, as decided in R (H) v Commissioners of Inland Revenue [2002] STC 1354 in relation to “thing” in s 20C(3)(b) of the Taxes Management Act 1970, and in R (Kent Pharmaceuticals Ltd) v Serious Fraud Office [2005] 1 WLR 1302 in relation to “document” in s 2(18) of the Criminal Justice Act 1987, a computer and its hard disk were, for the purposes of s 8(1) of the 1984 Act, a single item or thing, not a container of a number of things, so that a warrant could properly authorise seizure of the whole computer or hard disk even though they might contain irrelevant material. The execution of the warrants had not been conducted oppressively and had not involved excessive seizure.
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Appearances: Alun Jones QC and Amelia Nice (DLA Piper UK LLP) for the claimants; Andrew Bird and Robert Dudley (Constabulary Solicitor, Lancashire Constabulary, Preston) for the second defendant, the Chief Constable of Lancashire Constabulary, and for the interested party, the Revenue & Customs Commissioners.
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