Faisaltex Ltd & Ors, R (on the application of) v Crown Court Sitting At Preston & Ors

Judicial review is not ordinarily an appropriate means of determining disputed facts about excessive seizure during the execution of a search warrant. Such issues should generally be resolved in private law proceedings, where evidence can be heard and factual findings made.

For a special-procedure warrant under the Police and Criminal Evidence Act 1984, the judge must have a rational evidential basis for being satisfied that notice of a production-order application might seriously prejudice the investigation. A solicitor’s proper representation of suspects does not itself provide that basis. The position may differ where an accountant is closely involved with the suspects and their businesses. Computers may be specified as items to be seized if there are reasonable grounds for believing that they contain relevant evidence, even though they may also contain irrelevant material.

The claimants sought permission for judicial review of nine warrants issued by His Honour Judge Brown at Preston Crown Court under sections 8 and 9 and Schedule 1 of the Police and Criminal Evidence Act 1984. The warrants concerned solicitors’ premises, an accountant’s premises, business premises and residential properties. The challenges alleged invalid issue, excessive seizure and oppressive execution.

The warrants arose from police and HMRC investigations into alleged counterfeiting, VAT fraud, money laundering and conspiracy to pervert the course of justice. The claim forms were filed within three months of execution but not promptly. The central questions were whether the warrants were lawfully issued and whether judicial review was an appropriate procedure for resolving the alleged excessive seizures.

1. Promptness and judicial review. Filing within three months under CPR 54.5(1) did not necessarily satisfy the separate requirement of prompt filing. The claims were not prompt, and the delay caused prejudice to the criminal investigation. The court nevertheless granted permission where the challenge to the Hill Dickinson warrant disclosed a clear case of unlawful issue. In relation to the other warrants and their execution, the delay and the factual complexity justified refusing permission or relief.
2. Hill Dickinson warrant. The Schedule 1 paragraph 14(d) condition required a rational evidential basis for believing that notice of a paragraph 4 production-order application might seriously prejudice the investigation. The solicitors’ representation of the Patel family on several occasions did not taint them or justify an assumption that they would pass material to their clients. Paragraph 11 imposed a statutory duty not to dispose of material once notice had been served. The judge therefore had no power to issue the warrant. It was quashed, the search and seizures were declared unlawful, and the seized property and copies were ordered to be returned. Damages were reserved.
3. Hindocha and Co warrants. The accountant’s close business and personal connections with the Patel family provided a rational basis for concluding that notice might seriously prejudice the investigation. The warrants sufficiently identified the material sought. In the context of a complex investigation, limiting the material to documents concerning identified persons and entities supplied an implied temporal boundary. The information also provided reasonable grounds for believing that the material was likely to be relevant and admissible evidence.
4. Section 8 warrants and privilege. Material is not special-procedure material merely because it is similar in nature to material held by a solicitor or accountant; the capacity and circumstances in which it is held are important. Legal privilege under section 10 is limited and does not extend to every solicitor-client communication or every legal document. Mere possibility that computers contain privileged material was insufficient to invalidate the warrants.
5. Computers and seizure. A computer or hard disk may be treated as a single item or thing containing relevant evidence. The presence of irrelevant material does not prevent its inclusion in a warrant where the statutory requirements concerning privilege and relevance are satisfied. The court followed the reasoning in R (H) v Commissioners of Inland Revenue [2002] EWHC 2164 (Admin) and Kent Pharmaceuticals Ltd v Director of the Serious Fraud Office [2002] EWHC 3023 (Admin) by analogy.
6. Execution. The alleged excessive seizures and privilege disputes required detailed factual assessment on a document-by-document basis. Judicial review was therefore inappropriate. An inadvertent seizure of privileged material did not invalidate the warrant in its entirety. The claims concerning execution of the remaining warrants were refused.

First-instance judicial review proceedings in the Administrative Court. The court granted permission and substantive relief concerning the Hill Dickinson warrant, while refusing permission or relief concerning the remaining warrants and their execution.