Cummins, R (on the application of) v Manchester Crown Court

Where a search warrant is conceded to be unlawful, the person from whom material was seized is unconditionally entitled to its return. The court may arrange a formal handover and identify the material’s significance, but should not impose conditions restricting access or preserving police control merely to restore the authorities to the position they would have occupied had the warrant been lawful. Existing criminal offences governing concealment, destruction or disposal provide the relevant protection pending a production order. Applications for destruction of copies or restraints on derivative use should not generate satellite litigation. Use of unlawfully obtained material is governed by the applicable exclusionary principles, including section 78 of the Police and Criminal Evidence Act 1984.

SOCA obtained three warrants and a restraint order in connection with a money-laundering investigation. Material was seized from the claimant’s home, business premises and another property. SOCA conceded that the warrants failed to comply with section 15(6)(a)(iii) of the Police and Criminal Evidence Act 1984 because they did not sufficiently indicate the nature of the investigation.

The claimant sought judicial review, return of the seized material, destruction of copies, restrictions on derivative use of information, and damages. SOCA accepted that the material should be returned but sought arrangements preserving relevant documents pending an application for a production order under section 345 of the Proceeds of Crime Act 2002. The central issues were the conditions that could accompany return and the remedies available for unlawful seizure and retention.

1. Return of material. Since SOCA conceded that the warrants were unlawful, the claimant was unconditionally entitled to the return of the seized material. The documents were to be returned through a formal handover identifying the recipient and the recipient’s responsibility.
2. Conditions on return. The court could not impose conditions merely to place SOCA in the position it would have occupied had the warrant been lawful. The discretion to attach terms to an injunction under section 37 of the Supreme Court Act 1981 had to be exercised judicially. It did not justify supervised access or continued police control of documents unlawfully retained.
3. Preservation and production. Section 342(2)(b) of the Proceeds of Crime Act 2002 already made it an offence to conceal, destroy or dispose of material relevant to a known or suspected money-laundering investigation. The recipient should be warned of the documents’ significance and of the consequences of disposal. A production order under section 345 could then require production by lawful means.
4. Copies and derivative use. The court refused orders requiring destruction of copies, prohibiting derivative use of knowledge, or identifying everyone who had seen the material. Section 78 of the Police and Criminal Evidence Act 1984, together with the principles in Sang [1980] AC 402, governed the use of unlawfully obtained evidence; such use was not automatically prohibited in every circumstance.
5. Disposition. The documents were ordered to be returned in formal circumstances. Aggravated damages were refused. Mr Justice Ouseley agreed that section 37(2) could not support supervised retention or restricted access.

This was a judicial review determined at first instance by the Divisional Court of the Queen’s Bench Division. The court granted permission and, with the parties’ consent, treated the hearing as the final determination.