Cook & Anor v Serious Organised Crime Agency

Section 19 of the Police and Criminal Evidence Act 1984 cannot convert unlawful police possession of property into lawful possession merely because the property has been taken to premises where an officer is lawfully present. Property which must be returned following an unlawful seizure must first be restored to the physical possession of the person from whom it was taken. Obtaining a receipt while retaining physical control is insufficient.

The unlawfulness of the original seizure does not necessarily require the destruction of copies or prohibit use of the information obtained. Admissibility in criminal proceedings remains subject to section 78 and any applicable human-rights balancing exercise.

SOCA executed three search warrants during an investigation into an alleged conspiracy to defraud the Ministry of Justice. It later accepted that the warrants had been executed unlawfully and agreed to return the seized property. At a police station, however, SOCA obtained receipts for the property and immediately purported to seize most of it again under section 19 of the Police and Criminal Evidence Act 1984.

The claimants sought judicial review. They requested the return of the original documents, destruction of copies and an order preventing derivative use of information obtained through the unlawful searches. The central issue was whether section 19 permitted SOCA to re-seize at the police station property which remained in its physical possession following the unlawful searches.

1. The application was allowed and the return of the original documents ordered. Section 19 of the Police and Criminal Evidence Act 1984 did not permit SOCA to retain the documents by obtaining receipts and immediately purporting to seize them again. Although the officer was lawfully at the police station and the documents were there, the provision had to be construed within the statutory scheme of safeguards controlling entry, search and seizure.

2. Section 19 could not be used to convert unlawful possession into lawful possession merely because the property had been brought to premises where an officer was lawfully present. If unlawfully seized goods had to be returned, they had to be restored to the physical possession of the person from whom they were taken before any available power of re-seizure could lawfully be exercised. A signed receipt did not alter the reality of continuing physical possession. Bates v Chief Constable of Avon and Somerset [2009] EWHC 942 (Admin) was considered, while Chief Constable of Merseyside v Hickman [2006] EWHC 451 (Admin) concerned property whose original seizure had been lawful.

3. The failure of the original warrants did not necessarily prevent SOCA from seeking a fresh warrant or taking another lawful step. Any application would have to disclose the relevant background and establish proper grounds. The safeguards governing warrants required real care in their drafting, application and execution.

4. The court refused to order destruction of copies or prohibit use of the information obtained. The common law may admit unlawfully obtained evidence, subject to section 78 of the Police and Criminal Evidence Act 1984. The court lacked the documents and other information needed to undertake the balancing exercise required by article 8 of the European Convention on Human Rights. R v Sang (1980) AC 402 was applied.

5. A prohibition on derivative use was also refused. Such an order risked unwarranted satellite litigation about whether a lawful evidential inquiry originated in knowledge gained from the unlawful seizure. Ouseley J agreed and added that section 78 supplied the proportionate means of controlling admissibility at any criminal trial.

This was a first-instance claim for judicial review. Before the proceedings, SOCA accepted that the execution of the search warrants was unlawful, agreed to pay compensation and costs, and then purported to re-seize most of the documents under section 19 of the Police and Criminal Evidence Act 1984.