El-Kurd, R (on the application of) v Winchester Crown Court & Ors

Criminal Justice and Police Act 2001, section 59(6), confers a discretionary power to authorise retention of property seized in the exercise or purported exercise of a relevant seizure power, including property seized under an unlawful warrant. The power may be invoked on an application by the person in possession of the property under section 59(5)(b), and is not confined to seizures under sections 50 or 51. The discretion provides an important safeguard. The court must rigorously examine the circumstances of the initial illegality, including any bad faith or lack of scrupulous care. Responsible conduct and a technical defect may justify retention where, on return, a fresh lawful warrant would immediately be appropriate.

The claimant sought judicial review of a decision by HH Judge Cutler at Winchester Crown Court authorising the Serious Organised Crime Agency to retain material seized under a search warrant which SOCA accepted was unlawful because of a technical defect. SOCA applied under section 59(5)(b) of the Criminal Justice and Police Act 2001. The claimant argued that section 59(6) operated only in the context of an application for return under section 59(2), and did not provide a free-standing power to regularise an unlawful seizure. The central issue was the scope of the court’s power to authorise retention under section 59(6).

1. Claim dismissed. The judge was entitled to authorise SOCA’s retention of the seized material.
2. Section 59(6) applies on “any application under this section”. That includes an application under section 59(5)(b) by the person in possession of property seized under, or purportedly under, a relevant seizure power.
3. The expression “relevant power of seizure” is defined broadly by section 59(10). It includes the powers in sections 50 and 51 and the powers specified in Parts 1 and 2 of Schedule 1, including the power under section 352(4) of the Proceeds of Crime Act 2002. Section 59(6) is therefore not confined to property seized under sections 50 or 51.
4. The fact that section 59(6) operates as a qualification to the general return provisions in section 59(4) does not prevent it from conferring a free-standing discretion on an application by the person holding the property. That construction is supported by the statutory language, structure and explanatory notes.
5. The decision in R v Chesterfield Justices and Chief Constable of Derbyshire ex parte Bramley explained the legislative background to sections 50 and 51, but did not confine section 59 to those provisions. R (Cook) v Serious Organised Crime Agency was distinguishable: it concerned an asserted power under section 19 of PACE which involved no judicial discretion, whereas section 59(6) contains a judicial safeguard.
6. In exercising the discretion, the court must subject the circumstances of the initial unlawful seizure to rigorous examination. Bad faith or a less than rigorous approach to preparing or executing the warrant will weigh heavily against retention. Here the defect arose from a general warrant template, SOCA acted promptly and transparently once it was discovered, and the section 59(7) conditions were satisfied.

First-instance judicial review claim. The Administrative Court dismissed the challenge to the Winchester Crown Court decision.