Panesar (t/a Anami Law), R (On the Application Of) v The Crown Prosecution Service

Where another court has already determined substantially the same issue on substantially the same evidence, it is ordinarily not open to a later court of coordinate jurisdiction to reach a different conclusion. This applies even where the proceedings involve different statutory powers and the earlier decision is not technically binding. The court must consider finality, consistency and the proper use of the court’s process.

Under the Police and Criminal Evidence Act 1984, section 37 applies whenever a person under arrest is produced to a custody officer, including after detention and questioning. Conditional bail may therefore be granted under section 37(2). A prepared request for conditional bail does not unlawfully fetter the custody officer’s independent discretion merely because it was supplied by investigators or a prosecutor.

Three judicial review claims arose from an HMRC investigation into an alleged diversion fraud involving alcoholic drink and evasion of excise duty and VAT. The first two claims challenged search warrants issued by HHJ Horton under section 8 of the Police and Criminal Evidence Act 1984. The third challenged conditional bail imposed after arrest and the refusal of Barking Magistrates’ Court to vary it.

Before the search-warrant claims were heard, the Court of Appeal (Criminal Division) had considered related restraint and receivership proceedings in Windsor v Crown Prosecution Service [2011] EWCA Crim 143. Mackay J later reconsidered the matter on additional evidence. Both courts concluded that the evidence did not establish reasonable cause to believe that criminal conduct had occurred. The central issues were whether that conclusion controlled the search-warrant applications and whether the custody officers could grant conditional bail after questioning.

1. The search-warrant claims succeeded and the warrants were quashed. The issue before the court was substantially the same as the issue considered in the restraint-order proceedings. The evidence before the Court of Appeal and Mackay J was substantially the same as the evidence supporting the informations before HHJ Horton.

2. Although the doctrines of res judicata and issue estoppel did not fit the circumstances precisely, and the court was not necessarily formally bound by the Court of Appeal’s decision, it was not open to the court to decide the common issue differently. The principles discussed in Johnson v Gore Wood and Co [2002] 2 AC1 emphasised finality, consistency and a broad merits-based assessment of abuse of process. The court therefore followed the earlier conclusions that the evidential material did not establish reasonable grounds for believing that an indictable offence had been committed.

3. The court declined to determine the alternative challenges to the warrants, including their alleged breadth, the treatment of legally privileged material, the identification of articles to be sought, and the redactions in the special-procedure-material application.

4. The bail claim failed. Following R (Torres) v Commissioner of Police of the Metropolis [2007] EWHC 3212 (Admin), section 37 applies on every occasion when a person under actual or deemed arrest is produced to a custody officer. The custody officer could therefore reconsider the position after questioning and grant conditional bail under section 37(2).

5. Section 34 was not required to govern the case. The court observed that it appeared directed to the different situation in which the suspicion justifying arrest had ceased to apply. The custody officers’ statutory functions remained independent under section 36(5). A prosecutor could suggest conditional bail and appropriate conditions without unlawfully fettering that discretion, and the challenge to the magistrates’ refusal to vary the conditions also failed. Permission was refused for the bail claim.

The judgment was at first instance on three judicial review claims. In related restraint and receivership proceedings, the Court of Appeal (Criminal Division) had given judgment in Windsor v Crown Prosecution Service [2011] EWCA Crim 143, followed by a further decision of Mackay J on 22 February 2011. Those decisions materially informed the determination of the search-warrant claims.