Hoque & Anor, R (on the application of) v HM Revenue and Customs

A search warrant issued under the Police and Criminal Evidence Act 1984 must identify, so far as practicable, the articles to be sought. The justice of the peace must define the scope of the authority granted. That responsibility cannot be delegated to the investigating officer by using descriptions which leave the relevance of material to the officer’s judgment. The requirements governing the justice’s jurisdiction under section 8 are distinct from the requirements governing the warrant’s contents under section 15. Electronic equipment may nevertheless be included where the evidence shows that it is likely to contain relevant material, even though irrelevant data cannot practically be separated before examination. An unlawful, already executed warrant may justify a declaration and damages, but need not be quashed. Copies of seized material may remain in the investigators’ possession where they are required for criminal proceedings.

The claimants sought judicial review of four search warrants issued by the City of London Magistrates’ Court and executed by HM Revenue and Customs during an investigation into suspected cheating of the Revenue. They alleged that the warrants were impermissibly broad under section 15(6)(b) of the Police and Criminal Evidence Act 1984, and that the justice of the peace could not properly have been satisfied that computers and telephones were relevant evidence under section 8.

The court considered whether the warrants sufficiently identified the articles to be sought, whether electronic equipment could properly be included, and what relief should follow if the warrants were unlawful.

1. Ground 1 succeeded. Section 8 regulates the conditions for issuing a warrant and section 8(2) limits seizure to material for which the search was authorised. Section 15 separately requires the warrant itself to identify, so far as practicable, the articles to be sought.
2. The warrants authorised seizure of material deemed relevant by HMRC officers without identifying the nature of the investigation. An occupier could not ascertain the limits of the authority. The justice of the peace was required to determine the relevant scope of the search and could not delegate that responsibility to the constable. The warrants therefore failed to comply with section 15(6)(b), and the entries and searches were unlawful.
3. The challenge to computers, telephones and SIM cards failed. The evidence showed reasonable grounds for believing that the claimants were acting in concert and that communications and electronic equipment were likely to reveal their association and coordinated activities. Following the approach in R(Faisaltex Ltd) v Preston Crown Court & Anor [2009] 1 WLR 1689 (Admin), the practical indivisibility of relevant and irrelevant electronic data did not prevent such equipment being authorised for seizure.
4. The court granted a declaration that the warrants did not comply with section 15(6)(b) and that the searches were unlawful. It declined to quash warrants which had already been executed. The issue of damages was adjourned to a single judge. Original material was to be returned, but copies required for the criminal proceedings could be retained. The claimants were awarded one third of their assessed costs.

First-instance judicial review proceedings in the Divisional Court of the Queen’s Bench Division. No earlier decision is stated in the judgment.