Panesar & Ors v HM Revenue and Customs

Proceedings concerning the retention of property seized in aid of a criminal investigation are a “criminal cause or matter” where the statutory procedure operates as an alternative to obtaining a fresh criminal search warrant. Their character is determined by their substance, statutory context and connection with the investigation, rather than by the absence of an existing prosecution or the property interests involved.

Accordingly, section 18(1)(a) of the Senior Courts Act 1981 prevents an appeal to the Court of Appeal from a High Court judgment reviewing such proceedings. The available appellate route is to the Supreme Court under the applicable statutory procedure.

HMRC seized material under Crown Court search warrants issued during an investigation into alleged tax fraud. After the High Court quashed the warrants, return of the material was deferred while HMRC applied to the Crown Court under section 59 of the Criminal Justice and Police Act 2001 for authority to retain it. The Crown Court accepted jurisdiction and subsequently authorised retention of much of the material.

The Divisional Court dismissed claims for judicial review of the Crown Court’s assumption of jurisdiction: [2014] EWHC 2821 (Admin). The applicants sought permission to appeal. As a preliminary issue, the Court of Appeal considered whether the underlying proceedings were a “criminal cause or matter”, so that section 18(1)(a) of the Senior Courts Act 1981 excluded its jurisdiction.

1. Permission to appeal was granted, but the appeal was dismissed for want of jurisdiction. Proceedings under section 59 of the Criminal Justice and Police Act 2001 for retention of the seized material were proceedings in a criminal matter. Section 18(1)(a) of the Senior Courts Act 1981 therefore prevented an appeal from the Divisional Court to the Court of Appeal. The applicants had to seek the necessary permission from the Divisional Court and, if successful, appeal to the Supreme Court.

2. Section 59 concerns property seized through the exercise or purported exercise of powers existing in aid of criminal investigations. Under subsections (6) and (7), retention may be authorised where return would immediately make it appropriate to obtain a warrant or order under which the property could lawfully be seized again. Although retention is discretionary, the statutory test begins with the conditions governing seizure under the relevant criminal legislation. The procedure avoids return followed by immediate re-seizure and protects the investigation against destruction of the property during the interval.

3. The application was made in the Crown Court, save for the limited categories which Parliament assigned to the High Court. An application under section 59(5)(b) was no less a statutory procedure in aid of a criminal investigation with a view to prosecution than an application under sections 8 or 9 of the Police and Criminal Evidence Act 1984. It provided an alternative mechanism where something had gone wrong with the original seizure process.

4. Carr v Atkins [1987] QB 963 could not be distinguished. The absence of an existing prosecution did not alter the criminal character of a statutory procedure designed to assist a criminal investigation. Government of the United States v Montgomery [2001] UKHL 3 and R (Guardian News and Media Ltd) v City of Westminster Magistrates’ Court [2011] EWCA Civ 1188 concerned materially different procedures and did not call Carr v Atkins into question.

5. It was unnecessary and inappropriate to determine the proposed appeal on its merits. Macur and Patten LJJ agreed with Burnett LJ.

1. Court of Appeal (Civil Division): Permission to appeal was granted, but the appeal was dismissed because the court lacked jurisdiction under section 18(1)(a) of the Senior Courts Act 1981. The proper appellate route was to the Supreme Court: [2014] EWCA Civ 1613.

2. Divisional Court: The claims for judicial review were dismissed. The court held that section 59(5)(b) of the Criminal Justice and Police Act 2001 enabled HMRC to seek authority from the Crown Court to retain the seized material: [2014] EWHC 2821 (Admin).

3. Crown Court: The judge accepted jurisdiction over HMRC’s section 59 application and later authorised retention of much, but not all, of the seized material.