Panesar & Ors v The Central Criminal Court & Anor

The Crown Court has jurisdiction under Criminal Justice and Police Act 2001, section 59, to entertain an application by an investigating authority for retention of material seized in the purported exercise of a relevant power, even where the warrant has subsequently been quashed. The omission of “purported” from section 59(5)(b) does not restrict that jurisdiction. Section 59 must be read as a whole, in light of its purpose and the legislative context. The procedure protects both investigators, by preventing potentially important material from being destroyed before a fresh warrant can be obtained, and suspects, by requiring the authority to establish that the statutory conditions for a fresh warrant or production order would immediately be satisfied.

HM Revenue and Customs investigated an alleged diversion fraud and obtained search warrants and related orders. The warrants were later quashed because the statutory grounds for their issue had not been established. Material seized under the warrants remained subject to orders concerning its return and copying.

HMRC applied under section 59 of the Criminal Justice and Police Act 2001 for authority to retain the material. The Central Criminal Court ruled that it had jurisdiction to entertain the application. The claimants sought judicial review of that preliminary ruling. The central issue was whether section 59 permitted such an application where the original warrant had been invalid or quashed.

1. Permission and jurisdiction. Permission was granted in each claim. The court dismissed the challenge to the preliminary ruling and held that the Central Criminal Court had jurisdiction to determine HMRC’s section 59 application.
2. Section 59(1) applies where anything has been seized in the exercise, or purported exercise, of a relevant power of seizure. That jurisdiction is established by the circumstances of the seizure. The subsequent quashing of the warrant does not retrospectively remove the jurisdiction conferred by section 59.
3. The expression “purported exercise” naturally includes a seizure made under a warrant which did not lawfully confer a power of seizure. It is not confined to a particular type of defect, such as an unsigned warrant or an error concerning premises. The absence of the word “purported” from section 59(5)(b) does not exclude an application by the person possessing material seized under an invalid warrant. The provisions must be construed together so that the power in section 59(6) can operate effectively.
4. The court attached significance to the legislative purpose reflected in the Explanatory Notes. Parliament could not have intended that investigators would have to return material which they could immediately lawfully seize again, thereby allowing suspects an opportunity to destroy it. Section 59 provides a safeguard because retention can be authorised only where the statutory conditions in section 59(7) are satisfied.
5. The approach was consistent with R (El Kurd) v Winchester Crown Court and SOCA, [2011] EWHC 1853 (Admin), and with the treatment of section 59 in R (Rawlinson & Hunter) v Central Criminal Court and SFO, [2013] 1 WLR 1634, and R (Van der Pijl) v Kingston Crown Court, [2013] 1 WLR 2706. The hearing of HMRC’s substantive application was directed to proceed with the highest priority, and the parties were expected to present the evidence and argument in an orderly manner.

The judgment records earlier proceedings concerning the warrants and restraint orders, including R v Windsor and others, [2011] 2 Cr App R 7, and judicial review proceedings in which the warrants were quashed. The present proceedings challenged the Central Criminal Court’s preliminary ruling that it had jurisdiction to entertain HMRC’s section 59 application.