Kouyoumjian & Anor v Hammersmith Magistrates Court & Anor

This Divisional Court allowed the claim for judicial review of District Judge Jennifer Edwards' decisions to issue and the police's execution of four search warrants under section 8 of the Police and Criminal Evidence Act 1984. The warrants were quashed, the entries, searches and seizures made pursuant to them were declared unlawful, and the court ordered immediate return of all material seized (including copies) together with an order that no use be made of any knowledge gained from the seized material.

The court accepted the general availability of Crown Court jurisdiction under section 59 of the Criminal Justice and Police Act 2001 to permit retention of unlawfully seized material, but refused to permit the police to pursue retention in the Crown Court in the particular circumstances of this case. The court relied on findings that the focus of the investigation had shifted from drugs to financial matters without satisfactory explanation, that the court and Crown Court had been misled about the true position, and that the police had breached the duty of candour. Damages of £5,000 and costs were also agreed to be payable to the claimants.

Background and parties:

• This is a judicial review brought by two brothers who ran businesses and were subject to four search warrants issued by Hammersmith Magistrates' Court on 13 February 2014 under section 8 of the Police and Criminal Evidence Act 1984. The warrants were executed on 21–22 February 2014 and resulted in the seizure of computers, mobile phones, hard copy documents and other items from business and home premises.
• The claimants sought declarations that the entry, searches and seizures were unlawful, quashing of the warrants, return of seized material and destruction of copies, damages and costs. The second defendant, the Metropolitan Police, accepted that some relief should be granted but resisted an unconditional order for immediate return on the ground that it had issued an application under section 59(5)(b) of the Criminal Justice and Police Act 2001 to retain material.

Procedural posture: The claim for judicial review was issued on 14 May 2014. The Metropolitan Police applied to the Crown Court under section 59(5)(b) CJPA on 9 October 2014 to seek directions to retain and inspect the material seized. The Divisional Court heard the judicial review and the disputed issue was whether this court should order immediate return or permit the section 59 process to proceed.

Issues framed:

1. Whether the warrants and their execution were unlawful and should be quashed.
2. Whether this court should order immediate return of all material seized (including copies) despite a pending section 59 CJPA application by the police to retain material.
3. Whether the police had complied with their duty of candour in explaining the shift in investigative focus and the basis for the section 59 application.

Court's reasoning and findings:

• The court found the warrants were unlawfully obtained/executed and agreed they should be quashed; it further accepted the prima facie rule that unlawfully seized material should be returned unless retention can be justified by the retaining party.
• The court examined the history of the investigation and concluded the application for the warrants had been presented principally as targeting importation and distribution of Class A drugs, yet shortly afterwards the investigation's emphasis shifted to fraud and financial offences. That shift was not explained in documents before the court and the police could not identify who decided or when that change occurred.
• Because the court and the Crown Court had been left without a clear explanation of the fundamental change of investigative focus, the Divisional Court concluded that the police had breached the duty of candour. In those circumstances the court would not allow the police to pursue retention via section 59 and instead ordered immediate return of the seized material and agreed damages and costs in favour of the claimants.

Wider comment: The court emphasised the importance of candour by police when seeking to retain unlawfully seized material under section 59 and warned that unexplained changes of investigative target will be scrutinised and may defeat an application for retention.

The court allowed the claim for judicial review. The four search warrants issued on 13 February 2014 were quashed, the entries, searches and seizures made under them were declared unlawful, and an order was made for immediate delivery up of all material seized (including any copies) and that no use be made of knowledge gained from the material. The court concluded the police had breached their duty of candour by failing to explain a fundamental change in the focus of the investigation and thereby would not permit the police to pursue retention under section 59 CJPA in the particular circumstances of this case. Damages of £5,000 and costs were agreed in favour of the claimants.

Judicial review in the Divisional Court of a decision of District Judge Jennifer Edwards at Hammersmith Magistrates' Court granting four search warrants under section 8 PACE on 13 February 2014. Judicial review claim issued 14 May 2014; Divisional Court judgment delivered [2014] EWHC 4028 (Admin).