Kouyoumjian & Anor v Hammersmith Magistrates Court & Anor

Where search warrants were obtained and executed unlawfully, the prima facie position is that all seized material must be returned. The authority seeking retention must justify it. Even assuming jurisdiction under section 59(5)(b) of the Criminal Justice and Police Act 2001, a pending retention application does not automatically prevent an immediate return order. Relevant considerations include misleading the court, the explanation for any change in investigative focus, the authority’s conduct and candour, the proposed basis for retention, and the prospects of the statutory application. The general principle that return should not improve a suspect’s position yields to the particular circumstances. Here, an unexplained shift from a drugs investigation to financial offences and a breach of candour justified immediate return.

The claimants sought judicial review of four search warrants granted by a district judge under section 8 of the Police and Criminal Evidence Act 1984. The warrants were executed at business and residential premises, and computers, phones, documents and other material were seized.

The police accepted that the warrants should be quashed and that the searches and seizures were unlawful. They also agreed to damages, restrictions on use of the material and costs. The dispute concerned whether the High Court should order immediate delivery of the seized material and copies, or permit retention pending a Crown Court application under section 59(5)(b) of the Criminal Justice and Police Act 2001.

Lord Justice Aikens, with Mr Justice Mitting agreeing, allowed the claim. The warrants were quashed, the entries, searches and seizures were declared unlawful, and the police were ordered to deliver the seized material and copies to the claimants’ solicitors within 14 days. The agreed damages of £5,000 and costs were also ordered.

1. The court proceeded on the assumption that the Crown Court had jurisdiction under section 59(5)(b) of the Criminal Justice and Police Act 2001 to authorise retention of material seized under an unlawfully obtained and executed warrant. That jurisdictional issue was expressly left open for determination elsewhere.
2. Once the unlawfulness of the warrants and their execution was accepted, the prima facie position was that all material seized should be returned. The burden lay on the party seeking retention to justify it. In deciding whether to make an unconditional return order while a section 59 application was pending, the court could consider whether it had been misled, the reasons for any misleading information, the authority’s conduct during the proceedings, the basis and nature of the proposed retention, and the prospects of the section 59 application. AC, RC, BK, GST v Nottingham and Newark Magistrates’ Court and HMRC [2013] EWHC 3790 (Admin) did not decide this precise issue, although it indicated that the background to the warrant application and subsequent events could be relevant.
3. The original application presented the investigation principally as one concerning cocaine and other drugs. The investigation soon shifted fundamentally towards financial and company-related offences. The police gave no adequate explanation of when, why or by whom that change had occurred, and the change was omitted from the section 59 material. Although there was no finding of bad faith, the court had been misled up to the last stage, and the Crown Court was also liable to be misled. The conduct of the proceedings and the proposed basis for retention were therefore unsatisfactory.
4. The general principle identified in R (Panesar) and others v the Central Criminal Court and the Commissioner for Her Majesty’s Revenue and Customs [2014] EWHC 2821 (Admin), that suspects should not be placed in a better position by the return of material, yielded to the particular circumstances. The court therefore declined to preserve the police’s opportunity to pursue the section 59 application.
5. Mr Justice Mitting emphasised that a police authority seeking retention after unlawful seizure must comply with its duty of candour. It must explain any radical change in the investigative target, subject to operational requirements affecting disclosure.

The claim for judicial review was issued on 14 May 2014 and challenged the grant and execution of the warrants. The Divisional Court allowed the claim, quashed the warrants and made the consequential orders described above. No further appellate decision is stated in the judgment.