Brookfield Aviation International Ltd v The Guildford Crown Court

For mutual legal assistance, the court issuing a domestic search warrant must have reasonable grounds to believe that the conduct alleged abroad would constitute an indictable offence in England and Wales. Dishonesty may be inferred from the substance of the allegations and surrounding material, including allegations of concealment, sham arrangements and fictitious contractual descriptions. A search warrant may be justified instead of a production order where the material suggests that a request for production would not secure compliance. Failure to record the hearing or give reasons is a serious departure from good practice, but it does not automatically invalidate the warrant where the written application and circumstances show that the statutory conditions were satisfied.

The claimant sought judicial review of a search warrant issued by the Guildford Crown Court. The warrant was obtained by the Surrey Police under a direction from the Secretary of State for the Home Department, following German requests for mutual legal assistance under the Crime (International Co-operation) Act 2003 and the Police and Criminal Evidence Act 1984.

The claimant challenged the warrant on three grounds: insufficient evidence of double criminality because dishonesty was not expressly identified; failure to disclose a related HMRC inquiry; and lack of necessity for a warrant rather than a production order. It also challenged the failure to record the hearing or the judge’s reasons.

1. Application refused. The renewed application for judicial review was refused.
2. Section 16 of the Crime (International Co-operation) Act 2003 required dual criminality. The German allegations, read with the international letters of request and the order of the German court, provided substantial grounds for believing that dishonesty could be inferred. The material alleged deliberate concealment, a letterbox company, pseudo self-employment and contractual fictions. It was therefore not arguable that the domestic offence requirement was unsatisfied.
3. The alleged non-disclosure of the HMRC inquiry did not make a difference. The inquiry had rejected the claimant’s asserted tax status and had resulted in substantial protective assessments. Its disclosure would not have undermined the basis for the warrant.
4. A search warrant rather than a production order was reasonably considered necessary. The German material repeatedly referred to the claimant’s failure to cooperate or produce documents. The German prosecutor’s statement that the documents had probably not been destroyed merely indicated that they should remain in the ordinary course of business. It did not assure compliance with a production order.
5. The failure to record the hearing or give reasons was rightly criticised. Good practice required both, as illustrated by R (S) v Chief Constable of the British Transport Police [2013] EWHC 2189 (Admin). Nevertheless, such omissions did not make the warrant unlawful. The detailed written application was before the judge, and the circumstances made the case clear. The approach in R (Glenn & Co. (Essex Ltd.)) v Revenue and Customs Commissioners [2011] EWHC 2998 (Admin) and R (Cronin) v Sheffield Justices [2002] EWHC 2568 (Admin); [2003] 1 WLR 752 was applied.

The judgment states that permission for judicial review had previously been refused by Kenneth Parker J. The Divisional Court considered the renewed application and refused it.