Mallik & Ors, R (On the Application Of) v Manchester And Salford Magistrates' Court

Search warrants must identify, so far as practicable, the articles sought. Broad references to employment documentation may therefore be unlawful where they fail to identify the material with sufficient particularity. The court may nevertheless allow an agency an opportunity to regularise possession of unlawfully seized material through an application under Criminal Justice and Police Act 2001, section 59. Denial of that opportunity is exceptional and depends on whether the agency’s conduct is sufficiently egregious to deprive it of any benefit from the unlawful search. Where the seized material is extensive or insufficiently described, the agency may examine it before making the section 59 application, subject to strict limits on retention and use.

The claimants sought judicial review concerning three search warrants issued under section 8 of the Police and Criminal Evidence Act 1984. The warrants were used to search residential and business premises during an investigation into suspected immigration-related conspiracies. Permission was granted on the complaints that the warrants did not sufficiently identify the articles sought and that the issuing court had not been told that live businesses operated at one of the premises.

The defendant conceded that the warrants were unlawful and that they were likely to be quashed. The remaining dispute concerned whether the seized material should be returned immediately or whether the defendant could inspect it and apply under section 59 of the Criminal Justice and Police Act 2001 for directions or retention.

1. The warrants were unlawful. The expression “employment documentation” was too wide and insufficiently particularised for the purposes of section 15(6)(b) of the Police and Criminal Evidence Act 1984. The issuing courts had also not been told that live businesses operated at the relevant premises, which might have led to a narrower description excluding unrelated current business material.
2. Under section 59 of the Criminal Justice and Police Act 2001, a Crown Court judge may direct examination, retention, separation or return of unlawfully seized property, and may authorise retention where the statutory grounds are satisfied. The guidance in R (on the application of) Chatwani & Ors v The National Crime Agency & Anor [2015] EWHC 1283 (Admin) establishes that denying an agency any benefit from an unlawful search is likely only in rare cases involving sufficiently egregious conduct.
3. The defendant’s conduct did not take the case outside the norm. There was no bad faith and no equivalent of the egregious disregard for constitutional safeguards identified in Chatwani. The defendant was therefore entitled to an opportunity to make a section 59 application.
4. Following HMRC v Cheema (Nottinghamshire County Court, case no T201444, 17 January 2014), the defendant could examine the seized material before applying. The quantity and generality of the descriptions made examination necessary to identify the property and formulate the focused application required by rule 47.38 of the Criminal Procedure Rules 2015.
5. The disposal order was amended so that the material and copies could be retained or used only for the section 59 proceedings. Material whose retention was refused had to be returned, and copies destroyed. The damages issue was transferred to the Central London County Court. Costs were ordered in the agreed terms, with no order as to the costs of the hearing or final skeleton arguments.

1. High Court (Administrative Court): Permission was initially refused on paper by Hickinbottom J. On renewal, permission was granted by Gross LJ and Nicol J on two related grounds and refused on the remaining grounds. The Divisional Court then determined the terms for disposal.