Business Energy Solutions Ltd & Anor v Crown Court at Preston & Anor

Copied electronic data may constitute seized property under the Criminal Justice and Police Act 2001. In principle, its return may require deletion or destruction of the retained copy, and the Crown Court may give directions preventing retention or inspection.

The statutory concept of reasonable practicability is broader than physical or technical possibility. It permits consideration of time, cost, resources, disruption, confidentiality and the practical effect on the investigation. The court must apply the statutory scheme purposively and achieve practical justice between effective investigation and protection of property and privacy rights.

A challenge to the legal construction of the statutory scheme was suitable for judicial review, although the claim failed on the facts.

Trading Standards obtained lawful warrants under the Criminal Justice and Police Act 2001 to search premises and seize computers and other storage devices during a fraud investigation. The devices contained more than 200 million documents and approximately 770,000 audio recordings. The devices were later returned after forensic imaging, but the investigating authority retained copies.

The claimants applied to the Crown Court under section 59 of the Act for directions requiring the authority to identify, separate and return or delete data outside the warrants. The Crown Court refused the application. The claimants sought judicial review, raising issues concerning the meaning of return, the reasonable-practicability exception, rationality, inventories under the Police and Criminal Evidence Act 1984, and the availability of an alternative remedy.

1. Claim dismissed. The warrants were lawful, and the Crown Court had correctly refused the requested order concerning the copied data.
2. Copied electronic data was capable of being “seized property”. Section 63 of the Criminal Justice and Police Act 2001 provides that seizure includes taking a copy and that the statutory regime applies to the copy as if it were the original. There was no principled distinction between hard and electronic copies. Once copied onto the authority’s systems, the data had an existence independent of the seized devices.
3. Although return normally deprives the returning party of possession, the statutory scheme had to be construed purposively. In the case of copied data, return could include deletion or destruction of the copy. Section 59(5) also empowered the Crown Court to direct non-retention, deletion, removal, ring-fencing or restrictions on inspection.
4. The reasonable-practicability test in sections 50 and 53 was a broad practical test. It was not confined to physical or technical capability. The statutory language, including “in all the circumstances”, permitted consideration of time, cost, manpower, equipment, disruption, utility and the effect on the lawful use of retained material. The test had a substantially consistent meaning throughout the statutory scheme.
5. The Crown Court had been entitled to accept the authority’s evidence and submissions that the requested item-by-item review would be exceptionally time-consuming, expensive and disruptive. It acted within its margin of appreciation and did not take irrelevant matters into account. The data was secure, and the claimants had not sought a more focused confidentiality or ring-fencing order.
6. The argument under section 21 of the Police and Criminal Evidence Act 1984 failed. The constabulary had provided search records, and the provision did not require an item-by-item inventory of the contents of computer storage devices.
7. Judicial review was an appropriate forum for determining the central question of statutory construction. Although section 59 provided substantial alternative remedies and the claim had little practical utility as framed, the legal issue could not otherwise be tested after the Crown Court’s ruling.

The Divisional Court considered a judicial review challenge to the decision of HHJ Brown, Recorder of Preston, who had refused to order an itemised review and return of copied electronic data under section 59 of the Criminal Justice and Police Act 2001. The claim was dismissed.