Revenue And Customs, R (On the Application Of) v Crown Court At Maidstone

On an application to retain unlawfully seized property, the court must apply the statutory criteria to the individual items and decide whether retention would be justified if the property were returned. The investigating authority must establish reasonable grounds concerning the offence, the evidential value and relevance of the material, privilege or excluded material, and any public-interest requirement for special procedure material.

The examination and description of seized material need not always be undertaken by the authority’s own employees. It may be delegated to a reliable and sufficiently skilled third party, provided the process is transparent and accountable. A court should not reject an application in limine merely because the authority itself did not examine every item. It must consider the evidence and each item on its merits.

HMRC investigated suspected tax-credit fraud and related money-laundering. Search warrants were issued and property was seized, but HMRC accepted that the warrants were defective. It applied under section 59 of the Criminal Justice and Police Act 2001 to retain the material.

The Crown Court authorised retention of some categories but refused it for 271 items identified as dark green in a Scott schedule. The judge considered that HMRC had not itself examined those items and that descriptions supplied by independent counsel were insufficiently reliable. HMRC sought judicial review, arguing that the judge had wrongly rejected the schedule without considering the statutory criteria for each item.

The central issues were whether examination could be delegated and whether the Crown Court was entitled to refuse the application without assessing the individual items on their merits.

1. Application allowed in part and remitted. The challenged parts of the Crown Court’s orders were quashed. The retention application was remitted to a different Crown Court judge for reconsideration of the relevant items on their merits. There was no order as to costs.
2. Section 59(6) of the Criminal Justice and Police Act 2001 gives the court a discretion to authorise retention of unlawfully seized property which would otherwise be returned, if the requirements in section 59(7) are met. The discretion provides an important safeguard and requires rigorous examination of the circumstances of the unlawful seizure.
3. The court must consider whether, if the property were returned, it would immediately become appropriate to issue a fresh warrant under section 8 of the Police and Criminal Evidence Act 1984, or to make an order for production under Schedule 1. The applicant must establish reasonable grounds that an indictable offence has been committed, that the property is likely to have substantial value to the investigation, that it is likely to be relevant evidence, that it does not comprise privileged or excluded material, and, where applicable, that retention of special procedure material is in the public interest.
4. The necessary examination may be carried out by a reliable third party. The relevant question is whether the reviewer is sufficiently skilled and accountable and whether the exercise has been conducted transparently. Rule 47.38 of the Criminal Procedure Rules does not require the work to be done by the investigating authority’s employees.
5. The Crown Court had treated the absence of HMRC’s own examination as a complete bar and had not assessed the individual descriptions or evidence. That was an erroneous approach. The descriptions supplied by independent counsel, supported by HMRC’s original descriptions and unchallenged evidence, were capable of being relied on. Their sufficiency and reliability had to be assessed item by item.

• High Court (Administrative Court) — The judicial review challenge to the Crown Court’s refusal to retain 271 seized items was allowed in part. The relevant orders were quashed and the matter was remitted for reconsideration.