Intertrade Wholesale Ltd & Ors, R (On the Application Of) v Revenue And Customs & Anor

Permission to challenge search warrants will be refused where the alleged non-disclosure could not reasonably have affected the issuing justice’s decision, or where the statutory preconditions were plainly satisfied. Review of a warrant application focuses on the information available when the warrant was sought. Later discovery of privileged or special procedure material does not itself establish that the warrant was unlawfully issued. Judicial review is also unsuitable where the challenge depends on disputed facts, such as the scope of a search or the lawfulness of handcuffing, and an adequate private law remedy is available.

The claimants renewed an application for permission to judicially review the grant and execution of 11 search warrants issued under the Police and Criminal Evidence Act 1984 in an HMRC investigation into suspected excise duty evasion and money laundering. The warrants were issued by a justice at Birmingham Magistrates’ Court on 18 June 2018 and executed on 20 June 2018.

The claim challenged alleged failures of full and frank disclosure, compliance with the statutory conditions for warrants, the scope of the searches, and the arrest and handcuffing of two claimants. Permission had previously been refused on the papers. The central issues were whether any alleged non-disclosure might reasonably have led the Justice to refuse the warrants and whether disputed execution issues were suitable for judicial review.

1. Application refused. None of the five grounds was arguable.
2. The relevant disclosure question was whether the information allegedly omitted might reasonably have led the Justice to refuse the warrants. Applying the approach identified in Hart v HMRC [2017] EWHC 3091 (Admin), the court found no material non-disclosure. The alleged 2010 seizures were part of a civil enforcement process and were immaterial. The Justice had been told that arrests were intended, and the issue of privileged material could still be raised after arrest.
3. The application sufficiently addressed legally privileged, excluded and special procedure material. The material sought was identified with precision and concerned transactional and business records. The fact that privileged material was later found did not show that the warrant was incorrectly issued. The court applied the reasoning in R (on the application of Sharer) v City of London Magistrates’ Court and HMRC [2016] EWHC 1412 (Admin).
4. The statutory preconditions in section 8(1) of the Police and Criminal Evidence Act 1984 were addressed, and the detailed application provided reasonable grounds for suspecting indictable offending and for believing that material of substantial value would be found. The arguments under section 8(1)(d), and under sections 8(1)(b) and (c), were therefore unarguable. R (Faisaltex) v Preston Crown Court [2009] 1 WLR 1689 did not assist the claimants.
5. The challenges to the scope of the searches and to handcuffing depended on disputed factual issues. Following R v Chief Constable of the Warwickshire Constabulary ex parte Fitzpatrick [1999] 1 WLR 564, judicial review was not the appropriate procedure where a private law remedy was better suited to resolving those issues. R (Redknapp) v City of London Police [2009] 1 WLR 2091 was distinguishable because the Justice had in fact been informed of the intended arrests. Transfer of the disputed grounds to the Queen’s Bench Division under CPR Part 54.20 was refused.

Permission was refused on the papers by Sir Ross Cranston on 20 September 2018. The claimants renewed the application before the High Court (Administrative Court), which refused permission.