Greater Manchester Police v Ali

Under the Proceeds of Crime Act 2002, approval for search or seizure may be granted under section 47G(2) even though none of the section 47B conditions has yet been fully met. Section 47G confers an open discretion on the justice of the peace or senior officer. The decision-maker must, however, be satisfied that the statutory conditions and grounds for suspicion will be met when the proposed search or seizure occurs. In particular, an arrest may occur after approval but must be expected to have occurred before the power is exercised. The statutory scheme gives primacy to judicial approval, with senior-officer approval available where obtaining judicial approval is impracticable.

The Chief Constable appealed by way of case stated from a decision of a magistrate made on 31 August 2018. The magistrate had refused appropriate approval for a proposed search for realisable property under section 47G(2) of the Proceeds of Crime Act 2002, because the respondent had not yet been arrested for an indictable offence and the magistrate considered that a section 47B condition had to be satisfied before approval could be given.

The question for the High Court was whether approval under section 47G(2) required one of the sets of conditions in section 47B(2) to (8) to have already been met.

1. Appeal allowed. The magistrate had answered the statutory question incorrectly. The court answered it: no, it is not necessary for one of the sets of conditions in section 47B(2) to (8) of the Proceeds of Crime Act 2002 to have already been met before approval may be given under section 47G(2).
2. Section 47B(1) concerns when an appropriate officer may exercise the seizure power under section 47C. Sections 47D to 47F contain separate search powers and do not require, as a precondition to approval, that a section 47B condition has already been fulfilled. Section 47G(2) identifies the approving authority but does not prescribe particular matters of which that authority must be satisfied before granting approval.
3. Approval under section 47G(2) is therefore an open discretion. It concerns a significant invasion of privacy and must be properly justified. In practice, approval is unlikely unless the decision-maker is satisfied that the matters required at the time of the proposed search or seizure will be present when the power is exercised.
4. For a seizure under section 47C, the decision-maker will ordinarily need good grounds for believing that the appropriate officer will be satisfied that a section 47B condition is fully met when the seizure occurs. If reliance is placed on an early condition requiring arrest, the decision-maker may approve before arrest only where an arrest is likely before the power is exercised. Similar practical considerations apply to the grounds for suspicion specified in sections 47C(1), 47D(1), 47E(1) and 47F(1).
5. Rule 33.28 of the Criminal Procedure Rules 2015 cannot alter the construction of the primary legislation. Its reference to explaining how a proposed seizure meets the statutory conditions concerns how those conditions will be met at the material time.
6. Lord Justice Hickinbottom agreed that the magistrate had confused statutory requirements with practical matters likely to guide the exercise of the discretion. No further order was made because the relevant matters concerning the respondent had run their course.

• High Court (Administrative Court): Appeal by way of case stated allowed. The magistrate’s question was answered in the negative, and no further order was made.
• Greater Manchester Magistrates’ Court: On 31 August 2018, the magistrate refused appropriate approval under section 47G(2) of the Proceeds of Crime Act 2002 on the basis that a section 47B condition had not yet been met.