John McCaffrey v The Commissioners for HMRC

A renewed application for permission to bring judicial review must be considered afresh, rather than as an appeal from the paper decision. A challenge to the execution of a search warrant requires promptness, although the court may put delay aside where the claim is plainly unarguable. Judicial review may accommodate fact-finding and, exceptionally, cross-examination, but it is generally unsuitable for deciding disputed questions about excessive seizure except in the clearest cases. Equipment not specified on the warrant may nevertheless be seized where section 19 of the Police and Criminal Evidence Act 1984 supplies the relevant statutory power.

The claimant sought permission to judicially review HMRC’s execution of a Crown court warrant on 26 November 2019. He alleged that officers unlawfully searched and seized material from an office said to be a separate unit, and that CCTV equipment was outside the warrant’s terms.

Permission had been refused on the papers by Julian Knowles J on grounds including delay, the unsuitability of judicial review in light of factual disputes, and lack of arguability. The claimant renewed the application for an oral hearing. The central issues were whether the claim was arguable, whether judicial review was an appropriate procedure, and whether the case should be transferred to a private law forum.

1. Renewed application. The renewed application was considered afresh. The court was required to reach its own independent conclusions on the materials and submissions before it, rather than conduct a review or appeal of the paper refusal.
2. Delay. Promptness is particularly important in a challenge to the validity or execution of a search warrant, because parties need to know where they stand and criminal investigations should not be hindered. The principle in R (Goode) v Nottingham Crown Court [2013] EWHC 1726 (Admin) applied equally to a challenge to execution. The court nevertheless put delay aside and determined the substantive merits.
3. Execution of the warrant. The photographs and other evidence showed no arguable basis for treating the office as a separate premises from Unit 1. The physical configuration, shared access, windows, corridor, signage, documents and surrounding circumstances supported the conclusion that the officers could reasonably treat the rooms as part of the premises covered by the warrant. The claim of unlawful execution was therefore unarguable.
4. CCTV. Although CCTV equipment was not expressly identified on the warrant, section 19 of the Police and Criminal Evidence Act 1984 conferred a specific power covering the seizure. The contemporaneous documents recorded that this power was relied upon.
5. Procedural suitability and transfer. Judicial review can, in an appropriate case, accommodate fact-finding and cross-examination. However, the guidance in R v Chief Constable of the Warwickshire Constabulary ex parte Fitzpatrick [1999] 1 WLR 564 remained applicable: judicial review is generally an unsatisfactory method for resolving disputed questions about excessive seizure, save in the clearest cases. Transfer to a private law claim was refused because the claim was unarguable and transfer would not serve the public interest.
6. Outcome and costs. Permission for judicial review was refused. The existing costs order of £1,575 was left undisturbed, and no further costs order was made.

1. High Court (Administrative Court): Julian Knowles J refused permission for judicial review on the papers on 3 March 2021.
2. High Court (Administrative Court): on renewal, Fordham J considered the application afresh and refused permission for judicial review.