Jonathan Edward Peter Tipper & Ors, R (on the application of) v The Crown Court at Birmingham

In an application for a search warrant or approval made without notice, the duty of candour requires the applicant to disclose material facts which may affect the decision and to present the application fairly. It does not prevent the applicant from identifying and answering arguments which the respondent might have advanced.

A warrant will be vulnerable only where the non-disclosure or inaccuracy might reasonably have led the judge to refuse it. Under the Police and Criminal Evidence Act 1984, the investigator must give cogent, case-specific reasons why a less intrusive measure is likely to fail, while the judge must separately be satisfied that notice may seriously prejudice the investigation. Each application remains fact-sensitive.

The claimants sought permission for judicial review of warrants and approvals issued during an HMRC criminal investigation. The challenged decisions included special-procedure warrants under the Police and Criminal Evidence Act 1984, search and seizure warrants and approvals under the Proceeds of Crime Act 2002, and prior approvals concerning listed assets.

They alleged that HMRC had failed to make full and fair disclosure when applying without notice, and that the statutory conditions for the PACE warrants had not been met. They also sought to amend the claims to challenge magistrates’ orders extending detention of seized assets. Lang J had refused that amendment on the papers. The central issues were whether the existing challenges were arguable and whether the proposed additional challenge should be permitted.

1. Outcome. Permission to apply for judicial review of the decisions of 2 and 6 July 2020 was refused. The application to amend the claims to challenge the orders of 10 July 2020 was also refused.
2. Duty of candour. HMRC had disclosed the material necessary to enable an informed, balanced and fair decision. The duty required disclosure of matters which might undermine the application, including earlier co-operation and professional advice. It did not require HMRC to present those matters without its answer to the prospective arguments. The court was entitled to be told why HMRC considered that the matters did not undermine the applications.
3. PACE warrants. HMRC had provided cogent and sufficiently focused reasons why voluntary disclosure or production orders were unlikely to secure the material. The requirement that lesser methods appeared bound to fail concerned the investigator’s belief, supported by the evidence. The additional requirement in paragraph 14(d) of Schedule 1 was distinct and required judicial satisfaction that notice of an application for a production order might seriously prejudice the investigation. Both requirements were met, and the challenge had no realistic prospect of success.
4. The applicable judicial-review materiality test was whether the alleged non-disclosure might reasonably have led the judge to refuse the warrant. That test was not met. In any event, fuller disclosure was highly unlikely to have produced a substantially different outcome, so refusal was mandatory under sections 31(3C) and 31(3D) of the Senior Courts Act 1981.
5. The same conclusion applied to the POCA warrants and magistrates’ approvals. The duty of candour applied equally to those applications, and no arguable material non-disclosure was shown.
6. The proposed challenge to the detention-extension orders was out of time, raised factual matters which the claimants had not advanced at the on-notice hearing, and asserted no error of law by the magistrates. Section 303N of POCA was construed as addressing a change of circumstances after a lawful detention order, rather than providing a means to challenge the court’s original jurisdiction.

The judgment was a first-instance decision on applications for permission to seek judicial review. Lang J had previously refused, on the papers, an application to amend the claims to include challenges to the 10 July 2020 detention-extension orders. Mrs Justice Ellenbogen refused permission on the original grounds and refused the proposed amendment.