Newcastle United Football Company Limited v Commissioners for HMRC

Copies or images made lawfully from seized documents are not treated as the seized originals for the purposes of section 22 of Police and Criminal Evidence Act 1984. That provision protects property rights in the originals and does not require deletion or return of copies after a criminal investigation ends.

Information obtained for one HMRC function may be used for another under section 17 of the Commissioners for Revenue and Customs Act 2005, including civil tax collection. The exercise of that power remains subject to public law, confidentiality and Convention rights. The Crown Court cannot impose conditions on that statutory power after dismissing an application under the Criminal Justice and Police Act 2001.

HMRC seized documents and electronic material during a criminal tax investigation. It retained digital copies after the investigation closed and proposed sharing relevant information with its civil investigation team. The Crown Court refused the appellant’s application under section 59 of the Criminal Justice and Police Act 2001 for return or deletion of the copies, but imposed directions governing their proposed sharing.

The appeal by way of case stated concerned the construction of section 22 of the Police and Criminal Evidence Act 1984, the interaction with section 17 of the Commissioners for Revenue and Customs Act 2005, and the Crown Court’s jurisdiction to impose conditions.

1. Appeal dismissed; HMRC’s cross-appeal allowed. The questions in the Case Stated were answered substantially in HMRC’s favour.
2. Section 22 of the Police and Criminal Evidence Act 1984 is concerned with seized originals and the protection of property rights. It does not require HMRC to return or permanently delete copies or digital images lawfully made from those originals. Privacy and confidentiality in the information are protected by other legal rules.
3. Section 63(3) of the Criminal Justice and Police Act 2001 disapplies section 57 in this context. Section 57 therefore does not extend section 22 of PACE to copies made under the statutory copying powers. The reasoning in R (Business Energy Solutions Ltd) v Crown Court at Preston was not binding and had not addressed the effect of section 63(3).
4. Even if section 22 applied to the copies, retention for HMRC’s public, non-criminal purposes, including tax collection, could fall within what was necessary in all the circumstances. Section 17(1) of the Commissioners for Revenue and Customs Act 2005 permits information obtained for one HMRC function to be used for another. It concerns use of information, not retention of the underlying seized documents, and section 22 does not restrict that use.
5. The power under section 17 is not unfettered. HMRC remains subject to public law, duties of confidentiality recognised in Marcel v Metropolitan Police Commissioner and Tchenguiz v Director of the Serious Fraud Office, and Convention rights, including Article 8 of the ECHR.
6. After refusing the section 59 application, the Crown Court was functus officio. Section 59(5) did not authorise it to impose terms or conditions on HMRC’s exercise of section 17. Any challenge to that exercise lay, if appropriate, by judicial review in the Administrative Court.

• High Court (King’s Bench Division), Divisional Court: appeal by way of case stated dismissed and HMRC’s cross-appeal allowed.
• Crown Court at Kingston upon Thames: application under section 59 of the Criminal Justice and Police Act 2001 refused, but directions concerning retention and sharing were imposed.