Mikhail Fridman, R (on the application of) v National Crime Agency & Anor

At the permission stage of a judicial review, the court decides only whether the proposed grounds are arguable. It should not ordinarily determine the merits or remedies unless an order expressly directs that permission and the substantive claim be heard together. Procedural fairness requires the defendant to have the opportunity, after permission, to file detailed grounds and evidence. The High Court has jurisdiction to order the return of material seized under an unlawful warrant, but the exercise of that jurisdiction is fact-sensitive and ordinarily requires consideration of the parties’ evidence. The relationship between that jurisdiction and the Crown Court’s power under section 59 of the Criminal Justice and Police Act 2001 must be assessed in context.

The claimant sought judicial review of a search warrant issued under paragraph 12 of Schedule 1 to the Police and Criminal Evidence Act 1984 and of its execution by the National Crime Agency. He sought permission on 12 grounds, together with orders quashing the warrant, declaring the search unlawful, requiring the return of seized property and awarding damages.

The hearing had been ordered as an oral hearing of the permission application. The National Crime Agency accepted that all 12 grounds were arguable but submitted that the ordinary procedure should be followed, with the substantive issues and remedies addressed after detailed grounds and evidence. The central issue was whether the court should determine the merits and remedies at the permission hearing.

1. Disposition. Permission to apply for judicial review was granted on all 12 grounds. The court declined to determine the substantive grounds or remedies at that stage.
2. Permission and substantive stages. Judicial review ordinarily has two stages: permission, followed by a full hearing if permission is granted. Under Part 54 of the Civil Procedure Rules, the defendant is then entitled to file detailed grounds and evidence. A court may order the permission application and substantive claim to be heard together, but no such order had been made here. It would therefore be inconsistent with the procedural order and basic procedural fairness to treat the hearing as a merits hearing.
3. Return of seized material. The High Court has jurisdiction to order the return of material seized under an unlawful warrant. The exercise of that jurisdiction is fact-sensitive. At the permission stage, where the defendant has not filed detailed grounds or full evidence, the court should not reach a concluded view on which grounds are made out, whether material factual disputes exist, or what remedy is appropriate.
4. Interaction with section 59. Section 59 of the Criminal Justice and Police Act 2001 permits a public authority to apply to the Crown Court for retention of seized property where a warrant is acknowledged to be unlawful or has been quashed. Under sections 59(6) and 59(7)(a), retention depends on whether, if the property were returned, it would immediately become appropriate to issue a fresh warrant under which seizure would be lawful. The authorities show that the High Court and Crown Court jurisdictions interact in a fact-sensitive way, but did not require the court to decide that remedial issue at this hearing.
5. The court considered each ground and was satisfied that all raised arguable challenges warranting full investigation at an oral hearing. Further submissions were invited on the timetable and ancillary orders.