Mohammed Naseem Dost & Ors, R (on the application of) v The Crown Court at Manchester & Anor

Following an unlawful search, the Administrative Court retains a discretion whether to order the immediate return of seized material or leave the investigating authority to seek retention under Criminal Justice and Police Act 2001, section 59.

The statutory procedure and the Crown Court’s role provide powerful reasons for restraint. An unconditional return order is exceptional. Bad faith is not required, but the authority’s conduct must be sufficiently serious, pervasive or egregious to justify depriving it of the opportunity to make a section 59 application. Innocent and promptly rectified errors, even serious ones, will not necessarily meet that threshold.

The claimants sought judicial review of search warrants issued by the Crown Court at Manchester on 16 September 2022 and HMRC’s execution of those warrants on 21 September 2022. Permission was granted in January 2024. HMRC conceded the claim in April 2024.

The remaining issue was remedial. The claimants sought a mandatory order requiring the return of the seized items and an order preventing HMRC from applying under section 59 of the Criminal Justice and Police Act 2001 for permission to retain them. The court therefore had to determine whether HMRC’s errors in preparing and disclosing the warrant materials justified withholding the statutory opportunity to seek retention.

1. Relief following unlawful search. The normal consequence of a successful challenge to a search warrant does not prevent the investigating authority from applying under section 59 of the Criminal Justice and Police Act 2001. Section 59 permits the Crown Court to authorise retention where, if the property were returned, it would immediately become appropriate to issue a lawful warrant or make an order for production or delivery.
2. The Administrative Court must exercise restraint because Parliament has assigned retention questions to the Crown Court, which can consider the seized material when deciding the section 59 application. The court may nevertheless order return or destruction where the authority’s conduct warrants denying it any benefit from the unlawful search. Such cases are rare. Bad faith is a compelling example but is not a prerequisite.
3. The relevant assessment includes whether the court was misled, the reasons for any misleading or inconsistent information, the authority’s conduct during the judicial review, and the basis on which retention is sought. Conduct that is serious, pervasive or egregious may justify an unconditional return order.
4. HMRC’s inconsistency between the warrant application form and skeleton argument was a serious and thoroughly unsatisfactory error, but it was innocent, incoherent rather than deliberately misleading, and did not seek to obtain an advantage. The later failure to disclose the skeleton argument was also an error arising from misunderstanding by a non-lawyer, not concealment, and was rectified promptly once identified. The combined conduct did not reach the exceptional threshold.
5. The court did not need to determine the challenge concerning reasonable grounds for suspicion because HMRC had conceded on another ground and the issue had not been properly ventilated. The claimants’ criticisms concerning service, the delayed concession, the redactions and the restraint order did not justify different relief.
6. The application for an unconditional return order and an order preventing a section 59 application was refused. HMRC remained entitled to apply to the Crown Court for permission to retain the seized items.

The judicial review claim was issued in December 2022. Permission was granted by HHJ Davies in January 2024. HMRC conceded the judicial review in April 2024. This judgment determined the outstanding issue of relief.