MCML Limited (Formerly ED&F Man Capital Markets Limited) & Anor, R (on the application of) v Southwark Crown Court

In an application for judicial review of search warrants issued to assist foreign criminal investigations, the statutory tests for using a warrant rather than a production order require separate assessment. The applicant must genuinely believe, on cogent grounds, that less intrusive methods are bound to fail. The issuing court must independently be satisfied that notice of a production order may seriously prejudice the investigation. In a mutual legal assistance case, the domestic authority must make proper and necessary inquiries, but it is not subject to strict liability for information known to the requesting authority. Material errors or omissions justify relief only if the information might reasonably have led the judge to refuse the warrant. A technical failure to name the applicant will not necessarily justify quashing where it causes no confusion or prejudice. Legal professional privilege remains excluded as a matter of law even if the warrant does not expressly say so.

MCML Limited and Victoria Foster sought judicial review of four search warrants issued by Southwark Crown Court on 12 September 2022. The warrants implemented Danish and German requests for mutual legal assistance concerning suspected large-scale withholding-tax fraud and related investigations.

The claimants argued that production orders would have been sufficient, that HMRC had failed to make proper inquiries and had materially misled the issuing judge, that dual criminality was not established, and that the warrants were defective, disproportionate or insufficiently protective of privilege and Article 8 rights. The central issues were whether the statutory conditions for warrant-based searches were met and whether any disclosure failures or technical defects required the warrants to be quashed.

1. Claims dismissed. The court rejected all eight grounds of challenge and held that the warrants were lawful.
2. Under Schedule 1 to Police and Criminal Evidence Act 1984, the applicant’s belief that lesser measures were bound to fail is distinct from the court’s satisfaction that notice of a production order may seriously prejudice the investigation. The applicant’s belief must be genuine and supported by cogent reasons. Here, the need for coordinated seizure in a sophisticated, multi-person investigation, together with the risk of selective compliance or destruction, provided an adequate basis.
3. HMRC’s duty in a mutual legal assistance application was to make proper and necessary inquiries in the circumstances and disclose material obtained as a result. It did not extend to treating HMRC as having information held by a requesting authority, regardless of the inquiries made. Several inaccuracies and the failure to pursue the status of the FCA investigation into Ms Foster were regrettable, but none, individually or cumulatively, might reasonably have led the issuing judge to refuse the warrants.
4. The dual-criminality requirement was met. The alleged provision of incorrect tax information, dishonestly and for gain, would plainly amount to fraud by false representation under sections 1 and 2 of the Fraud Act 2006.
5. The omission of Ms McColl’s name from the German warrants breached section 15(6) of Police and Criminal Evidence Act 1984, but was technical and caused no prejudice. Following Goode, it did not warrant discretionary relief. The hybrid form of the German warrants was lawful and promoted clarity.
6. Privilege was excluded by law. Express exclusion in some categories did not imply permission to seize or inspect privileged material in others. The lawful warrants therefore constituted a proportionate interference with Article 8 rights.

This was a first-instance application for judicial review. Permission was granted by Lavender J on 23 May 2023. The Administrative Court dismissed the claims and upheld the four warrants issued by Southwark Crown Court on 12 September 2022.