Newcastle United went on the attack against HM Revenue and Customs (HMRC) over search and seizure.

The football club successfully applied for a judicial review of the search-and-seize order obtained by HMRC that led to it raiding United’s St James’ Park as part of a fraud inquiry relating to income tax, national insurance and transfer deal payments. At the resulting two-day London High Court hearing, the club argued that the scope of the search warrants was excessively wide and that legal procedures were not followed properly when the warrants were obtained.

This approach by the club prevented HMRC officers examining material seized in the raid. That alone shows the value of a legal challenge.

Warrants

A proper challenge, in the right case, to a search warrant can take the fight to the prosecution and make sure it does not have it all its own way.

Most warrants are issued under the Police and Criminal Evidence Act 1984 (PACE) or the Proceeds of Crime Act 2002.  When the authorities apply to the court for a warrant, they must state the object of the search and provide sufficient information to show that it is necessary. 

There must be reasonable grounds for believing that an offence has been committed and that there is material on the premises likely to be of substantial value to the investigation. 

There are other procedural rules that must be followed regarding the warrant application and the conduct of the search.  If they are not followed, the warrant may be quashed or the seized property returned – possibly preventing the prosecution using what they seized in any subsequent prosecution.

In R (Cook) v Serious Organised Crime Agency (SOCA), SOCA obtained a warrant, carried out the search and seized items but failed to leave schedules to the warrant at the searched premises. This rule breach rendered the seizures unlawful.  SOCA had to pay damages and some legal costs – and then start what was an unsuccessful attempt to re-seize the items.

In a money laundering case, SOCA was again ordered to return seized items but was then able to obtain a Production Order under the Proceeds of Crime Act 2002 to re-seize them. This was possible because of the particular offence being investigated.

The two cases demonstrate the powers the authorities have regarding search and seizure. But they also show that they can make mistakes – and this offers opportunities to a defence.

 

Tchenguiz

Tchenguiz v Serious Fraud Office & Others [2012] is arguably the most high-profile case in recent years where the authorities were challenged and beaten regarding search and seizure.

Robert and Vincent Tchenguiz’s premises were searched and arrests were made but the defence then showed that the SFO had failed to check the credibility of information it presented to the court when applying for search warrants. The SFO apologised to the brothers and paid them £4.5 million after being heavily criticised by the court.

Any judge asked to issue a search warrant must be satisfied that there are proper grounds for suspicion. A defence team, therefore, must challenge claims against their client that they believe are inaccurate or misleading.

Section 59 of the Criminal Justice and Police Act 2001

If the High Court quashes a search warrant, it usually means the return of the seized material.  But Section 59 of the Criminal Justice and Police Act 2001 allows the authorities to apply to the High Court for permission to retain the material for a short time while it re-applies to the Crown Court for, in effect, a new Order justifying the old seizure. 

In these situations, the Crown Court has a discretion to authorise the retention of the material seized. But a defence can raise arguments when they find evidence that leads them to believe the authorities have acted in bad faith when securing the warrant.

Shrewd defence in such cases is crucial.