Kennedy Talbot appeared for the Defendant in this important Judicial Review relating to the use of material unlawfully obtained by the Police (in this case SOCA). Linda Saunt provides a summary.

R (on the application of Cummins) v Manchester Crown Court [2010] All ER (D) 01 (Sep); [2010] EWHC 2111 (Admin)

This was an application for judicial review seeking a declaration that the decision of the Crown Court at Manchester to issue search warrants to SOCA was unlawful and that their execution was unlawful. A mandatory order was sought for the return of all material and also a further order that no use be made of any knowledge gained as a result of the unlawful search and seizure.

In correspondence following the execution of the warrants SOCA had conceded that the warrants did not comply with section 15(6)(a)(iii) of PACE as amended, on the grounds that they did not give sufficient indication of the nature of the investigation in respect of which the warrants were issued and that the warrants were therefore unlawful. SOCA also conceded that they would be prepared to make arrangements for the return of the material seized. However, "in relation to the relatively small quantity of relevant material" SOCA sought an irrevocable consent to its retention until the completion of the investigation or criminal proceedings, whichever was the later, observing that if consent was not forthcoming steps would be taken to ensure that the material was obtained or retained by lawful means.

In reply the claimant’s solicitors insisted that all the property was delivered forthwith and they required:

an undertaking that no use shall be made of any knowledge gained from any of the unlawfully seized material.
a list of all personnel who have had dealings with the property to provide and comply with such an undertaking.
a list of all personnel who have received any information from the unlawfully seized material to also provide and comply with such undertakings (to include legal advisers).
an undertaking that no copies had been made of any of the unlawfully seized materials, and if such copies had been made an opportunity to witness the destruction of such copies, and a certificate that no further copies have been kept.
damages.

The response from SOCA was to confirm that it would return all of the items but gave notice that they would provide all the material to the solicitors sorted into two parts: the material returned and not to be re‑sought; the material to be re‑sought. The 'sorting' would be on the basis of the view previously taken as to relevance (the material having already been considered). The return of this material would be pending an application under s345 POCA 2002, which would be on notice, for the solicitors to produce the material considered to be relevant to the ongoing investigation. SOCA specifically drew attention to s343(2)(b) POCA which makes it an offence for a person to falsify, destroy, conceal or otherwise dispose of material relevant to the legislation. SOCA indicated that because of their proposed actions it would unnecessary and unduly onerous to provide the undertakings sought.

The solicitors challenged SOCA in relation to the failure to deal with the undertaking or the list of personnel who had had dealings with the property or had received any information from the unlawfully seized material.

SOCA replied that before any arrangement for the return of the material could be fixed, it required an urgent undertaking that the client would not be present when the material was returned, that the solicitors receive the material on behalf of their client and that they acknowledge that s342 POCA applied to the solicitors once they are in possession of the material.

The claim for judicial review was issued in which the claimant wished to have the property returned immediately.

Giving judgement Leveson LJ said he had no doubt that the claimant was unconditionally entitled to the return of what was seized as a result of the issue and execution of the warrant which it had been conceded was unlawful. However, “criminal litigation is not a game”. Although SOCA cannot escape the consequences of the illegality of the warrant, there is no reason why they should be placed in a worse position than if the warrant had never been sought or, conversely, why those the subject of a warrant, even if unlawful, should be in a better position to protect themselves from prosecution for unlawful conduct.

Section 342(2)(b) of POCA 2002 (referred to by SOCa in the correspondence) makes it an offence, inter alia, to conceal, destroy or dispose of material relevant to a money laundering investigation where it is known or suspected that such an investigation is being conducted. Neither the claimant nor his solicitors could have any doubt that a money laundering investigation was under way.

The Court ordered that the materials

“… must be returned to a person who will have to acknowledge receipt of them. Whoever does so should be in no doubt of their status, which should be made clear on any receipt, and should equally understand the gravity of disposing of the material by giving it to someone else if it later fails to be produced in answer to a production order. …. The claimant should have no doubt, and indeed anybody who signs for the documents should have no doubt, of their significance. Whether or not they have been copied their importance has been asserted in witness statements in this action and repeated in this judgment. The consequence of disposing or otherwise destroying these documents is evident for all to see. The fact that documents have not been disclosed would not be irrelevant to any criminal prosecution if the document showed that the allegation of money laundering is without foundation. It is inconceivable that anyone would want to prevent the authorities from examining them and reaching that conclusion. The only basis upon which it would obviously be sensible to prevent such an examination is if they are in some way incriminating. Thus, if not produced I can readily visualise an argument that one, if not the only appropriate inference, is adverse to those who have disposed of them or destroyed them….”

With regard to the claimant’s application for all the copies to be destroyed the Court held that s. 78 of PACE amply controls the use to which any copies of documents could be put. It is to be remembered that the deployment of unlawfully obtained evidence is not necessarily and inevitably prohibited.

As to the derivative use of knowledge the Court referred to its earlier judgment in the case of Cook v SOCA [EWHC 2119 (Admin) in which it said that there was a real risk of allowing the subject of an unlawful search an unwarranted protection from an investigation. It would not make an order that would encourage satellite litigation either in a civil or criminal context as to the origin of lawfully obtained evidence.

Summary compiled by Linda Saunt 3 September 2010