The claimant sought judicial review of decisions to issues search warrants to HMRC in respect of his premises. HMRC wanted to look for evidence of tax avoidance schemes which it thought might be unlawful. Until the morning of the hearing, HMRC maintained that it could not disclose the information on the basis of which the warrants had been issued, for fear of prejudicing the continuing investigation which was not confined to the claimants. However, on the morning of the hearing HMRC provided a document giving the ‘gist’ of its case, and a redacted transcript of the hearing before HHJ Stephens QC.
Held: Gross LJ observed: ‘When an application for judicial review is launched seeking to quash the grant of a search warrant, it is, again, in some respects, akin to the ‘return date’ for Marevas, Anton Pillers and Restraint Orders. Ordinarily, the expectation will be that the party challenging the grant of the warrant must be entitled to know the basis upon which the warrant was obtained.
By their nature, criminal investigations are such that there will be occasions when, for good reason, HMRC (or other authorities as the case may be) will not be able to divulge the full information or the full contents of the discussion before the judge who granted the warrant. There is an important public interest in combating economic crime, and HMRC’s proper efforts to do so should not be undermined.
Where full disclosure cannot be given (and there will be cases where it cannot be), HMRC should, if at all possible, and again unless there is good reason for not doing so, make available, and in a timely fashion, a redacted copy or at least a note or summary of the information and the hearing before the judge, where appropriate, backed by an affidavit.’
Davis J said: ‘It must not be overlooked that an order issuing a warrant of the kind sought and granted in this case is, by its very nature, highly intrusive. Hence indeed the stringent pre-conditions under the 1984 Act Parliament has stipulated should be fulfilled before such an order may be made. Further, such orders are ordinarily, as here, sought on an ex parte basis: a reversal of course (albeit on well established grounds) of the usual rule that a party is entitled to be heard before any order is granted against him. Those two considerations seem to me to indicate that the prima facie starting point should be for HMRC to give, where requested, to the person who may be aggrieved at the issuing of the warrant and who may wish to challenge it, as much relevant information as practicable, provided it is not prejudicial to the investigation, as to the basis on which the warrant was obtained from the Crown Court.
It is of course relatively easy to envisage that there may be many cases where it could indeed be prejudicial to the investigation, prior to any charging decision, to disclose parts of the information and other materials deployed before the Crown Court judge in seeking the warrant. Non-disclosure in such circumstances can be justified. In the present case for example, we are told that a 59-page information and three supporting folders of materials were placed before the judge. Those have not thus far, in their full terms, been disclosed to Mr Gittins, and indeed Mr Jones QC did not seek to say they should have been, at all events at this stage. But, to repeat, it is not legitimate to move, without additional justification, from a position whereby it can properly be said that not all the materials placed before the Crown Court judge should be disclosed, to a position whereby it can be said that the recipient of the warrant is to be told nothing at all as to the basis on which the warrant was sought.
In my view, therefore, in each case where a request for such information is made by the person the subject of a warrant of the kind made here, HMRC should consider such requests on a individuated basis. Specifically, HMRC should assess what materials and information relied on before the Crown Court can properly be disclosed, with or without editing, and whether by way of summary or otherwise, without prejudicing the criminal investigation. It would be wrong simply to hide behind an asserted general policy as a justification in itself for declining to give any information. Indeed, I suspect that, while there perhaps may be cases where declining to give any information at all may be justified in particular circumstances, such a situation is likely to be an exception. Certainly it should not be taken as a norm. Where such a situation is said by HMRC to arise, then HMRC should be prepared to justify it. It is indeed, as I see it, salutary that that should be so.’
Gross LJ, Davis J
[2011] EWHC 131 (Admin), [2011] Lloyd’s Rep FC 219
Bailii
Criminal Justice and Police Act 2001 50
England and Wales
Cited by:
Cited – Global Cash and Carry Ltd, Regina (on The Application of) v Birmingham Magistrates’ Court and Others Admn 19-Feb-2013
The claimant sought an order quashing a search warrant, and for damages. The officer had said that he had evidence that the claimants were storing an distributing from the premises large quantities of counterfeit goods and drugs.
Held: The . .
Cited – Haralambous, Regina (on The Application of) v Crown Court at St Albans and Another SC 24-Jan-2018
The appellant challenged by review the use of closed material first in the issue of a search warrant, and subsequently to justify the retention of materials removed during the search.
Held: The appeal failed. No express statutory justification . .
Cited – Haralambous v St Albans Crown Court and Another Admn 22-Apr-2016
This judicial review raised for express decision whether a person whose premises have been searched and whose property seized under a search warrant must have enough information grounding the warrant to judge its lawfulness and the retention of the . .
Cited – A and Another, (On the Application of) v The Central Criminal Court and Another Admn 26-Jan-2017
(As redacted) Search warrants were challenged on the grounds that insufficient care had been taken of the possibility of the presence of privileged and or ‘excluded’ material. . .
Lists of cited by and citing cases may be incomplete.
Criminal Practice, Taxes Management
Updated: 23 November 2021; Ref: scu.443271