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The under used Defence Lawyer’s tool – Section 59 of the Criminal Justice and Police Act 2001

Blog7th February 2023

On 18-19 June 2020, officers of His Majesty’s Revenue and Customs (HMRC), executed a search warrant obtained at the Magistrates’ Court at the home address of a suspect in criminal proceedings.

After arresting the suspect in question – and removing him from the premises – officers of HMRC seized and uplifted a total of 10 mobile telephones from the premises in the course of their search. Daniel Cundy and Rachel Wilson challenged the seizure of the 10 mobile telephones and sought an Order for the return of the devices in question.

During the course of a two-day hearing before HHJ Graeme Smith at the Crown Court sitting at Stoke-on-Trent, Counsel, Benjamin Waidhofer cross-examined the HMRC officers upon their assertions made in ex-parte proceedings to obtain a search warrant including assertions made about material obtained in the course of Operation Venetic involving Encrochat servers/handsets.  Officers of HMRC were challenged about their decision making processes in respect of seizing each handset, it being suggested that material was actually uplifted for a collateral purpose, namely to bolster and inform parallel investigations of cigarette smuggling due for trial in the summer of 2023.

In the course of a carefully reasoned judgment, HHJ Graeme Smith accepted that HMRC adopted a less than scrupulous approach in relation to the recording of the decision to seize all mobile phones found and that the wording used by HMRC in the application for a search warrant was inaccurate.  After concluding that each mobile telephone had been seized unlawfully, the Court ordered their immediate return.  HMRC was ordered to permanently delete any copies of content from the telephones in question which meant that HMRC could not deploy any material from those telephones in future civil or criminal investigations/proceedings.

The power to apply for the return of items seized or purportedly seized in exercise of a power of seizure, including in the purported execution of a search warrant, is wholly contained within section 59 of the Criminal Justice and Police Act 2001.   This section of the Act is normally utilised by investigating or searching officers to retain and review material seized and uplifted in circumstances when they would otherwise fall to be returned.  What is less well known is that this legislation, as drafted, also permits persons with a relevant interest in seized property to apply for the return of items uplifted.

Daniel Cundy and Rachel Wilson specialise in this niche area of challenging the legality of obtaining search warrants ex parte, production orders and the subsequent execution of such orders.  He is  regularly instructed both by private individuals and corporations  in the course of challenging orders obtained by – and subsequent conduct of – agencies such as the Serious Fraud Office, the National Crime Agency and HMRC.