Faisaltex Ltd & Ors, R (on the application of) v Crown Court Sitting At Preston & Ors

This is the judgment of the court. These are nine associated applications for permission to apply for judicial review, and if granted, applications for judicial review relating to the issue of search warrants pursuant to Section 9 and Schedule 1 (Applications 1, 2 and 3) and to Section 8 (Applications 4-9) of the Police and Criminal Evidence Act 1984 [PACE]. 8 warrants were issued on 31 March 2008 and the 9th on 3 April 2008 at the Crown Court at Preston by His Honour Judge Brown. The warrants were executed on 3 April 2008. It is also sought to challenge their execution for excessive seizure and oppression.

The claimants are members of closely-related families with the surname Patel living in the Preston area of Lancashire, companies controlled by them and an accountant, Anil Hindocha trading as Hindocha and Company. The companies, to which we shall refer as the “Faisaltex companies”, are Faisaltex Limited, Faisaltex Manufacturing Limited and Faisal Imports Limited.

The Faisaltex companies are the claimants in the first application, which concerns a search warrant for the offices of Hill Dickinson LLP, solicitors, at 1 St Paul’s Square, Liverpool.

The claimants in the second application are Anil Hindocha and the Faisaltex companies. This concerns a warrant in respect of the office premises of Hindocha & Co at 19 Harewood Road.

The same claimants make the third application, which relates to a search warrant issued on 3rd April 2008 for the office premises of Hindocha & Co at 17, Harewood Road and other premises.

The fourth application is made by the Faisaltex companies in respect of the search warrant for Faisal House, Fairways Office Park, Olivers Place.

Claimants 5-9 are Faisal Patel in respect of the search warrant for 4 Sharoe Green Park, Preston, Munaf Patel in respect of the search warrant for 6 Sharoe Green Park, Preston, Arif Patel in respect of the search warrant for Six Acres, 100 Sharoe Green Lane, Preston, Arif Patel, in respect of the search warrant for 3 Sharoe Green Park, Preston and Faisal Patel in respect of the search warrant for 11 Sharoe Green Park, Preston. There is an application for leave to amend application 8 to add Umarji Patel and Bibi Patel, the parents of Arif, Munaf and Faisal Patel and the occupiers of 3 Sharoe Green Park, as claimants.

The First Defendant is the Crown Court sitting at Preston [“the Crown Court”], the Second Defendant is the Chief Constable of the Lancashire Constabulary [“the Police”], whose officers were responsible for the applications for the search warrants and their execution, and the interested party is Her Majesty’s Revenue and Customs [“HMRC”], who were parties to the applications for the search warrants. The Crown Court has not appeared.

The claims, which were issued on 30 June 2008, seek: -

By Application Notices dated 18 July 2008, the claimants applied pursuant to CPR Part 25 for interim injunctions or standstill pending the determination of the applications for judicial review. Their applications were listed before Blake J in the Administrative Court on 29 July 2008 when no order was made, upon the court accepting undertakings given by the Police and HMRC. The effect of those undertakings was that no one acting on or behalf of the Police or HMRC would access, view, inspect or use (i) any of the seized material, in whatever form until the conclusion of the applications for judicial review or further order, save that arrangements could be made for the scanning and creating of digital images of the material by a contractor independent of the Police in accordance with the agreed protocol in Schedule 2 to the order; (ii) any digital storage devices, material stored thereon and any copies of that material save that the Police are entitled to deliver the thumb drive seized from the offices of Hill Dickinson LLP to a contractor independent of the Police for copying, in accordance with the protocol in Schedule 2 to the order directions; (iii) the computer tower seized from the offices of Hill Dickinson, material stored thereon and copies of that material or the “blue bagged” material seized from the offices of Hill Dickinson, save that the Police are entitled to give access to Hill Dickinson LLP and independent counsel solely for the purpose of determining relevance and privilege in accordance with the protocol set out in Schedule 2 to the Order.

The applications for the warrants arose from Police and HMRC investigations, whose principal subjects were Arif Patel, Munaf Patel and Faisal Patel. They are brothers, and were believed by the Police and HMRC to be responsible for the day to day running of many businesses operated by or associated with members of the Patel family under a variety of names, including Morville Trading Limited, Oakville (UK) Limited and Faisal Management Limited, and of which Faisaltex Limited was allegedly the main one. A police operation known as Operation Mimosa was and is concerned with the investigation of the importation and exportation of counterfeit clothing as well as offences of money laundering (allegedly the laundering of the proceeds of the frauds) and an allegation against Arif and Faisal Patel of a conspiracy to pervert the course of justice in relation to an employee, who was convicted in Scotland of counterfeiting offences.

Between March 2004 and April 2007, HMRC seized 39 consignments of clothing being imported to this country. All were found to contain counterfeit clothing, mainly socks, underwear, hats and pyjamas all bearing labels or in packaging from a number of well known brand companies (35 in all) who following the seizure of the goods have inspected the goods, and identified them as counterfeit. The total losses, based on losses of sales had the goods been genuine, have been estimated to be over £1m per consignment. Some of the containers inspected contained ‘unbranded goods’ mixed together with the counterfeit goods in such a way as to avoid detection.

The documents for the 39 consignments related allegedly to various companies directly owned and operated by members of the Patel family (Morville Trading Limited, Oakville (UK) Limited and Faisal Imports Limited) or companies which could be linked to the Patel family and their businesses (FT International Limited, Nirvana Trading Limited, Faisaltex Management Limited, Faisal Imports Limited, Excelious Distribution Limited and Stage One Clothing).

Once there had been confirmation from the rights holders that the samples were counterfeit, a notice of seizure was issued by customs officials and sent to the importer companies or agents, in each case one of those identified above. That notice advised that the detained goods had been confirmed as counterfeit and that if the importers made no appeal within one month the goods would be destroyed. Detention notices were sent in respect of all 39 consignments and although notices of appeal in respect of 5 consignments were received from Hill Dickinson, solicitors acting on behalf of the Patel company identified as the importer in respect of each of those consignments, those notices were withdrawn subsequently. The 39 consignments seized are regarded by the Police and HMRC as a very small proportion of such consignments, which in all amounted to over 600 containers. It was believed by those authorities that the three Patel brothers and their companies had been involved in the counterfeiting trade since the late 1990’s, both by manufacture and by importation.

Further investigations by HMRC were also being carried out into false export declarations, which enabled the exporter to reclaim VAT on the goods allegedly being exported. This was said to involve companies controlled by members of the Patel family. The method, identified in early 2006 by HMRC, was to fill containers with low value material and waste but declare the goods as high value textiles on which the VAT could be reclaimed. The consignee was a company in the United Arab Emirates called Styletex Enterprises FZE, and the exporter, Malcolm Dilks Agencies Limited, had over the period of October 2005 to February 2006 exported to that company some 167 containers of allegedly high value textiles. Of these, 101 had been packed and supplied by companies controlled by Arif, Munaf and Faisal Patel. The investigations suggested losses of at least £45 million on the VAT fraud alone.

All these matters formed part of the information put before His Honour Judge Brown when the applications for the search warrants were made. The applications asserted that there were reasonable grounds for believing that indictable offences had been committed, namely conspiracy to sell or distribute goods which bear a sign likely to be mistaken for a registered trade mark, contrary to section 92(1)(b) of the Trade Marks Act 1994 and section 1(1) of the Criminal Law Act 1977; conspiracy to pervert the course of justice; cheating the Revenue, contrary to common law; and laundering the proceeds of crime contrary to the Proceeds of Crime Act 2002.

The power to issue a search warrant under PACE is first dealt with by section 8, the material parts of which provide:

“(1)

If on an application made by a constable a justice of the peace is satisfied that there are reasonable grounds for believing-

(a)

that an indictable offence has been committed; and

(b)

that there is material on premises mentioned in subsection (1A) below which is likely to be of substantial value (whether by itself or together with other material) to the investigation of the offence; and

(c)

that the material is likely to be relevant evidence: and

(d)

that it does not consist of or include items subject to legal privilege, excluded material or special procedure material; and

(e)

that any of the conditions specified in subsection (3) below applies in relation to each set of premises specified in the application,

He may issue a warrant authorising a constable to enter and search the premises.

(1A) The premises referred to in subsection (1)(b) above are-

(a)

one or more sets of premises specified in the application (in which case the application is for a “specific premises warrant”);or

…

(2)

A constable may seize and retain anything for which a search has been authorised under subsection (1) above.

(3)

The conditions mentioned in subsection (1)(e) are-

(a)

that is not practicable to communicate with any person entitled to grant entry to the premises;

(b)

that it is practicable to communicate with a person entitled to grant entry to the premises but it is not practicable to communicate with any person entitled to grant access to the evidence;

(c)

that entry to the premises will not be granted unless a warrant is produced;

(d)

that the purpose of a search may be frustrated or seriously prejudiced unless a constable arriving at the premises can secure immediate entry to them.

(4)

In this Act “relevant evidence”, in relation to an offence, means anything that would be admissible in evidence at a trial for the offence.

(5)

The power to issue a warrant conferred by this section is in addition to any such power otherwise conferred.”

It will be observed that the justice of the peace (or judge exercising those powers) has to be satisfied that there are reasonable grounds for believing, inter alia, that the material does not consist of or include items subject to legal privilege, excluded material or special procedure material: subsection 1(d) above. Each of those three categories is defined in this part of PACE. Section 10 deals with the first of them:

“(1)

Subject to subsection (2) below, in this Act “items subject to legal privilege” means-

(a)

communications between a professional legal advisor and his client or any person representing his client made in connection with the giving of legal advice to the client;

(b)

communications between a professional legal advisor and his client or any person representing his client or between such an advisor or his client or any such representative and any other person made in connection with or in contemplation of legal proceedings and for the purpose of such proceedings; and

(c)

items enclosed with or referred to in such communications and made-

(i)

in connection with the giving of legal advice; or

(ii)

in connection with or in contemplation of legal proceedings and for the purposes of such proceedings,

When they are in the possession of a person who is entitled to possession of them.

(2)

Items held with the intention of furthering a criminal purpose are not items subject to legal privilege.”

Section 11 defines “excluded material”. Insofar as relevant for present purposes, it provides:

“(1)

Subject to following provisions of this section, in this Act “excluded material” means-

(a)

personal records which a person has acquired or created in the course of any trade, business, profession or other occupation or for the purposes of any paid or unpaid office and which he holds in confidence;

(b)

human tissue or tissue fluid which has been taken for the purpose of diagnosis or medical treatment and which a person holds in confidence;

(c)

journalistic material which a person holds in confidence and which consists-

(i)

of documents; or

(ii)

of records other than documents.

(2)

A person holds material other than journalistic material in confidence for the purposes of this section if he holds it subject-

(a)

to an express or implied undertaking to hold it in confidence; or

(b)

to a restriction on disclosure or an obligation of secrecy contained in any enactment, including an enactment contained in an Act passed after this Act.”

As for “special procedure material”, that is defined by section 14, the relevant provisions of which state:

“(1)

in this Act “special procedure material” means-

(a)

material to which subsection (2) below applies; and

…

(2)

Subject to the following provisions of this section, this subsection applies to material, in the possession of a person who-

(a)

acquired it in the course of any trade, business, profession or other occupation or for the purpose of any paid or unpaid office; and

(b)

holds it subject-

(i)

to an express or implied undertaking to hold it in confidence; or

(ii)

to a restriction or obligation such as is mentioned in section 11(2)(b) above.”

There is a power under section 9 for a police constable to obtain access to the last two categories, that is to say, excluded material and special procedure material, for the purposes of a criminal investigation by making an application under Schedule 1 of PACE. We shall turn to those provisions of Schedule1 shortly. It should be noted, however, that, even under Schedule 1, access cannot be obtained to the other category of material falling outside section 8, namely items subject to legal professional privilege.

Section 15 sets out certain safeguards applicable to the issuing of a search warrant, and section 15(1) states that:

“an entry on or search of premises under a warrant is unlawful unless it complies with this section and section 16 below.”

Amongst the section 15 safeguards it is appropriate to note the following provisions: by section 15(2), it is the duty of a constable applying for a search warrant:

“(a)

to state (i) the ground on which he makes the application;

(ii)

the enactment under which the warrant would be issued;

…

(c)

to identify, so far as is practicable, the articles or persons to be sought.”

Section 15(3) states that:

“An application for such a warrant shall be made ex parte and supported by an information in writing.”

The constable is required by section 15(4) to answer on oath any question that the justice of the peace or judge hearing the application asks him. By section 15(6):

“A warrant-

(a)

shall specify-

(i)

the name of the person who applies for it;

(ii)

the date on which it issued;

(iii)

the enactment under which it is issued; and

(iv)

each set of premises to be searched …

(b)

shall identify, so far as is practicable, the articles or persons to be sought.”

Section 16 deals with the execution of warrants. Section 16(8) states that:

“a search under a warrant may only be a search to the extent required for the purpose for which the warrant was issued.”

However, it is to be noted that there are additional powers of seizure conferred by section 19 of PACE, once a constable is lawfully on the premises. That section provides as follows:

“(1)

The powers conferred by subsections (2), (3) and (4) below are exercisable by a constable who is lawfully on any premises.

(2)

The constable may seize anything which is on the premises if he has reasonable grounds for believing-

(a)

that it has been obtained in consequence of the commission of an offence; and

(b)

that it is necessary to seize it in order to prevent it being concealed, lost, damaged, altered or destroyed.

(3)

The constable may seize anything which is on the premises if he has reasonable grounds for believing-

(a)

that it is evidence in relation to an offence which he is investigating or any other offence; and

(b)

that it is necessary to seize it in order to prevent the evidence being concealed, lost altered or destroyed.

(4)

The constable may require any information which is stored in any electronic form and is accessible from the premises to be produced in the form in which it can be taken away and in which it is visible and legible or from which it can readily be produced in a visible and legible form if he has reasonable grounds for believing-

(a)

that-

(i)

it is evidence in relation to an offence which he is investigating or any other offence; or

(ii)

it has been obtained in consequence of the commission of an offence; and

(b)

that it is necessary to do so in order to prevent it being concealed, lost, tampered with or destroyed.

(5)

The powers conferred by this section are in addition to any power otherwise conferred.

(6)

No power of seizure conferred on a constable under any enactment (including an enactment contained in an Act passed after this Act) is to be taken to authorise the seizure of an item which the constable exercising the power has reasonable grounds for believing to be subject to legal privilege.”

We return to the Schedule 1 provisions setting out the special procedure required in respect of excluded material or special procedure material. In such cases the application must be made to a judge, rather than to a justice of the peace. The Schedule makes provision first for an order to produce material. In such cases the application is made inter partes on notice to the person who appears to be in possession of the material and the order, if made, requires him to produce it to a constable for him to take away or to give a constable access to it: Schedule 1, paragraphs 4, 7 and 8. We shall call this a paragraph 4 order. Once notice has been served on a person of an application for such an order, paragraph 11 prohibits him from concealing, destroying, altering or disposing of the material in question without the leave of a judge or written permission of a constable until the application is dismissed or abandoned or he has complied with any paragraph 4 order made.

In order to have the power to make such an order, the judge must be satisfied that one or other of two sets of access conditions is fulfilled. We are only concerned with the first set, contained in paragraph 2 of the Schedule, and we set them out in full because, as will be seen, they are also relevant to a search warrant issued under this Schedule. Paragraph 2 states in its relevant parts:

“The first set of access conditions is fulfilled if-

(a)

there are reasonable grounds for believing-

(i)

that an indictable offence has been committed;

(ii)

that there is material which consists of special procedure material or also includes special procedure material and does not also include excluded material on premises specified in the application, or on premises occupies or controlled by a person specified in the application (including all such premises on which there are reasonable grounds for believing that there is such material as it is reasonably practicable so to specify);

(iii)

that the material is likely to be of substantial value (whether by itself or together with other material) to the investigation in connection with which the application is made; and

(iv)

that the material is likely to be relevant evidence;

(b)

other methods of obtaining the material-

(i)

have been tried without success; or

(ii)

have not been tried because it appeared that they were bound to fail; and

(c)

it is in the public interest, having regard to-

(i)

to the benefit likely to accrue to the investigation if the material is obtained; and

(ii)

to the circumstances under which the person in possession of the material holds it, that the material should be produced or that access to it should be given”

We turn to the provisions about search warrants issued under Schedule 1. By paragraph 12,

“If on application made by a constable a judge-

(a)

is satisfied-

(i)

that either set of access conditions is fulfilled; and

(ii)

that any of the further conditions set out in paragraph 14 below is also fulfilled …

…

…

he may issue a warrant authorising a constable to enter and search the premises …”

Paragraph 14 provides:

“The further conditions mentioned in paragraph 12(a)(ii) above are-

(a)

that it is not practicable to communicate with any person entitled to grant entry to the premises …;

(b)

that it is practicable to communicate with a person entitled to grant entry to the premises but it is not practicable to communicate with any person entitled to grant access to the material;

(c)

that the material contains information which-

(i)

is subject to a restriction or obligation such as is mentioned in section 11(2)(b) above; and

(ii)

is likely to be disclosed in breach of it if a warrant is not issued;

(d)

that service of notice of an application for an order under paragraph 4 above may seriously prejudice the investigation.”

It is clear from the wording of paragraph 12(a)(ii) that it suffices to fulfil any one of the four conditions set out in paragraph 14. In the present case the condition relied upon in the applications for warrants under Schedule 1 was sub-paragraph (d).

The requirements which have to be met for the issue of a search warrant, whether under section 8 of PACE or under Schedule 1 thereof may seem numerous and onerous. But as the courts have repeatedly emphasised, that is only to be expected when a police officer is seeking authority to enter a person’s home or other premises without that person’s consent and to search for and seize items present there. It has rightly been described as a draconian power (see R v. Guildhall Magistrates’ Court, ex parte Primlaks Holdings Co. (Panama) Inc., [1990] 1 QB 261, 272, and as Latham LJ put it in R (Redknapp) v. Commissioner of City of London Police [2008] EWHC 1177 (Admin):

“The obtaining of a search warrant is never to be treated as a formality. It authorises the invasion of a person’s home.” (paragraph 13).

It was said by Bingham LJ in R v. Lewes Crown Court, ex parte Hill [1991] 93 Cr. App. R 60, a special procedure case, that

“The 1984 Act seeks to effect a carefully judged balance between these interests and that is why it is a detailed and complex Act. If the scheme intended by Parliament is to be implemented, it is important that the provisions laid down in the Act should be fully and fairly enforced. It would be quite wrong to approach the Act with any preconception as to how these provisions should be operated save in so far as such preconception is derived from the legislation itself.

It is, in my judgment, clear that the courts must try to avoid any interpretation which would distort the parliamentary scheme and so upset the intended balance. In the present field, the primary duty to give effect to the parliamentary scheme rests on circuit judges. It seems plain that they are required to exercise those powers with great care and caution. I would refer to the observation of Lloyd L.J. in Maidstone Crown Court, ex p. Waitt [1988] Crim L.R. 384 where he said

“The special procedure under section 9 and Schedule 1 is a serious inroad upon the liberty of the subject. The responsibility for ensuring that the procedure is not abused lies with circuit judges. It is of cardinal importance that circuit judges should be scrupulous in discharging that responsibility”.”

These and other authorities emphasise the vital importance of the role of the judge who is being asked to issue a search warrant. It is his task to be satisfied that the statutory requirements have been met. In the words of Judge LJ in R (Bright) v. Central Criminal Court [2001] 1 WLR 662, 677:

“… it is clear that the judge personally must be satisfied that the statutory requirements have been established. He is not simply asking himself whether the decision of the constable making the application was reasonable, nor whether it would be susceptible to judicial review on Wednesbury grounds (see Associated Provincial Picture Houses Ltd v Wednesbury Corpn [1948] 1 KB 223). This follows from the express wording of the statute, “If … a circuit judge is satisfied that one … of the sets of access conditions is fulfilled”. The purpose of this provision is to interpose between the opinion of the police officer seeking the order and the consequences to the individual or organisation to whom the order is addressed the safeguard of a judgment and decision of a circuit judge.”

On the other hand, the role of this court in judicial review proceedings is not that of an appeal court but one of review on the usual principles. If it was properly open to the judge below to be satisfied as to the various requirements, then this court will not intervene. In addition, it has to be borne in mind that in both section 8(1) of PACE and the Schedule 1 first set of access conditions, what the judge must be satisfied as to is that there are “reasonable grounds for believing”, no less but no more. And in a number of the provisions, the belief is that something is “likely”: for example, in section 8(1)(c), that the material “is likely to be relevant evidence”. As this court observed in R v. Chief Constable of Warwickshire, ex parte Fitzpatrick [1999] 1 WLR 564, 574H,

“a likelihood is less than a probability.”

The burden of showing that the judge acted ultra vires in issuing a warrant or that the police acted unlawfully in some way when executing a warrant rests upon the claimant.

Some of the grounds relied on by the claimants relate to the issue of the warrants, others to the execution of them. But before we turn to those it is appropriate to deal with an objection raised by the second defendant and the interested party (the Police and HMRC) to these applications for permission to seek judicial review in their entirety. It arises from the terms of CPR 54 and it amounts to an allegation that the claimants have not acted promptly in filing their applications.

CPR 54.5(1) deals with claims for permission to seek judicial review. It states:

“The claim form must be filed-

(a)

promptly; and

(b)

in any event, not later than 3 months after the grounds to make the claim first arose.”

In the present case the search warrants were executed on 3 April 2008. The claim forms were filed on 30 June 2008, a few days within the 3 months period referred to in paragraph (b) of CPR 54.5(1). However, it has been held in a number of cases that, as the wording of the rule indicates, the requirement that the claim form be filed “promptly” is a separate and additional requirement to that of filing within the 3 months. As was said in R v. Independent Television Commission, ex parte TV Northern Ireland Limited [1996] J.R. 60, it is not to be assumed that filing within 3 months necessarily amounts to filing promptly. That point has been endorsed on several occasions: see, for example, R v. Cotswold District Council, ex parte Barrington Parish Council [1997] 75 P and CR 515 and Finn-Kelcey v. Milton Keynes Council [2008] EWCA Civ 1067.

Were the present claims filed promptly? The answer to that question depends upon all the circumstances of the case and in particular on whether the delay in commencing judicial review proceedings is satisfactorily explained. A number of different explanations for the delay are put forward in the evidence. The principal one is that for about two months the solicitors acting for the claimants were seeking to agree with HMRC an appropriate manner of dealing with seized material which might be covered by legal professional privilege (“LPP”), so that any such material might be returned. Only when these attempts seemed doomed to failure were they instructed by the claimants to consider other options.

It is, of course, commendable that a party should seek to resolve an issue about the return of certain documents without the need for litigation. But while we can understand that this might have avoided, at least in part, a claim for excessive seizure of materials, it has little bearing on some of the main grounds of challenge now advanced, namely that the search warrants were themselves invalid and consequently all the seizures of property unlawful. Those grounds, as will be seen, include contentions that the warrants were too widely drafted and also that the material specified in them was, in part, incapable of being relevant evidence as required by the statute. It is right that some of the other grounds of challenge to the warrants could only have been advanced once the claimants’ advisers had obtained copies of the informations put before the judge and the transcripts of the ex parte proceedings. But here again, it was not until 27 May 2008, nearly two months after the execution of the warrants, that solicitors for the claimants sought copies of the informations from the court. That was not acting promptly.

The other explanation put forward by Mr Richard Smyth of the claimants’ solicitors in a witness statement is that it was not until around that time that it was realised that judicial review would be a potential route to challenging the legality of the warrants. This came about with the publicity given to the judgment in the Redknapp case (ante), a decision handed down on 23 May 2008. However, as Mr Bird for the Police and HMRC has pointed out, the correspondence reveals that by 28 April 2008, less than four weeks after the execution of the warrants, solicitors for a number of the claimants were writing to the Police, querying the legality of the warrants and referring to no less than three judicial review cases concerning search warrants. So this explanation for the delay does not stand up to scrutiny.

We find that the claim forms were not filed promptly. That, of course, is not the end of the matter. It remains a matter for the exercise of this court’s discretion whether permission to seek judicial review should be granted or not, and that is something which must reflect the merits of the substantive claims for judicial review and whether any prejudice has resulted from the delay. The merits will include the appropriateness of judicial review as a procedure for determining some of the claims, namely those alleging excessive seizure of materials, if and insofar as issues of fact arise which this court cannot readily determine. We shall return to that aspect in due course. The prejudice asserted on behalf of the Police and HMRC is that of the delay to the criminal investigation. The claimants response to this is that the use of the search warrants has resulted in a huge volume of documentation and electronic information being seized, which is going to take a long time to examine. Mr Alun Jones, Q.C., for the claimants argues that this could be speeded up by setting aside the warrants and by notices to produce then being served, which would be considered inter partes before a circuit judge.

That does not seem to this court to be an answer to the point about prejudice to the criminal investigation which has resulted from these judicial proceedings only having been started almost at the expiry of the three months period. It is an argument which presupposes that the warrants should not have been issued and executed. They have been, and an earlier filing of the claim forms to seek judicial review would have meant less delay in these proceedings reaching a conclusion. We find that there has been some prejudice caused by the lack of promptness. That by itself does not mean that permission should be refused, especially in a case involving fundamental rights as such cases as this always do, but it does mean that one has to look for a better case on the substantive merits than might otherwise be needed.

The grounds of challenge to the lawfulness of the warrants can be dealt with in three groups: the warrant in respect of the premises of the solicitors, Hill Dickinson at 1 St Paul’s Square, Liverpool L3 9SJ; the two warrants in respect of premises of Hindocha and Co., in Preston; and the other six warrants directed to the premises of Faisaltex Limited at Faisal House and to residential properties of various members of the Patel family, all those six warrants being issued under section 8 of PACE.

The application for this warrant was made under section 9 and Schedule 1 of PACE. The information in writing in support of the application specified the material to which the application related as being “any files or documents held by the firm including electronically or on microfiche that are not considered legal privilege (sic) in relation to their dealings with representatives of the companies and organisations listed at Appendix A that are suspected to be involved in trading in counterfeit goods”. Appendix A listed some 19 entities. The information was that of Detective Constable Fishwick, who stated on a standard form that each of the statutory requirements for a special procedure search warrant was fulfilled and who supported that with a detailed written information. She also gave evidence on oath before the judge.

A number of grounds of challenge are advanced by the claimants, both to the Police decision to seek this warrant and to the judge’s decision to issue it, but it is sufficient for our purposes to focus on one particular issue which is raised. The police officer, when dealing with the requirement that one of the conditions in paragraph 14 of Schedule 1 be met, identified the condition set out at sub-paragraph (d) of that paragraph, namely

“that service of notice of an application for an order under paragraph 4 above may seriously prejudice the investigation.”

In short, it was being asserted that to use the notice to produce procedure under paragraph 4 of the Schedule might seriously prejudice the investigation, it being a necessary part of that process that a notice of an application for such an order would have had to be served on Hill Dickinson. In the written information D.C. Fishwick referred to a number of facts: Hill Dickinson had represented the Patel family and connected companies in the five appeals against the detention of consignments by HMRC between July 2004 and October 2006; the firm had received a cheque signed by Munaf Patel in respect of costs of one of those appeals by one of the companies; this, it was said, showed knowledge by employees of Hill Dickinson as to the detention by HMRC on five occasions of counterfeit goods involving their clients, and there was also evidence that the solicitors knew there was a criminal investigation into suspected VAT fraud by companies controlled by their clients. There was also reference to Faisal Patel having telephoned Hill Dickinson shortly after one of the Patels’ employees had been arrested in Scotland, and the belief was expressed that the solicitors had not reported to the authorities any suspicions about their clients’ involvement in the importation and distribution of counterfeit goods.

D.C. Fishwick did not add materially to those points in her oral evidence before the judge. The main oral testimony in respect of this warrant came from Detective Sergeant Baldwin. She recognised that the judge would want to know why a production order under paragraph 4 of the Schedule would not suffice. She stated that there were three matters of concern. The first was that Hill Dickinson had represented the Patels or their companies on the five appeals, meaning the appeals against the seizure and detention of counterfeit goods. The judge described the solicitors as having represented someone who had been convicted, which was inaccurate – no criminal conviction was involved – but that is not relevant to the present issue. The officer went on to say, according to the transcript:

“I think our concern was is the frequency (sic). Had there just been one or possibly two appeals … that they became aware of, then I am sure we would have gone for a production order. However, they’ve represented them on five occasions.”

She then referred to the other two areas of concern, the representation by Hill Dickinson of the Patels “in relation to the Customs side of the enquiry” (presumably a reference to the suspected VAT fraud), and the phone call from Faisal Patel to the solicitors after the employee’s arrest in Scotland. The transcript then continues:

“Q. Yes. A. --- we do have some concerns. Obviously the warrants are all planned for the same day, if we went for a production order yes we could have a same day production order however we have concerns that the files are the personal property of the Patel family and, if so, if they so wish they could have those files removed before we could actually get the production order served.

Q. Yes. A. I don’t have any concern Hill Dickinson I’m aware, as I’m sure you are, your honour, are a reputable firm---

Q. Yes. A. --- and the intention is not to turn up in a police personnel carrier the intention is you will notice, your honour, that there are only eight people down to go to the premises---”

The judge then gave his ruling. He said he had read the information of D.C. Fishwick and heard the evidence of D.S. Baldwin, who he said

“… has assisted me with the explanation that it is the police’s intention, when executing the warrants, to keep disruption of the normal processes of the solicitor’s firm to a minimum, then I am satisfied that it is appropriate to issue the warrant, the special procedure warrant, under section 9 of the Act. Thank you.”

The submission on behalf of the claimants is that there was no rational basis upon which the judge could have been satisfied that service of a notice on Hill Dickinson of an application for a notice to produce might seriously prejudice the investigation. For the Police and HMRC, Mr Bird submits that part of the investigation was into a suspected conspiracy to pervert the course of justice in respect of the employee arrested in Scotland, and in the mind of the police officers there was potentially a risk of a tip-off to the Patels if Hill Dickinson were served with notice of a paragraph 4 application. Moreover, it is contended that, if Hill Dickinson had reasonable grounds for suspecting that the Patels were engaged in money laundering, they were obliged under section 330 of the Proceeds of Crime Act 2002 to report it, and they had not done so.

We do not find this last line of argument at all persuasive. Section 330 deals with a failure to disclose information on the part of persons “in the regulated sector”, which is defined in Schedule 9 of that Act. It seems most unlikely that Hill Dickinson acquired any information covered by the section in the course of their business in the regulated sector as defined, and there is also an express exemption from the duty to disclose in the case of professional legal advisors who have acquired the information in privileged circumstances: see section 330(6). In any event, this was not the basis upon which the case was advanced to Judge Brown. The complaint about non-reporting by the solicitors was directed towards suspicions they may have had about their clients’ involvement in counterfeit goods importation. Yet on those matters Hill Dickinson were acting on behalf of the Patels and their companies as their solicitors.

That takes us on to what seems to have been the main concern of the Police, namely that Hill Dickinson had acted for the Patels on five appeals against the seizure and detention of counterfeit goods. Apparently the concern would not have existed, had they only acted on one or two occasions. We wholly fail to understand this reasoning. Hill Dickinson were acting as the Patels’ solicitors and were fully entitled to do so. A solicitor is not to be regarded as somehow tainted and unreliable because, for example, he acts for someone charged with or convicted of a criminal offence and yet the situation here had not reached even that stage. It makes no difference whether the solicitor, who is an officer of the court, acts on one occasion or twenty occasions on behalf of such a person and, as D.S. Baldwin acknowledged, Hill Dickinson are a reputable firm.

The officer’s concern seemed to be, as the transcript shows, that if the Schedule 1 procedure for a production order were followed, the Patel family could have their files removed from the solicitors before the order under paragraph 4 were served. But that misunderstands the legal position. Once a notice of application had been served on Hill Dickinson, that being the first step in the process, the solicitors would have been under a duty not to dispose of the material to which the application relates: paragraph 11 of Schedule 1, set out earlier. We are satisfied that “dispose” in that paragraph would prevent the solicitors passing the material over to the Patels or anyone acting for them, since “destroy” is already separately provided for in the paragraph. Since Hill Dickinson are acknowledged to be reputable, there was no basis on which the judge could properly have concluded that they would not observe that statutory duty. Nor need the notice of application have risked alerting the Patels to the possibility of searches at other premises, since the service of that notice, as Mr Bird accepts, could have been timed so as to coincide with the execution of the other warrants.

We have concluded that there was no rational basis upon which the judge could have concluded that use of the paragraph 4 process of a production order might seriously prejudice the investigation. There was simply no evidence on which he could be satisfied that the condition in paragraph 14(d) was met. Since paragraph 12 (a)(ii) required him to be satisfied that one of the paragraph 14 conditions was met, and (d) was the only one relied upon, it follows that he had no power under Schedule 1 to issue the search warrant in respect of Hill Dickinson’s premises. This seems to us to be a clear case of the unlawful issuing of a search warrant, and in those circumstances we are not prepared to allow the claimants’ failure to issue proceedings promptly to stand in their way. For that reason we shall grant permission to seek judicial review of the Hill Dickinson warrant and deal with the matter as a substantive judicial review application.

We cannot see that any useful purpose is served by quashing the Police’s decision to apply for that warrant, as distinct from the issuing of the warrant itself. But we do quash that warrant, grant the declaration sought that the entry and search of those premises and the seizures therefrom were unlawful and order the second defendant to return all the property seized and any copies thereof. We have no material before us which enables us to make any award of damages beyond general damages, if any, since it must be borne in mind that Hill Dickinson are not a party in these proceedings. We shall invite the parties to make submissions, preferably in writing, as to the precise terms of the order and of any further relief.

These were the other two special procedure warrants issued by Judge Brown, one on 31 May 2008 and the other on 3 April 2008. The latter related to the premises adjoining those covered by the earlier warrant and the application for it came about because of information which came to light during the execution of the earlier warrant. It stands or falls with that earlier warrant and does not call for separate consideration.

As we have said, Hindocha and Co. is the trading name of Mr Anil Hindocha, an accountant. The material to which the applications related was specified in the information as all files and documents, written or stored electronically or on microfiche relating to the business activities of the three Patel brothers we have referred to earlier, and of four named relatives, and of a partnership and a number of companies and other bodies set out in a schedule. The material was stated to include all accounting and business records, clients’ accounts entries and client notes, together with a long list of specific items set out in a further schedule, such as sales invoices, delivery notes, bills of lading and supplier details. That schedule also referred to computers, memory sticks and palm tops, and to items of clothing believed to be counterfeit, including labels, trade marks and packaging.

The applications for a warrant were made both by the Police and by HMRC. D.C. Fishwick again produced an information in writing, as did an officer of HMRC, Mr Peter Burdett. Both gave evidence on oath before the judge. Again, the applications relied on paragraph 14(d) of Schedule 1 to PACE and so asserted that the service of a notice of an application for a paragraph 4 order might seriously prejudice the investigation.

As with the Hill Dickinson warrant, here again the claimants contend that there was no rational basis for the judge to be satisfied that paragraph 14(d) was met. Mr Jones submits that there was no reason why a notice to produce would not have preserved the material. Mr Hindocha is a chartered accountant who has never been convicted of any crime, nor was he arrested at the time of the search. It is contended that the applicant officers and the judge failed to grapple with the requirement of paragraph 14(d), with none of them spelling out reasons why a risk existed of serious prejudice to the investigation.

It is true that the judge merely expressed his satisfaction, having read the informations, that it was appropriate to issue the warrant. It would have been better if he had spelt out his reasons more fully. Nonetheless, it seems to us that he is to be taken to have accepted and endorsed such reasoning as there was in the informations. That was to the effect that a production order might alert the owners of the material, that is to say the Patels, to the investigation into their affairs and so put at risk any material sought. It was pointed out that, not only had Hindocha and Co. been for some years the accountants to the companies controlled by the Patel brothers, but Mr Hindocha himself was a signatory on bank accounts held by their sister, Asmah Abdullah Patel, who was also under joint investigation by the Police and HMRC. Property purchases by her in the United Kingdom, the subject of investigation by the Police and HMRC, had been registered in her name to the address of Hindocha and Co. That company was also the agent in this country for a number of companies registered in the British Virgin Islands in which she was a shareholder. In addition, the Hindocha and Co premises were the registered office for Welsford Financial, another British Virgin Islands company, linked to an employee of the Patel family, and for Oakville (UK) Limited, one of the companies controlled by the Patel brothers.

In effect, therefore, it was being said that Mr Hindocha and his company were apparently closely involved with the Patel family and companies controlled by or connected with them. In those circumstances, therefore, there was a risk (it was said) that, if notice of an application was served on Hindocha and Co., word of that application might be passed on to the Patels, and the risks could not be adequately guarded against by delaying the notice.

In our view, Mr Hindocha and his company were in a materially different position from Hill Dickinson. As an accountant, he would in any event have had an intimate knowledge of the business activities of the companies, since he audited their books. He was also trusted by a member of the Patel family sufficiently to be a signatory on her bank account, and his connections with various companies controlled by the family have been set out above. In short, he and his company were apparently closely involved with the Patel family and their business. It seems to this court that the judge was entitled to accept the assessment of the Police and HMRC that in these circumstances notice of an application for a paragraph 4 order might seriously prejudice the investigation. We therefore reject this ground of challenge to the Hindocha and Co. warrants.

A number of other arguments are advanced by the claimants as to the validity of those two warrants. It is contended that they were too widely drawn in several respects. First, it is said that they were too imprecise to meet the requirements of section 15(6)(b), which states that a warrant

“shall identify, so far as is practicable, the article … to be sought.”

Mr Jones relies upon the decision in R v. Central Criminal Court, ex parte AJD Holdings Limited [1992] Crim. L.R. 669, where a warrant was quashed for breach of section 15(6)(b). That, however, was a case where the warrant had failed to reflect a limitation expressed in the information as to the range of documents sought and indeed failed to confine the search to documents possessed by the company in question relating to its business transactions with the British Railways Board. Yet it was against the British Railways Board that the company was alleged to be engaged in a systematic fraud. In contrast, in the present case the documents identified in the warrant as being on Hindocha and Co’s premises, while of numerous different types, were confined to ones concerning the business activities of identified members of the Patel family, of an identified partnership and of a number of identified companies. The claimants also rely on R v. Southampton Crown Court, ex parte J and P [1993] Crim L.R. 962, where the warrant was quashed, partly because it was too widely drawn. That, however was a case where there were only reasonable grounds for believing that there had been thefts from one of the firm’s clients, identified by name, and yet the warrant had related to all the firm’s accounting records, irrespective of the clients to whom they related, without limitation of time. As Auld J pointed out, the investigation which gave rise to the application for the warrant was relatively narrow. That cannot be said of the investigation in the present case. This was a complex and far-reaching investigation into conspiracy to distribute counterfeit goods, cheating the Revenue and money-laundering. It is true that the warrants here did not specify a date, further back than which documents would not be relevant and should not be seized, but the limitation of the materials covered by the warrants to documents concerning the business activities of the named individuals, partnership and companies was sufficient to impose such a starting date by implication: in this connection see Fitzpatrick (ante) at page 572 D/E. We have consequently concluded that the two Hindocha and Co. warrants did identify the articles to be sought “so far as is practicable.”

It is also argued there were no reasonable grounds for believing that the material specified was likely to be “relevant evidence” as required by paragraph 2(a)(iv) of Schedule 1 of PACE. This goes beyond the requirement that there are reasonable grounds for believing that it is likely to be of substantial value “to the investigation”, which is a separate requirement imposed by paragraph 2(a)(iii) of that Schedule.

We accept that last point, so far as it goes. There have to be reasonable grounds for believing that the material is likely to be admissible as evidence, and that it is likely to be relevant. But the information laid before the Crown Court judge testified to that in terms and to the fact that Mr Hindocha had been the accountant for Faisaltex Limited since at least 1997 and was the accountant for many other companies connected to the Patel family and to Operation Mimosa. The information also dealt with those matters referred to in paragraphs 55 and 56 hereof. Having read those informations and considered the detail in them, we are satisfied that there were reasonable grounds for believing that the material in question would be likely to be relevant evidence and to be admissible evidence at trial. There was some suggestion from Mr Jones that the fact that some of the seized documents have subsequently been returned demonstrates their lack of relevance, but that does not follow. Section 22(4) stipulates that nothing may be retained for use as evidence at trial if a photograph or copy would be sufficient for that purpose, so that in such cases the authorities are required to return such documents once they have had a reasonable opportunity to copy them. Their return tells one nothing about their relevance.

A particular point is taken by the claimants about computers, memory sticks and palm tops, one of the categories of items specified in the Hindocha warrants. It is argued that they were likely to contain legally privileged material. We do not see why that should have been so. They might do so, but mere possibility is not the test. It is true that the informations indicated that an independent barrister was to accompany the officers executing the warrants, in case any issue arose about legal professional privilege, but that seems to this court to have been a sensible precaution in case such a possibility arose and not a recognition that there were reasonable grounds for believing that there was such privileged material amongst the items covered by the warrants. We shall have to return to this topic of computers and legally privileged material when we come to the section 8 warrants and in particular to that concerning Faisal House. Likewise, amongst the large number of arguments advanced by Mr Jones are some which are more appropriately dealt with when we turn to the section 8 warrants. Insofar as they have any relevance to the Hindocha and Co. warrants, our conclusions set out at that later stage in this judgment apply to those two warrants as well.

Looking at the two Hindocha and Co. warrants as a whole, we are not persuaded that they were invalid, nor that there was any legal flaw in the process of issuing them. Certainly the merits of this part of the claim are quite insufficient to justify granting permission to seek judicial review in the face of the unjustifiable delay to which we have earlier referred.

These were the warrants directed to the premises of Faisaltex Limited at Faisal House and to the five residential properties identified in paragraph 7 of this judgment. For the most part the issues arising can be dealt with, irrespective of the individual property in question, though there are a few matters which are specific to the individual property. These warrants were all ones issued under section 8 of PACE, set out earlier at paragraph 17.

It is first contended by the claimants that the warrants are invalid because the individual informations leading to them were not sworn, though the general informations dealing with these six premises as a group were sworn by DC Fishwick and Mr Burdett. We cannot see any force in this point. Neither section 8 itself nor any other legal provision drawn to our attention requires an information to be sworn. It is to be observed that the Criminal Procedure Rules 2005, which deal with informations at rule 7, expressly provide at rule 7.1(2) that

“Subject to any provision of the Magistrates’ Courts Act 1980 and any other enactment, an information or complaint need not be in writing or on oath.”

In the case of an information which supports an application for a search warrant, PACE does require the information to be in writing: section 15(3). It does not require it to be sworn, but instead stipulates that the constable applying for the warrant shall answer on oath any questions that the judge asks him. That is the safeguard, and that happened in the present case.

Again, it is submitted that these warrants were too widely drafted, in that no reasonable judge could have been satisfied that there were reasonable grounds for believing that all the material specified was likely to be relevant evidence, as required by section 8(1)(c). This is a similar argument to that which has been advanced in respect of the Hindocha and Co. warrants, with “relevant evidence” having the meaning attributed to it by section 8(4) of PACE, namely “anything that would be admissible in evidence at a trial for the offence”. Mr Jones points out that, in the case of DC Fishwick’s information concerning 3, Sharoe Green Park, the officer expresses her belief that evidence exists at the premises which will be of substantial value to the investigation and does not state a belief that it will be “relevant evidence”.

That is so. However, as Mr Jones accepted in argument, the individual information here has to be read together with the general informations which dealt with these six applications as a group. The general information of Peter Burdett expressly stated that the material was likely to be relevant, as did the formal application for the warrant in respect of these premises, and the general informations together with the specific one in respect of 3 Sharoe Green Park provided ample grounds for such a belief. In particular, considerable links between those premises and the principal suspects, Arif Patel, Munaf Patel and Faisal Patel, are spelt out in those informations, giving every reason to believe that evidence relevant to the alleged offences was likely to be found there. Certainly a reasonable judge was entitled to be satisfied that section 8(1)(c) was met. We have dealt with this property specifically, but the conclusion just expressed applies on this issue to all the section 8 warrants.

It is next submitted that no reasonable judge could have been satisfied as to section 8(1)(d), namely that there were reasonable grounds for believing that the material specified did not consist of or include items subject to legal privilege, excluded material or special procedure material. We have set out the statutory meanings of these terms at paragraphs 18, 19 and 20 of this judgment. Mr Jones’ first point is that the judge could not have been satisfied that the material did not include special procedure material, because the material in these section 8 applications was described in similar terms as were used in the special procedure applications relating to the premises of Hill Dickinson and of Hindocha and Co.

That is not a sound argument. Special procedure material is, by virtue of section 14, essentially material held by a person subject to an undertaking to hold it in confidence. It is particularly likely to be found at premises occupied by solicitors or accountants because of the nature of their professions, and it may then include various business documents concerning their clients’ businesses. But there is no reason why one should expect business documents held by the clients themselves at their business or domestic premises to be held subject to an undertaking to hold them in confidence. In other words, the nature of the material by itself will not necessarily indicate that it is special procedure material. Much more significant will usually be the profession or trade of the person holding it and the capacity in which it is held. The same document may be special procedure material if held by a solicitor, but may not be if held by the client.

It is also contended that it was not open to the judge to be satisfied that there were reasonable grounds for believing that the material referred to in these section 8 applications did not include items subject to legal privilege. In particular, it is said that this was so in respect of both computers and paper documents at Faisal House. Mr Jones submits that those were bound to include correspondence with solicitors acting for the companies, and the computers on those premises were especially likely to include such correspondence and legal documents. So, despite the assertions to the contrary in the informations, the judge could not have been satisfied as required by section 8(1)(d).

We emphasise that it is important to bear in mind the definition of “legal privilege” in section 10 of PACE, a definition set out in full in paragraph 18 herein. It does not embrace all communications between a client and his solicitor. As one might expect, it is more limited than that and in broad terms covers such communications made in connection with the giving of legal advice or in connection with or in contemplation of and for the purpose of legal proceedings. It follows, therefore, that such items as a conveyance or other legal document will not necessarily be covered unless connected with the giving of legal advice or with legal proceedings. If one then looks at the schedule of material attached to the Faisal House warrant, there is no reason why one should anticipate that sales invoices, delivery notes, bills of lading, vehicle documents, stock lists and so on would include material subject to section 10 legal privilege.

As we have indicated, the claimants’ argument relates also to the computers and similar items referred to in this warrant, and the contention is that amongst the material stored therein was likely to be legally privileged material. In those circumstances, it is submitted, the police should not seek to include computers within the warrant itself but should use their powers under section 9(4) of PACE (set out earlier at paragraph 24) to require information stored on the computers to be reproduced in a legible and transportable form.

We can see that it is possible that the Faisal House computers may have contained legally privileged material: many things are possible. But that is not the test. We do not accept that a reasonable judge could not properly have concluded that there were reasonable grounds for believing that those computers did not contain such material, and that is the statutory criterion to be found in section 8(1)(c).

There is an associated point made by the claimants about the inclusion of the computers in the Faisal House warrant, and that is that there was bound to be material on them which was not relevant evidence admissible on a trial for the alleged offences. If that gave rise to a problem in practical terms in distinguishing at the time of the search what was relevant from that which was not, then the police could have used the powers contained in section 51 of the Criminal Justice and Police Act 2001 to seize a “thing” where it is not reasonably practicable to determine at the time and place of the search whether or to what extent the thing contains something which the police officer is entitled to seize. That power was not exercised in respect of the Faisal House search, as one can tell from the absence of any notice under section 52(1) of the 2001 Act.

We do not accept this point. Section 8(1) of PACE refers to “material” which is likely to be relevant evidence, and “material” clearly has a wide meaning under that statute: for example, the definition of “excluded material” in section 11(1) shows that material will prima facie include human tissue, and “material” is used virtually interchangeably in PACE with words like “articles” (section 15(2)(b)) and “anything” (section 8(2)). So the word “material” can itself cover a computer and, for that matter, its hard disk.

The claimants’ argument is then to the effect that, even if that is so, a computer and its hard disk are to be seen as comparable to a filing cabinet containing a number of separate hard copies of documents, only the relevant ones amongst which can a warrant under section 8 apply to. The warrant cannot authorise seizure of the whole computer or the whole hard disk. Some reliance is placed in that connection on the decision in R v. Chesterfield Justices, ex parte Bramley [2000] Q.B. 576, a Divisional Court decision principally about the seizure of material under a warrant, rather than the validity of the warrant itself, save that it emphasised that if the judge or magistrate had reasonable grounds for believing that the material sought included legally privileged items, the targeted material would have to be redefined: see page 583 F-G.

That we accept but have already covered. Once the judge has concluded that section 8(1)(d) is satisfied and the position is simply that an item amongst the specified material may contain irrelevant as well as relevant evidence, must that item be excluded from the warrant? This, as it seems to us, turns on whether one is dealing with a single item or ‘thing’, such as a diary or letter which is likely to contain both relevant and irrelevant material, or with something which is to be regarded as a container of a number of things. A filing cabinet is indeed an obvious example of the latter. In particular, how is a computer and its hard disk to be regarded in this context?

In the case of R (H) v. Commissioners of Inland Revenue [2002] EWHC 2164 Admin., Stanley Burnton J had to consider this issue in the context of section 20C of the Taxes Management Act 1970, which provides for the issuing of a search warrant to officers of the HMRC in certain circumstances. Such officers are then entitled under section 20C(3)(b) to seize and remove

“any things whatsoever found there which he has reasonable cause to believe may be required as evidence …”

It was contended that this did not entitle the officers to remove a computer or hard disk in order to sift through its files in order to identify relevant evidence. The Bramley decision was relied on. Stanley Burnton J did not accept that. He noted at paragraph 23 of his judgment that this argument involved regarding a computer or its hard disk as a divisible item or as a container of separate items. He held that that was not appropriate:

“These facts show that the comparison of a hard disk with a filing cabinet is inexact and may be misleading. For some purposes no doubt the files on a hard disk may be regarded as separate documents. But a hard disk cannot be regarded as simply a container of the files visible to the computer’s operating system. It is a single object: a single thing. I see no basis, therefore, for a computer not being considered a “thing” within the meaning of section 20C(3)(b) of the TMA. If there is incriminating (in the normal sense of the word) material on the hard disk, and if it is assumed that the hard disk is not copied, the computer itself may be used, and may be required, as evidence in order to prove the existence of the incriminating material on the defendant’s computer. The fact that there is also on the hard disk material that is irrelevant, and not evidence of anything, does not make the computer any less of a thing that may be required as evidence for the purposes of criminal proceedings.” (paragraph 37)

While that was a decision on a different statutory provision, we can see no reason to adopt a different approach under section 8 of PACE, nor is there any justification for construing words in section 8 such as “material” and “anything” more narrowly than the word “thing” in the Taxes Management Act 1970. A similar approach was adopted in Kent Pharmaceuticals Limited v. Director of Serious Fraud Office and Others [2002] EWHC 3023 Admin when dealing with section 2 of the Criminal Justice Act 1987. Lord Woolf of Barnes, CJ, held that the hard drive of a computer would be “a document” and, which it is true that section 2(18) defined “document” in broad terms, section 8 of PACE is at least as wide in its use of the word “material”.

We conclude therefore that, once the judge was satisfied on the issue of legally privileged material, there was no reason why the section 8 warrants should not specify computers and similar items amongst the material to be seized if there were reasonable grounds for believing that they contained relevant evidence, albeit that they might also contain irrelevant material. This conclusion and the reasoning which has led us to it also has an obvious bearing on the issues arising in respect of the execution of the warrants.

Then it is said that the judge was misled by the officers making the section 8 applications. This seems to be based on two matters. First, as noted in paragraph 43 (ante), the judge at the hearing referred to the Patel family or their companies as having already been convicted in respect of counterfeit goods, and DS Baldwin failed to correct that. The true position, as described earlier, was that there had been, before that hearing, the seizure of some 39 consignments of counterfeit clothing destined for companies controlled by members of the Patel family; notices of appeal in respect of 5 of those had been filed but all had subsequently been withdrawn. That was spelt out in the informations put before the judge. There had been no criminal convictions in respect of those consignments of members of the Patel family.

It is obviously regrettable that the judge should have described the situation as involving convictions and that the officer failed to put him right. Nonetheless, it seems to us that it is inconceivable that it would have made any difference to his decision to issue these warrants, had the true position been emphasised to him. That true position was one in which the Patel family and their companies chose not to contest the seizure of the counterfeit goods consigned to them. That was a relevant consideration, even though it fell short of amounting to a conviction.

The second alleged way in which it is said the judge was misled concerns the fact that he was told that “independent barristers” would be available at the time of the searches in case questions of legal privilege arose. It is alleged by Mr Jones that the barristers in question were not genuinely independent. They were not appointed by the Attorney-General, all came from the same chambers and all had acted for police forces in the past.

We are surprised that such an argument should be advanced by a member of the Bar. All the barristers instructed to be present or available at the searches in order to assess whether a particular document was covered by legal privilege were in independent practice at the Bar. There is no reason to question their professional integrity. We have read their responses to the allegations made on behalf of the claimants; that of one of them, E.G., is typical. He states:

“I considered myself to be independent insofar as I was instructed by the Lancashire constabulary to act independently in assessing the potential LPP status of documents. I considered my first duty to be to the court insofar as my power to behave as an independent counsel derived from common law and, also, that I might have to account for my decisions at a later stage.”

The fact that these members of the Bar were not instructed by the Attorney General does not prevent them being properly regarded as independent in the role which they were to perform. There is nothing in this point.

There is a medley of other matters raised in respect of these section 8 warrants. The level of seniority of the officers making the applications is criticised. That cannot affect the validity of the warrants. It is also said that it was irrational of the judge to grant a warrant in respect of 3, Sharoe Green Park without inquiring as to how the police proposed to deal with the situation of the elderly bed-ridden man who, as the informations disclosed was one of the occupiers. We, however, do not regard the absence of such inquiries by the judge as displaying irrationality in his decision-making. We have no doubt that he was assuming that the police would take appropriate steps when executing the warrant to ensure that the man in question was treated with care and consideration. Having seen a video of how this warrant was in fact executed, we are satisfied that such an assumption was justified. Finally, points are made about the tone and speed of the hearing before the judge. Certainly the tone was more relaxed and informal than it no doubt would have been in open court, but that cannot affect the validity of the warrants. As for the time taken, the judge rose during the hearing to read the informations and the attached material. In all, the hearing including this reading time took some two hours. We cannot see that that gives rise to any basis for a challenge to his decision to issue the warrants.

It follows that there are, in our judgment, no proper grounds for a finding that the section 8 warrants were invalid. Both for this reason and because of the delay in issuing proceedings, we refuse permission to seek judicial review of the decisions to issue those warrants.

The claimants’ case under this heading is principally that there was excessive seizure of material when the various warrants were executed, with the result that seizures unauthorised by the warrants took place. There is a secondary point, to the effect that the warrants were executed in an oppressive way, with too many officers and overbearing conduct. We can, however, deal with that contention quite briefly. We have, as indicated earlier, watched the video compiled on behalf of the claimants from video film taken by the police at the time of the searches. There were in some cases a considerable number of officers involved, especially at Hindocha and Co’s premises and at Faisal House, but the behaviour of the police was generally courteous and far from oppressive. The senior officers explaining to the various occupiers what was about to happen behaved with patience, though with understandable firmness.

We return to the issue of excessive seizure. Insofar as this includes an argument about the entitlement of the police to seize and remove computers and similar items, what has been said earlier when dealing with the validity of the section 8 warrants applies here. That is a matter of broad principle with which this court can readily deal. Beyond that, the contention is mainly that material was seized which was not relevant to the alleged offences and also that some legally privileged material was seized.

In that later connection, reliance is placed on schedules produced by Mr Faisal Patel of documents returned by the police since the execution of the warrants. Those schedules have been examined by a solicitor, Mr Andrew Smith of DLA Piper UK LLP, who in turn has produced a schedule of those documents amongst the returned ones which he has assessed as being legally privileged. Unfortunately, it is evident from Mr Smith’s witness statement that he has applied too wide a meaning of “legally privileged” when compiling his schedule. His definition as set out in paragraph 6 of his witness statement would include all communications between professional legal advisers and their clients, irrespective of whether they were made in connection with the giving of legal advice or in connection with or in contemplation of legal proceedings. That goes beyond the scope of legal privilege as defined by section 10 of PACE. His schedule therefore does not establish what it seeks to establish.

When this point was taken by Mr Bird on behalf of the police and HMRC, Mr Jones complained that advance warning had not been given. Had it been, he said, his clients would have sought an ex parte hearing for this court to rule on the documents, which apparently occupy some five ring-back files. At one stage, it seemed to be suggested that we should conduct such an analysis as part of the present proceedings, but when the court pointed out the delay which this would inevitably involve, Mr Jones decided not to press the matter. What is well-established is that the inadvertent seizure of legally privileged material does not render the execution of a warrant invalid in its entirety: R v. HM Customs and Excise, ex parte Popely [1999] All E.R. (D) 1048, followed in Bramley (ante). So the issue becomes one to be determined document by document. For reasons which we set out below, that makes the use of judicial review procedures far from appropriate.

As for the alleged seizure of irrelevant material, it may be that some has taken place but there is no agreement as to the extent thereof, if any, and it is quite clear that resolving disputes about the relevance of particular documents is likely to require extensive oral evidence. The documentation is voluminous. Very considerable issues of fact are bound to arise.

In Fitzpatrick (ante), Jowitt J, with whom Rose LJ agreed, said this at page 579 D-F:

“Judicial review is not a fact finding exercise and it is an extremely unsatisfactory tool by which to determine, in any but the clearest of cases, whether there has been a seizure of material not permitted by a search warrant. In my judgment a person who complains of excessive seizure in breach of section 16(8) should not, save in such cases, seek his remedy by way of judicial review but should rely on his private law remedy when he will have a tribunal which will be able to hear evidence and make findings of fact unfettered by Wednesbury principles. In an appropriate case the court in a private law action is able to grant interlocutory relief on a speedy basis on well recognised principles so that in all but the clearest cases of a breach of section 16(8) judicial review has only disadvantages and no advantages when compared with the private law remedy.”

A similar point has been made in a number of other authorities. We agree. We can seen no reason why civil proceedings could not establish the extent of any excessive seizure. It was argued by Mr Jones that no civil remedy is available if a police officer acts within the scope of an apparently lawful warrant: see McGrath v. Chief Constable of Royal Ulster Constabulary [2001] UKHL 39; [2001] 2 AC 731 at paragraph 12. That is so, but there is a civil remedy if he goes outside the scope of the warrant and section 19 of PACE, for example by seizing material covered by legal privilege, even if at the time of the seizure he was acting on a bona fide belief that the particular seizure was authorised by the warrant. That was established by the decision in Bramley (ante): see in particular Kennedy LJ at page 586 F-G, with whom Turner J agreed. We are satisfied that judicial review proceedings are not an appropriate mechanism for resolving the large number of issues of fact as well as law which are likely to arise when determining whether excessive seizures have taken place in the execution of these warrants.

Consequently in the exercise of our discretion we decline to grant any relief in respect of the execution of the Hindocha and Co warrants and the section 8 warrants, because of the unjustified delay in commencing these proceedings and because of their inappropriateness for determining the issues which arise. For the same reasons we refuse the application to join Mr and Mrs Umarji Patel as claimants.

For the reasons set out in this judgment, the court