Sweeney v Westminster Magistrates Court & Anor

The claimant challenges the lawfulness of a search warrant issued by the first defendant, the Westminster Magistrates Court, on 10 May 2013. Detective Constable Mary Allen from the Regional Asset Recovery Team (“RART”), the second defendant, applied pursuant to section 8 of the Police and Criminal Evidence Act 1984 (“PACE”) on behalf of the Environment Agency (“EA”) the interested party, to enter and search the claimant’s premises. The premises included the business premises at Trout Lane Depot, Middlesex (“The Site”), a waste transfer and recycling station operated by Ethos Green Ltd, together with the home of the claimant in Iver. Contained within the warrant was the identified purpose of the search. Set out in a schedule were the names of six individuals together with their home addresses plus the name and address of a firm of accountants, all premises were the subject of the warrant. Some of the individuals have been joined as interested parties in these proceedings. For the purpose of this application they have played no real part.

The ex-parte application for the warrant was made to Justices sitting in camera at Westminster Magistrates Court. No information was provided to the court in advance of the application. The written Information was given to the court, the application took 15 minutes. No contemporaneous record of the proceedings was made, neither the court nor DC Allen made any notes. DC Allen stated that she had no memory of what, if any, questions were asked of her. No written reasons were provided by the Justices as to the grant of the warrant. In a letter dated 8 August 2013, the legal team manager of the court stated that “The Magistrates were satisfied on the strength of the information that there were reasonable grounds to believe that PACE section 8 (1) (a), (b), (c), (d) and (e) were met. Further that without the grant of a warrant section 8 (3) (a), (c) and (d) applied. Their view was that the detailed summary provided by the applicant clearly addressed the necessary matters and gave compelling grounds for belief.”

On 16 May 2013 the warrant was executed at a number of premises. Officers accompanied by a film crew, executed the search warrant at the Site. The claimant declined to grant access to the film crew but showed the officers around the building and depot in order to identify any potential hazards. A search of the office block commenced at 7.15 a.m. and concluded at 10.30 p.m. Documentation found within the premises was removed as were two laptops and various discs. Simultaneously officers attended the home address of the claimant to execute the search warrant. The claimant provided keys to enable them to gain access. Correspondence, a camera, a Blackberry, a quantity of folders and files, £2000 in cash and coins and other items were seized. The property is presently held, in part, by RART and, in part, by the EA. At a date which has not been identified it was agreed between RART and the claimant that no further examination of the material would take place pending the outcome of these proceedings.

In support of his application the claimant relies upon 10 grounds. HH Judge Pelling QC, sitting as a judge of the High Court, granted permission in respect of Gounds 3 and 5. The claimant seeks an oral hearing on the issue of permission in respect of the refusal of the outstanding grounds. Prior to this hearing the claimant indicated that in the event that he was successful upon Ground 3 and/or 5 he would not pursue the oral application for permission upon the other grounds.

The claimant seeks the following relief:

The challenges set out in Grounds 3 and 5 are:

It is suspected by the EA and RART that the claimant has generated considerable sums of money through unlawful waste activities over a number of years. The claimant has controlled, as a director or as the de facto controlling mind, numerous companies which have dealt in waste at a permitted site, Trout Lane and at a site at Standlake, Oxfordshire. Regular and persistent breaches of the environmental permits have occurred at those sites. Thereafter, unlawful deposits of controlled waste at unpermitted sites have taken place. These criminal activities have generated income through the collection of waste. Landfill tax has been avoided through unlawful deposits. It is estimated that the total sum generated through illegal activities is in the order of 3 million pounds. The claimant and others are said to have operated companies in an opaque way making it difficult to discover who is actually in charge and where money has flowed. Because of the sums of money generated the EA worked with the second defendant to investigate money laundering offences arising from the waste offences. The purpose of the warrant was to investigate money laundering offences.

The nature of the second defendant’s investigation into money laundering required it to seek a Section 8 PACE warrant rather than the more limited s108 Environment Act 1995 warrant. The nature of the claimant’s suspected criminality was such that it was reasonably believed by the EA that all of the businesses were connected to the claimant’s waste activities.

The EA was created by the Environment Act 1995. Its stated purpose is “To protect or enhance the environment taken as a whole” so as to promote “its objective of achieving sustainable development”. In order to discharge this function the EA possesses various powers pursuant to legislation. For the purpose of this application the following are relevant: The Environmental Permitting (England and Wales) Regulations 2010 (the “2010 Regulations”) and the Environment Act 1995 (the “1995 Act”). In summary they provide:

“The EA is the regulator in relation to waste operations including waste facilities. Regulation 32;

A person must not, except to the extent authorised by an environmental permit, operate a regulated facility; Regulation 12;

A regulated facility means an installation i.e. waste transfer station; Regulation 8;

An environmental permit must specify (a) the regulated facility whose operation it authorises; and (b) the operator of that regulated facility; Regulation 14;

The EA may vary (Regulation 20) or revoke (Regulation 22) an environmental permit on application by the operator or on its own initiative;

The EA must periodically review environmental permits and make appropriate periodic inspections of regulated facilities; Regulation 34. Following these inspections the EA sends the operator a Compliance Assessment Report (“CAR”);

Environmental permits can be transferred if the operator’s legal entity changes, this is done by way of written application to the EA. Regulation 21. The EA can grant or refuse such an application. Where the EA grants an application it can impose such conditions as it deems appropriate;

Part 1 Schedule 5 of the 2010 Regulations applies to applications for transfer. Paragraph 4 permits the regulator to obtain further information to determine the application. Paragraph 13 provides:

“(1)

Subject to subparagraph (3), the regulator must refuse an application for grant of an environmental permit or for the transfer in whole or in part of the environmental permit if it considers that, if the permit is granted or transferred, the requirement in sub-paragraph (2) will not be satisfied.

(2)

The requirements are that the applicant for the grant for an environmental permit, or the proposed transferee, on the transfer of an environmental permit (in whole or in part) must –

(a)

be the operator of the regulator facility; and

(b)

operate the regulate facility in accordance with the environmental permit”.

The Regulatory Guidance Note number 5 issued by the EA, states that:

“authorities must not issue or transfer a permit if they consider the operator will not operate the installation in accordance with the permit. In making this decision the authority considers whether the operator cannot or is unlikely to operate the facility in accordance with the permit. The assessment includes:

A person who appears suitable to an enforcing authority may be authorised in writing by that authority to exercise, in accordance with the terms of the authorisation, any of the powers specified in section (4) below for the purpose –

The powers which a person may be authorised to exercise under sub-section (1) or (2) above are –

The following statutory provisions are also relevant to this application:

The principles relating to the legality of a warrant are identified in the following authorities:

At [45] the court dealt with the Information and stated:

“...it is clear from the statutory provisions of PACE to which we have drawn attention above that it must deal with the following:

i)

It must set out each of the statutory requirements which has to be satisfied in the particular case before the warrant in question can be granted. There are a number of different routes for obtaining a search warrant and only the route actually selected in a particular case should be dealt with, or else the judge will not know the precise basis of the application being made.

ii)

It must show, for each of the relevant statutory requirements, how that requirement is satisfied by setting out all the relevant facts relied on including all facts and matters which are said to show that a particular “reasonable belief “ is justified. It is not enough to assert that a particular requirement is satisfied without explaining how it is said to be so. It is only when the judge can review the facts set out in the Information that he can decide for himself if a requirement has actually been satisfied. Furthermore, it is only then that a party wishing to challenge the warrant can decide whether the order could be challenged because of a failure to satisfy that particular requirement. Hence, an assertion that there are “reasonable grounds” for a belief will require that basis of the belief to be explained in detail. By the same token, an assertion that, in words of paragraph 2(b) of Schedule 1 of PACE, “other methods of obtaining the material – have not been tried because it appeared that they were bound to fail” would require details of the facts relied on by the constable for that statement.

iii)

It must state whether, despite there being “reasonable grounds” for the constable believing that the material sought consists of or contains “special procedure material” or “excluded material”, there might be a claim for legal privilege in respect of any communication sought and, if so, how and why that would arise together with precise details of the arrangements which are to be taken to ensure that there will be an independent supervising lawyer present at the time of the search.

iv)

It must make full and frank disclosure. This means, in the words of Hughes LJ in Re Stanford International Limited [2010[ 3 WLR 941 at [191] that “in effect a prosecution seeking an ex parte order must put on his defence hat and ask himself what, if he was representing the defendant or a third party with the relevant interest, he would be saying to the judge, and having answered that question, that is precisely what he must tell”. This is a heavy burden but a vital safeguard. Full details must be given. It is a useful reminder to the person laying the Information to state expressly which information is given pursuant to the duty of full and frank disclosure.

v)

If further information is supplied to the circuit judge during the hearing of the application, whether as a result of judicial questioning or otherwise, the Information should be supplemented by a witness statement or a further Information setting out such further information. This would follow what happens in civil proceedings. The objective is obvious: it is to ensure that the party against whom the order is made knows precisely and in full the basis on which the order against him or her was made.”

It is right to note that the court was dealing with a warrant sought pursuant to the provisions of section 9 PACE and not section 8. At [43 and 44] the particular requirements of section 9 PACE were noted.

“43

A further difference with the civil search order is the fact that, unlike applications for search orders, the only document that will normally go before the Circuit Judge when a search warrant is sought under section 9 and schedule 1 of PACE of the Information. The Information must therefore be drafted with scrupulous care to ensure that it contains all the relevant matters, because although the Circuit Judge who must consider it will have to do so carefully and in detail, he will be relying on it to make his decision on whether to grant the warrant.

44

All this shows that there has to be a very rigorous procedure both in preparing an Information for the application for a search warrant also when a judge is considering it. …”

A search warrant issued pursuant to section 8 (1) PACE can only be granted if the Justices are satisfied there are reasonable grounds to believe the criteria set out in section 8 (1) (a)-(e) PACE are made out. Eastenders Cash and Carry Plc v. South Western Magistrates Court [2011] 2 Crim App R 11[13] Sullivan LJ:

“… it is plain that a belief is more than a suspicion and that the need to have reasonable grounds for a belief imposes a higher threshold than the need to have reasonable grounds for suspicion”.

It is the responsibility of the Justices to apply the access criteria of section 8(1) PACE. Section 8 does not permit the Justices to delegate to the constable the responsibility which they are exercising. The Justices are responsible for ensuring compliance of the warrant with the requirements of section 15 PACE: Global Cash and Carry Ltd [2013] EWHC 528.

In R (Austen and Others) the Chief Constable of Wiltshire Police and others [2011] EWHC 3385 (Admin) Ouseley J [46] re-emphasised the point made in earlier authorities that as a matter of practice, hearings for a search warrant whether pursuant to section 8 PACE or of the “special procedure type” must be recorded so there can be no dispute as to what was or was not said to or by the judge. The judge making the decision must give reasons for either granting or refusing the warrant.

The need for precision in the terms of the warrant such that they are capable of being understood as a free standing document has been identified in a number of authorities. In R (Energy Financing Team Limited) v The Director of the Serious Fraud Office [2005] EWHC 6126 Crane J at [37] stated “a warrant should be capable of being understood by those carrying out the search and by those whose premises are being searched without reference to any other document”.

Whether the description of the material sought satisfies section 15(6)(b) PACE involves consideration of two competing factors – the specificity of the items sought and the nature of the investigation, whose scope may make it less practicable to identify the articles sought: R (Glenn & Co (Essex) Ltd v Revenue & Customs [2012] 1 Cr App R 22; [2011] EWHC 2998 (Admin) per Simon J:

“58.

In this type of case, there will often be two competing factors.

59.

The first is the important consideration that the warrant should be sufficiently clear and precise for those interested in their execution to know precisely what are the limits of the power, see Lord Clyde in McGrath v Chief Constable of the Royal Ulster Constabulary [2001] UKHL 39; [2001] 2 A.C. 731 at [18] in the context of an arrest warrant.

60.

The second is the nature of the investigation. The broad scope of an investigation may require a correspondingly broad power of search, and make it less “practicable” (to use the word in s.15 (2)(b) and (6)(b)) to identify the article sought. This point was noted by Lord Woolf C.J in Kent Pharmaceuticals Ltd v Serious Fraud Office [2002] EWHC 3023 (Admin) at [24]:

“There is clearly difficulty in drafting a warrant when the scale of the investigation is of the nature of that in which the SFO is at present engaged …”

Where a warrant may be required in relation to an investigation involving a company at the centre of fraud, the nature of the fraud may cause difficulty in identifying the nature of the documents sought. R (Energy Financing Team Ltd) v Bow Street Magistrates’ Court and others (Practice Note) [2006] 1 WLR 1316 at 1345D;

“When there is ongoing investigation into, for example, the affairs of a company such as EPRS, which appears to have been at the centre of a fraud, it will always be difficult to say precisely what documentation of value to the inquiry may be recovered from those who are justifiably suspected of being in contact with the main target company, but nevertheless the warrant needs to be drafted with sufficient precision to enable both those who execute it and those whose property is affected by it to know whether any individual document or class of documents falls within it… although the terms of the warrant may be wide it will not simply be fishing if it is directed to support an investigation which has apparent merit.”

In Kent Pharmaceuticals Ltd above Lord Woolf CJ at [25] considered the words “includes” or “including” in a warrant and stated:

“The words ‘including’ or ‘included’ have to be treated in a restrictive manner. What is specified thereafter is non-exhaustive, but it clearly gives a sufficient definition to the nature of the investigation and the nature of the documents which are being sought to comply with the requirements of section 15.”

The warrant, dated 10 May 2013, stated:

“… an application supported by information made by Detective Constable Mary ALLEN for the issue of a warrant under section 8 of the Police and Criminal Evidence Act 1984 to enter:

the sets of premises described in the Schedule attached ;

And search for “Evidence in documentary or any other form relating to the business activities conducted by the individuals named on the warrant. Those businesses included Sweeney Environmental Ltd, Ethos Recycling Ltd, Ethos Environmental Management Ltd, Earlrose Golf and Leisure Ltd, Environwayste (London) Ltd, Sweeney Holdings Ltd, Sweeney Investments Ltd, Neptune Skips Ltd or variation or linked to the same. …”

The schedule attached to the warrant identified eight premises ‘authorised to be entered and searched under the warrant to which this schedule is attached’. The first property was the home address of the claimant, the seventh, the Trout Lane Depot described as ‘business premises controlled by Mr J G Sweeney’. Five were homes occupied by persons described as directors, company secretaries or managers of waste companies. The eighth property was a firm of accountants in Middlesex.

The warrant was drawn in very broad terms. It does not identify the offences being investigated, identify with any specificity the material sought, nor does it limit the scope of the business documents to those relevant to the offences under investigation. By reason of its breadth the warrant could not have been understood by those carrying out the search. The words “or any other form” are ambiguous and insufficient to demonstrate an intention to limit the search to documents contained in any medium.

No attempt was made to identify the articles sought with any degree of precision. The Working Plan for the Trout Lane depot required a record to be kept of the type, quantity and date of waste deposited at the site as well as a record of the type, quantity and date of materials leaving the site at the weighbridge. Data from the electronic system operated at the site had previously been requested and provided to the EA. The EA would have known, given the nature of the business and their previous investigation into the site, the type of items and documentation which would be relevant to their investigation. The warrant could have identified broad categories of documents without difficulty. In the written statement of DI Mahoney, one of the officers involved in the search, reference is made to the fact that Owen Bolton of the EA indicated items that would be of interest to the investigation during the search.

Any attempt to limit the number of companies linked to documents is compromised by the words “were linked to the same”. All of the companies who have held environmental permits at the Site were UK based. The EA would have known of the companies as it had authorised the grant of the environmental permit to them. A search of Company House records would have identified the management structure of the companies and the office holders.

In the Information is a misleading statement namely “recent intelligence (Google) shows the web address of Envirowayste is linked to another company Ethos Green. The company is based at Trout Lane depot in which persons can hire skips. It appears that Envirowayste may be changing its name to Ethos Green”. The EA was aware of the existence of Ethos Green and that it was a trading company at Trout Lane. In January 2013, an administrator for the company which held the environmental permit was emailing a member of the EA using an Ethos Green email address and signing with the company name Ethos Green, Trout Lane depot. There had been conversations between the two individuals about Ethos Green.

In the Information the claimant was identified as the managing director who had overall responsibility for the operations and who from 2007 had maintained an office at the Trout Lane depot site. The Information identified the fact that the land at the Site is held in trust by Sweeney Holdings Ltd (registered in Jersey) the director being the claimant. The statement in the Information that the investigation was “complicated by non-registration of land purchase, changing ownerships/deed of trust/finance agreements with many companies which were registered off shore or in off shore trusts” did not attempt to explain the relevance of the same to the investigation which involved UK based trading companies. The EA knew that a Guernsey registered company, Sweeney Investments Ltd, had purchased Standlake in 2007, this was stated in the Information. The EA was aware of the ownership of the land at Standlake as it had been in prolonged communication with the company solicitor in respect of the planning status of Standlake.

The warrant limited the material sought to evidence in documentary or other forms that related to business activities, conducted by named individuals of named business or businesses which were a variation of or were linked to the same. The words “were linked to the same” were necessary and did not compromise the qualifications. The limitations took effect together. They limited the material to that relating to business activities conducted by six named individuals in relation to the named business and/or businesses linked to them. The word “variation” referred to the differences in wording of the business names. The words “linked to the same” identified that the search was limited to material linked to the named individuals and potentially unidentified business which were connected or linked to identified businesses. Given the difficulty of identifying the business and/or companies with which the claimant was associated and the links with other companies the description in the warrant provided an adequate balance between the competing factors of precision and certainty.

It is accepted that the words “or any other form” linked to evidence in documents arguably referred to a wide class of materials. However, when considered as part of the entire description of material sought it provides an adequate description. The nature of the documentation sought did not fall into readily describable categories including as it did, emails, informal/formal documents, electronically stored material and materials stored in hard copy. It is obvious that documents relating to business activities between specified persons and/or their companies would include those documents or information stored in computer equipment and mobile communication equipment. The description, in its totality, enabled the claimant and the second defendant’s officers to understand the limits of what the second defendant was seeking without reference to any other documents.

I accept the claimant’s submission that the warrant did not identify the offence or offences being investigated with any specificity. It did not identify the nature of the investigation. No real attempt was made to identify with any precision the type and nature of material sought in the search. The business activities of the individuals named on the warrant are neither defined nor limited. The result being that the search could include any material relating to any business activity of any named individual. The fact that a number of companies were identified is diluted by the words “variation or linked to the same”. This has to include unidentified companies. The wording does not limit the seizure of material to a fraud investigation nor to documents related to waste dumping or disposal. Given the knowledge possessed, the RART and the EA could have done considerably more to identity the nature of the investigation, limit the parameters of the search to specified business activities of the named individuals and identify the categories of material sought. In my view the warrant did not identify as far as was practicable the articles to be sought in the search in breach of section 15(6) (b) PACE.

There is no detail in the Information as to the money laundering offences other than identification of sections 327-329 the Proceeds of Crime Act 2002 (“POCA”). No attempt is made to identify the relevant offence nor link it to the act alleged to constitute an offence within the facts contained in the Information. There are no identified facts or matters which can be relied upon in order to demonstrate that a “reasonable belief” is justified.

It is mandatory for the police officer applying for the warrant to make full and frank disclosure, this was not done. In particular, the officer omitted to inform the court of the following matters: (all references to the regulations are to the 2010 Regulations),

The Information does not identify how material sought to be seized is of substantial value to the investigation or likely to be relevant.

In respect of Aveley Landfill, Globe Industrial Estate Thurrock, Linfield Quarry Essex and Clock House Hotel Welling the Information fails to specify how waste was traced to Eurowayste.

No consideration was given in the Information or during the court proceedings to legally professional privileged material. DC Allen has confirmed that such material was seized and has now been separated. Given the EA’s regular contact with the company solicitor it must have been within its contemplation that such material would be on the Site.

The purpose of the warrant was to investigate offences of money laundering. This was a fraud investigation directed at concealing proceeds of crime. It was not appropriate for the EA to carry out an investigation into money laundering nor to invoke environmental legislation in order to obtain the warrant.

The application for the warrant adequately identified the statutory criteria. It stated that there was likely to be material on the premises of substantial value to the investigation of the offence (section 8(1)(b)(PACE), that the material was likely to be relevant evidence (section 8(1)(c)) and that it was believed that the purpose of the search might be frustrated or seriously prejudiced unless a constable arriving at the premises could secure immediate entry to them (section 8(3)(d)).

The second defendant provided the court with sufficient and material disclosure. It explained that the offences were in relation to money laundering and fraudulent behaviour. It was sufficient for the court to consider that one of a number of offences has been committed, the court is not limited to considering only one offence. Asked where in the Information the money laundering offences and the facts alleged to constitute the same were to be found Mr Gold on behalf of the second defendant identified the following:

The Justices would not be assisted by knowledge of previous transfers of the Trout Lane permit as the EA in considering whether it was appropriate to transfer the environmental permit to a new company would look at the officers of the new company and these would not include the claimant. It was unnecessary to inform the court of the powers possessed by the EA to carry out inspections of the site as the previous inspections would not have been of use in obtaining documents for the purpose of investigating money laundering. As to the claimant’s contention that the history of the interviews or attempted interviews between the companies, their officials and the EA should have been disclosed to the Justices, Mr Gold said that the EA had the relevant correspondence between the parties. It could have been disclosed but had that been done it would have made no difference as the Justices would be able to judge for themselves that people were attempting to avoid responsibility. In short, the submission of Mr Gold was that disclosure of the matters identified by the claimant would have made no difference to the decision of the Justices.

It was clear from the application that the materials that the warrant sought did not include legally professional material or special material and that it was limited to evidence relating to the business activities conducted by six main individuals. The business being searched was not a firm of solicitors.

The stance of the EA to these proceedings was to endorse and support the points made by the second defendant. It provided to the court a detailed description of the background of this matter and the concerns of the EA which led to the application for the warrant. The first paragraph of the Information identifies the concern of the EA, namely that there were illegal deposits of waste across a number of sites and permanent non-compliance with permits. The permit of the Trout Lane site was ignored or flouted. From the Trout Lane site, waste was transferred and unlawfully dumped on other land. A person who does not deposit waste lawfully makes money. In order to estimate the amount of money made the figure of the landfill tax avoided was used. This was regarded as a conservative assessment. These were significant offences by an individual who raised a huge amount of money and then laundered the same. The link of the claimant to the illegal dumping on other sites is, that in the majority of instances, the waste could be traced to Envirowayste Ltd.

The EA would not obtain the information required through its own powers as it was unlikely to receive answers to its questions. The power provided by section 108 of the 1995 Act has limited powers which are insufficient to properly investigate such large scale dumping. The Trout Lane site has a close connection with the claimant. He has a connection with almost all of the identified companies, generally as a director. Of the two sites identified in the Information, Trout Lane and Standlake, these can be proved to be controlled by the claimant. Both sites were full of waste, of significance is the fact that at Standlake there had been an increase in the amount of waste as the investigation had continued. The sites where waste was being illegally dumped were identified in the Information. It was unlikely that the claimant would make any admissions in respect of the waste dumping.

The Information was clear, there was material on the premises which was likely to be of substantial value to the investigation of the offence and was likely to be relevant evidence. It was believed that the purpose of the search may be frustrated or seriously prejudiced unless a constable arriving at the premises could secure immediate entry to them. The Information gave adequate details as to how the facts related to the offences being investigated in relation to each site, either specifically or by clear inference. In relation to each site where there has been an unlawful deposit of waste, the estimated amount and the estimated value to the claimant is identified. There was evidence which traced the waste back to the Trout Lane site.

It was suspected that the manner in which the claimant ran his business was designed to make it difficult to discover the true nature of his connection with the companies involved and the flow of money generated by the alleged unlawful activity. The EA and the second defendant believed that the material sought in the warrant may well be at the claimant’s home. It was also suspected that the claimant used a number of companies to mask his true position and the flow of money.

As to the previous history of transfers of the permit, on such an application an allegation that the company to whom the transfer is to be made has dumped waste unlawfully would of itself be insufficient to prevent a transfer. In assessing whether the company seeking to obtain the permit is a competent and suitable operator, the EA works within narrow parameters and will take account of e.g. previous convictions. The claimant has no convictions in this area of law.

The RART and EA made a decision to seek a search warrant pursuant to section 8 PACE. The purpose of the search warrant was to obtain documents relevant to an investigation, into an offence or offences of money laundering. Within the Information contained in the application before the Justices the relevant provisions of section 8 PACE and the provisions of POCA were not set out. No attempt was made to identify which particular provision of either statute related to any of the stated facts in the Information. Section 8(1)(a) PACE requires a Justice to be satisfied that there are reasonable grounds for believing that an indictable offence has been committed. The Information failed to identify which indictable offence or offences any one individual had allegedly committed still less how the same had occurred. Sections 327-329 of POCA contemplate a variety of means whereby a person can commit an offence which include concealing, disguising, converting, transferring or removing criminal property. There is nothing in the Information which identifies the activity said to have constituted a criminal offence by any one of the named individuals pursuant to these provisions.

In the letter written on behalf of the Westminster Magistrates Court it was stated that the Magistrates were satisfied on the strength of the Information that there were reasonable grounds to believe that section 8.1(a)-(e) PACE were met. Given the lack of any specificity as to the alleged indictable offences I have difficulty understanding how such a decision was reached. The absence of detail relating to the alleged offences together with the absence of any link between the offences and such facts as appeared in Information do not easily lead to the findings made by the Justices. The deficiencies in the warrant are compounded by the absence of any notes or record of the hearing and the absence of any reasoning by the Justices as to the basis of their decision. The courts have emphasised the need for notes, recordings and reasoning so as to enable those who are the subject of ex-parte warrant applicationsto better understand what has occurred. In this case there was a lamentable failure to observe the guidance given by the courts.

The RART and EA made the decision to pursue this matter by the way of an ex-parte application. The means having been chosen, there was a duty upon them to ensure that full and frank disclosure was given, a vital safeguard in such an application. Undisputed is the fact that as between the claimant, the companies in which he was or had been involved and the Trout Lane and Standlake sites there was a history, spanning a number of years, of communication between the claimant, the companies and the EA. The communication had taken the form of correspondence. It involved the EA invoking its powers pursuant to the 2010 Regulations to inspect the Site for compliance purposes, requiring information from the company relating to e.g. the management system and documentation on the Site. The requests by the EA were met. On no occasion did the claimant or a company refuse access to the EA to inspect the Site. Absent from the Information was the identification of these powers, details as to the exercise of them and the response of the claimant and the companies. Given the conditions identified in section 8(1)(e) PACE and set out in section 8(3) namely that it is not practicable to communicate with any person entitled to grant entry to the premises, or that entry to the premises would not be granted unless a warrant is produced, the history of previous inspections, visits and co-operation with requests by the EA for information was clearly relevant to the Justices’ consideration of the provisions of section 8(3)(c).

No mention was made of the powers of the EA pursuant to the 2010 Regulations to revoke, suspend or vary an environmental permit. Absent were the details that in previous years the EA had granted permission for the transfer of the environmental permit relating to Trout Lane as between the various companies having been satisfied, pursuant to its own guidance, as to the operator’s competence. This was material which had to be relevant to any consideration of an allegation of criminal conduct by the claimant in respect of any site or company with which he had an involvement.

The history of requests for interviews and the correspondence, in particular, between the company solicitor and the EA relating to disclosure in advance of the interviews as to its subject matter was of relevance, not least by reason of the criticism in the Information that unauthorised persons were put up by the company for interview. Disclosure of the history of the correspondence relating to the interviews would have enabled the Justices to form a view as to whether there had been resistance on the part of the company to interviews and whether this was a factor of which account should be taken in deciding whether to grant the ex-parte application. Interviews did take place with a representative of the company regarding both Standlake and Airlinks Golf course. At these interviews issue was taken to the allegation by the EA that what was being deposited was waste. None of this detail was contained in the Information. It was relevant to the issue of whether the underlying offences namely the illegal deposit of waste were being committed or whether in fact the company or companies had a possible or valid defence to the same.

The information identified in paragraphs 47-49 was relevant to the application. It should have been disclosed and would have provided the Justices with a broader and fairer evidential basis upon which to begin to assess the ex-parte application. The contention by the second defendant that disclosure of the material relating to inspections, obtaining of information from the companies, transfer of permits and correspondence prior to interviews would have made no difference to the decision, is untenable.

The challenges brought by the claimant as to the warrant and Information cannot be described as technical challenges, they go to the substance of the application. The absence of the identified information serves to undermine the decision of the Justices. For the reasons identified I find that the claimant has made out his case upon Grounds 3 and 5. It follows that the warrant issued by the Westminster Justices on 10 May 2013 is quashed. A declaration is made: