Hargreaves v Brecknock and Radnorshire Magistrates Court

The four Claimants challenge by way of judicial review the issue and execution of two search warrants issued on the application of the second defendant (Trading Standards) by the first defendant (the Court) on 21^st March 2014. Trading Standards executed the warrants on 1^st April 2014 at Southwood, The Circle, Mereside Road, Knutsford, Cheshire (Southwood) and 54 Granary Way, Sale, Manchester (Granary Way).

The first and fourth Claimants are married. They live with the second and third Claimants, the parents of the first Claimant, at Southwood. The third Claimant owns Granary Way which is occupied by a tenant. It became clear during the hearing before us that although both addresses are private homes, it is accepted that both are used also for business purposes.

When the warrants were executed on the morning of 1^st April 2014, Trading Standards (and the accompanying police officers) removed from Granary Way 6 items of post addressed to Mr Hargreaves, the first Claimant, and the tenancy agreement. From Southwood they removed some computers, a significant quantity of tooth whitening equipment of various types and related documentation.

The Claimants seek :-
i) Orders quashing the warrants
ii) Declarations that the entry, searches and seizures under the warrants were unlawful
iii) Mandatory Orders for the return of the original articles seized and the destruction of all and any copies made of this material.
iv) An Order that no use be made of any knowledge gained as a result of the searches
v) A Mandatory Order for the destruction of all and any video footage and or photographs taken during the searches
vi) Damages

Trading Standards have been investigating the conduct of the first Claimant for almost two years. On 25^th July 2013 the police arrested him at the Royal Welsh show. It is Trading Standards’ case that teeth whitening products being sold at the show by the first Claimant were being sold in breach of the Consumer Protection from Unfair Trading Regulations 2008 (the Regulations). In brief, Trading Standards contend, amongst many other matters, that teeth whitening products on sale at the show contained very high levels of hydrogen peroxide, well in excess of levels permitted under the Cosmetic Products (Safety Regulations) 2008. Criminal proceedings are underway against the first Claimant. Applications to dismiss the charges are listed before the Crown Court in June 2015.

On behalf of Trading Standards Mr Wyeth QC submitted that the Claimants had failed to exhaust their alternative remedies and so the claims for Judicial Review were premature. He argued that the Claimants’ remedy lay in the Crown Court where an application could be made under section 78 of the Police and Criminal Evidence Act 1984 (PACE). This was unarguable. It is well established that the appropriate forum for setting aside a warrant is the Administrative Court. In proceedings in the Crown Court where the prosecution seek to rely on evidence obtained as a result of the execution of a warrant which the defence submit was obtained or executed unlawfully the defence (here the first Claimant) may apply to the trial judge under section 78 PACE for the evidence to be excluded on the grounds that to admit it would be unfair. The Crown Court judge is concerned with the fairness of the trial. Whether or not evidence which is otherwise admissible should be excluded depends on a number of factors, including whether or not it was improperly obtained. The judge is not bound to but may, in his discretion, exclude evidence which has been improperly obtained. He has no power to quash the warrant. That can only be done by the High Court. Similar arguments were considered by the Divisional Court in R (Lees) v Solihull Magistrates Court and the Commissioners for Her Majesty’s Customs and Revenue [2013] EWHC 3779. There the court was concerned with search warrants obtained under PACE but the principle is the same. Treacy LJ did not regard section 78 as an “available alternative remedy” (para 54). Were an application for the return of the property made to the Crown Court under s59 of the Criminal Justice and Police Act 2001, the Crown Court judge would not have the jurisdiction to examine the circumstances of the warrant (see Stanley Burton LJ, obiter, in R(Dulai) v Chelmsford Magistrates Court, para39 and Pitchford LJ in R(Goode) v Crown Court at Nottingham and Chief Constable of Nottinghamshire Police [2013] EWCA 1726 (Admin) at para51).

In his skeleton Mr Wyeth argued that the claim for Judicial Review should be stayed until after the Crown Court proceedings on the grounds that costs would thereby be saved. This was not pursued before us.

There are 4 grounds of claim:

At the beginning of the hearing Mr Bowers QC, for the Claimants, informed the court that, contrary to what appeared in the grounds and his skeleton argument, he no longer maintained that the applications or the warrants were governed by the Police and Criminal Evidence Act 1984 (PACE). This concession was rightly made. The warrants were obtained and executed by an enforcement officer of Trading Standards. She is not a police officer, nor is she a person designated under the Police Reform Act 2002. Mr Bowers did not seek to argue that the fact that police officers accompanied her on the search affected the position. We need say no more about that. By an amendment to Section 66 of the Criminal Justice and Police Act 2001 (general interpretation of Part 2) Regulation 21 of the Regulations is incorporated into Part 2 of the Criminal Justice and Police Act 2001.

Regulation 21 reads:

Paragraph 22 reads:

Thus, Trading Standards were required, in respect of each application in this case, to satisfy the Magistrate that there were reasonable grounds for believing either (A) that there were on the premises goods or documents which a duly authorised officer had power under Regulation 21(1) to inspect etc or (B) that a breach of the Regulations was about to be committed on the premises. They were then required to satisfy the Magistrate that one of conditions C, D or E applied. In this case only D was of potential relevance i.e. that an application for entry or notification of an intention to apply for a warrant would defeat its purpose.

The following propositions are not now in dispute:

On the face of each warrant issued in this case the following appears, “This warrant is issued under:

Regulation 21(1) of the Regulations, misdescribed as “section”, does not give the court power to issue a warrant. Mr Bowers submits that the error on the face of the warrant goes to jurisdiction and is fatal. Mr Wyeth QC for Trading Standards says it is an error akin to a typographical error and is not sufficiently serious to prejudice the claimants or to require correction by the court.

The two written applications are identical, save for the address. They are on pre printed forms. At the top of each pro forma the following appears “Application for Search Warrant, (Criminal Procedure Rules, rule 6.32; section 15 & 16. Police and Criminal Evidence Act 1984).” There then follows the instruction “to use the form only for an application for a search warrant under a power to which sections 15 and 16 of PACE apply, other than section 8 of PACE.” There is no need to quote more extensively from the introduction. The form is obviously not designed for an application for a warrant under the Regulations. We acknowledge that pro formas can be useful in ensuring that applicants and courts direct their minds to the correct questions when a warrant is sought. They are unlikely to be of much utility in so doing when they are designed for legislation other than that relevant to the application. We assume there are no pro formas for applications for warrants under the Regulations. It was therefore incumbent on Trading Standards to draft an application or adapt the form they chose to use so as to make it plain to the court what type of warrant they were seeking, pursuant to what power (the Regulations), and how the conditions precedent to the issue of a warrant under the Regulations were met. It is clear that Ms Davis Wheeler, who made the application on behalf of Trading Standards, endeavoured to adapt the form to an application under the Regulations. She was not entirely successful. We refer to three sections of the forms by way of example.

On each application in the first box the following appears “(1) “the main search power. Make sure the court has a copy of the legislation which allows it to issue the warrant for which you are applying (the main search power) and any legislation which allows you to make this application if you are not a constable. If necessary, attach a copy of the legislation when you send or deliver this form to the court””.

In the section of the form (2) marked “The Investigation” Ms Davis Wheeler gives a comprehensive account of the investigation. She refers to the lack of cooperation from Mr Hargreaves.

Under (3) headed “articles or person(s) sought” the instruction is to “identify what, or who, you are looking for in as much detail as practicable. Explain how those things, or people, meet the criteria for the issue of a search warrant prescribed by the main search power”. Ms Davis Wheeler there gives an explanation of what “premises” means and sets out the four paragraphs that were ultimately to appear on the warrant (see paragraph 11 above). She includes the following: “In this regulation ‘document’ includes information recorded in any form”.

It is plain that Ms Davis Wheeler considered that the application was being made under both Regulations 21(1) and 22(1). That is unsurprising since it is Regulation 21(1) that defines the scope of the power. Regulation 22 is the mechanism for obtaining a warrant.

As is usual the court plays no part in these proceedings. On 8^th July 2014 the Deputy Clerk to the Justices sent a document to this court which bears the heading “NOTE”. It begins, “This note has been prepared to assist the court in its judicial decision making process.” The note confirms the hearing at Brecon Magistrates’ Court on 21^st March 2014. At paragraph 3 it reads “The Court granted the applications and authorised the two warrants, pursuant to Regulations 21(1) and 22 of the Consumer Protection from Unfair Trading Regulations 2008.” This assertion is repeated later in the document. The note records that the Magistrate had heard evidence from Trading Standards, including “additional oral information” which is set out at paragraph 4(c). At 4(d) is a list of further documents that were handed to the court. At paragraph 9 the Deputy Justices’ Clerk writes “The court had regard to Regulations 21(1) and 22 of the Consumer Protection from Unfair Trading Regulations 2008 during the applications”. This was consistent with the applications in writing by Ms Davis Wheeler.

The note also refers to correspondence between the court and the Claimants’ legal representatives after the execution of the warrants. One request, repeated many times by the legal representatives, was to have sight of the applications which had led to the issuing of the warrants.

The application forms were eventually provided to the Claimants’ legal representatives. In the run up to these proceedings they complained that the contents of the note of 8^th July 2014 suggested that the Deputy Justices’ Clerk had information about the applications from a source other than the application forms and pressed for disclosure of any relevant notes of the hearing. Shortly after we began hearing these claims there were produced to us for the first time photocopies of the notes made by the legal adviser to the Magistrate of the evidence of Ms Davis Wheeler and a copy of the application in respect of Granary Way annotated by the legal adviser during the hearing. We were given no explanation as to why these important documents were provided at such a late stage. They are important because they contain information that was before the Magistrate over and above the printed applications provided to this court and to the Claimants. They also record, we believe, the fact that additional documents were handed in to the court.

It is well established that all the material necessary to justify the grant of a warrant should be contained in the information provided on the form (see in context of a warrant granted under PACE R (Redknapp) v Commissioner of City of London Police [2009] 1WLR 2096, para13). Where information additional to that in the written application is provided orally (e.g. where the Magistrate asks for further information) a proper record must be kept (see Redknapp at para16). Where further documents are considered by the court this fact too must be recorded. The purpose of the record, at least in part, is to ensure that the without notice procedure by which a warrant is granted may be scrutinised where appropriate by a higher court. This is an essential safeguard for a person affected by such proceedings and is in the interests of open justice. In our judgment, in Judicial Review proceedings, absent any issues about sensitive or confidential information such documents ought to be provided by the court as a matter of course at the time of the Acknowledgement of Service so that they are before the single judge when he is considering permission. We add that a note written by someone who was not in court, however accurate it may be, is no substitute for the provision of contemporaneous notes by those responsible for the conduct of the hearing and for the decision making. Finally on this topic we add that unless there is some pressing emergency any manuscript notes should be accompanied by a typed copy.

The manuscript notes of the legal adviser record the evidence on oath of Ms Davis Wheeler. She read the applications to the court. She then answered questions about the occupants of Granary Way. She is recorded as saying that the purpose of the warrant is “documents and product…doesn’t comply with regs” . A little later the legal adviser records the titles of Regulations 21 and 22. Next to 22 she writes “search”. It is likely that this reflects what Miss Wheeler was saying about the way the two Regulations operate together. We can make no findings in that regard since the document is not clear on its face and there is no witness statement from Ms Davis Wheeler.

On the face of the application in respect of Granary Way, the legal adviser has made a number of annotations, including (next to Regulation 21(1) (a)) a query as to the type of premises. Next to Regulation 21(1)(4) she has circled the word “recorded” after the words “In this regulation “document” includes information recorded in any form”. The legal adviser also records on the face of the form that leaflets were shown to the bench.

Nowhere in the legal adviser’s notes or in the annotations on the form is there any reference to Condition A. We are invited to infer that Trading Standards were obviously relying on Condition A since so much of the form was concerned with explaining the powers under Regulation 21. The legal adviser has written the word “or” next to the paragraph of the Regulation which sets out Condition A. We cannot elevate this to evidence of proper focus being brought to bear on Condition A. What was required was a clear statement in writing that condition A was relied on and the basis upon which it was said that the condition was met. It should have been made plain to the Magistrate that he had first to be satisfied as to Condition A before going on to the second stage of the decision. We are not confident that Condition A was referred to in terms by anyone. It is not on the form (save as part of the Regulation), it is not in the notes and it is not referred to by the Magistrate in his decision to which we shall later turn.

Condition D is specifically referred to at paragraph 4 (c) of the form which reads “How do the circumstances satisfy any access conditions prescribed by the main search power?....For example you may need to satisfy the court that entry will not be granted without a warrant, or that an attempt to search without a warrant would frustrate the investigation”.
Ms Davis Wheeler has written “Condition D under Regulation 22 would be applicable in that an application for admission, or the giving of notice of intention to apply for a warrant, would defeat the object of entry.
Furthermore Mr Hargreaves is completely uncooperative, has even given inaccurate information and has tried to conceal evidence which was part of the reason for his arrest.”

In our judgment that squarely put before the court the need to be satisfied of the test at Condition D and the basis upon which it is said that Condition D is met. There is plenty of information on the form from which any Magistrate would be bound to infer that an application for admission or the giving of notice of intention to apply for a warrant would defeat the purpose of the entry. Mr Bowers did not seek to argue that Condition D was not met with respect to Southwood. He submitted however that it could not have been met in respect of Granary Way because the record of the hearing shows that it was not expected that the tenant at Granary Way would be obstructive. That is to miss the point. The tenant at Granary Way was required, under a term of her tenancy agreement, to receive post on behalf of the first Claimant. She had a separate post box for that purpose. The first Claimant collected mail from her. Had she been aware of an application for entry to the premises/notification of warrant she would be bound to have informed the first Claimant. Given the efforts the first Claimant had made to avoid co-operating with Trading Standards it was open to the Magistrate to find that the first Claimant would have sought to defeat the purpose of the warrant by removing relevant documents and that Condition D was met.

On the Granary Road application the decision is explained thus by the Magistrate:
“I issued a warrant because I was satisfied by the evidence produced by the applicant both verbally and from documentation provided. The applicant [explained] to me the documents produced in court”
On the Southwood application the following is written
“I issued the warrant because I am satisfied with the information read to me from the documents produced in court by the applicant.”

Neither decision, even when read in conjunction with the notes of the legal adviser, the application forms and the note prepared for this court, reveals that the Magistrate considered condition A and was satisfied that it was met. Neither decision, considered on its own, reveals which conditions were met.

Whilst we do not consider that the error on the face of the warrant would necessarily be fatal, we are quite sure that it was not, as Mr Wyeth contended, a typographical error. It reflects the lack of focus during the hearing and in the decision making upon the requirements of Regulation 22. In our judgment the failure adequately to consider and apply Regulation 22 leads inexorably to the conclusion that these warrants cannot stand. It follows that the warrants must be quashed. It is not strictly necessary to consider the further grounds but since some of the issues raised go also to the question of remedy we deal with them briefly.

Mr Bowers submitted that the Regulations do not confer a power of search at all. Thus any search permitted by the warrant was unlawful and any seizure arising from the search was unlawful. When pressed by the court Mr Bowers accepted that where an enforcement officer is lawfully on the premises it would be idle to suggest that he was not entitled to open cupboards and look for goods that come within the scope of the Regulation. But beyond that he submitted no search was permitted. We do not agree. This issue was considered in R (on the application of Helidon Vuciterni) v Brent Magistrates Court [2012] EWCA 2140. The divisional court (Davis LJ and Irwin J) were concerned with comprehensive challenges to warrants granted under Regulation 22. For other reasons the warrants were quashed. Argument as to the scope of the power went (as in this case) to the lawfulness of the execution of the warrants. At paragraph 48 Davis LJ observed that it was difficult to see how an enforcement officer could effectively exercise his power if “having lawfully obtained entry, [he were] confined to standing in the hallway and looking around by way of “inspection” for what he can (or cannot) see.” He continued,

“the powers conferred necessarily connote a power to, for example, search a desk or cabinet to see if there are relevant documents which may be required to be copied, if a breach has reasonably been suspected; they connote that an enforcement officer may, for example, go into back rooms and store rooms to see if there are goods that should be seized or detained, if there is reason or cause to believe (not just suspect) a breach; and likewise may search for containers or vending machines. The powers to enter (and inspect) therefore plainly carry with them a power to search, as a matter of sensible construction. It must also not be overlooked that in this area of consumer protection very often thoroughly unscrupulous and disreputable people may be involved (I am again talking generally not necessarily by reference to this claim) and appropriately robust powers are to be expected to be available.”

Mr Bowers submitted that the judgment of LJ Davis was wrong. He accepted that we could disagree only if it was plainly wrong or per incuriam. We consider it to be neither.

Mr Bowers submitted that Regulation 21(1) permits entry into the premises by a relevant officer for the purposes of seizing goods (subject to his having a reasonable cause to believe that a breach of the Regulations has been committed) but does not give the officer a power to look for or to seize documents. We disagree. We have already dealt with the power to search for goods. The same reasoning applies in respect of documents. As to seizure the structure of Regulation 21(1) is simple and its meaning is clear. Subparagraphs (b) and (d) are relevant. Thus,
21(1) “A duly authorised officer…may at all reasonable hours exercise the following powers ..
(b) if he has reasonable cause to suspect a breach of the regulations has been committed, he may, for the purpose of ascertaining whether it has been committed, require any trader to produce any documents relating to his business and may take copies of or of any entry in, any such document; and
(d) may seize and detain goods or documents which he has reason to believe may be required as evidence in proceedings for a breach of these Regulations”.

We consider that documents may be seized under Regulation 21(1).

We do not accept the further complaint that in referring to “documents relating to businesses” the warrants went “far beyond the power permitted under Regulation 21(1)” or omitted important “gateways to seizure”. The warrant was granted to Ms Davis Wheeler who had set out in detail on the form and in evidence her grounds for believing there had been breaches of the Regulations. The reference to documents “relating to businesses” plainly referred to the teeth –whitening businesses. That was what Trading Standards were interested in.

Mr Bowers further submits that the removal of computers from the premises was outside the scope of the Regulations. By Regulation 21(4) “document” includes information recorded in any form”. It includes, plainly, information held electronically. The Regulation also permits, as we have already said, the search for and seizure of documents. This must include the electronic search of computers and the downloading of electronic documents onto (e.g.) USB memory sticks as well as or instead of printing them. There is nothing wrong in principle in seizing a computer (the electronic equivalent of a filing cabinet) provided that the enforcement officer has reason to believe the documents it contains may be required as evidence. That is what happened here. We note that where it is not practicable to examine the computer/s on the premises the effect of Section 50(1) of the Criminal Justice and Police Act 2001 is to permit the seizure of the computer so that it may be examined elsewhere. Whilst Trading Standards did not seek to rely on Section 50 its effect is consistent with our judgment as to the scope of Regulation 21(1).

On the instruction of Trading Standards, an independent IT company retrieved information from the computers. They provided to Trading Standards only information which is described as “sanitised”, the IT company having removed from the contents of the computers provided to them any documents that could be deemed to be privileged. We are not persuaded that the seizures of the computers were outside the scope of Regulation 21(1). In any event we were told that they were all returned to the Claimants some time ago.

PACE does not apply. There is however a dispute about whether or not the warrant was provided to the occupiers of the premises as it should have been in any event. That is something that we cannot resolve.

In filming events the officers were not exercising a power, as the ground suggests. They were making a record of the execution of the warrant. Permission to make a record is not required. A video record, particularly from a camera attached to one of those involved in the execution of the warrant, is contemporaneous. It is at least as accurate as, and likely to be more complete than, a manuscript record made as events unfold. Recording via cameras attached to clothing is now commonplace, as is the playing of such records (e.g. of an arrest) in the Crown Court. In the context of the execution of a warrant it is an effective safeguard for all involved. Challenges to the authorities may easily be resolved; the dispute identified in Ground 3 may be an example of this. Those whose premises are the subject of the execution of the warrant are entitled to be told that events are being filmed (as was done here) but we do not consider that the fact of filming is more intrusive than the arrival in their home of officials to execute a warrant.

The real issue is not the fact of filming but the purpose for which the video record is made and the period for which it is retained. We have not heard argument about this but we consider it would be a proportionate interference with the Article 8 right to respect for private life were the record to be made and retained for the purposes of and the duration of criminal proceedings (subject to any appeals). We are aware that video footage of arrests is commonly played in criminal trials. Disclosure takes place in the usual way. In this case the first Claimant will (if that has not already occurred) be provided with a copy of the film. There is no ground for complaint here.

As we observed much earlier in this judgment no warrants were necessary in this case because neither of the premises concerned was used exclusively as a dwelling. We have concluded that everything that was done was within the scope of Regulation 21(1). Nothing was removed which Trading Standards were not entitled to remove under Regulation 21. To order the return of items obtained under warrants that have been quashed so that they may be obtained again without warrants would be a sterile and expensive exercise in which we are not prepared to engage.

We quash the warrants. We make no orders for other relief.