Business Energy Solutions Ltd & Anor v Crown Court at Preston & Anor

This case raises novel issues about the duties of authorities who, pursuant to lawfully obtained warrants, seize computers and other electronic devices containing data which the authority then copies and retains.

On the 22^nd July 2016 the Interested Party, a Trading Standards Authority (“the Authority”) applied to the Crown Court for, and obtained, warrants to search and seize material from various premises. The warrants permitted the seizure of computer equipment such as servers, laptops, usb sticks and mobile phones. The warrants were to further an investigation into possible fraud by the Claimants.

The warrants were executed by Lancashire Constabulary on 28^th and 29^th July 2016 and data storage devices with a capacity of 53 terabytes were seized (Footnote: ¹). The exercise was conducted under the Criminal Justice and Police Act 2001 (“CJPA 2001”). There was no challenge to the lawfulness of the warrants.

Subsequently, the contents of these seized devices were imaged and copied and then backed-up and the physical devices were returned. The (copied) data which was now on the servers of the investigating authorities exceeds 200 million documents and included about 770,000 audio recordings of telephone conversations.

Section 53 CJPA 2001 imposes an obligation on persons who come into possession of seized material (such as the Authority) to conduct an “initial” review and then return any seized property which is not properly within the scope of the warrant. There are exceptions to the duty when the properly seized material cannot, applying a test of reasonable practicability, be separated from material not covered by the warrant. Under section 59 CJPA 2001 a person can apply to the Court for an order compelling the return of “seized property” or for other “directions” relating to the “examination, retention, separation or return of the whole or any part of the seized property”. Subsequently, in 2017, the Claimant applied to the Court under section 59 for return of physical property, hard copy documents and data now stored and backed-up on the Authority’s systems. The Judge refused to make any direction about the copied data held by the Authority. This refusal is the decision now challenged in this judicial review. The claim raises a series of issues which it is helpful to identify at the outset.

The first issue focuses upon how the duty to return in section 53 CJPA 2001 operates in the context of copied data. In a non-data case, if an item of property is seized by an authority, for instance a motor vehicle, then when it is returned the authority no longer has the item in its possession. But in a case such as the present where the physical devices have all been returned and the authority retains electronic digital copies that data is incapable of being “returned” in any conventional sense of the word. That data subsists on the authority’s computers in the form of binary numbers in electronic form. It is true that the data could be deleted but deletion is not, ordinarily, encompassed within the concept of “return”.

If therefore the duty to return in the CJPA 2001 applies only to the physical items seized (the servers, laptops, usb sticks etc) then the seizing authority is under no additional obligation to fillet the data it has subsequently copied to ensure that it is consistent with the warrant and to return the residue. If this is correct, it might be argued that it undermines the purpose of the CJPA 2001 which recognises that the exercise of a power of search and seizure is a serious intrusion into private freedoms and rights and should be strictly circumscribed by the law. On the other hand, it might also be said that from the perspective of the person or company under investigation it is the seizure of its computer equipment which causes business disruption and the policy imperative is therefore to facilitate the earliest restoration of that physical property. The retention by the authority of copied data thereafter causes no additional harm and raises a far more muted public interest.

The second issue addresses the provisions under which the duty to return seized property which is not within the scope of a warrant is subject to certain exceptions one of which (in summary) is that it is not reasonably practicable to separate it from property which is within the scope of the warrant and can therefore be retained.

On the 28^th July 2017, the Claimants applied for an order for the return of property pursuant to section 59 CJPA 2001. A hearing was held before HHJ Brown, the Recorder of Preston, on the 7^th and 8^th September 2017, during which the Authority consented to providing the Claimants with: (a) a list setting out, individually documents or files of such documents “seized in hard copy form”; (b) a description of the document or file of documents; and (c), a brief explanation of why it was believed to fall within the scope of the warrant. The Authority refused to go further and apply that same process to soft, copied, material in electronic form. The issue boiled down to whether the exception from the duty to return based upon reasonable practicability of separation was a test based upon physical or technical capability, on the one hand, or practical capability on the other hand.

It is common ground that if the test is only physical or technical capability then the Authority, could (by expending time, money and effort) conduct the exercise. If, however the test is practical capability (which takes into account considerations over and above technical capability) then the Authority argued that it was impracticable for a variety of good and sound reasons relating to time, cost and diversion of resources etc to separate out the data which was within and outside the scope of the warrant. In his ruling the Judge applied the practical capability test advanced by the Authority. The correctness of that analysis of the test is raised in the claim.

The third issue is whether even if the Judge was correct in applying the practical capability test to section 53 CJPA 2001, he nonetheless acted irrationally in accepting the arguments and evidence of the Authority as to the (very substantial and therefore unacceptable) burden that being required to conduct the segregation exercise demanded by the Claimants would entail.

The fourth issue concerns a narrow point about the duty to provide inventories of items seized under section 21 PACE.

In written and oral arguments advanced by the Authority another (fifth) issue arose which is of some practical importance. Mr Thomas QC, for the Authority, contended that in reality the claim for judicial review was a collateral, satellite, attempt to thwart the ongoing investigation and any sensible disputes were capable of being, and should be, resolved in the Crown Court upon the basis that there was an adequate alternative remedy in that court under section 59 CJPA 2001.

The principal issues arising for determination before the court may thus be summarised as follows:

The Courts have long recognised that the law relating to warrants amounts to an “unfortunate jumble of legislative provisions” (Gittins v Central Criminal Court [2011] Lloyds Rep FC 219; A and B v Central Criminal Court [2017] EWHC (Admin) 70, [2017] 1 WLR 3567 at paragraph [11] (“A v CCC”). In this latter case the Court (at paragraph [55]) sought to disentangle the “jumble” by finding a solution which did “…practical justice by both facilitating the investigation and prosecution of crime and safeguarding the important public interest in protecting [individual rights]”.

The conclusions I have arrived at seek to apply the CJPA 2001 so as to achieve “practical justice” and in a way which reflects the complexities of modern computing, enables investigations to proceed effectively but which also protect individual rights against what is by its very nature an intrusive power of search and seizure.

In conclusion:

I turn now to summarise the facts of this case.

The Authority applied for warrants to search a number of different businesses of the Claimants. The Authority prepared a Case Summary of the investigation it was conducting to which was attached extensive supporting material. This was placed before the Crown Court in support of the application. The allegations concern fraudulent sales of utilities (gas, electricity, telephony). The alleged misconduct included such matters as: (i) the provision to prospective customers of fake benefit figures with a view to inducing the conclusion of expensive but onerous contracts; (ii) the making of false representations by telephone agents that they were acting as “independent brokers” when in fact they were employed by the Claimants; (iii) the making of dishonest statements inducing prospective customers to conclude contracts; (iv) the making of false representations by the Claimant’s agents that they were from the prospective customers current supplier informing the customer that they would in future be unable to supply them but that the Claimant could; (v) the making of false representations to customers that they were on “emergency rates with BES” when they were not and requiring the customer to re-sign with the Claimant; (vi) the provision of inflated rate comparisons with other suppliers to customers omitting to mention additional costs such as minimum usage cost; (vii) the making of harassing calls; (viii) the transferring of contracts without the knowledge of a customer into a contract which the customer was tied into and could not rescind; (ix) the failure to explain terms and conditions of agreements to customers; (x) the making of false representations to customers that they had a “cooling off period” when in fact they did not; (xi) the making of representations to customers that they were about to be disconnected when they were not; (xii) the making of representations to employees of business customers who had no authority to enter into contracts on their employers behalf with a view to inducing the employee to conclude contracts binding the employers.

The Authority set out the evidence upon which it relied to support the application. This included evidence from a “whistle blower” but it also included the fact that in November 2015 following an investigation by OFGEM, the Claimant companies paid £980,000 relating to breaches of licenses granted to them by OFGEM for the supply of electricity and gas. This comprised £311,000 by way of compensation to customers who it was found had been adversely affected, a consumer redress payment of £699,000 paid to The Money Advice Trust and a financial penalty of £2. The penalty related to findings that the companies failed to explain the terms and conditions of its contracts adequately and when complaints were received they were not dealt with in a proper manner. The Authority also referred to a complaint that the fourth Claimant, Mr Andrew Pilley, a shareholder and controller of the Claimants companies, made to Ofcom arising out of a BBC Radio 5 Live investigation into alleged mis-selling practises. Ofcom rejected the complaint by Mr Pilley. The complaint arose because an undercover journalist obtained employment as a trainee telesales operative at a Claimant company. The particular issue concerned whether Mr Pilley in fact controlled companies alleged to be engaged in mis-selling practices. Ofcom concluded that there was evidence which provided the programme maker with a reasonable basis for broadcasting the claim that Mr Pilley controlled the company in question. The Authority also relied upon statements by complainants who were the subject of attempted mis-selling activities.

The documents placed before the Court by the Authority in support of the applications set out the arguments that the Authority expected the Claimants to argue in opposition. These included legal arguments relating to (inter alia): the non-attribution of responsibility of the directors for dishonest conduct of employees; the possibility that whistle-blowers might harbour grudges; the relevance of the cooperative conduct of the company with regulators in 2015; the strenuous denial of the allegations made by the Authority; and, the detriment caused by the proposed exercise of the warrants.

In skeleton arguments before the High Court the Claimants contend that the reason that the warrants were authorised was due to the conduct of two individuals, Mr Neil Scrivener and Mr Mooney, who conducted a “baseless and increasingly vicious and vitriolic online campaign” against the Claimants. On the 4^th May 2016 proceedings were commenced against Mr Scrivener and Mr Mooney in the High Court for injunctions and damages upon the basis that the statements were made fraudulently pursuant to a conspiracy to injure and that they constituted unlawful inducements to customers to breach their contracts. The litigation was concluded on the 24^th January 2018 when Mr Scrivener and Mr Mooney undertook not to refer to the Claimants companies publicly ever again and to pay £250,000 in costs should the undertaking be breached, in addition to any penalties for contempt of court. They were, as a condition of the settlement, required to sign a statement which the Claimants were permitted to publish stating that:

“We withdraw any allegation of fraud or dishonesty against Business Energy Solutions Limited and BES Commercial Electricity Limited, their directors, officers, agents, legal advisor and other professional representatives.”

In addition it is said that, during the course of proceedings in the High Court, the Claimants obtained third party disclosure from the Authority relating to dealings that its officers had maintained with Mr Scrivener and Mr Mooney which it is said revealed that certain officers had developed “inappropriately close relationships” with those individuals and that the Authority had placed a “substantial degree of reliance” upon the false statements made by these individuals.

It is also said that when the Authority made the without notice application to HHJ Brown for the issuance of the warrants the Authority seriously breached its obligation of “full and frank disclosure” and presented misleading, incomplete and inaccurate evidence to the Judge so as to create a false impression of fraudulent activities. It is stated in a witness statement served in these proceedings that the Authority, knowing of the facts, intentionally withheld relevant information. It is alleged that it was only due to the Authority’s “…series of misrepresentations and material non-disclosure” that HHJ Brown granted all of the search warrants being sought.

The warrants were issued on the 22^nd July 2016 and were framed in wide terms permitting the seizure of computer and other devices on which data was stored. The warrants expressly provided for the seizure of electronic documents. For example, they permitted the seizure of the following categories of material:

“All records and recordings of telephone calls held on computers and servers made by [company name] and all brokers… including records and recordings made to customers and/or clients relating to contracts and sales, prospective or substantive.”

“All files and correspondence whether by email, letter or otherwise of contracts held made and made between customers and/or clients and [company name] and all brokers…”

“Any material recorded on servers accessible from the subject premises.”

“All files and correspondence whether by email, letter or otherwise of complaints made by [company name] customers and/or clients…”

“All records, details, notes and files held whether on computer or otherwise of the employees of the above named companies…”

“All notes held either on computer or otherwise of managers meetings, performance statistics… etc.”

The execution of the warrants resulted in the seizure, inter alia, of a very substantial quantity of electronic documents. The total capacity of the equipment seized was 53 terabytes. One gigabyte of data can hold the contents of approximately 10 metres of books on a shelf. One terabyte of data is approximately 1,000 gigabytes and can hold about 1,000 copies of the Encyclopaedia Britannica. Ten terabytes can hold the printed collection of the Library of Congress. Over 200m documents were stored on the computers and there were also about 770,000 audio recordings. The scale of the data seized is accounted for by the fact that the Claimants, and their associated companies, were operating telesales operations employing large numbers of employees working full time using computers and servicing many thousands of customers.

Although it is said that the warrants were procured through non-disclosure and false representations the warrants were not challenged by the Claimants. No application for injunctive relief was made to suspend the execution of the warrants. It follows that the warrants were and remain a lawful authority for the seizure of the material in question.

Evidence before the court describes how the seized material was imaged and copied. Mr David Childs is a Principal Officer employed by North Yorkshire County Council Trading Standard and Planning Services as the authorised officer in charge of the National Trading Standards eCrime Team, Digital Forensic Laboratory. He is responsible for conducting forensic examination of computers and other “high-tech” equipment submitted in the course of investigations by the Authority. He explains that on 28^th July 2016 his service attended premises in Blackpool and Fleetwood to assist in a search and seizure operation. He itemises computer equipment which was seized in the course of that exercise. This included servers, backup tapes, hard drives, CDs, DVDs, usb sticks, laptops, PCs, memory sticks, mobile phones, data stores, etc. In relation to all such matters he acquired “forensic images using forensic software”. The ipad and sim cards were dealt with by acquiring a logical extraction of the contents. In relation to servers many contained multiple physical hard drives that were connected to the server system by means of hardware RAID controllers. These could be configured in multiple ways, some permitting data upon them to be viewed with specialist processes being applied. Others spread data across the drives and required either that they be attached to the computer using the original hardware RAID controller for a forensic image to be acquired, or that the contents of all the drives be recombined using specialist software to present the disks as a single disk. Mr Childs describes in detail the technical processes applied to obtain accurate copies and images. In relation to one particular iphone, in order to recover encrypted data, the iphone was sent to specialist forensic experts to apply decryption services.

Once forensic images had been obtained they were added to a Nuix software solution that was then used to create an index of the content of the forensic images. The Nuix software permits of full text-searching of exhibits, including both the text content of the files and any meta-data (ie additional information stored within a file that is not normally visible to the end user but which can include detail such as the user profile, used to create or update the file when it was last printed, the title etc).

As already recorded, approximately 12 months after the execution of the warrants, the Claimants applied to the Crown Court for the return of seized property. It is apparent from the transcript of the hearing that a good deal of the application was resolved by way of agreement between the parties. The contentious aspects of the application were focussed upon paragraphs [2] and [3] of the application. These are in the following terms:

“2.

The Applicants maintain that there are documents that have not been individually identified and should be returned to the party from whom they were seized within 21 days of the date of the Order, save for such specific documents, [the Authority] have identified in writing as falling within the scope of the warrant. Such written notice must be given within 14 days of the date of the Order and provide a precise description of the document and the reason it is said to fall within the ambit of the warrant.

3.

All documents or categories of documents seized pursuant to notice under Section 50 of the Criminal Justice and Police Act 2001 shall be returned forthwith save for those individual and specific documents [the Authority] have already identified in writing as falling within the warrant.”

In the course of the hearing the Authority agreed to provide an itemised list of the “hard copy” documents which had been seized (see paragraph [9] above). That was, so the Authority acknowledged, a manageable exercise given that the number of such documents was modest, certainly when compared to the volume of electronic documents. That limited task still required three months to complete. The Order (approved by the Judge) to reflect this agreement, included at paragraph [4] the following:

“4.

As soon as reasonably practicable and in any event on or before 8 December 2017, the Respondent shall provide the Applicants with a list setting out individually documents or files of such documents seized in hard copy form which on further sift it has confirmed as falling within the scope of the Warrants issued on 22 July 2016, together with an adequate description of the document or file of documents and a brief explanation of why it is believed to fall within the scope of the warrants.”

The gravamen of the remaining issue was whether the Order should also include the material which had been copied from the Claimant’s servers, hard drives and other storage media in consequence of the search. The Claimants sought an order for the provision of an itemised list of documents together with precise descriptions of each document and the reason why it was said to fall within the warrant. In substance the Applicants sought an order in the terms of paragraph [4] of the Order, set out above, but with the deletion of the words “seized in hard copy form”.

The Judge refused to grant this application. However, in the order for approval there was provision for liberty to apply recognising that there may be a need for the Court to exercise continuing supervision.

In his ruling the Judge focussed upon section 53(5) CJPA 2001. This provides guidance as to the operation of section 53(3)(c). The relevant statutory provisions are set out in full in section C below.

The Judge identified the issue before him in the following terms:

“The discrete issue which is outstanding focuses on electronic data that was seized in the course of the various searches. It will be appreciated that a significant number of computers, computer towers, servers and other electronic devices were seized and there is in this case a massive amount of electronic data.

The Applicants are suggesting that a similar provision to paragraphs 4 and 5 should be incorporated into the order to cover that data and they submit that the Respondents should conduct or undertake a similar sift exercise to identify what data falls within the search warrants and having identified data that does not fall within the search warrants then it should be deleted.

On the other hand, Mr Thomas, on behalf of the Respondents, argues that that is simply not reasonably practicable in the context of the case. He tells me that that exercise would be extremely time consuming, it would be very expensive, it would involve a significant amount in terms of resources and would take a very long time indeed. He has suggested it could delay the police and Trading Standards investigation by many, many months and he draws my attention to the fact that in itself that would not be in the interests of individuals such as Mr Pilley nor indeed in the interests of the companies themselves.

Furthermore, he makes the point the data having been stored on a Nuix system is secure and confidential and therefore if the data is retained and not destroyed the Applicants cannot in any way be prejudiced.”

The Judge set out the two sides of the argument. So far as the Authority was concerned it had properly obtained warrants in broad terms. It is clear that they covered a large amount of material. It followed that in all probability the amount of data retained and not covered by the warrants was likely to be “very limited”. Nonetheless, if the application succeeded the exercise demanded would take a “huge length of time”, would be very expensive and would delay the on-going fraud investigation significantly. On the other side of the argument the Claimants contended that section 53 CJPA 2001 should be construed “very strictly” given that the issue and execution of such a search warrant and the concomitant retention of its property (real and intangible) was a serious infringement of the rights of the citizen. The arguments advanced by the Authority, about time, resources, the impact upon the investigation, and costs, were “irrelevant”. Since the provision was limited to technical separability Section 53 provided the answer as to what should occur: “…There should be a thorough examination of the data, that data not covered by the warrant should be identified and that data should then be removed or destroyed.”

The Judge concluded that the answer lay in the expression in section 53(5) “…reasonably practicable to separate part of the seized property from the rest of it”. The Judge posed the question: “Does it mean separate the contents of individual documents or does it mean separate out the property viewed more globally?”

The Judge concluded that it meant the latter and he adopted a pragmatic, purposive, approach:

“We live in a modern age and the fact of the matter is computer data can be vast and enormous and in this case the data is vast and enormous. It seems to me in that context I have to consider what is reasonably practicable and whether it would be reasonably practicable to separate that material covered by the warrants and the material not covered by the warrants.”

In this regard he was assisted by the terms of the warrants themselves which were very wide and, he anticipated, served to cover the vast majority of the computer data. He accordingly inferred that the area of dispute would amount to a “relatively small proportion” of the total. He took further into account that if the data was retained it would remain confidential and secure.

For these reasons he refused the Claimant’s application as it applied to the copied data.

I turn next to the statutory framework

Section 50 CJPA was introduced in order to address limitations in pre-existing legislation relating to the removal and sifting of material in the execution of a warrant as identified in R v Chesterfield JJ ex parte Bramley [2000] QB 576. Section 50 CJPA 2001 is entitled “Additional powers of seizure from premises” and confers upon specified persons the power to remove property in the course of a search of premises, for examination off-site in two identified circumstances. In both cases Parliament has introduced a test of reasonable practicability of separation.

First, under section 50(1)(c) where: “… in all the circumstances, it is not reasonably practicable for it to be determined, on those premises– (i) whether what he has found is something that he is entitled to seize, or (ii) the extent to which what he has found contains something that he is entitled to seize…”. This is sometimes described as a “search and sift” power and is relied upon in cases where that being seized is very voluminous or not intelligible or accessible on-site.

Second, under Section 50(2) where a person who is lawfully on premises finds “seizable property" which he would be entitled to seize but for its being comprised in something else that he has (apart from this subsection) no power to seize, then the person’s powers of seizure include power to seize both the seizable property and that from which it is not reasonably practicable to separate it. This power is used for example in respect of seizures of material held on servers or hard drives.

Section 53 concerns “Return or retention of seized property”. It provides for an “initial” examination of seized property with a view to the identification and return of property not within the scope of the warrant. It also lays down the circumstances where property that should otherwise be returned can be retained by the seizing authority because it is not reasonably practicable to separate it. It provides:

“53 Examination and return of property seized under s. 50 or 51

(1)

This section applies where anything has been seized under a power conferred by section 50 or 51.

(2)

It shall be the duty of the person for the time being in possession of the seized property in consequence of the exercise of that power to secure that there are arrangements in force which (subject to section 61) ensure–

(a)

that an initial examination of the property is carried out as soon as reasonably practicable after the seizure;

(b)

that that examination is confined to whatever is necessary for determining how much of the property falls within subsection (3);

(c)

that anything which is found, on that examination, not to fall within subsection (3) is separated from the rest of the seized property and is returned as soon as reasonably practicable after the examination of all the seized property has been completed; and

(d)

that, until the initial examination of all the seized property has been completed and anything which does not fall within subsection (3) has been returned, the seized property is kept separate from anything seized under any other power.

(3)

The seized property falls within this subsection to the extent only–

(a)

that it is property for which the person seizing it had power to search when he made the seizure but is not property the return of which is required by section 54;

(b)

that it is property the retention of which is authorised by section 56; or

(c)

that it is something which, in all the circumstances, it will not be reasonably practicable, following the examination, to separate from property falling within paragraph (a) or (b).

(4)

In determining for the purposes of this section the earliest practicable time for the carrying out of an initial examination of the seized property, due regard shall be had to the desirability of allowing the person from whom it was seized, or a person with an interest in that property, an opportunity of being present or (if he chooses) of being represented at the examination.

(5)

In this section, references to whether or not it is reasonably practicable to separate part of the seized property from the rest of it are references to whether or not it is reasonably practicable to do so without prejudicing the use of the rest of that property, or a part of it, for purposes for which (disregarding the part to be separated) the use of the whole or of a part of the rest of the property, if retained, would be lawful.”

The section thus permits persons authorised to conduct searches to retain both material which is “seizable property” and material which is linked to seizable property by reference to a test of reasonable practicability of separation.

Section 59 provides for judicial supervision of the retention and return process. It confers upon persons with a “relevant interest” in the seized property the right to apply to an “appropriate judicial authority”, here the Crown Court, for the return of all or part of the seized property. For present purposes the relevant parts are sub-sections (1) – (5). These read:

59 Application to the appropriate judicial authority

(1)

This section applies where anything has been seized in exercise, or purported exercise, of a relevant power of seizure.

(2)

Any person with a relevant interest in the seized property may apply to the appropriate judicial authority, on one or more of the grounds mentioned in subsection (3), for the return of the whole or a part of the seized property.

(3)

Those grounds are–

(a)

that there was no power to make the seizure;

(b)

that the seized property is or contains an item subject to legal privilege that is not comprised in property falling within section 54(2);

(c)

that the seized property is or contains any excluded material or special procedure material which–

(i)

has been seized under a power to which section 55 applies;

(ii)

is not comprised in property falling within section 55(2) or (3); and

(iii)

is not property the retention of which is authorised by section 56;

(d)

that the seized property is or contains something seized under section 50 or 51 which does not fall within section 53(3);

and subsections (5) and (6) of section 55 shall apply for the purposes of paragraph (c) as they apply for the purposes of that section.

(4)

Subject to subsection (6), the appropriate judicial authority, on an application under subsection (2), shall–

(a)

if satisfied as to any of the matters mentioned in subsection (3), order the return of so much of the seized property as is property in relation to which the authority is so satisfied; and

(b)

to the extent that that authority is not so satisfied, dismiss the application.

(5)

The appropriate judicial authority–

(a)

on an application under subsection (2),

(b)

on an application made by the person for the time being having possession of anything in consequence of its seizure under a relevant power of seizure, or

(c)

on an application made–

(i)

by a person with a relevant interest in anything seized under section 50 or 51, and

(ii)

on the grounds that the requirements of section 53(2) have not been or are not being complied with,

may give such directions as the authority thinks fit as to the examination, retention, separation or return of the whole or any part of the seized property.”

There is no definition of “property” in the Act but, under section 63, there is a section on “copies” made of seized property:

“Copies

(1)

Subject to subsection (3)–

(a)

in this Part, "seize" includes "take a copy of", and cognate expressions shall be construed accordingly;

(b)

this Part shall apply as if any copy taken under any power to which any provision of this Part applies were the original of that of which it is a copy; and

(c)

for the purposes of this Part, except sections 50 and 51, the powers mentioned in subsection (2) (which are powers to obtain hard copies etc. of information which is stored in electronic form) shall be treated as powers of seizure, and references to seizure and to seized property shall be construed accordingly.”

Before us the parties have relied upon the Explanatory Notes accompanying sections 50ff. There is no dispute that they amount to a material admissible in law to guide the construction of primary legislation: see eg Solar Century Holdings v Secretary of State for Energy and Climate Change [2014] EWHC 3677 (Admin) at paragraph [52] followed by the Court of Appeal in Director of Legal Aid Casework v Briggs [2017] EWCA Civ 1169 at paragraph [82].

Paragraph [159] of the Notes indicates that the copying of contents of computer storage devices was in Parliament’s mind when the Act was adopted: “The most difficult circumstances relate to material held on computer media. It may be impossible to establish which material is relevant and seizable without processing the data forensically. That may involve removing the computer and/or imaging the entire contents of its hard disks and/or removing CD Roms or floppy disks” (Emphasis added).

So far as section 50 is concerned the Notes states:

“Additional powers of seizure from premises

162.

This section sets out the key additional powers required to deal with the problem identified in Bramley. Subsection (1) applies where a constable or other person exercising an existing power of search is unable to determine whether something may be or may contain something for which he is authorised to search, e.g. where there is a large bulk of material. Subsection (2) applies to the situation where the constable is unable to separate out the material he is able to seize from that which he is not e.g. where the material is on a computer. If it is not “reasonably practicable” to carry out the determination or separation required by subsections (1) and (2) the material can be seized to be examined elsewhere.

163.

Subsection (3) defines "reasonably practicable" for the purpose of this section. The definition includes factors such as how long the determination or separation would take if carried out on the premises (e.g. where there was a large bulk of material) or whether carrying out the determination or separation on premises would prejudice the use of the material to be seized (e.g. where quickly printing off computer material rather than imaging a hard drive could lead to other relevant material on that computer being altered or damaged.) Subsection (4) excludes section 19(6) of PACE where material is seized under subsection (2). Section 19(6) (and its Northern Irish equivalent) prevent a constable seizing material he has reasonable grounds to believe is legally privileged. In other words Subsection (4) means that where the constable cannot separate out the item he is able to seize from an item which is legally privileged he is able to remove both from the premises, e.g. where they are both on a computer disc. Subsection (5) sets out the powers of seizure to which section 50 will apply. One of these powers is s.28(2)(b) of the Competition Act 1998. This gives a power to take copies but not to take originals of documents. Subsection (6) means that whilst section 50 applies to that power it only enables those exercising it to copy material in order to examine it elsewhere to determine or separate out what in fact they would be entitled to copy under s.28 itself. It does not give them the power to seize original documents.

164.

Part I of Schedule 1 is a list of powers of seizure conferred by various legislation to which section 50 will apply.”

The Notes to section 53 provide:

“168.

This section sets out how the examination of the property seized under sections 50 and 51 should take place and what can be retained. Subsection (2) deals with the examination and subsection (3) sets out what material does not need to be returned. The aim is to enable the police and others to retain whatever they could have seized had the examination taken place on the premises. Subsections (3) and (5) permit the retention of inextricably linked material. This is material which it is not reasonably practicable to be separated from material that can be seized without prejudicing the use of that seizable material. For example, it means the police or others may retain a whole computer hard drive which contains a certain document which is evidence of an offence if the rest of the hard drive is needed to prove when that document was created, amended or deleted. Subsection (4) refers to giving the occupier or some other person with an interest in the property an opportunity to be present at the examination.”

The Notes to section 59 provide:

“176.

This gives anyone with a relevant interest in the seized property the right to apply to the appropriate judicial authority (as defined in section 64) for its return. It is hoped this will provide a quick and easy mechanism for challenging both the use of the new powers and, in certain circumstances, the exercise of existing powers. … Subsection (3) sets out the grounds on which an application for the return of the property can be made. On such an application the Court can order the return of material or, amongst other things, order that it be examined, for example, by an independent third party. Subsections (5)(b), (6) and (7) enable the police or other body in possession of the property to make an application to keep any material which they would otherwise be obliged to return if it would immediately become appropriate to issue a warrant enabling them to seize that material or to demand its production in the circumstances set out in subsection (7)(b). This means, for example, that the police will not have to return material which might be of value to them and then have to immediately obtain a warrant to seize it back. Subsection (8) means that the Court can also authorise the retention of not just what the police or others could seize under a warrant but also any material which is inextricably linked to it.”

The issue is whether the data that was copied by the Authority onto its own systems from the seized computer devices amounts to “seized property” which is capable in principle of being and should be subject to “return” under section 53 (2) and (3) CJPA 2001.

Mr Thomas QC for the Authority argues that under consistent case law: (i) There is no requirement (express or implied) on the Authority to specify the contents of the computer drives and other devices which they have seized and imaged, whether by an itemised list (which was the order applied for) or otherwise; (ii) the requirement to identify the seized property is satisfied by the cataloguing of what has been seized and retained (ie the identification of the storage devices) since these were the “objects or things” which were seized and this process was duly completed; (iii) the fact that there may also be ‘irrelevant’ material on the seized storage devices does not make the balance of the seized “objects or things” any less relevant as evidence in the investigation.

He relies upon: Regina (A and another) v Central Criminal Court and the Chief Constable of West Yorkshire Police (2017) 1 WLR 3567 (Footnote: ²) (“A v CCC”); R (H) v Inland Revenue Commissioners [2002] EWHC 2164 (Admin) (“RH”); [2002] STC 1354 (at paragraph [37]); R (Faisaltex Ltd) v Crown Court at Preston [2009] 1 WLR 1687 (at paragraphs [76]-[79]) (“Faisaltex”); R (Glenn & Co (Essex) Ltd) v Revenue and Customs Commissioners [2011] 1 WLR 1964 (at paragraph [25]) (“Glenn”); and R (Cabot Global Ltd) v Barkingside Magistrates Court [2015] EWHC 1458 (Admin); [2015] 2 Cr App R 26 (at paragraphs [38], [40] and [43]). In each of those cases the Court rejected the false analogy between a computer, hard drive or phone on the one hand and a physical filing cabinet. Storage devices were to be regarded as a single object or thing not a composite of many discrete items of property. For instance, in RH Stanley Burnton J stated:

“…the comparison of a hard disk with a filling 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 . . . If there is incriminating . . . 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.” [Emphasis added].

In the light of this case law the application the Claimants made before HHJ Brown was therefore misconceived. There is no basis for the assertion that there was a right to a detailed and itemised list of the copied contents of an electronic storage device.

At paragraph [67] of the judgment in A v CCC (ibid) Gross LJ emphasised the need for the parties to find “practical solutions, in accordance with the provisions of sections 50 to 61 of the CJPA”. In the present case, the Authority has made clear (paragraph 51 of the Acknowledgement of Service (AOS)) that it was willing to use search terms agreed with the Claimants to exclude clearly identifiable material which could be shown to be irrelevant to the investigation. Paragraph [51] of the AOS stated:

“It is accepted that the material could be reduced by the use of agreed terms. For example, the Claimants have informed the Respondent [CWAC] that some material may relate to two small companies which are not in any way connected to the energy business. It is reasonably practicable to exclude readily identifiable material of that kind by the use of search terms. However, what is not reasonably practicable is the proposal that there should be a positive selection of material by individual review of documents, which is the Order which the Claimants contended before the lower Court and in this application.”

Mr Marshall QC for the Claimants argues to the contrary. He says that the ruling in A v CCC and the cases cited therein are not relevant to the issues of construction arising in this case. However, the case law is relevant in various broader contexts in particular in identifying the competing interests arising where it is recognised that the rights of the individual loom large. The legislation should be construed in favour of the Claimants, the private citizens, for whom the execution of the warrant amounted to a very substantial and damaging intrusion into their private law business rights.

Further A v CCC highlights the fact that the provisions of sections 50 - 54 CJPA 2001 may lead to the abrogation of legal professional privilege where it is not reasonably practicable to separate the items which are properly the subject of that privilege from other items that fall within the terms of the warrant (per Gross LJ at pages [3583H]-[3584A]). This is (in substance) the same test as arises for consideration in the present case under section 53(3)(c) and (5) CJPA 2001. This provides an additional reason for a strict construction in favour of the citizen and, in this case, the Claimants. Legal professional privilege is a fundamental human right and any abrogation of it must be clear: see for instance R (Morgan Grenfell) v Special Commissioners of Income Tax [2003] 1 AC 563 at pages [615] – [616].

Next, the Authority has undertaken no “initial examination” or “sifting” whatever and is not prepared to do so. This is even though it was accepted during submissions that it could use various electronic techniques to reduce the material to be reviewed and to locate what fell within the warrants and what fell outside their scope. Its position is that it is not prepared to conduct a review of the material to determine what should be returned because it would have to engage in a manual review as a well as an electronic search to determine what was “relevant”. The judgment in A v CCC does not permit such an approach. The Claimants do not require and have never required a manual search or review to be conducted and have never suggested that this is needed as part of the “initial examination” or “sifting”. The Claimants observe that the Authority acted inconsistently in that during the earlier stages of this litigation the position of the Authority was that it could not conduct an initial examination because it was reasonably impracticable to do so. But now the Authority says that it is possible and that it would be prepared to do so.

Finally, it is evident from A v CCC that there is no practical difficulty in the application of sections 50 - 59 CJPA 2001 Act to the seizure and “return” of electronic documents and data. In that case for example the court proceeded upon the basis that through the “sifting” process documents subject to legal professional privilege would be identified and separated and could be returned (see pages [3583G] – [3584A]).

There is no authority four-square on the issue of the return of copies derived from lawful search and seizure exercises. There is though some guidance on the position arising from the execution of unlawful warrants from which a number of broad inferences might be drawn: (i) even in relation to the return of copies emanating from unlawful searches in the exercise of its discretion the Court might refuse to make such an order relying instead upon the ability of the Crown Court under section 78 PACE to ensure that no unfairness arises at any subsequent trial at which the evidence is sought to be adduced; (ii) it follows (from (i)) that in considering appropriate relief in relation to the fruits of an unlawful warrant the Court will take into account the remedies available at trial and will do this even though at the point in time at which the issue of the unlawful warrant is being considered no formal charges have yet to be brought; (iii) there are wide powers under section 59 CJPA 2001 to control the use of seized material, including copies; (iv) although there may be a reticence to order destruction of copies the possibility has at least been contemplated as falling within the powers of the High Court and/or the Crown Court under section 59 CJPA 2001.

In R (Cook) v Serious Organised Crime Agency [2010] EWHC 2119 (Admin) (“Cook”) the Court was concerned with an application for the destruction of copies made pursuant the execution of an unlawful warrant. At paragraph [18] the following was stated:

“18.

The relief sought is the return of the documents which I would grant. Mr Bowers seeks destruction of all the copies and an order that no derivative use be made of any knowledge gained as a result of the unlawful search and seizure. In relation to copies of the documents no authority has been cited for the proposition sought. Mr Bowers, who has considerable expertise, makes it clear that he knows of no authority, save that on occasion such orders have been made, although Miss Barton, who also refers to no authorities, points to examples where it has been conceded that documents can be kept. As Ouseley J expounded in argument, there is a difference between the documents themselves and the information which the documents contain.”

The Court in R (Cummins) v Manchester Crown Court [2010] EWHC 2111 (Admin) (“Cummins”) at paragraph [13] made the similar point to that in Cook, namely that no authority had been cited addressing the return or destruction of copies.

In R (Anand) v Revenue and Customs Commissioners [2012] EWHC 2989 (Admin) (“Anand”) at paragraphs [35] to [37], in a case also involving the challenge to the lawfulness of a search warrant, Lord Justice Pitchford observed that by agreement the original material obtained by HMRC in consequence of the search was to be returned. He noted that no application had been made by the Claimants for return of any of the derivative material, which HMRC had retained in consequence of taking images of the hard drives of the two computers and copies of relevant documents seized. He concluded that this was “… entirely the correct approach having regard to the observations” in Cook and Cummins.

R (Newcastle United Football Club) v Revenue and Customs Commissioners [2017] EWHC 2402 (Admin), was also concerned with copies taken pursuant to an unlawful search. The Court emphasised the broad supervisory power of the Crown Court under section 59 CJPA 2001:

“105.

Having heard argument on the issue of remedy, we wish to record only that HMRC appeared to us to advance powerful arguments for refusing relief beyond the quashing of the warrants. Specifically, HMRC argued that notwithstanding any defects in the warrants which we might have found, they should be permitted to retain images and copies of the material in any event on the ground that NUFC would have the right to seek exclusion of such material from any subsequent trial, relying on section 78 PACE, and that issue should be left to the trial judge to determine. Mr Nathan submitted that was the correct approach in the light of the observations made in the decisions of this Court in Cook v Serious Organised Crime Agency (hereafter "SOCA") [2010] EWHC 2119 (Admin), … R (Cummins) v SOCA [2010] EWHC 2111 (Admin) and R (Anand) v HMRC [2012] EWHC 2989 (Admin).

106.

In response to these arguments, Mr Lissack submitted that this was one of those rare cases where the Court should deny access to the documents in light of the defects in the warrant, relying in particular on Chatwani and R (Kouyoumjian) v Hammersmith MC [2014] EWHC 4028 (Admin) at [40]. This Court would take some persuading that this was such a rare case, or, given NUFC's acceptance that HMRC had not been guilty of any dishonesty or bad faith, and where the allegations, at their highest, were of mistakes and oversights in the presentation of the material to the circuit judge, that section 59 should not apply.”

In R (Chatwani) v National Crime Agency [2015] EWHC 1283 (Admin) at paragraph [136] Hickinbottom J (as he then was) recognised the breadth of section 59 CJPA 2001 and described it as the “norm” for the resolution of issues surrounding unlawful search warrants. Though he acknowledged that exceptionally the High Court would exercise its residual discretion to ensure justice and, for instance, prevent an agency deriving “any benefit from its wrongdoing”. In such case the Court might order “… the return and/or destruction of such material”.

R (Kouyoumjian) v Hammersmith Magistrates’ Court [2014] EWHC 4028 (Admin) at paragraphs [8] and [42] the applicant sought and obtained an order providing: “All material seized under the quashed orders and any copies made thereof shall be delivered to the offices of the solicitors for the claimants within 14 days of the date of this order."

There are three issues to consider: (i) Is the data that has been copied “seized property”; (ii) if so is it property belonging to the Claimant; and (iii), if so is it capable of “return”?

It is convenient to address issues (i) and (ii) together: Is the data that has been copied “seized property” and if so does it belong to the Claimant? The case of A v CCC concerned a mobile phone. The downloading of its contents were however injuncted pending the judicial review so that as of the date of judgment in that case the question for the court was only whether a single phone was one property or a filing cabinet comprising many different properties. The Court held that it was the former, a single item. The Court was not therefore considering what the position would have been had, for instance, the phone contents been downloaded and then printed off to be used as evidence or stored electronically. Equally, the authority relied upon in A v CCC makes clear that this analysis is without prejudice to copies: see RH cited at paragraph [56] above.

Prima facie, any act of copying would amount to a breach of copyright and the original owner would be able to assert the normal rights and incidents of property ownership over the copies. However, under the Copyright Patents and Design Act 1988 there are well established exceptions to copyright for copying in judicial proceedings and copying which is pursuant to the exercise of a statutory power (cf sections 45 and 50). Copying pursuant to a lawful warrant would appear to fall within one or even both of these exceptions. On this basis it could be argued that (i) the copy is not part of the “seized property” and (ii) in any event it is not the property of the original owner of the device. On the other hand, this might seem to be a very technical analysis of the Act. Standing back, the duty to return property which is not within the scope of the warrant, flows from the importance that the law attached to property rights and to the need to limit and control the intrusive power of search and seizure.

Section 63 CJPA 2001 seeks to address these concerns. Under section 63(1)(a) “… seize includes “take a copy of”, and cognate expressions shall be construed accordingly.” This would cover an officer who finding a (hard copy) document during a search takes an immediate (on site) photocopy or even an officer who takes the original away and photocopies it. Since, applying section 63, the copy amounts to “seized property” it is capable of being subject to the statutory duty to return it. There is no doubt that section 63(1)(a) addresses hard copies, and I can see no basis in principle or policy for distinguishing between a hard copy and a soft, electronic (stored) copy.

Section 63(1)(b) supports this conclusion. It states that: “… this Part shall apply as if any copy taken under any power to which any provision of this Part applies were the original of that of which it is a copy…”. Section 63 is in Part of the Act entitled “Powers of Seizure” and this includes sections 50ff. Accordingly, if a photocopy is taken of an original then sections 50ff apply to that hard photocopy as if it were the original. This is a deeming provision (cf “as if”) which equates the copy with the original. If the original belongs to its owner this would suggest that the copy has the same proprietary status as the original. Again, I see no principled basis for distinguishing between hard and soft copies.

Does the fact that case law treats a computer or phone as a single item undermine this analysis? In my view it does not. That analysis holds true until the point when the computer is interrogated, and a copy of a document contained therein is made. At that point the copy is either transferred onto the server of a third party (the seizing authority) or turned into a hard copy. Either way it now has an existence independent of the computer device from whence it came.

In my judgment, and applying a purposive construction of the CJPA 2001 (as the case law proposes), the act of copying creates a new “property” that has been “seized” from the original owner.

Next, issue (iii): Can the copy be returned? It is not easy to conceptualise how copied data that is stored on a third parties server can be “returned”. Once the storage device has been physically returned to its owner that owner then has the original in its possession and this includes data and documents stored thereupon. If the seizing authority transfers a copy back to the original owner (for instance by emailing it or printing it off and handing it over) then that is no more than an additional act of copying of the copy and the consequential sending of the copy to the person who already holds the original. In either event the seizing authority still retains on its computer a copy of the document.

In normal parlance the “return” of an item of property necessarily serves to deprive the returning party of any vestige of possession. If a seized vehicle is returned the police are no longer in possession of the vehicle or any vestige of it. But that is not so in relation to copied data held on computer devices.

This conundrum arises because of developments in computing and in legal principle which, perhaps, were not fully foreseen in 2001 when the CJPA was adopted. First, memory and processing capacities in computer and storage devices have grown vastly since 2001 and the evolution of search tools for data bases means that in many criminal cases data is never actually copied and then printed off into hard copy at all. Staggeringly large amounts of data can be held on a relatively small number of seized storage devices. When the CJPA 2001 was adopted storage capacity was far smaller and data on computers would normally have been copied into hard form for use in proceedings. But in contrast trials today are routinely conducted entirely electronically (ie without paper) via the Digital Case System (DCS). The problem also arises because of the evolving case law which, for good reason, permits warrants to be framed in terms allowing seizure of physical storage items, as opposed to the subject matter of the content stored therein. So, in the present case, the evidence placed before the judge to justify the warrants focused upon the alleged misconduct in the downstream part of the Claimant’s business operations. The Judge was persuaded that he should grant warrants permitting seizure of computer storage devices etc. But (and there seems to be no dispute about this) in so doing the warrants permitted the seizure of devices containing information about other parts of the Claimant’s business operations unrelated to the fraud allegations, such as upstream operations. When the contents of these devices were copied it therefore included material that was within the scope of the warrant but not necessarily directly relevant to the particular fraud investigation. The net effect is that the Authority copied and retained a vast amount of data some not relevant to the fraud investigation but which nonetheless was properly seized as being within the scope of the warrant.

This does not mean that relevance is wholly irrelevant in the decision to authorise the warrant in the first place. The point was addressed by Gross LJ in A and B v CCC (ibid) at paragraph [47]:

“47.

For my part, while it is difficult to generalise, there are significant advantages to the warrants – if suitably drafted, as discussed above - identifying the computers or phones sought under s.9 and Schedule 1, rather than a necessarily much lengthier list of the contents or classes of contents. I do not disparage the attractive attempt of Mr Bowers QC (for C, D and E), at para. 48 of his skeleton argument, to produce a list of the materials sought in this case - but I am not swayed by that list either to prefer it to a specification of the phones themselves or, still less, to regard the specification of the phones themselves as failing to satisfy the requirements of Schedule 1 or s.15(6)(b), PACE. Given its constitutional and practical importance, it is imperative that a warrant is capable of simple and practical execution (Energy Financing, supra) and is clear on its face. Having regard to the realities of a search, seeking specified items, things or articles rather than a list of electronic contents is potentially much quicker, more practical and less intrusive. It is also much less prone to misunderstandings on the day. The better place for the explanation and description of the contents or classes of contents sought is the application for the warrant before the Judge, where the applicant is in any event under a duty to give appropriate disclosure ….”

(Emphasis added)

Accordingly, the framing of the warrant and its approval by the Court takes account of relevance. Once approved it is thereafter to be assumed that the warrant is framed to catch, at least in a broad sense, relevant material. But, as observed, the broad nature of the relevance assessment made at the stage of the granting of the applications for the warrants also means that the devices later seized may well include material that goes beyond the narrower confines of the investigation in question.

Pulling the threads together if the copied data is properly to be considered “seized property” then it seems to me that it was Parliament’s intent that it should, at least in principle, also be capable of being returned. How can this be achieved through the wording of section 50ff CJPA 2001? In my view, once again applying a purposive construction of the Act, there are two ways to resolve this issue.

First, “return” may be construed as including within it the idea that no trace or residue of the returned property is to be left with the authority who is returning it. As such the only way in which copied data can be returned is by (a) restoration of the device in which the data is stored and (b) destruction of the copy (the trace). True it is that “return” does not naturally or easily also embrace destruction. But, nonetheless, this construction accords with Parliament’s intent and achieves the “practical justice” that the Court in A v CCC (ibid) identified as the interpretative lodestar.

Second, I would also endorse the suggestion made by Mr Marshall QC in argument that the question of removal or destruction can be addressed by the Crown Court under section 59(5) CJPA 2001 (see paragraph [47] above) which applies “… where anything has been seized in exercise, or purported exercise, of a relevant power of seizure”. Any person with a “relevant interest” in the seized property may apply to the Court for the return of the whole or a part of the seized property on the grounds set out in sub-section (3). Further, on such an application the Court has a power (“may”) to “give such directions as the authority thinks fit as to the examination, retention, separation or return of the whole or any part of the seized property.” Mr Marshall QC argued that the phrase “retention” was apt to cover non-retention. If a Court directs that an Authority be not allowed to retain copied data, then the only way in which that direction could be complied with would be through destruction or removal by deletion. I see the force in this. Directions relating to “examination, retention, separation or return” could take many forms, such as (non-exhaustively) directing non-retention (by deletion or removal), or non-inspection by requiring the Authority to retain the data but ring-fence it from examination by the Authority without the consent of the Court, etc. I therefore agree that there is power under section 59 for a Court to order deletion of copied material. In my view construing the Act to confer this power on the Court is consistent with Parliament’s intent that a careful balance is to be struck between the ability of investigators to investigate in the public interest and the right of individuals to be safeguarded against the exercise of intrusive powers.

The phrase “retention” in section 59(5) CJPA 2001 covers the situation that arises if property is seized which is found to fall outside the scope of the warrant but is, nonetheless, property which could have been seized for instance because it is relevant to the ongoing investigation. Under section 59(7)(a) CJPA 2001 express provision is made for the Court to sanction the retention of such material in such circumstances so it is therefore logical that section 59(5) would empower the Crown Court to sanction retention. This conclusion is supported by the terms of CPR 47.38 which lays down the procedure for the making of applications under section 59(5)). In CPR 47.38(5) an applicant is required to specify in the application why retention “…would be justified on the grounds that, even if it were returned, it would immediately become appropriate for that person to get it back…”. But section 59(5) is not limited to this scenario and I can see no reason why it should not go wider, if justice so requires.

I draw support for my conclusion from the pragmatic and purposive approach adopted in previous case law to issues of this sort under both PACE and the CJPA 2001 which extols realism and practicality. Under PACE it has been established that in the framing of a warrant for the search and seizure of computer equipment and mobile phones it is not necessary to specify the items within the computer and mobile phones which were being sought. It had been argued that the police, having identified those items in the warrant, could remove them in paper form or on a memory stick under section 20 PACE or section 50 CJPA 2001 and that therefore there was no justification for allowing warrants to be broadly framed by reference to devices and equipment. In Faisaltex Ltd (ibid) Fulford LJ measured this argument against practicalities. He rejected this proposition at paragraph [38]: "The fact that there may also be material that is irrelevant does not make the computer any less 'material' which is likely to be of substantial value to the investigation, as well as likely to be relevant evidence". In paragraph [40] Fulford LJ referred to the further consideration that the computers (and mobile telephones) would themselves be relevant evidence since investigators would have be interested not only in records relating to the transactions being investigated but also would "…. equally have been concerned to establish the timings, the pattern and the content of any communications between the suspects". The suggestion that items being sought (eg documents from within the computer memory) could be extracted from the computer on site and then taken away (under sections 19(4) and 20 PACE) was "unrealistic" and ignored the "very considerable practical problems" that would confront officers conducting searches on this basis. The power of seizure under section 50 CJPA 2001 did not "…invalidate the act of taking devices of this kind under a warrant …if there are reasonable grounds for believing that they may contain relevant evidence, albeit they might also contain irrelevant evidence…": Paragraph [43]. It was also observed that where a case involved a "wide-ranging and broad investigation" it was not easy to see how the search warrant could have been satisfactorily narrowed "…by reference to specific documents, types of documents or other detailed description of the material that was sought…": Paragraph [46]. To similar effect is the judgment in Glenn (ibid). These points were further endorsed and followed in A v CCC (ibid) at paragraphs [41] – [44]. In that case the desirability of a construction leading to “practical justice” was emphasised.

I also take comfort in the fact that the Attorney General’s Guidelines on Disclosure (2013) in section A27 on retention under the CJPA 2001 of seized material (that followed a section on the categories of material that may and should be retained) states: “...The balance of any digital material should be returned in accordance with sections 53-55 of the CJPA 2001 if seized under that Act”. The assumption is that residual copied digital material should be returned. Mr Thomas QC, for the Authority, in oral argument was also at pains to explain that the Authority, recognising the intellectual complications inherent in the CJPA 2001, wished to cooperate with persons whose data had been copied to find ways of filleting that material so as reduce it to that which was needed for the purpose of the investigation.

I proceed in this judicial review upon the basis that, in principle, the duty of the seizing authority does extend beyond restoration of the physical device and can includes copies of data extracted from seized items of property. This conclusion does not however mean that in every case the Court will necessarily order the “return” or destruction of copied data. That depends upon the reasonable practicability of the act of separation of the data: see Issue II below.

The second issue concerns the correctness in law of the Judge’s finding that the “reasonable practicability of separation” test was a practical and pragmatic test and not the more limited test of physical or technical separation.

The concept of reasonable practicability runs though, and acts as a caveat to, the entire regime governing the obligations and duties of authorities who are empowered to seize property: For instance:

Mr Marshall QC argues that the Judge erred because he rejected the argument that reasonable practicality was confined to physical or technical practicability. In this he argued that it was (or should be) common ground that it was perfectly possible (given time and resources, the extent of which were irrelevant) for the Authority to process the retained data using the Nuix software (see paragraph [29] above) and then determine which pieces of data were, and were not, properly within the scope of the warrant. He accepted that the prime illustration of data that was inseparable was meta-data ie the data which, for instance, sits behind a list or schedule and enables that listing or scheduling function to operate. It is sometimes described as “data about data”. Meta-data would be inseparable because without it investigators could not interrogate through search facilities the data base for data they were entitled to retain.

I do not accept this analysis.

First it is apparent from the statutory language that when the phrase “reasonable practicability” is used it means precisely that: practicability subject to a test of reasonableness. That which is practical is, by its terminology and nature, broader than that which is possible. It may be possible to segregate the data (by using appropriate search software and deploying extensive manpower and resources) but it may not be practicable to do so. The addition of a reasonableness requirement qualifies practicability further.

Second, Parliament intended the concept of reasonable practicability to have a single meaning throughout sections 50ff CJPA 2001.There is no support from the statutory language for the proposition that the test as used in this suite of provisions is to bear critically different meanings in different sections and parts. If Parliament had meant physical or technical possibility it would have said so; but it did not.

Third, it is apparent, when the group of sections are read as a whole, that reasonable practicability concerns factors which go well beyond physical or technical possibility. This is manifest from the list of “confined” criteria in section 50(3) (see paragraph [90(b)] above). It is also evident in the duty to consider the convenience of the person affected when the timing of the “initial” examination is being considered (see paragraph [90(d)] above). It is further evident from the phrase “in all the circumstances” in section 53(3)(c) (see paragraph [90(f)] above) which was (it seems to me) inserted by the legislature to make clear that the criteria to be taken into account were not only those in the “confined” list in section 51(3). It would follow, a fortiori, that if a “confined” list of criteria includes non-technical considerations then an unconfined list must also include non-technical considerations.

Fourth, Mr Marshall QC sought to argue by reference to the language of section 53(5) (see paragraphs [45] and [90(g)] above) which he said curtailed the scope of the inquiry under the section as a whole and excluded matters such as cost, time and resources. In my view this makes no sense when the provision is interpreted in the context of the section as a whole and in particular with section 53(3) which expressly states that it is “all the circumstances” which are to be take into account. Mr Marshall QC’s interpretation would jar with section 53(3) because it would curtail that which is expressly stated to be free of constraint. In my view these provisions must be reads conjunctively to ensure “practical justice”. This is achieved by reading the section 53(5) criteria as important considerations to be assessed but as part of the wider consideration of “all” the circumstances. But section 53(5) is not a test based on physical or technical considerations so that it does not in any event support the narrow construction advanced by the Claimants.

Fifth, the courts have when construing this legislation endeavoured to make practical sense of it and to give it workable expression. If the Claimants are correct, then it would have remarkable consequences. In this case there are in excess of 200 million documents and about 770,000 sound recordings. On the Claimants’ case the Authority must go through each item (using such software searching facilities as it has) and filter out and then chronicle and describe and justify any document not strictly within the scope of the warrant. It must perform this task quite regardless of (i) whether there is any practical utility in the exercise to either the Authority or the Claimants; (ii) the time to be taken; (iii) the costs entailed; and/or (iv), the impact on the investigation as a whole caused by what might be a major diversion of resources and disruption to ongoing work streams. In my view Parliament did not, when it so liberally sprinkled the expression “reasonable practicability” throughout the relevant provisions of the CJPA 2001, intend to countenance consequences such as these; rather the reverse. As is set out in relation to Issue III, the Judge accepted on the facts of this case that to compel the Authority to conduct a search of the sort demanded by the Claimant would have been hugely time consuming, expensive and disruptive, and for no discernible good reason.

For these reasons I conclude that the reasonable practicability test which permeates the relevant provisions is not confined to physical or technical considerations. These may play a part in the analysis, but they are by no means the only criteria for assessment. The Judge was correct in his analysis.

In his oral submissions Mr Marshall QC helpfully and concisely boiled down the issue. He submitted that the Judge erred in that he had insufficient evidence before him to support the conclusion he arrived at that it was reasonably impracticable for the Authority to separate the information which was properly retained, from that which might (arguably) not be. Mr Marshall drew our attention to the three witness statements prepared by Mr Childs. He in particular focussed upon the explanation given by Mr Childs as to the high effectiveness and utility of the Nuix software which could be applied to search the database. The fact that there were a very large number of documents and audio recordings to be reviewed was not indicative of the complexity of the task. The Nuix software could interrogate and search vast quantities of data. Scale and complexity were not synonymous. The Authority was thus exaggerating the difficulties confronting it. There was no material before the judge to support his conclusion and to the extent that there was material it made clear that a proper exercise of segregation was possible.

Mr Marshall QC also, in response to a question from the Court about the Claimant’s motivation, explained that the concern of the client was confidentiality. This arose because, he explained, in the past a particular individual employed by the Authority had acted improperly and his client was deeply concerned that there could be a breach of confidentiality by the individual or those friendly or connected with him. He also argued, though as a secondary factor, that the segregation and listing of the data was important so that the Claimants could know what, if any, further challenges it could make to the conduct of the Authority in retaining the data. Mr Marshall QC clearly contemplated that the Claimants would launch a further judicial challenge to the conduct of the Authority.

Mr Marshall QC drew our attention in the transcript of the hearing before the Judge to the fact that in his submissions Mr Thomas QC, for the Authority, took overnight instructions from Mr Childs as to the nature and extent of the exercise which would have to be conducted in order to comply with the order sought by the Claimant. Mr Marshall argued that this was, in essence, inadmissible hearsay. It was vague and unspecific. There was no clear demarcation between the relaying of instructions from Mr Childs and submissions which were made by Mr Thomas QC. In effect Mr Marshall contended that the quality of the evidence was simply not good enough and the judge erred in accepting it.

In response Mr Thomas QC pointed out that the order applied for required an itemised listing of each document retained together with a description of the document and a written justification for its retention. Mr Thomas QC pointed out that the application was (deliberately) framed so as to require not only the application of an electronic search programme to the data but, in addition, a manual review of each and every document so itemised. Mr Thomas explained that the Authority accepted that some material was identifiable but an individual review was, simply put, not feasible. Were it to be directed it would take many months if not years to complete at an enormous, albeit unquantifiable, cost. It would inevitably amount to an intolerable diversion of the investigatory process.

In these circumstances Mr Thomas QC submitted that the application before the Judge was framed so as to, in substance, bring the fraud investigation to a grinding halt.

As to the criticisms made of the manner in which the evidence of Mr Childs was advanced it was made plain to the Judge that in order to respond to newly adduced arguments of the Claimant, the Authority would need to obtain, overnight, instructions from Mr Childs. The following day Mr Thomas QC relayed the instructions given to him by Mr Childs. There was no objection to this process. There was no application for Mr Childs to be ordered to verify the evidence given by way of instruction through a witness statement signed with a statement of truth. There was no application on the part of the Claimants to cross-examine Mr Childs as to his evidence. There was no application for the matter to be re-listed for the issue to be re-visited, even though in the draft order placed before the Judge there was provision made for a further hearing and liberty to apply. In these circumstances no proper criticism could be made of the Judge for accepting the evidence given to him by way of instructions from Mr Childs.

In my view no criticism can be made of the judge. He was best placed to form a conclusion about the dispute before him. He had conduct of all prior proceedings (for example the application for authorisation of the warrants) and was well aware of the facts and matters that the Authority was investigating. He heard extensive submissions spanning two days on these issues. He had read the surrounding witness statements. This court would only interfere if it could be established that the judge acted outside of his (broad) margin of appreciation, took into account irrelevant matters, failed to take account of relevant matters, or erred in law. He did none of these things.

He was entitled in the circumstances to accept the evidence on instructions from Mr Childs. He was also entitled to accept the submissions made by the Authority that in order to comply with the application made by the Claimants the Authority would need to divert very substantial human and manual resources to the task. In my view not only was the judge (well) within his margin of discretion but he was correct.

I would add four additional points.

First, common sense indicates that an exercise to be applied to data of this magnitude involving human resources would take a very considerable amount of time, cost and resources and, inevitably, would entail a diversion of the investigation into a blind alleyway. This is common sense and the Judge was correct to arrive at the conclusion that he did.

Second, I do not accept the Claimant’s assertion that it has an interest in confidentiality in the order that it sought. In oral argument it was explained to us that the individual about whom the Claimants had concerns (see paragraphs [22]- [23] and [100] above) was no longer employed by the Authority. The Authority submitted to the Judge that the data was secure and the Judge accepted that explanation. There was no evidence before the Judge, and there is none before this court, to suggest that in any way data retained by the Authority is at any risk through improper conduct by an employee of the Authority. In any event even if the application to segregate list and account for each and every one of the documents comprised within the data had been made by the Judge it would, on any view, still leave the Authority in possession of a vast amount of data. The Claimant’s concerns about confidentially thus apply quite regardless of the success or failure of its application. It is also notable that the Claimants did not, at any point, apply to the Judge for an order that the retained data be kept separate or subject to particular confidentiality rules. If the Claimants had real, as opposed to imagined, concerns in this regard it could have applied for an order pursuant to section 59(5) CJPA 2001 which, in my view, would be sufficiently broad to empower the Judge to make such a direction. In short there was no real utility in the order sought which supports the Authority’s argument that it was designed to be disruptive.

Third, in a case where the storage devices have been returned the public interest in the Court regulating the retained data is much lower. The real concern of a business whose computer equipment has been seized is to have it restored as soon as possible so that it can re-commence operations. Once the equipment has been restored then the company has access to all of the data which has been copied. It knows what information is in the possession of the Authority. If it considers that the Authority is retaining more than it is entitled to, it can interrogate its own data and put a reasoned and particularised complaint to the Authority or to the court under section 59 CJPA 2001. The Claimants did not do that in the present case even though, on its argument, it is relatively straight forward to conduct the search necessary to generate the information.

Fourth, in the Attorney General’s Guidelines on Disclosure (2013) at paragraph [A26] it is said that one of the categories of material which may be retained is:

“Material that is evidence or potential evidence in the case. Where material is retained for evidential purposes there will be a strong argument that the whole thing (or an authenticated image or copy) should be retained for the purpose of proving provenance and continuity.”

Mr Thomas QC described this as the “golden” principle: Namely that a prosecutor should preserve all evidence so that provenance and continuity can be established if it is, at any point in time, challenged. This is a yet further reason justifying the Judge’s ruling.

In these circumstances the Judge did not err. This ground of challenge fails.

In their skeleton argument, but not orally, the Claimants sought an order that proper details be provided of the retained data. The application is made pursuant to section 21 PACE and section 52 CJPA 2001 upon the basis that the Claimants have a statutory right to the provision of an inventory of matters seized pursuant to section 21 PACE which states that a constable who seizes anything in the exercise of a power conferred by any enactment shall, if so requested by a person showing himself to be the occupier of premises on which it is seized or to have had custody or control immediately prior to the seizure, provide that person “with a record of what he seized”.

It is argued, further, that the Authority was at all times under an obligation under section 52(1)(a) CJPA 2001 to provide a written notice “specifying what has been seized in reliance on the powers conferred by that section”. It is contended that the notices received were so generic as to be meaningless. Once it is acknowledged that an individual electronic document is a discrete item of property under the CJPA 2001 each such document must be listed if retained. The duty to provide such particulars amounts to an essential safeguard to those who have been subject of the execution of a search warrant. In R(Dulai) v Chelmsford Magistrates Court [2013] 1 WLR 2000 Stanley Burnton LJ stated:

“Any search, and equally any seizure of property is a serious infringement of the right of the occupier of the premises searched and those who own or are interested in the property seized. Section 52 provides a valuable safeguard for those persons. A notice served under it provides a record of what has been seized and the information required to challenge.”

I do not accept these submissions. Given that the matter was not pursued orally I will set out my reasons briefly. First, this is not an application which was advanced to the Judge. It is not therefore a criticism that can be made of the judgment which is the subject of this judicial review. This reason, alone, suffices to reject the argument. In any event the duty to provide a search record pursuant to section 21 PACE was a duty falling upon the Lancashire Constabulary which was the body executing the warrants. The Constabulary did provide the necessary search records and examples are contained within the documents before the Court. They are not challenged in this judicial review. If the Claimant’s case is that the records provided by the police were inadequate under section 21 PACE they could have challenged the actions of Lancashire Constabulary, but they did not. The present proceedings, which are a claim for judicial review against Preston Crown Court, focus upon an entirely different defendant.

In any event section 21(1) PACE is a duty to provide “a record of what [was] seized” and there is no authority for the proposition that this particular statutory duty extends to the provision of a composite item by item breakdown of the contents of a computer disc. I accept the submission of the Authority that the proposition that the police were under a duty to list the contents of a mobile phone memory is both remarkable and unworkable in practice. The Claimants have had restored to them all of the computers servers and other electronic storage devices (subject apparently to one item which is in dispute) and they therefore know precisely what was seized.

For all these reasons this ground is refused.

The fifth matter concerns the Authority’s submission that there are alternative remedies available to the Claimant, in particular in the Crown Court pursuant to section 59 CJPA 2001, which it has open to it to ventilate the sorts of concerns and complaints that it now has. It is argued by Mr Thomas QC that this is a free-standing reason why judicial review should not lie.

By way of context to this issue I should record four concerns arising out of this litigation.

First, there is the concern that this Claim constitutes satellite litigation to undermine the investigation being conducted by the Authority. The justification advanced by the Claimants for the judicial review is said to be a concern as to confidentiality. This was advanced to the Judge who rejected it upon the basis that the data was safe with the Authority (see paragraph [22],[23] and [100] above). For reasons already given this in my judgment is an argument that lacks logic or merit.

The second concern lies in the scope of the application that was made to the Judge. I accept the submissions of the Authority that as framed and pursued it compelled human intervention on the part of the Authority. It is obvious that the allocation of human resources to the analysis of over 200 million documents and 770,000 audio recordings would be a vast, time consuming and expensive exercise and would distract and divert attention from the investigation. There is no material utility in such an exercise save to drive the Authority up a blind alleyway. The Claimants have the data, because the devices have now been restored to them, so they can conduct any investigation or interrogation of that data that they consider appropriate. In witness statement evidence it is indeed made clear that the Claimants have already indeed used the data on the returned computers in their dispute with the Authority. There is no relevant other interest, such as confidentiality, which can be prayed in aid to justify the scope of the direction. The Claimants have therefore pursued this judicial review to achieve a pointless result. It has the appearance of litigation for its own sake.

Third, the Claimants have commenced civil proceedings against the Authority. In a witness statement before the Court by Mr Newell it is said that in the light of the Authority’s conduct the Claimants have commenced proceedings against it for trespass to goods, conversion and for breach of its rights under the Human Rights Act 1988. These proceedings concern the Authority’s conduct during its investigation including: (i) its breach of the duty of full and frank disclosure during its ex parte application for the warrants; (ii) its seizure of property that it had no power to remove; and (iii) its failure to return the property as soon as reasonably practicable. The misconduct of the Authority has, it is alleged, caused considerable financial loss and the Claimants therefore seeks damages and declaratory relief to recognise that the warrants were obtained by material non-disclosure and that the rights of the Claimants pursuant to Article 8 and Article 1 Protocol 1 ECHR have been breached. The gravamen, therefore, of the civil claim for damages in the Queens Bench Division is that the warrants were unlawfully procured by, inter alia, material non-disclosures. However, as already observed, the Claimants have never applied to the Judge to advance the argument that the warrants were procured by material non-disclosure and breach of the duty of candour or were otherwise unlawful. Nor did the Claimants subsequently challenge the warrants as unlawful in a judicial review. There were, accordingly, two routes whereby the Claimants could have challenged the warrants and have them set aside and/or varied. They did not take either course of action. According to a chronology provided to the Court the civil claim for damages was commenced on the 19^th July 2017. The application pursuant to section 59 CJPA 2001 for an order that the Authority segregate the data, list it, describe it and return it was launched just days later on the 28^th July 2017. Accordingly, in July 2017 the Claimants launched a two-pronged attack against the Authority. In the first attack it sought damages, in the second attack it sought an order which, had it been granted, would have caused the Authority to be substantially diverted from its investigatory task. This, again, reinforces my concerns about the motivation behind this litigation.

Fourth, in the Claimant’s skeleton before the High Court they describe the litigation commenced against Messrs Scrivener and Mooney who were complainants to the Authority (see paragraphs [23]- [25] above). The impression conveyed is that the Authority was moved to act predominantly by these particular complaints. But the Case Summary information placed before the Judge, which justified the issuance of the warrants, reveals a much deeper and broader pattern of complaints and adjudications, for example by OFGEM and Ofcom: see paragraphs [22]- [23] above.

This is the litigation landscape which acts as the context to the present judicial review.

Analysis

In this case it has been open throughout to the Claimants to make more and better use of the powers available under section 59 CJPA 2001 to protect its interests. When the warrants were first issued it was open to the Claimants to seek urgent relief under section 59. They did not do so. The Claimants’ application under section 59 some twelve months later was a bold application to achieve very far reaching redress. There was no intermediate solution advanced by the Claimant. It seems to have been all or nothing notwithstanding that, as Mr Thomas QC has made clear, the Authority was prepared to adopt pragmatic half-way houses and work with the Claimants to identify irrelevant material. Nor did the Claimants seek to apply for judicial review or seek injunctive relief to restrain copying (as the Claimant did in A v CCC (ibid)).

Barring one point I would have been inclined to agree with the Authority that there were alternative remedies open to the Claimants which they should have exploited instead of embarking upon the present judicial review and that the present claim was part of an overall litigation strategy to tie the Authority up and stymie the ongoing investigation. The one point is that the issue of law as to the test to be applied under section 59 was decided against the Claimants by the Judge and this barred them from the relief that they sought. Had they been right in law this would have had a dramatic effect upon the investigation. Following the ruling of the Judge there was nowhere else for this point of law to be tested save the High Court by way of judicial review.

This is not a case of a collateral challenge to a decision to prosecute or a decision of a Judge in the course of a prosecution: See R v DPP (ex parte Kebelene) [2000] AC 326; and AL v SFO [2018] EWHC 856 (Admin) at paragraphs [65]–[67]. Here there is as yet no decision to prosecute. I therefore conclude that, notwithstanding my concerns about this litigation, the central issue of law arising in this case is a matter suitable for judicial review.

For all of the above reasons the claim for judicial review fails.

I agree.