Two Judgments were handed down by the Divisional Court of the King’s Bench Division in November 2023 concerning sections 50, 51 and 59 of the Criminal Justice and Police Act 2001 “CJPA”. The first case concerns the status of “copies” of items seized and the second the impact of Article 10 ECHR on the exercise of the jurisdiction under Part 2 of CJPA.
In Newcastle United Football Company Ltd “NUFC” v Commrs for HMRC [2023] EWHC 3021 (Admin) there had been a lawful search and seizure of material where sections 50 and 51 were used to seize both hard copy and digital records as there were reasonable grounds for believing that they might fall within the remits of the warrants issued under para 12 of Schedule 1 to the Police and Criminal Evidence Act 1984. Following Assessments for VAT and a money judgment for outstanding National Insurance, an order was made under section 53(3) CJPA at Blackfriars Crown Court for the review of the Seized Material to determine whether legal professional privilege applied. After the review HMRC confirmed that the criminal investigation against NUFC was closed but that the investigation indicated “tax non-compliance of a serious nature” and that the matter would be referred to their Fraud Investigation Service. While all hard copy material would be returned, HMRC would retain digital copies of material relevant to a potential civil investigation and share it with those responsible for such an investigation under section 17 of the Commissioners for Revenue and Customs Act 2005 “CRCA”.
NUFC applied under section 59(2) and or (5) of CJPA for the return of the retained material. All hard copy documents and electronic storage materials had already been returned so the application related to the retained digital “copies” that did not attract a claim for legal professional privilege. The application was refused but the Judge gave directions. There was then an application for the Crown Court to state a case.
The Divisional Court held that the “copies” were the property of HMRC and did not fall to be returned under section 22 of PACE which allows retention for so long as is necessary in all the circumstances. The content of the copies was protected by the laws of confidentiality and privacy interests in the content of the information contained in documents.
Further as the application had been refused the Judge had no power to impose restrictions making directions on the use of the copies under s.17 CRCA.
The second case R. (on the application of LXP) v Central Criminal Court and Commissioner of Police of the Metropolis (Interested Party) [2023] EWHC 2824 (Admin) arose following the grant, ex parte, of search warrants under section 9(1) of the Official Secrets Act 1911. When the application for the warrants was made the police claimed they were aware of their obligations in respect of journalistic material but that none of the material could fall within that protection as none of the suspects were journalists. Following execution of the warrants, the claimant asserted that some of the material seized was journalistic or privileged parliamentary materials. The parties agreed that the issue as to whether there was journalistic material should be determined under s.59 of the CJPA.
The police applied for a direction that it could proceed to examine the seized devices on the basis that the claimant was not a journalist or in the alternative an order that the retention and examination of the devices may continue on the basis that if the devices were returned to the claimant it would be immediately become appropriate to issue a warrant pursuant to schedule 1 paragraph 12 of PACE as provided in s59(6)-(7) of CJPA.
The police argued as its primary position that the material could not be journalistic if it was stolen material and secondly that if he was in possession of material from other suspects there was no evidence that it would be used for journalistic purposes. The Judge found a clear distinction between true journalistic material and material that had been stolen.
By the time of the hearing in the Divisional Court the police conceded that the claimant worked as a journalist and that material which had been unlawfully disseminated in contravention of the Official Secrets Act 1989 may nevertheless be “journalistic material”. The claimant conceded that “journalistic material” is not immune from compulsory order for seizure/disclosure in favour of the police subject to due process and consideration of all relevant Article 10 rights and freedoms.
The questions for the Divisional Court boiled down to whether the provisions of sections 56 and 59(5) of CJPA obviated the need for the judge to conduct a balancing exercise of Article !0 considerations and section 10 of the Contempt of Court Act 1981 in order to give directions in respect of seized materials that may contain journalistic material.
The Divisional Court decided that the Judge’s distinction concerning true journalistic material and stolen material was a “bold finding” and imported a qualification into section 13 of PACE where such material is defined. This led the Judge into error as he then did not consider Article 10, nor did he determine if there was evidence that the material would be used for journalistic purposes. As the directions he then gave were based on the material not being “true journalistic material” they could not be sustained and were quashed.
