31 August 2016
3 min read
When dozens of French police raided Google's Paris headquarters it showed that anyone can be raided if business crime is suspected. This makes it imperative that everyone in business makes sure they are legally compliant. But that alone is no guarantee that you will not be raided – so you have to know what to do if and when it happens.
Most search warrants are issued under the Police and Criminal Evidence Act 1984 (PACE) or under the Proceeds of Crime Act 2002. Applicants must state the object of the search and convince the Court that it is necessary.
There must be reasonable grounds for believing that an offence has been committed and that there is material on the premises likely to be of substantial value to the investigation. There are numerous other procedural rules that must be followed – if they are not, a warrant may be quashed and seized property returned. This is an area offering potential for the shrewd defence team.
In R (Cook) v Serious Organised Crime Agency  1 WLR 144, the Serious Organised Crime Agency (SOCA) – now known as the National Crime Agency (NCA) – obtained warrants and conducted a raid. But as rules were contravened regarding schedules to the warrant not being left at the searched premises, the seizures were rendered unlawful and SOCA agreed to pay damages and legal costs.
A subsequent High Court hearing ruled that SOCA could not then reseize the material – a sharp reminder to the authorities of the need to follow procedures. In R (Cummins) v Manchester Crown Court  EWHC (Admin) 2111, SOCA again had to return improperly seized material. But this time, SOCA was able to regain the material using a Production Order under the Proceeds of Crime Act 2002 due to the nature of the offence.
The experience of brothers Robert and Vincent Tchenguiz proved a costly reminder to the Serious Fraud Office (SFO) of the need to follow raid procedures. Having suspected the brothers of irregular dealings with collapsed Icelandic bank Kaupthing, the SFO went to an Old Bailey judge to secure search warrants before raiding the brothers’ premises and arresting them both.
Subsequent Judicial Review challenges led to the Court heavily criticising the SFO for relying on a report into the Tchenguiz brothers that failed to consider many legal reasons for their actions in favour of an assumption of wrongdoing.
As courts must control the invasion of privacy when the State seeks to search the premises of an individual or a company, all material relating to the granting of a warrant must be provided to the Judge. The Judge must be personally satisfied that there are proper grounds for suspicion and the application should never be a rubber-stamping exercise.
In the Tchenguiz case, the SFO had failed to produce all relevant material. The SFO had shown what the court heard was a “lack of understanding’’ of the brothers’ dealings and had made at least one serious factual omission. The Court found that it was a “matter of great regret that the information adopted the tone it exhibited and did not clearly explain the arrangements”, adding that the SFO “did not explain the reality of the position”.
While involving large sums and immensely wealthy central figures, the main point that can be taken from Tchenguiz case can be applied to many others: if the authorities get it wrong when planning and executing a raid then a smart defence team can challenge them and stop them in their tracks.
If the High Court quashes a search warrant, it usually leads to materials being returned and possibly payment of damages – and a potentially fatal blow to the investigation. Yet Parliament has devised a way for the authorities to try and keep their investigation on the rails following a quashing of a warrant by the High Court.
Once a warrant is quashed, under s59 of the Criminal Justice and Police Act 2001, the police can apply to the High Court for permission to retain the material for a short time while it reapplies to the Crown Court for what is basically a new Order to justify the old seizure; as in R (Panesar) v Central Criminal Court  1 WLR 2577.
In such situations, the Crown Court can use its discretion to authorise the retention of the material seized – even though the original search was unlawful – if returning it would only make it the subject of a second warrant. This means that the authorities are effectively given a second chance to get it right. In R (Chatwani) v NCA  EWHC 1283 (Admin) it was held that this should, however, not be the case if there had been bad faith on the part of the police in securing the warrant.
Not all errors by prosecutors will lead to a search warrant being quashed. But courts do come down heavily on the prosecution if they have presented the Judge with a misleading picture. Some might think that s59 of the 2001 Act makes it pointless to challenge search warrants. But, based on our experience, we disagree.
If a warrant has been obtained unlawfully it can be quashed: that sends a signal to the police on how to behave. It also ensures that those being raided have the best chance of mounting the strongest defence to any subsequent charges…whether they are a giant like Google or an individual wrongly accused.
Storm clouds may be gathering but there may be good protection for the pro-active litigant.