Seizure by trading standards not unlawful despite CJPA breaches: High Court

A seizure of goods by trading standards officers was not unlawful even though they failed to comply with certain of their duties under the Criminal Justice and Police Act 2001, the High Court has ruled.

In Dulai & Ors, R (on the application of) v Chelmsford Magistrates' Court & Anor [2012] EWHC 1055, Essex County Council suspected that an occupant of premises on an industrial estate in Parkeston had sold and was selling rice described as basmati rice that did not comply with that description. 

It applied to Chelmsford Magistrates’ Court on 17 February 2011 for a warrant to enter the premises and to seize certain property.

A district judge granted the warrant in the terms sought. The council executed the warrant on 23 February 2011 and seized various items.

The traders who occupied the premises – companies involved in the business of food packaging and distribution – issued proceedings seeking judicial review of the district judge’s decision to issue the warrant. They also sought a review of Essex’s decision to enter the premises and its refusal to return the items seized.

The traders also applied for interim relief. Mr Justice Edwards-Stuart granted an injunction restraining the council from accessing property seized and ordering the return of specified items.

One of the companies, Flying Trade, and a director, Sukhjit Dulai, also applied to the Crown Court under s. 59 of the CJPA for the return of the property taken by Essex, on the ground that the warrant was unlawful and should not have been issued.

HHJ Walden-Smith found that the evidence provided by a trading standards officer at Essex (Mr Dyer) had failed to establish the requirements of section 2(b) of the Food Safety Act 1990.

She also concluded there was nothing provided to the district judge before the grant of the warrant that would have enabled him to be satisfied that a warrant should be issued.

The judge therefore granted the application on 23 March 2011 and ordered the return of the property.

Essex then issued a claim on 20 July 2011 for judicial review of HHJ Walden-Smith’s order. It argued that the Crown Court did not have jurisdiction to consider the lawfulness of the warrant, and that her reasons were irrational.

In the High Court the council conceded that it had not complied with the duty imposed by s. 52 of the CJPA in that it had not served the written notice required by the section on exercising the power of seizure. (It did so later, at the police station where Mr Dulai had been taken for interview).

Essex also acknowledged that the notice it served did not specify what had been seized, as required by subsection (1)(a).

Lord Justice Stanley Burnton, sitting in the High Court with Mr Justice Treacy, has now ruled in favour of the county council and quashed HHJ Walden-Smith’s ruling.

He said the council’s case – that the facts put before the magistrate were such that there were reasonable grounds to believe that the giving of advance notice of the proposed search of the traders’ premises “would defeat the object of the entry” – was well-founded.

Lord Justice Burnton said: “It is not clear to me that the judge addressed the question whether, if Mr Dyer's suspicions, for which he had reasonable grounds, were well-founded, there were reasonable grounds to believe that notice of a visit and search would defeat their object. I do not think it was necessary, although it would have been highly desirable, for Mr Dyer to explain why he considered that notice would defeat the object of the visit and search. The point was obvious.

“Furthermore, I think that some caution is required before concluding that the magistrate issued the warrant, with the express statement as to the feared consequences of giving notice of the search, without turning his mind to the issue. In my judgment, the judge's decision on this point cannot be supported. It was obviously wrong, and Wednesbury unreasonable.”

Lord Justice Burnton accepted that information that there had been seven previous visits to the premises, without a warrant, and that the council’s officers had been given entry and relevant documentation, should have been given to the magistrate.

The judge also acknowledged that had that information stood alone, it might have led to the refusal of the warrant.

But he pointed out that it would have been proper for Mr Dyer to comment on the visits. “What he would have said is what he subsequently said in his witness statement of 12 August 2011,” Lord Justice Burnton said.

“I appreciate that his statement is disputed by the traders; but it is not suggested that it is not his honest and genuine evidence. If Mr Dyer had made this statement to the magistrate, I do not think that he could reasonably have refused to issue the warrant. In other words, the disclosure that would have been made would not have been material.”

HHJ Walden-Smith dealt with the point too briefly, he said, adding that the judge applied a wrong test to the alleged non-disclosure by the Council, in failing to take account of what Mr Dyer could and would have said about the earlier visits.

On the issue of compliance with s. 52 of the CJPA, which imposes a duty on those seizing property in the exercise of powers conferred by sections 50 or 51, Lord Justice Burnton expressed surprise that the legislation did not specify what the sanction was for a failure by the person exercising the power of seizure.

The traders argued that any breach, or at least significant breach, of s. 52 rendered the seizure unlawful. The council submitted that the consequences of a breach would depend on the gravity of the breach and its consequences and could be taken into account by either the Crown Court or the Administrative Court.

Lord Justice Burnton admitted that this was not an easy issue to decide. However, he concluded that non-compliance with s. 52 did not necessarily render a seizure under s. 50 unlawful.

“It is a matter to be taken into account on an application under s. 59 [for the return, or the retention, of the seized property] or in judicial review proceedings or under s. 78 of PACE,” he said.

The judge added that in the present case, it was not suggested that Essex’s officers had deliberately flouted their s. 59 duty.

Lord Justice Burnton said: “The inference I draw is that they considered what they did as a sensible and practical means of providing the information required by that section. They failed to comply with their section 59 duty because they failed to pay due attention to its provisions, or were incorrectly advised as to its requirements.”

The judge pointed out that it was not suggested that the traders suffered any prejudice as a result of the council's officers' breaches of the s. 59 duty. “In these circumstances, I would hold that their breaches did not render the seizure unlawful,” he said.

Lord Justice Burnton also rejected the traders’ submissions about alleged defects in the warrant, such as too vague a description of the premises that were to be search or the substantive offences or offences for which the warrant was sought.

Philip Hoult