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	England and Wales High Court (Administrative Court) Decisions
You are here: BAILII >> Databases >> England and Wales High Court (Administrative Court) Decisions >> Ahmed, R (On the Application Of) v York Magistrates' Court & Anor [2012] EWHC 3636 (Admin) (18 December 2012) URL: http://www.bailii.org/ew/cases/EWHC/Admin/2012/3636.html Cite as: [2012] EWHC 3636 (Admin)

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IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT IN LEEDS

		Leeds Combined Court, 1 Oxford Row, Leeds LS1 3BG
		18/12/2012

Mr Justice Hickinbottom:

Introduction

1. Ms Elizabeth Bagheri is employed as a Regional Investigator of the Yorkshire and Humber Trading Standards Group Scambuster Team, based in York. On 16 April 2012, on her application, a justice of the peace sitting at York Magistrates' Court issued a warrant pursuant to Regulation 24 of the Business Protection from Misleading Marketing Regulations 2008 (SI 2008 No 1276) ("the 2008 Regulations") authorising officers of Ms Bagheri's team to enter and search premises owned and occupied by the Claimant Mohammed Ahmed and his wife Tasmin Khalid, at Apartment 4605, 301 Deansgate, Manchester. That warrant was requested on behalf of the Second Defendant Council ("the Council") as the relevant enforcement authority. It was executed at about 7am on 24 April 2012, when various records, computers and other items were seized.
2. In this claim, issued on 31 May 2012, the Claimant seeks an order quashing that warrant; a declaration that the entry, search and seizure were unlawful; an order for the return of the items seized; and damages. He does so with the permission of Her Honour Judge Belcher sitting as a judge of this court, given at a hearing on 8 October 2012. She, properly, ordered the substantive hearing to be expedited; although, in the meantime, on 13 June 2012, Haddon Cave J gave interim relief in the form of an injunction restraining use of the material seized from Apartment 4605.
3. At the substantive hearing before me, the Claimant was represented by Alun Jones QC, and the Council by Miss Deborah Sherwin. In the usual way, the First Defendant Magistrates' Court has taken no part in these proceedings.

The Legislative Background

4. The 2008 Regulations came into force on 25 May 2008, to implement European Council Directive 2006/114/EC. They prohibit advertising that misleads traders, and make engagement in such advertising a criminal offence. Part 3 places a duty to enforce on local weights and measures authorities, such as the Council for its area. Part 4 gives the enforcement authorities particular powers to investigate whether there has been a breach of the Regulations, including powers to enter premises with or without a warrant.
5. Those Part 4 powers are in addition to those in Section 8 of the Police and Criminal Evidence Act 1984 ("PACE"), which gives a magistrate power to authorise entry and search of premises, but only when satisfied that there are reasonable grounds for believing that an indictable offence has been committed (Section 8(1)(a)); and then only on other specified conditions including conditions relating to the persons entitled to grant entry to those premises. By Section 8(1)(e), the magistrate has to be satisfied that at least one of the following Section 8(3) conditions or grounds is met:

"(a) that it is not practicable to communicate with any person entitled to grant entry to the premises;

(b) that it is practicable to communicate with a person entitled to grant entry to the premises but it is not practicable to communicate with any person entitled to grant access to the evidence;

(c) that entry to the premises will not be granted unless a warrant is produced;

(d) that the purpose of a search may be frustrated or seriously prejudiced unless a constable arriving at the premises can secure immediate entry to them."

6. Under Part 4 of the 2008 Regulations, powers to enter premises with or without a warrant arise from Regulations 23 and 24 which provide, so far as relevant to this claim, as follows:

"23 – (1) A duly authorised officer of an enforcement authority may at all reasonable hours exercise the following powers –

(a) he may, for the purpose of ascertaining whether a breach of these Regulations has been committed, inspect any goods and enter any premises other than premises used only as a dwelling;

…

(d) he may seize and detain goods or documents which he has reason to believe may be required as evidence in proceedings for a breach of these Regulations.

…

(7) Where an officer seizes goods or documents in exercise of a power under this regulation they may not be detained –

(a) for a period of more than 3 months; or

(b) where the goods or documents are reasonably required by the enforcement authority in connection with the enforcement of these Regulations, for longer than they are so required.

(8) An officer entering any premises under this regulation may take with him such other persons and such equipment as may appear to him to be necessary."

7. PACE also has provisions relevant to these powers, because Section 15(1) provides:

"This section and section 16 below have effect in relation to the issue to constables under any enactment, including an enactment contained in an Act passed after this Act, of warrants to enter and search premises; and an entry on or search of premises under a warrant is unlawful unless it complies with this section and section 16 below."

It is common ground that an officer of a 2008 Regulations enforcement authority such as the Council is "a constable" for these purposes; and that the so-called "safeguard" provisions of Sections 15 and 16 of the 1984 Act therefore apply to a warrant issued under Regulation 24.

8. Section 15 continues (so far as relevant to this claim):

"(2) Where a constable applies for any such warrant, it shall be his duty –

(a) to state –

(i) the ground on which he makes the application;

(ii) the enactment under which the warrant would be issued;

(iii) if the application is for a warrant authorising entry and search on more than one occasion, the ground on which he applies for such a warrant, and whether he seeks a warrant authorising an unlimited number of entries, or (if not) the maximum number of entries desired;

(b) to specify the matters set out in subsection (2A) below; and

(c) to identify, so far as is practicable, the articles or persons to be sought.

(2A) The matters which must be specified pursuant to subsection (2)(b) above are –

(a) if the application relates to one or more sets of premises specified in the application, each set of premises which it is desired to enter and search;

(b) if the application relates to any premises occupied or controlled by a person specified in the application –

(i) as many sets of premises which it is desired to enter and search as it is reasonably practicable to specify;

(ii) the person who is in occupation or control of those premises and any others which it is desired to enter and search;

(iii) why it is necessary to search more premises than those specified under sub-paragraph (i); and

(iv) why it is not reasonably practicable to specify all the premises which it is desired to enter and search.

(3) An application for such a warrant shall be made ex parte and supported by an information in writing.

(4) The constable shall answer on oath any question that the justice of the peace or judge hearing the application asks him.

(5) …

(6) A warrant –

(a) shall specify –

(i) the name of the person who applies for it;

(ii) the date on which it is issued;

(iii) the enactment under which it is issued; and

(iv) each set of premises to be searched, or (in the case of an all premises warrant) the person who is in occupation or control of premises to be searched, together with any premises under his occupation or control which can be specified and which are to be searched; and

(b) shall identify, so far as is practicable, the articles or persons to be sought

(7) …."

9. Section 16 provides, amongst other things, that the occupier or anyone else appearing to be in charge of the premises, if present, must be supplied with a copy of the authorising warrant at the time of the search (Section 16(5)(c)); or, if no one is present, then a copy of the warrant must be left at the premises (Section 16(7)).

Factual Background

10. The Council received complaints from trading firms that a number of associated companies (which, because of their various trading names, I shall refer to as the "WeDo Companies"), including EBH Web Limited trading as WeDoTrades ("EBH"), had been involved in a scam, whereby traders had been persuaded to make substantial payments for entry onto an advertising website on the basis of a variety of false claims about the quality and quantity of service they were to receive, including claims of links with large nationally recognised businesses which had no association with the operation at all. An investigation by Ms Bagheri's team ensued, under the name "Operation Toto". There was evidence that some of the companies were phoenix in nature; and that the Claimant and his wife were involved in the WeDo Companies, including evidence that the Claimant was engaged in the management of those companies.
11. There are other criminal proceedings against the Claimant, in the background. At the date of the application for the search warrant the subject of this claim, the Claimant was already facing charges for fraud brought by West Yorkshire CPS arising out of the provision of mortgages. There is an overlap between those proceedings and this claim; because, for example, it is alleged that £25,000 acquired as the result of the mortgage frauds was laundered through bank accounts of EBH. Further investigations into the finances of that company showed that substantial sums of money had been transferred to it from Euro Quality Lambs Limited, a company in the control of the Claimant's wife's family. Those payments had been made to enable the Claimant to buy properties for members of that family, which have in the event never been bought. The Claimant now faces further allegations of fraud in relation to those matters. On 30 April 2012, Mr Recorder Davey QC made a restraint order in respect of the Claimant's assets. An application to set that order aside was refused, and that order is now the subject of an appeal to the Court of Appeal (Criminal Division).
12. Returning to the Operation Toto investigation by Ms Bagheri's team into possible offences under the 2008 Regulations, she said that she attended the York Magistrates' Court on 16 April 2012, with her colleague Carolyne Dollins, to apply for a number of warrants under Regulation 24, including warrants for each of Apartments 4604 and 4605, 301 Deansgate, Manchester. In her statement of 11 June 2012, she said that, before the magistrates, she took the oath and explained to them the reasons for the application, with the assistance of an Operation Toto briefing document. She said that the justices did not read the briefing note, and they did not ask her any questions. In her statement of 11 June 2012, Ms Dollins confirmed the information contained in that statement.
13. However, in her later statement of 15 October 2012, Ms Bagheri expanded upon that, as follows:

"On 16 April 2012 I attended York Magistrates' Court with my colleague Carolyne Dollins to apply for a number of entry warrants under the provision of regulation 24 of the [2008 Regulations]. At approximately 2.20pm I took the oath and explained to the magistrates the reasons for the application. The reasons were outlined in the 'Operation Toto' briefing document which I took with me to court. When I applied for the warrants I summarised and expanded what was on the briefing document and explained to the justices the offences under [the 2008 Regulations] and how the information sought would prove the offences we were investigating under the above Regulations. I also explained to the justices that the Yorkshire and the Humber Trading Standards Scambuster Team and other agencies including the police were looking for computers and documentation relating to the business known as 'wedotrades' and other associated companies and businesses. I explained that myself and a colleague had been to wedotrades former business premise which was now vacant and found a computer tower and a small amount of business paperwork. I did not specify the names of the individuals whose domestic premises I was seeking warrants for or what the individuals did, rather I just explained in general terms about the individuals being directors of the associated companies and businesses including wedotrades, or individuals who whilst not necessarily directors, Yorkshire and the Humber Trading Standards Scambuster Team had intelligence and information were running the business of wedotrades. I told the justices that to give notice of our intention to enter the premises without a warrant would defeat the object of our visit as it was likely that any evidence relating to wedotrades could be destroyed and/or removed.

The justices also filled in the attached form whilst I was there to confirm all the necessary information was provided."

14. Julian Cundiff, the Magistrates' Court Legal Adviser who was advising the justices who considered the applications, in his statement of 15 October 2012, said that he could not remember the details, but recalled that the applications involved a number of individuals, computers and premises in Manchester. He continued:

"The Justices heard this information and utilising the North Yorkshire Justice Search Warrant Checklist they satisfied themselves as to the grounds as to the issue of such warrants namely that there were reasonable grounds for believing that Condition A in Paragraph 24(1) of the [2008 Regulations] was met. The Search Warrant Checklist is not designed for all warrants of entry and is mainly focused on Police Search Warrants."

15. The document to which Ms Bagheri and Mr Cundiff each refer is the North Yorkshire Justices' Search Warrant Checklist – a document which, as Mr Cundiff says, is clearly directed primarily at warrants issued under Section 8 of PACE: the terminology of the checklist is redolent of that provision. However, as a checklist for Regulation 24 warrants, it arguably has some value. For example, it requires consideration of whether the notice of the search has been given, and if so, why not, one possibility being that "the purpose of the search may be frustrated or seriously prejudiced unless [a constable] can secure immediate entry". That chimes to an extent with Condition D in Regulation 24(5).
16. In relation to the information upon which the application is based, the checklist says: "The test of a warrant is 'does the applicant have reasonable grounds to believe that….'". That is something on which Mr Jones specifically relies, and I shall return to it (see paragraphs 63-71 below).
17. Ms Bagheri applied for seven warrants, at the same time, all relating to Operation toto but in respect of different premises. The applications were made before a bench of three magistrates who, having heard Ms Bagheri, each signed some of the seven warrants granted.
18. The two warrants issued for Apartments 4604 and 4605 respectively were in similar form. At the foot of each was the rubric: "Search Warrant (Otherwise than for stolen goods) (Police and Criminal Evidence Act 1984, s15)" (emphasis in the original). They were each dated 16 April 2004, and timed at 14.30 and 14.35 respectively. They each read as follows (the only difference being in the Apartment number):

"IN THE CITY OF YORK

York Magistrates' Court

To each and all officers of the City of York Council Trading Standards Service and the Regional Scambuster Team

Full Name of Informant - Elizabeth Bagheri

Designation - Regional Investigator Yorkshire and Humber Scambusters

Who upon oath states that she has reasonable cause to believe that

(a) Mohammed AHMED and Tasmin KHALID

(b) Apartment 4604 [or 4605]

301 Deansgate

Manchester

M3 4LX

(including outbuildings and any vehicles)

(Has in his/her custody or possession)*

(c) Business documentation in relation to Wedotrades, Wedotrades Ltd, Wedogroup, Silvercom Ltd, Madiston Rothley Ltd, Wedomaintenance, EBH Web Ltd and Funicula Ltd. Computer hardware and software, which may be used to produce these documents. Other peripheral equipment such as mobile telephones and business documentation, financial accounts and evidence of money laundering.

YOU are hereby authorised to enter and search those premises on one occasion only within one month from the date hereof and search for and (seize any articles) named above under the provisions of

(d) Regulation 24 Business Protection from Misleading Marketing Regulations 2008 (The Regulations)

The grounds upon which the application is made is as follows:-

(e) There are documents on the premises which an authorised officer has power to inspect. That inspection may disclose evidence of a breach of the Regulations and that giving notice of the intention to apply for a warrant would defeat the object of the entry."

At the foot, each says: "Sworn before me this day", there is a signature, and then "Justice of the Peace".

19. The last paragraph of the warrant, quoted above, indicates that the applications were each was made on the basis that the magistrate could be satisfied that Conditions A and D were met, namely that:

i) there were reasonable grounds for believing that there were in Apartment 4605 items which an enforcement officer had power to inspect under Regulation 23(1) and that their inspection was likely to disclose evidence of a breach of the 2008 Regulations; and

ii) the giving of notice of an intention to apply for a warrant would defeat the object of entry.

20. The warrant was executed in the early morning of 24 April 2012. Nothing was seized from Apartment 4604. However, in Apartment 4505, Matthew Boxall (a Trading Standards Manager with the Council, who was employed in the raid) described how part of the apartment was partitioned off as an office. He said (Statement 12 October 2012, pages 1-2):

"I have never seen an office like it, there was so much technology in that area I could feel the heat coming from the equipment. There were three large wide screen televisions showing news channels. There were several computers. There were large telephone sets – the same style as the one I have on my desk at work. There were mobile phones and iPads on the desk…. A shelving unit partitioned the office area and the dining area."

There were also a considerable number of documents relating to the WeDo Companies. That general description of what was found is undisputed.

21. Although a number of people were involved in the search, and a considerable number of items seized, on the formal Record of Seized Property, Mr Boxall's initials appear under the column "Seized by" for all of the items.
22. Some of the items seized were quickly returned to the Claimant and his wife, as they were not required for Ms Bagheri's investigation. However, as I have indicated, since 13 June 2012, by order of this court, Ms Bagheri and her team have been injuncted from disposing of or using any of the material seized, and they have not done so. However, with others, the Claimant has now been charged with conspiracy to defraud arising out of the alleged misleading advertisement. There has been a preliminary hearing in the Crown Court, and a plea and case management hearing has been set down for February 2013. The Council wishes to be able to use the seized material in those proceedings.

The Grounds of Challenge: Introduction

23. Before I deal with the specific grounds of challenge relied on by Mr Jones, it would be helpful to make three general points about the statutory scheme.
24. First, it is a statutory scheme; and, as such, it sets out the requirements with which an applicant, and a court, must comply. Unlike Section 1 of the Magistrates' Courts Act 1980 and Rule 7.3 of the Criminal Procedure Rules 2012 (which set out what an information must contain when an application is made to the magistrates' court for a summons requiring a person to attend court or a warrant for arrest), there are no express requirements for what an information must contain when an application is made to the magistrates' court for a warrant under Regulation 24. However, Section 15(2) (and, where applicable, Section 15(2A)) of PACE sets out what an applicant must state when he makes his Regulation 24 application: it is expressed in terms of a "duty". Section 15(6) sets out what a warrant must specify. Section 16(5)(c) and (7) requires the warrant to be given to the occupier of the premises or be left at the premises (see paragraph 9 above). Those are the statutory requirements for an application for a warrant, and a warrant itself.
25. During the course of the hearing, I was referred to a number of authorities, some of which turned on the question whether there had been compliance with a specific express requirement of the scheme (e.g. R (Redknapp v Commissioner of the City of London Police [2008] EWHC 1177, in which the focus was on the statutory pre-conditions of Section 8(1)(e) and (3) of PACE: see paragraphs 45-46 below). However, none of the cases suggests that an application or information for a warrant, or a warrant itself, has to contain more than the matters expressly specified in the scheme. Of course, there may be other reasons why a warrant is bad – for example, applications must be ex parte (Section 15(3) of PACE), and consequently a warrant will be unlawful if it was obtained in circumstances in which the applicant gave less than the full and frank disclosure generally required by such applications (see, e.g., R (Rawlinson & Hunter Trustees) v Central Criminal Court [2012] EWHC 2254 (Admin)) – but, to that extent, the scheme is comprehensive and self-contained.
26. Second, it is well-established and uncontroversial law that the grant of a warrant to search and seize is a serious infringement of the liberty of the subject, which is never a formality and which always needs to be justified in the sense that the court must be satisfied that the statutory requirements have been established before the warrant is granted. Those requirements include any requirement for reasonable grounds for belief: it is insufficient for the applicant to say in the information that he believes the grounds are made out. The court itself must be satisfied that each condition is met.
27. Third, several of Mr Jones' grounds concern the relationship between Regulations 23 and 24. In my view, that relationship is clear. Regulation 23 allows for entry without a warrant, in specified circumstances, but does not extend to premises used only as a dwelling. Regulation 24 permits entry of any premises (including dwellings), in different specified circumstances, but only under the power conferred by warrant. That is as clear to me as it was to Davis LJ, when he construed the materially identical provisions of Regulations 21 and 22 of the Consumer Protection from Unfair Trading Regulations 2008 (SI 2008 No 1277) in R (Helidon Vuciterni Alsat Limited) v Brent Magistrates' Court [2012] EWCA 2140 (Admin) (see, particularly, [46]).
28. Turning now to the grounds of challenge relied upon, some would apply equally to the Apartment 4604 warrant, but nothing was seized under that warrant. Mr Jones focused exclusively on the warrant in respect of Apartment 4605, as does this judgment.
29. Mr Jones relied upon three broad grounds, namely (i) the warrant was bad on its face, (ii) the magistrate granting the warrant was wrong in law to do so, because he could not have been satisfied that the relevant conditions for issue had been met, and (iii) the manner in which the warrant was executed was unlawful. I shall deal with those grounds in turn.

Ground 1: The Warrant was Unlawful on its Face

30. Mr Jones submitted that the "warrant" relied upon, was no warrant at all. It was simply an information, apparently completed for the purposes of complying with Section 15(2) and (3) of PACE. It did not constitute a judicial authorisation to enter and search premises, and the signature of the magistrate did no more than record that the applicant for the warrant (Ms Bagheri) had stated on oath that she had "reasonable cause to believe" the matters set out in paragraphs (a) to (e).
31. This submission was not laboured by Mr Jones. He was right not to press it. In my judgment, it is unarguable.
32. Subject to discrete submissions dealt with below, Mr Jones accepted that the document purporting to be the warrant complied with all of the formal requirements of both Regulation 24 and Section 15(6) of PACE. However, over and above that, it describes itself as a "Search Warrant"; and, crucially, it is expressly directed to Ms Bagheri (and all officers of her team) and it expressly authorised them to enter Apartment 4605, and search for any of the items specified. After the recitation that Ms Bagheri had stated on oath that she had reasonable cause to believe that the Claimant and his wife of Apartment 4605 had in "his/her" possession the identified documents for which the search was proposed, the document continues:

"YOU are hereby authorised to enter and search those premises on one occasion only within one month from the date hereof and search for and (seize any articles) named above…".

That was under the hand of a magistrate, who had signed it.

33. That crucial wording in the document which I have quoted is to be contrasted with the information which formed the application for the warrant – a different document, signed by Ms Bagheri – which is in similar form, but those words are replaced with:

"Application is made for a warrant to enter and search those premises and search and seize any articles named above…"

At its foot that document says it is, not a "Search Warrant", but an "Information – Search Warrant".

34. The document purporting to be a Regulation 24 warrant for the search of Apartment 4605 complied with all the express regulatory requirements. Mr Jones' only complaint was that it lacked judicial authorisation. In my judgment, from the face of the document, that authorisation could not have been plainer.

Ground 2: The Warrant was issued without Jurisdiction

35. Mr Jones submitted that there was no jurisdiction to issue the warrant, because there was no basis in the information or otherwise upon which the magistrate could have been satisfied that the conditions required by Regulation 24 were made out.
36. Within this ground, several sub-grounds or strands were pursued, which can be conveniently summarised in the following six submissions made by Mr Jones:

i) Properly construed, Regulation 24 does not allow premises that are used only as a dwelling to be searched.

ii) The warrant was obtained on the basis of material non-disclosure by the applicant.

iii) Regulation 24 requires the magistrate considering the application for a warrant to be satisfied from the content of the information alone that the conditions or grounds required to be satisfied by Regulation 24(1)(a) and (b) are indeed satisfied.

iv) On all of the material before the magistrate, he could not have been satisfied that those conditions were met.

v) The warrant was defective because the magistrate was misdirected as to the correct legal test for Condition A in Regulation 24(2), in two respects. First, he was directed that the test was whether the applicant had reasonable grounds for believing Condition A was met, whereas Regulation 24 requires the magistrate to be satisfied that there are such reasonable grounds. Second, Condition A requires the magistrate to be satisfied that inspection of the specified items "is likely" to disclose evidence of breach of the 2008 Regulation, whereas the warrant referred to only "may" disclose such evidence.

vi) The warrant was defective, because it did not state which of conditions C, D or E in Regulation 24 had been met.

I will deal with these submissions in turn.

First Submission

37. In his written grounds, Mr Jones suggested that "the premises" identified in Regulation 24(1) refers back to the premises mentioned in Regulation 23, i.e. "premises other than premises used only as a dwelling"; so that Regulation 24 does not confer any power of search over dwellings used only as such. On that basis, the 2008 Regulations as a whole confer no power to search such premises.
38. However, for reasons I have already in large part given (see paragraph 27 above), that submission was found to have no force in Helidon (see, especially, [50]-[51]); and Helidon is not only binding on me, but also, if I might respectfully say so, it is clearly correct. Regulation 24 is not dependent or subordinate to Regulation 23; and Regulation 24 refers expressly to "any premises" (emphasis added). The precise requirements of Regulation 24 make clear that the scheme contemplates entry into dwellings for the purposes of search and seizure. To interpret that regulation in the manner suggested by Mr Jones goes against the obvious structure of the 2008 Regulations, but also against the clear wording of Regulation 24 itself; and would serve as an encouragement for the unscrupulous to store at home documents evidencing the wrongdoing at which the regulations are aimed.
39. At the hearing, Mr Jones, whilst not conceding the point, did not seek to persuade me not to follow Helidon on this issue. For the reasons I have given, I am pleased to follow it.

Second Submission

40. In his skeleton argument, and in the light and heat of Helidon, Mr Jones changed tack. He submitted that if, contrary to his first submission, Regulations 23 and 24 were independent, then the warrant was unlawful by dint of material non-disclosure. At the time of the application, the applicant had reason to believe that Apartment 4605 was used for a purpose other than as a dwelling (confirmed in the Council's Summary Grounds, at paragraph 10) – although the flat was in a residential block, the applicant thought there were grounds to believe that it was being used to conduct the trade of EBH, and in particular unlawful trade contrary to the 2008 Regulations. If used for that other, non-dwelling purpose, then the Council could – and, Mr Jones submitted, should – have used its Regulation 23 power to search and seize, without applying for a warrant. It is a lesser power. At least, Mr Jones submitted, the applicant was under a duty to disclose to the magistrate that she believed the premises were used for a non-dwelling purpose, because that might have prompted the magistrate not to exercise his discretion to issue the warrant. He might reasonably have considered that the Council ought to use its lesser Regulation 23 power. The warrant ought to be quashed on the basis of that material non-disclosure.
41. That submission is, in my view, based upon a false premise. The power of entry and search under Regulation 23 does not arise if the authority has a reasonable belief that premises are being used for a non-dwelling purpose: it arises only if the premises are in fact "premises other than premises used only as a dwelling". That is a hard-edged requirement. The applicant may have had good reason to believe that the apartment was being used for the purposes of the Claimant's business as well as a residence; but she properly required the comfort of a warrant because, had she entered the premises and, contrary to her belief, the flat was only used as a dwelling, the entry would have been unlawful. In the context of the scheme, not disclosing that there are grounds for believing that premises are being used for non-residential purposes is not a material non-disclosure.
42. Of course, if the premises were being used for non-domestic purposes – which, in the event, they were (see paragraph 20 above) – Ms Bagheri could have entered and searched them under Regulation 23, without a warrant and without supplying the Claimant with any written basis for doing so. That substantially undermines the merit of this submission.
43. In any event, I am unpersuaded that the warrant was obtained on the basis of any material non-disclosure.

Third submission

44. Mr Jones submitted that, before he is entitled to issue a warrant, a magistrate must be satisfied as to the matters in Regulation 24(1)(a) and (b) by reference to what is said in the "written information on oath", and that alone. That submission was put on two bases.
45. First, without perhaps pinning his colours firmly to this particular mast, Mr Jones suggested that, in respect of applications for any search warrant, must contain material sufficient to persuade a magistrate that the relevant requirements have been met. For that, he relied upon Redknapp (cited in paragraph 25 above), a case concerning a warrant under Section 8 of PACE, in which, after deploring "slipshod completion of [warrant] application forms" and stressing that a search warrant should never be a formality because it authorises an invasion of a person's home, Latham LJ said (at [13] and [16]):

"All the material necessary to justify the grant of a warrant should be contained in the information provided on the form. ….

[I]t is wholly unsatisfactory, where the validity of the warrant is in issue, to be asked to rely on anything other than the application itself, and if necessary, a proper note or record of any further information given orally to the magistrate…".

46. However, Redknapp concerned the express statutory requirements for a warrant, the ground of challenge put forward by Mr Jones for the claimants in that case being that the statutory preconditions of Section 8(1)(e) and (3) (see paragraph 5 above) had not been met. The printed standard form in that case identified each of the four conditions set out in Section 8(3), and directed the applicant to delete whichever was not applicable. None of the alternatives had been deleted. The court held that the failure of the warrant to identify which of the Section 8(3) grounds was being relied upon was fatal. That was why the warrant was held to be unlawful. Latham LJ's comments were made in that context. That case is not authority for the much wider proposition now relied upon by Mr Jones, that the magistrate must be satisfied as to statutory requirements for a warrant (and, in particular, a warrant under Regulation 24) by reference only to the contents of the information. Indeed, paragraph 13 of Latham LJ's judgment makes clear that the court considered that the police officer in that case could have stated in his witness statement that he identified to the magistrate which of the Section 8(3) grounds was being relied upon: the problem for the application was that, although the police officer could have done so, in fact he did not. Redknapp says (in my respectful view, uncontroversially) that there needs to be a written record of the basis of the application, in the sense of identifying all conditions, grounds and requirements that the applicant seeks to rely on (which is, in truth, no more than Section 15(2)(a)(i) of PACE writ large); but not the evidence by which he seeks to show they are met.
47. Consequently, Redknapp does not assist Mr Jones in this case: because, subject to the matters with which I deal below in relation to his fourth submission, he does not suggest that the material before the magistrate did not set out the basis of the application in that sense.
48. Second, rather than the similarity between the application for a Section 8 warrant and that for a Regulation 24 warrant, Mr Jones relied upon a specific difference in the wording of the provisions; and submitted that, even if material sufficient to satisfy the requirements of a Section 8 warrant did not have to be in the information, such material does have to be included in the information applying for a Regulation 24 warrant. He submitted that the wording at the beginning of Regulation 24(1) ("If a justice of the peace by a written information on oath is satisfied…" with regard to the specified conditions (emphasis added)) meant that the magistrate must be satisfied that the relevant conditions are met from the content of the written information, and that alone.
49. In support of that submission, Mr Jones relied upon, not only the words of Regulation 24(1) I have highlighted, but also authority and policy.
50. So far as authority is concerned, he again relied upon Redknapp; but, leaving aside the point that Redknapp is a Section 8 case (and therefore it works, not for, but against the distinction he seeks to draw), Redknapp does not support the proposition that any warrant must include material sufficient to persuade a court that the relevant grounds, conditions and requirements are met, for the reasons given above.
51. Mr Jones also relied upon the form of warrants in other reported cases, such as that in Helidon (quoted at [11] of that judgement), which set out some of the facts upon which the application is made in some detail. Of course, the information might descend to that level of detail; indeed, it might be helpful to the magistrate where it does so. But that is different from saying that an information that does not contain all of the facts and/or evidence relied upon is defective to the extent that any warrant granted on the basis of it is unlawful. The information in support of the information in R (Dulai) v Chelmsford Magistrates' Court [2012] EWHC 1055 (Admin), a case involving a warrant issued under Section 32(2) of the Food Safety Act 1990 to which I was referred, was in very short form (see [16] of the judgment of Stanley Burnton LJ), although it was supplemented by a witness statement from an trading standards enforcement officer. No adverse comment was passed by the court on that form of information.
52. With regard to policy, it is essential, Mr Jones submitted, that the owner/occupiers of the premises to be searched know, in writing, the material upon which the warrant was granted, so that they are able to challenge that basis if it is wrong. The policy considerations in favour of the construction Mr Jones put forward are, he submitted, "overwhelming". However:

i) Although applications for warrants are required to be ex parte (Section 15(3) of PACE), the statutory scheme does not require service on the occupier of all the material used in support of the application: it requires only the supply of the warrant (Section 16(5)(c) and (7): see paragraph 9 above).

ii) In any event, there seems no reason why the requirements for an application for a Regulation 24 warrant should be so much more onerous than for a Section 8 warrant: I do not accept that the additional requirement for the latter – that the applicant must have a reasonable belief that an indictable offence has occurred (as opposed to merely having reasonable grounds for believing that inspection of documents at the premises is likely to disclose evidence of a breach of the 2008 Regulations) – is a distinction that would warrant such a difference in treatment, as Mr Jones submitted.

iii) Further, in respect of the 2008 Regulations, Regulation 23 allows an enforcement officer to enter someone's home, if it is also used for another purpose than as a dwelling; and enter it without a warrant, and without any paperwork supporting the entry. A warrant is only required when the premises to be searched are not in fact use solely as a dwelling. It is far from obvious that Parliament through Regulation 24 intended those objects of warrants whose properties are searched to have written information of all the facts and/or evidence upon which the magistrate's decision is based, but those who use their home for other purposes to have no written basis for the search at all.

53. In my view, the answer to this submission, as I suggested earlier, lies in the terms of the scheme, which set out the requirements for an application for a warrant. For the purposes of Regulation 24, an information is an application form. Section 15(2) and (2A) of PACE set out what an applicant must state when making any application. In respect of an application, the applicant has no burden other than providing the information required by those provisions. It is true that those provisions require a statement by the applicant of the grounds on which he makes the application (Section 15(2)(a) of PACE); but they do not require the provisions of all facts and/or evidence in support of those grounds in the written information.
54. In respect of all warrants to which it applies, Section 15(3) of PACE requires an application for any warrant to be "supported by an information in writing". In my judgment, the important words in Regulation 24(1) upon which Mr Jones has focused ("If a justice of the peace by a written information on oath is satisfied…") are the words "on oath". In my view, those words effectively serve the same purpose as the words in the powers to issue a warrant found in Section 32(2) of the Food Safety Act 1990, the subject of consideration in R Dulai: "If a justice of the peace, on a sworn information in writing, is satisfied that there is reasonable ground for entry into any premises…." (emphasis added). They require the information, which should set out the statements required of the applicant by Section 15(2) of PACE, to be sworn (although, as Redknapp indicates, even that can be supplemented by other evidence on oath from the applicant, duly recorded in writing). They do not require the information to include all of the facts and/or evidence upon which the applicant relies; nor do they require the magistrate to restrict his consideration of whether the relevant statutory requirements are met to the content of the information.
55. Save for particular exceptions, Mr Jones accepted that the material provided by the applicant did satisfy those requirements. I deal with those exceptions in the fourth submission. There is no wider ground of challenge.

Fourth Submission

56. Even if the magistrate was entitled to consider all the material before him, Mr Jones submitted that, on that material, the magistrate could not have been satisfied that the relevant statutory conditions were met.
57. As I have already indicated (see paragraph 19 above), the application relied upon Ms Bagheri satisfying the magistrate as to two Regulation 24 conditions, that:

i) there were reasonable grounds for believing that there were in Apartment 4605 items which an enforcement officer had power to inspect under Regulation 23(1) and that their inspection was likely to disclose evidence of a breach of the 2008 Regulations (Condition A); and

ii) the giving of notice of an intention to apply for a warrant would defeat the object of entry (Condition D).

58. With regard to Condition A, again as I have already described, Ms Bagheri in her 11 June 2012 statement said that the magistrates did not read the background paper she had with her, nor did they ask her any questions. I accept that the information alone – or, even, the information and the briefing document alone – even if read by the magistrate, would have been insufficient properly to persuade him that the statutory conditions had been met.
59. But, Ms Bagheri's statement of 15 October explained that she gave evidence on oath before the magistrate, explaining why the warrants were required. I have already quoted that statement (paragraph 13 above). Ms Bagheri said that she summarised and expanded on the contents of the briefing document, explaining how the items sought – mainly in the form of documentation and computers relating to the WeDo Companies and their trade – would prove the 2008 Regulations offences she was investigating, which she also explained. She explained how they had already been to what was understood to be the business address for the companies, and that had effectively been vacated; and that the individuals whose premises for which they sought warrants were directors and managers of those companies. In respect of Condition D, she told them that she considered:

"… to give notice of our intention to enter the premises without a warrant would defeat the object of our visit as it was likely that any evidence relating to wedotrades could be destroyed and/or removed."

60. Mr Jones submitted that I cannot – or, at least, should not – accept that evidence: there is no contemporary note of the oral evidence she gave, and her post-event statement is self-serving. He relied upon Redknapp (see paragraph 44 above); and particularly Latham LJ's entreaty that:

"[I]t is wholly unsatisfactory, where the validity of the warrant is in issue, to be asked to rely on anything other than the application itself, and if necessary, a proper note or record of any further information given orally to the magistrate…"

61. However, each case must be considered on its own facts. As I have said, Latham LJ was there considering the statutory requirements that were required to be met, and not the evidence in support of them. In that case, in a number of crucial places (including the conditions in Section 8(3) upon which reliance was placed), alternatives as to the grounds on which the warrant was sought and then granted had not been deleted: that was, in the court's mind, crucial (see [16]). In this case, there were no such deficiencies in the information. Whilst I accept that it may be good practice for a proper note to be taken of the evidence given in support of an information, insofar as that is not already in writing – and no such note was taken here – that is not a mandatory requirement of the scheme.
62. On all of the evidence before me, I accept Ms Bagheri's evidence in her statement of 15 October as to what information she gave the magistrate at the hearing. I do so in the light of the terms of the information and warrant themselves – the latter indicating that the magistrate was satisfied that the conditions were met – and the evidence of Mr Cundiff that the conditions were met. Whilst such mere assertions will not be usually sufficient if standing alone, that evidence does support that of Ms Bagheri. Together, they are sufficient to persuade me that, subject to specific matters raised by Mr Jones with which I deal below, the magistrate did have sufficient material before him, in sworn form, to be satisfied that the relevant statutory conditions were met.

Fifth Submission

63. Mr Jones submitted that the warrant was defective because the magistrate was misdirected as to the correct legal test for Condition A in Regulation 24(2), in two respects.
64. First, he submitted that that the magistrate misdirected himself – or may have misdirected himself – because the checklist to which I have referred states that: "The test of a warrant is 'does the applicant have reasonable grounds to believe that….'". The statute and regulations require the magistrate to have reasonable grounds; whereas the checklist says that the requirement is that the applicant has reasonable grounds; and the checklist at least encourages the magistrate to treat the matter as one of credibility: "Do I believe the applicant when she says…". That approach is unlawful.
65. However, again, I am unpersuaded by this submission.
66. I disagree that the checklist does encourage the magistrate into a forbidden line of thinking. Whilst I appreciate that Regulation 24(1) is put in terms of the magistrate being satisfied that "there are reasonable grounds for believing that Condition A… is met…", whether there are such reasonable grounds is an objective question: there are either reasonable grounds or there are not. It would of course be wrong to put the question the magistrate has to consider in the subjective terms of whether the applicant believes that Condition A or B is met – but that is not the question posed by the checklist, which is whether the applicant has reasonable grounds to believe that one of those two conditions is met. The reference there to "the applicant" appears to be grammatically and logically otiose – but I am not persuaded that the terms in which the question is put would encourage the magistrate to consider the question he has to consider in inappropriate subjective terms.
67. In any event, on the evidence before me, whatever the terms of the checklist, I am satisfied on the evidence before me that the magistrate did not succumb to any temptation the checklist may possibly have put in his path. The terms of the warrant set out the ground on which the application was made (i.e. on the ground in Condition A), and that seems to me quite clearly to indicate that the magistrate was satisfied that the ground had been satisfied. In any event, the evidence of Mr Cundiff is that the magistrate himself was satisfied that Condition A was met. His evidence is, as I understand it, that he advised them properly as to the approach. I accept that evidence.
68. Second, Mr Jones submitted that the magistrate appears to have misdirected himself because Condition A requires the magistrate to be satisfied that inspection of the specified items "is likely" to disclose evidence of breach of the 2008 Regulations, whereas the warrant refers to only "may" disclose such evidence.
69. I have found this ground of challenge the most difficult; and it has caused me considerable concern. However, after particularly careful consideration, I am not persuaded by it. I am satisfied that the magistrate did, in fact, apply the correct statutory test, despite the wording in the warrant.
70. In coming to that conclusion, I have particularly taken into account the following:

i) The wording of the warrant under consideration suggests that one of "the grounds of which the application [was] made" was "that inspection [of the documents sought] may disclose evidence of breach of the [2008] Regulations…". However, I have quoted Ms Bagheri's evidence relevant to this issue above (paragraph 13)., evidence which I accept. She said:

"When I applied for the warrants I summarised and expanded what was on the briefing document and explained to the justices the offences under [the 2008 Regulations]…".

Although the magistrate did not read the briefing paper, that indicates both the application was both made, and explained to the magistrate, in the terms of the briefing paper. The briefing paper made clear that Regulation 24 required documents to be identified the inspection of which "is likely to disclose evidence of a breach of [the 2008 Regulations]". On the basis of that evidence, I am satisfied that she explained the requirements of the regulation to the magistrate in the correct terms of "likelihood".

ii) Mr Cundiff's evidence on this point is not strong; but it is that the magistrate was satisfied that Condition A was met.

71. On the basis of that evidence, I am satisfied that, despite the words used in the warrant, Ms Bagheri explained the test in the correct terms, and the magistrate considered the application on those terms.
72. Although of course not relevant to the validity of the warrant, it again comes as some comfort that, even without any evidence obtained as a result of the search warrant (frozen by the Order of 13 June 2012), the Claimant has been charged with conspiracy to commit offences under the 2008 Regulations.

Sixth Submission

73. Finally, in respect of this ground, Mr Jones complains that the warrant does not say which of grounds C, D or E was met.
74. However:

i) The warrant does say, in paragraph (e), that the application was made on the basis that, by giving notice of the intention to apply for a warrant would defeat the object of entry. Ms Bagheri said (see paragraph 13 above):

"I told the justices that to give notice of our intention to enter the premises without a warrant would defeat the object of our visit as it was likely that any evidence relating to wedotrades could be destroyed and/or removed."

I accept that evidence.

ii) In any event, in the circumstances of this case, where seven informations were made for seizure of documents and computers in relation to a suspected major internet fraud, at the same time, in the circumstances I have described, it is obvious that notice of entry would have alerted those who occupies the various premises and would have defeated the object, such that it was unnecessary formally to state that in the application or warrant (see Dulai at [43]).

75. In all of the circumstances of this case, it is clear that the application was made on the basis of Condition D, and that magistrate was satisfied that Condition D had been met.

Ground 2: Conclusion

76. Therefore, in relation to this broad second ground, in all its strands, in my view there is no evidence upon which I could be satisfied that the justices did not perform their judicial function with a proper approach and with proper diligence. Certainly, on the evidence I do have, for the reasons I have given I am satisfied that they did.

Ground 3: The Execution of the Warrant was Unlawful

77. I can deal with this ground shortly.
78. Mr Jones submitted that, under the warrant, Ms Bagheri's team could enter and search, but not seize. However, he gracefully and properly conceded that that this court is bound by Helidon (see, particularly, [44]-[49]) to find that the warrant did include a power to seize. I am bound by Helidon; but, again, lest it be thought that it is only by virtue of precedent that I find against Mr Jones on this ground, I should say that, even without Helidon, I would have been against the ground for the reasons eloquently and persuasively set out in Davis LJ's judgment in that case. He emphatically disagreed with the submission now made by Mr Jones (see [45]). So, I am afraid, do I.

Conclusion

79. Therefore, I do not consider any of the Claimant's grounds to be made good. I conclude that the warrant was valid, and the search that was performed under it was therefore properly authorised and lawful.
80. As a result of those findings, I need not consider further submissions made by Miss Sherwin that, even if not authorised by the warrant, those who were involved in the entry, search and seizure had statutory power to do what they did, derived from elsewhere. Of those powers, I need mention only two.
81. First, she submitted that, whether or not the warrant was lawful, Ms Bagheri entered Apartment 4605 lawfully, because it is now uncontentious that the premises were in fact "premises other than premises used only as a dwelling", such that a power of entry and search arose under Regulation 23. She submitted that the limitation on use of the documents in Regulation 23(7) (that, where items seized are required by the enforcement authority in connection with enforcement of the 2008 Regulations, items may not be kept longer than they are so required) does not bite in this case, because relevant proceedings have commenced; and hence it is axiomatic that the items seized and retained are still required for the purposes of enforcement of the 2008 Regulations. Therefore, the Council both had the power to search and seize the items it retains; and they have power to retain them. Again, without prejudice to my firm conclusion that the warrant is valid, it comes as some further comfort that the Council could have entered the premises and seized and retained the items it did seize and retain, without a warrant at all.
82. Second, she relied upon Section 19 of PACE, which gives a constable who is lawfully on the premises power to seize anything on the premises which he has reasonable grounds for believing if evidence in relation to any offence which he is investigating or if he considers it is necessary to seize the evidence to prevent it being destroyed. However, that power is entirely dependent upon the constable being lawfully on the relevant premises; which, in this case, is itself dependent upon the validity of the warrant. Therefore, Section 19 does not add anything substantive to this claim.
83. However, for the reasons I have given, I dismiss this claim.