NCA branded incompetent by High Court

In R (on the application of C and others) v. National Crime Agency and Birmingham Magistrates’ Court [2015] EWHC 1283 Admin) search warrants were challenged by way of judicial review.  This was an unusual case in which the NCA were branded "incompetent" (in defence to an allegation of bad faith).  The NCA conceded that the search warrants were unlawful, but submitted that they should retain the material they seized anyway.  The Divisional Court disagreed. It did, however, hold that the arrests were lawful.

The Claimants (who are brothers) are successful businessmen of good character. They own a number of established businesses turning over millions. It seems the NCA became suspicious that business accounts had laundered money by virtue of association with convicted criminals and the payment of confiscation orders for employees or consultants.  The NCA devised a "plan" of "deliberately trying to stretch the boundaries imposed upon such investigation agencies by the statutory scheme" (a fact conceded by the NCA's lawyers).  In fact, the plan was to arrest the Claimants at their head office, convey them to the police station, disable their CCTV system and insert surveillance equipment to see whether they could get some evidence of wrongdoing.

The applications for the search warrants were fundamentally flawed. The NCA admitted that no lawyers had actually seen or vetted  the information ultimately placed before the Magistrates' Court. Hickinbottom J who gave the leading judgment said: "...it is therefore, to say the least, disappointing and of great concern that in this case the NCA failed to have any regard to the fundamentals of the statutory scheme, or the principles derived from that scheme as set out in such cases as Tchenguiz". However, he went on to say that "looking at the evidence as a whole, this case smacks of incompetence, not bad faith".

Having reviewed the procedural requirements for retaining material obtained via an unlawful search the Court went on to reject the NCA's submission that they ought to retain the material nonetheless. In a scathing conclusion Hickinbottom J said the NCA "...acted with patent and egregious disregard for, or indifference to, the constitutional safeguards within the statutory scheme within which they were operating. The individual officers, I accept, were acting out of ignorance: but that ignorance was deep, it ran to inspector-level, it related to the fundamentals of the scheme being operated and there were no systemic checks to ensure warrants were not issued without even consideration of sections 15 and 16 of PACE".

In a short postscript judgment Davis LJ stated: "for the future, in complex matters of this kind authorities such as the NCA would be very well advised to consider taking legal advice (internal or external) in advance of their applications for warrants".