There was no general rule that there could be no application to the Crown Court under section 59 of the Criminal Justice and Police Act 2001 until every issue raised in a judicial review claim had been resolved by a decision of the High Court.

The Divisional Court of the Queen’s Bench Division so held, inter alia, in dismissing a claim for judicial review brought by the claimant, HS, and 16 others in the fourth claim against the decision of Judge Field QC, sitting in the Crown Court at Manchester, on 11 August 2015 that it was appropriate for him to hear an application under section 59 of the 2001 Act brought by the second defendant, the Chief Constable of Cheshire Constabulary, notwithstanding that there were outstanding issues in relation to claims for judicial review of various search warrants issued in respect of each of the claimants which were to be heard in the High Court. The claimants challenged that decision on the ground that a section 59 application was fundamentally flawed, since the relevant warrants which had been challenged had not been quashed and there were still ongoing issues in relation to the High Court claim. The claimants submitted that the quashing of the warrants was a necessary step before the Crown Court could exercise its powers under section 59 of the 2001 Act.

Section 59 of the Criminal Justice and Police Act 2001 provides: “(5) The appropriate judicial authority … (b) on an application made by the person for the time being having possession of anything in consequence of its seizure under a relevant power of seizure … may give such directions as the authority thinks fit as to the examination, retention, separation or return of the whole or any part of the seized property.”

SIMON LJ said that although it was clear that only the High Court had the power to declare warrants to be unlawful and the power to quash them, a claimant could not insist on a case remaining in the High Court until every issue had been either conceded in its favour or resolved by a decision. A claimant was not necessarily entitled to a determination of the High Court of the particular reasons why a warrant was said to be invalid or why it was accepted as being invalid by a defendant, nor, perhaps more importantly, did the determination of such issues necessarily preclude the making of an order which led to an application to the Crown Court under section 59 of the 2001 Act. There were issues in relation to the first claim which had not been decided, but they were not such that it was in the interests of justice that their determination should prevent the hearing of a section 59 application.

STEWART J agreed.