Adam Kendall analyses a recent judicial review challenge brought by a company over data seized and copied by a council's trading standards department.
The case of Business Energy Solutions Ltd v Crown Court at Preston; Cheshire West and Chester Trading Standard (Interested Party)  EWHC 1534 (Admin) (Admin Ct) raised novel issues about the duties of authorities who, pursuant to lawfully obtained warrants, had seized computers and other electronic devices containing data which the authority then copied and retained.
The Trading Standards Authority had applied to the Crown Court for, and obtained, warrants to search and seize material from various premises, in connection with their investigation into possible fraud by BES, and the exercise was conducted under the Criminal Justice and Police Act 2001.
The warrants permitted the seizure of computer equipment such as servers, laptops, USB sticks and mobile phones. The contents of these seized devices were copied and then backed-up and the physical devices were returned. The copied data on the servers of the investigating authorities exceeded 200m documents and included about 770,000 audio recordings of telephone conversations.
BES applied to the court under s.59 of the 2001 Act for the return of its physical property, hard copy documents and data now stored and backed-up on the Authority's systems. The judge refused to make any direction about the copied data held by the Authority and BES applied for judicial review of that decision.
The issues were how the duty to return in s.53 of the 2001 Act operated in the context of copied data, and the extent of the duty to return seized property that was not within the scope of a warrant where it was not reasonably practicable to separate it from property which was within the scope of the warrant and could therefore be retained.
The Authority also argued that BES could and should have exercised their rights and remedies in the Crown Court under s.59 instead of applying for judicial review.
The court held, refusing the application, that data copied from computer devices did amount to "seized property" which in principle was capable of being returned including through deletion or destruction. The judge was correct to conclude that the test of reasonable practicability was the broad practical test and not the narrower test of technical or physical separation. He had not erred in his analysis of the facts and he had come to the correct conclusion.
The court rejected the Authority's argument that BES should have exploited their alternative remedies instead of embarking upon the judicial review. The judge's decision as to the test to be applied under s.59 barred BES from the relief that they sought and there was nowhere else for this point of law to be tested save the High Court by way of judicial review. This was not a case of a collateral challenge to a decision to prosecute or a decision of a judge in the course of a prosecution, and the central issue of law was a matter suitable for judicial review.