2.9. Op 21 december 2012 heeft de High Court in de onder 2.4 genoemde procedure uitspraak gedaan (hierna de uitspraak) en – kort gezegd – geoordeeld dat de doorzoeking op basis van de search warrant ‘unlawful’ was. In dat verband heeft de High Court onder meer het volgende overwogen:
“50. Mr. [C] QC, for the MPS (Metropolitan Police Services, vzr.), has taken us through the request in some detail and has highlighted those passages, of which there are many, in which either explicitly or by necessary interference, the assertion is made that offences, equivalent to the cheating the revenue and money laundering the proceeds, have been committed; that the material is likely to be of substantial value to the investigation; and that the material is likely to constitute relevant evidence. I am satisfied (…) that, looking at it as a whole in conjunction with the Information, there were reasonable grounds for the Judge to believe that each of the conditions was satisfied. On this first argument of the claimants I would not be minded to grant a judicial review of the search warrant.
51. However, the claimants also seek to review the search warrant on the basis that s.15(6) has not been satisfied. If that be the case, then, by virtue of section 15(1), an entry on, or search of, premises under authority of that warrant would be unlawful.
52. The attack on the warrant was made in a number of respects, however, in my judgement only one of those is of any substance. That is the argument that the use (…) of the phrase “the suspects” is too vague to satisfy s.15(6)(b) (van de Police and Criminal Evidence Act 1984, ook de 1984 Act genoemd vzr), which requires the warrant to identify (…) the articles or persons to be sought.
(…)
Remedies beyond orders quashing these decisions
85. The claimants seek an order that the MPS (Metropolitan Police Service, vzr.) return the material and any copies which have been taken of such material which is in their possession to the claimants on the basis that there is no lawful authority for its continued retention.
86. In my judgement, on the face of it, that must be the appropriate order. However (…) it is open to the MPS to make an application under s.59(5) (van de Criminal Justice and Police Act 2001, hierna CJPA, vzr.) in respect of material which is in their possession which has been seized in purported exercise of a relevant power of seizure, which includes seizure pursuant to Schedule 1 of the 1984 Act. In my judgment the property which was seized, under the, now known to be, unlawful search warrant, would, even in the light of its being quashed by this court, have been seized in purported exercise of the Schedule 1 power. In those circumstances, it would be open to the MPS to make an application to the Crown Court, pursuant to s.59(5), for an order under s.59(6) for retention of the property, which would otherwise fall to be returned, on the basis that s.59(7) applies, namely: that if the property were returned it would immediately become appropriate to issue an application for a warrant in pursuance of which it would be lawful to seize the property.
87. This might be on the basis that the defect with the search warrant, which has resulted in my conclusion that it must be quashed, was one which could have been remedied by the insertion into the warrant of the identity of the “suspects” in the five categories of property where, in the warrant granted, they were unidentified.
88. In my judgement it would not be just to quash the orders in terms which would preclude the ability of the MPS to make an application to the Crown Court pursuant to section 59, if so advised and provided they did so with due expedition. (…)”
De ’Order’ ten aanzien van de in beslag genomen stukken luidt, voor zover hier van belang, als volgt:
“It is hereby ORDERED:
(…)
3. that the Metropolitan Police do return to the Claimants ([gedaagde 1] en [gedaagde 2], vzr.) as soon as reasonably practicable all property seized, and all copies retained, of any material seized (…) on 27 April 2011 and which remains in their possession, unless within 14 days of the making of this Order an application has been made to the Crown Court at Kingston under section 59(5) of the Criminal Justice and Police Act 2011 to retain that property (…).
4. upon the undertaking of the Metropolitan Police and Secretary of State for the Home Department to inform the Dutch authorities forthwith the contents of this Order, above, that the Metropolitan Police and Home Secretary shall use their best endeavours to persuade the Dutch authorities to return, to the Metropolitan Police or the Home Secretary, the property in their possession (…).
5. that the Metropolitan Police do return to the Claimants all property seized, and all copies retained of any material seized (…) on 27 April 2011 and returned to them by the Dutch authorities (…) unless within 14 days of the return of such property an application has been made to the Crown Court at Kingston under section 59(5) of the Criminal Justice and Police Act 2011 to retain that property
(…)”