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Cite as: [1994] 4 All ER 553, [1994] EWCA Civ 2

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		Neutral Citation Number: [1994] EWCA Civ 2
		No. 92/1510/C

IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM: QUEENS BENCH DIVISION
FROM: MR. JUSTICE TUCKEY

Royal Courts of Justice
Strand
London WC2

3rd February 1994

B e f o r e :

LORD JUSTICE NEILL
LORD JUSTICE HOFFMANN
and
LORD JUSTICE WAITE
____________________

	SALLY MCLEOD
	MRS MARGERY MARY MEALING (deceased)
	v
	METROPOLITAN POLICE COMMISSIONER

____________________

(Computer Aided Transcript of the Stenograph Notes of
John Larking, Chancery House, Chancery Lane, London WC2
Telephone No: 071 404 7464
Fax No: 071 404 7443
Official Shorthand Writers to the Court)

____________________

THE APPLICANT APPEARED IN PERSON
MR. S. WALSH (instructed by C.S. Porteous, New Scotland Yard, Broadway, London SW1) appeared on behalf of the Respondent.
____________________

HTML VERSION OF JUDGMENT
____________________

Thursday, 3rd February 1994

J U D G M E N T

LORD JUSTICE NEILL: This is an appeal by Mrs. Sally McLeod from the order of Mr. Justice Tuckey dated 11th November 1992 dismissing her claims against the Commissioner of Metropolitan Police for damages for trespass to land, trespass to goods and breach of duty. The claim arises out of an incident which took place on the afternoon of 3rd October 1989.

Mrs. McLeod lives at 96 Berkeley Avenue, Greenford. She is a management consultant. She was formerly married to Mr. Ian McLeod. They bought 96 Berkeley Avenue as their matrimonial home in 1984 but in April 1986 Mr. and Mrs. McLeod separated and Mr. McLeod went to live elsewhere. In 1987 there were divorce proceedings and in 1988 Mrs. McLeod obtained a divorce. At about the time of the institution of the divorce proceedings, Mrs. Mealing (Mrs. McLeod's mother), went to live with her daughter at 96 Berkeley Avenue. Mrs. Mealing had recently suffered a stroke. It may be noted that Mrs. McLeod is also a state registered nurse.

Following the divorce there were proceedings under the Married Women's Property Act 1882 relating to the furniture and other property at 96 Berkeley Avenue. On 30th June 1989 an order was made in the Uxbridge County Court providing for the division of the property in accordance with the list identified in the order. On 23rd August 1989 Mr. McLeod obtained an order from Uxbridge County Court whereby Mrs. Registrar Styles ordered Mrs. McLeod to make arrangements forthwith for the delivery of the property. That order was backed with a penal notice. Once again, however, something went wrong and on 28th September Mr. McLeod went back to Judge Tyrer who made a committal order suspended for seven days in order that the property identified in the list should be delivered on or before 6th October.

On 3rd October, three days before the expiry of the judge's deadline, Mr. McLeod went to 96 Berkeley Avenue with a van to collect the furniture and other items himself. He went with his brother and sister and was also accompanied with a solicitors clerk, Mr. Logo. In addition, his solicitors had made arrangements for two police officers to be there. PC White and PC Strevett, who had been instructed to go to the house over the radio, arrived there at about the same time as Mr. McLeod's party in the van. When they arrived at 96 Berkeley Avenue Mrs. McLeod was not there; she was at work. The door was opened by Mrs. Mealing. Mr. McLeod and his brother and sister went in and proceeded to collect the furniture on the list which belonged to Mr. McLeod. It amounted to two van loads. Mr. McLeod took the first van load away and came back for the second load. He was just about to drive away with the second load when Mrs. McLeod returned. She was very angry when she saw what had happened and said that the property should be put back in the house. PC White insisted that the van should not be unloaded and that Mr. McLeod should be allowed to drive away. The police officer said any disputes should be sorted out later between the parties' solicitors. Later that evening Mrs. Mealing, who had become very distressed about what had happened in the house, was taken to hospital but not detained.

Mrs. McLeod's first step after these events was to take criminal proceedings against Mr. McLeod and his brother and sister alleging theft but those charges were dismissed. She then instituted civil proceedings. There were three actions. The first action was against the solicitor. It is not necessary to refer to all the claims in that action but it included claims for damages for trespass to land and trespass to goods. The second action was against Mr. McLeod, his brother and sister. Here again there were several claims, including damages for trespass to land and trespass to goods. The third action was the action with which we are currently concerned which is the action against the police. It might have been much simpler if all those three actions could have been heard together. We understand that Mrs. McLeod tried to arrange for that to happen but was unable to do so. However that may be, the first two actions came on for hearing before Judge Marcus Edwards in the Brentford County Court on various dates between June and October 1992. The hearing concluded on 30th October 1992 when judgment was reserved.

On 10th November 1992 the action against the Commissioner of Police came on for hearing before Tuckey J in the High Court. The hearing concluded on 12th November when the judge gave judgment dismissing the claim. At that stage, Judge Marcus Edwards had not yet given judgment in the county court action and Tuckey J therefore thought it would be better for him not to try to reach a conclusion on any issue with which it was not necessary for him to deal for the purpose of his decision.

On 27th November 1992 Judge Marcus Edwards handed down his judgment in the first two actions. The principal issue before Judge Edwards was whether the actions of Mr. McLeod, his family and the solicitor had amounted to trespass. It seems clear that immediately after hearing before Judge Tyrer on 28th September 1989 Mr. McLeod had suggested he should go to the house on 3rd October and collect his property so that Mrs. McLeod would not then have to bother to deliver it. Judge Edwards referred to Mrs. McLeod's account of this in his judgment, in which he said

"The Plaintiff says that on the 28th September 1989, after Judge Tyrer had made his Order giving her until the 6th October 1989 to deliver the goods to Mr. McLeod, the Judge left the courtroom. Mention was then made between her and Mr. McLeod and Glenisters of Tuesday 3rd October as a possible date for collection. She said that solicitors were to be present, but that she had to speak to her solicitor to make sure he could be there, and that she would write to confirm. A time was proposed, but she never agreed to it, and she never confirmed the day or the hour or indeed had any communication with Mr. McLeod or Glenisters between the 28th September and 5.30 pm on the 3rd October 1989 when she returned home to find the McLeods and Glenisters already at the premises."

The judge then referred in his judgment to the arrangements Mrs. McLeod said she had made for the delivery of the furniture early on 6th October.

At page 7 of the judgment the judge made his finding about this. He said:

"I find on the evidence that there was no agreement made between the Plaintiff and Mr. McLeod for him to collect his goods on the 3rd October 1989. The contemporary note of Counsel, endorsed by Judge Tyrer, makes this clear. If there had been such an agreement, I have no doubt at all that the Plaintiff would have made sure that she was present for Mr. McLeod's visit, and that she would probably have been accompanied by a solicitor. She would certainly have told her mother in advance. It was quite clear from the events of the 3rd October 1989 that Mrs. Mealing knew nothing of any such proposed visit."

The judge then considered whether when Mr. McLeod's party had arrived on 3rd October Mrs. Mealing had given permission to them to come in. The judge said that he was satisfied from what he had heard that Mrs. Mealing did not give permission, and at page 8 he said:

"Nevertheless the failure of the McLeods and the solicitor to obtain permission from Mrs. McLeod meant that their entry was unlawful and a trespass to property."

He therefore decided the issue of trespass to land in Mrs. McLeod's favour. He then turned to the claim for trespass to goods and described what it consisted of, namely the man handling of property which was involved when Mr. McLeod was collecting his own furniture. The judge said this:

"Their books and plants had to come off the shelves which the McLeods were collecting, their clothes had to come out of the drawers in a divan bed, and in chests of drawers, which Mr. McLeod was collecting, and other property was moved around in the rooms of No. 96."

The judge then considered the question of damages. Mrs. Mealing had been a party in the action against the McLeods but by the hearing she had died. (She died on 26th January 1992). In making his assessment of damages the Judge decided that Glenisters had not entered the property maliciously or out of spite. He awarded damages against the solicitors in the sum of £750 and interest, and against the McLeods in the sum of £1,200 together with interest and made orders in favour of both Mrs. McLeod and her mother's estate in those sums.

I can now return to the third action, the action with which this appeal is concerned. Tuckey J, in his judgment, at page 6, said he was prepared to accept that Mrs. McLeod had not agreed to her husband's proposal about going to the house on 3rd October. At page 10 the judge turned to consider how Mrs. McLeod put her case against the police. Having reviewed some of the facts, the judge went on as follows:

"So I turn to the law and an analysis of the way in which the Plaintiff puts her case. A police officer has a duty to prevent any breach of the peace which has occurred or which he reasonably apprehends will occur. Pursuant to this duty he is entitled to enter onto and remain on private property without the consent of the occupier or owner (see Thomas v Sawkins [1935] 2 KB 249 at pp 254 and 255 256.) This decision is doubted in a work called Civil Actions Against Police by Clayton & Tomlinson at p 242, but the statement of law in Thomas v. Sawkins is clear and I think that I am bound to follow it.

The police contend that they had reasonable grounds for apprehending that a breach of the peace might take place. If they did have such apprehension, they were entitled to enter and remain on the Plaintiff's property whether or not Mrs. Mealing had given consent for them to do so. It is for this reason that I have not found it necessary to resolve the issue of consent to which I have referred.

The Plaintiff contends that the police did not have reasonable grounds for apprehending that there might be a breach of the peace and therefore they were trespassers on the property. I reject this contention. They had been told to go to the house on the information of a solicitor that there might be trouble. The history of the matter makes it clear in my judgment that the solicitor's fears were well founded. If Mrs. McLeod had been there when her ex husband's party arrived, I have no doubt that the police constables' role as peace keepers would have been required.

PC White told me that it was his experience as a police officer that breaches of the peace did occur at events such as these. I have no doubt that he is right about that. The police constables were fully entitled, therefore, in my judgment to fear that a breach of the peace might occur on this occasion. Although Mrs. McLeod was not there when they arrived, they were not to know when she might return, and so they were entitled to remain on the premises in my judgment to see the thing through. As it turned out, their intervention was required when Mrs. McLeod returned and they then clearly acted with the intention of avoiding a breach of the peace, as I have already explained.

It follows from what I have said that I reject the Plaintiff's claim based on trespass to land."

He then turned to consider the allegation against the police in respect of the trespass to goods and he found that the officers did not participate in the removal or disturbance of Mrs. McLeod's property. The only possible involvement was that of PC White who had a list of the property to be taken which he had checked to make certain that only the items on the list were removed. So the Judge rejected the claim for trespass to goods as well.

In her appeal to this court Mrs. McLeod, who has acted in all of these proceedings in person, and to whose care with which she presented her case I would like to pay tribute, has made it clear that as she has now obtained damages in the other actions, she is not primarily asking for damages. But she says that she is entitled to have the judge's decision overturned and no doubt she is concerned with the order for costs that was made against her.

Her complaints are under three headings. First, she said that the police officers should have made enquiries before entering and that there were two chances to do that; first, when someone from the solicitor's office rang up the police station and said would the police attend, and secondly, when the police officers themselves went there; they ought to have asked to see a copy of the order.

Secondly, she said that there was no breach of the peace and no threat of a breach of the peace. She was not there, the only person who was there was her mother, an elderly lady of 74.

Thirdly, she said they were negligent in failing to give any adequate protection to Mrs. Mealing who was greatly distressed by what had happened.

Those were her submissions at the beginning and as indicated in the skeleton argument which she handed to us. As the argument developed, however, it became clear that her main complaint was that the officers had facilitated the trespass by the McLeods and by the solicitor by their presence. They had given Mrs. Mealing the impression that she had no option but to open the door. Mrs. McLeod says that if those two officers had not been there, and it had not been one of them who had knocked on the door, her mother would have declined to open the door at all and this incident would never have happened. She says the officers should have checked what the order said and if they had done so they would have seen that the order did not give Mr. McLeod any right to enter the property.

The real issue in the case, as I see it, is whether the officers had any excuse in law for entering 96 Berkeley Avenue. It is common ground that some excuse is required because it does not appear that there was any consent to the entry by Mrs. McLeod or by her mother. The judge found that they took no active part in removing any property and, as I have said, all PC White did was to check a list of what was being taken. But it is clear they both entered the property and it may be that one of them knocked on the door.

There are two questions which need to be decided. First, in what circumstances, if any, can police officers enter into a private house to prevent a breach of the peace? Secondly, if a right to enter a private house does exist in certain circumstances, did those circumstances exist here?

It is necessary to start by looking at section 17 of The Police and Criminal Evidence Act 1984. That sets out the circumstances in which "... without prejudice to any other enactment a constable may enter and search any premises..."

It is to be noted that in section 17(1)(e) it is provided that a constable may enter and search any premises for the purpose of saving life or limb or preventing serious damage to property.

Section 17(5) provides:

"Subject to (6) below, all the rules of common law under which a constable has power to enter premises without a warrant are hereby abolished."

Section 17(6) provides:

"Nothing in (5) above affects any power of entry to deal with or prevent a breach of the peace."

The question can now be reworded, what is the power of entry at common law to deal with or prevent a breach of the peace? We have been referred to two authorities, and Mr. Simon Walsh, on behalf of the Commissioner, has said there is no other relevant authority that he has been able to discover.

The principal authority is the decision of the Divisional Court presided over by the then Lord Chief Justice, Lord Hewart, in Thomas v. Sawkins [1935] 2KB 249. That was a case where police officers went to a hall where a public meeting which had been extensively advertised was about to take place; the police sergeant in charge of the party was refused admission to the hall but insisted on entering and remaining there during the meeting. The question arose as to whether the police were entitled to take that course.

Lord Hewart, who delivered the first judgment in the case, said this at page 254:

"I think that there is quite sufficient ground for the proposition that it is part of the preventive power, and, therefore, part of the preventive duty, of the police, in cases where there are such reasonable grounds of apprehension as the justices have found here, to enter and remain on private premises."

At page 255 Avory J said, in relation to entering premises in connection with an affray:

"... I cannot doubt that he has a right to break in to prevent an affray which he has reasonable cause to suspect may take place on private premises."

He considered, therefore, that the police officers were justified in what they were doing. Lawrence J at page 257 put the matter as follows:

"If a constable in the execution of his duty to preserve the peace is entitled to commit an assault, it appears to me that he is equally entitled to commit a trespass."

In addition Mr. Walsh has provided us with a typed copy of a report in the Times Newspaper of 21st October 1967 of the case of McGowan v Chief Constable of Kingston Upon Hull before Lord Parker, sitting with Widgery J and O'Connor J. In that case police officers had gone into a house where a child was being held in a man's arms. The police officers said that they had reason to think that a breach of the peace might occur between the man and his mistress. But a question arose as to whether the mistress had authority to give an invitation to the police officers to come in. The Lord Chief Justice when giving his judgment said:

"Regardless of the invitation, there was sufficient to justify the police entering the house on the basis that they genuinely suspected a danger of breach of the peace occurring."

Those were the two authorities to which we have been referred.

It is right to say that Thomas v. Sawkins has been subjected to some criticism. The criticism started almost at once with a strong article by Professor Goodhart Writing in 1936 in the Cambridge Law Journal (Volume 6) he expressed misgivings about the decision, which he described as a constitutional innovation. He said in particular that it appeared to infringe the basic principle that the law will not intervene until an offence has actually been committed.

We have been referred to further criticism, to be found in Clayton and Tomlinson's Civil Actions against the Police (Second Edition), and more particularly in a careful analysis of the decision in a chapter in Mr. Feldman's The Law Relating to Entry, Search and Seizure. It has been suggested that the case of Thomas v Sawkins should be limited to public meetings and that there was nothing in that case which justified the right to enter into a private house.

Having had the benefit of argument, I am satisfied that Parliament in section 17(6) has now recognised that there is a power to enter premises to prevent a breach of the peace as a form of preventive justice. I can see no satisfactory basis for restricting that power to particular classes of premises such as those where public meetings are held. If the police reasonably believe that a breach of the peace is likely to take place on private premises, they have power to enter those premises to prevent it. The apprehension must of course be genuine and it must relate to the near future.

What then are the facts here? I have set out at some length the judge's reasons. The judge found that the police officers attended to prevent a breach of the peace and that they were reasonable in coming to the conclusion that there was a danger of such a breach. I, for my part, can see no basis for upsetting his decision on these facts. I think it right, however, to add a word of caution.

It seems to me it is important that when exercising his power to prevent a breach of the peace a police officer should act with great care and discretion; this will be particularly important where the exercise of his power involves entering on private premises contrary to the wishes of the owners or occupiers. The officer must satisfy himself that there is a real and imminent risk of a breach of the peace, because, if the matter has to be tested in court thereafter there may be scrutiny not only of his belief at the time but also of the grounds for his belief.

It may be necessary in some future case to consider how far in advance of a possible breach of the peace the right to enter arises. It will depend on the facts of the case, and on the nature and scale of the apprehended breach.

For the purpose of this appeal, however, it is sufficient to say that in my view the officers had a lawful excuse for entering 96 Berkeley Avenue on that afternoon. Accordingly, I would dismiss this appeal.

LORD JUSTICE HOFFMANN: I agree.

LORD JUSTICE WAITE: I also agree.

MR. WALSH: That leaves me with the normal application, I am instructed to ask for the costs of the appeal.

LORD JUSTICE NEILL: Can you say anything about that?