England and Wales Court of Appeal (Civil Division) Decisions

IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM NEWCASTLE HIGH COURT
(MR JUSTICE ANDREW SMITH)

		Royal Courts of Justice The Strand London Tuesday 27 February 2001

Tuesday 27 February 2001

1. THE LORD CHIEF JUSTICE: This is a second-tier appeal from a decision of Mr Justice Andrew Smith made on 5 October 2000. He dismissed an appeal against an order of His Honour Judge Taylor sitting at the Middlesbrough County Court, dated 28 April 2000. The judge had decided two preliminary questions in a manner which was adverse to the claimant, Anthony Michael Henderson, who is the appellant before us. In granting permission to appeal to this court, Lord Justice Kay stated that he considered that the appeal raises a matter of general public importance. He also took into account that there were other cases pending where this issue could arise. The appeal relates to a practice which is widely used by police forces in relation to default warrants.
2. The issues can be summarised in this way: Do the police have a discretion as to when to execute a default warrant for non-payment of a fine issued by a magistrates' court? If so, can they lawfully exercise that discretion in such a way as to delay execution of the default warrant in order to provide time in which to complete investigations relating to an offence for which a suspect has been arrested?
3. The issues which were determined by the judge arose out of proceedings brought in the Middlesbrough County Court against the Chief Constable of Cleveland Constabulary (the respondent) for wrongful detention of the appellant for approximately 40 hours from the evening of Saturday the 7th to Monday 9th March 1998.
4. The appellant had been arrested at about 6pm on 6 March in relation to a suspected offence of deception and subsequently for assaulting a police officer in the course of that arrest. It is not suggested by the appellant that that arrest was in any way unlawful. After he was arrested, he was interviewed. However, the interview did not commence until the afternoon of Saturday 7 March. The explanation put forward by the police for the delay is that the appellant had requested the presence of his solicitor at the interview and there had been delay in achieving his attendance.
5. Following the interview, the appellant was granted bail at about 5pm. He was then re-arrested under a default warrant for non-payment of a fine of £89.17, issued under section 83 of the Magistrates' Courts Act 1980. The arresting officer had been aware of the existence of the default warrant prior to the appellant's initial arrest. As Teesside Magistrates' Court was only open on Saturday mornings (a fact of which the Chief Constable certainly would be aware), at the time he was re-arrested the appellant could not be taken before the magistrates immediately. The appellant was therefore detained until the morning of Monday 9 March. When he eventually appeared before the magistrates he was granted bail.
6. It is common ground between the parties, first, that the arrest of the appellant for the suspected offence of deception was governed by the provisions of the Police and Criminal Evidence Act 1984; and secondly, that the arrest pursuant to the warrant is not subject to the provisions of that Act but is under separate powers contained in the Magistrates' Courts Act 1980.
7. The respondent had a similar practice to that adopted by other forces. It is set out in the memorandum of agreed facts in these terms:

"When a person is arrested for the commission of a criminal offence, and where there is also in existence a default warrant or warrants, it is the policy of the respondents [the Cleveland Police] not to execute the default warrants until after the investigation of the criminal matter."

8. The primary way in which this case is put before this court by Mr Owen QC is that the police had no discretion as to whether and when to execute the default warrant. Their responsibility was to execute it immediately, that is to say as soon as reasonably practicable. Consequently there was then an obligation to take the accused before the court as soon as reasonable practicable.
9. The preliminary questions upon which His Honour Judge Taylor had to rule, and which were considered on the appeal by Mr Justice Andrew Smith, were in these term:

"Where a person --

(a) is arrested and detained by a Police Constable on the reasonable suspicion of having committed a criminal offence; and

(b) the arresting officers are aware at the time of arrest or become aware during the period of detention that a warrant ordering the arrest of that said person has been issued by a Magistrates' Court; and

(c) at the time of arrest or when they become so aware, the said Court is sitting and it is reasonably practicable to put the said person before it, before it ceases to sit on the day in question; and

(d) the said warrant includes an Order that the Police Officers shall bring the said person before the said Court 'immediately', 'forthwith' or words to that effect; then

1. Does the Defendant have a lawful discretion as to when the said warrant can be executed and if such a discretion does exist, is it reasonable to delay the execution of the warrant until the investigation into the criminal offence, for which the person was arrested, have been concluded?

2. Is the practice of Cleveland Police in customarily executing the warrant after the investigation under the criminal offence a breach of Article 5(1)(b) and 5(1)(c) of the European Convention on Human Rights and thus an act incompatible with the detained person's Convention rights?"

10. The warrant referred to the appellant; it set out the total sum which was due; it showed that the sum was due for a fine in respect of an offence relating to an excise licence which was not in force; and it set out:

"YOU, THE CONSTABLES OF THE CLEVELAND COUNTY POLICE FORCE, OR OTHER AUTHORISED PERSONS FOR THE CLEVELAND POLICE AREA, ARE HEREBY REQUIRED TO ARREST THE ACCUSED AND BRING HIM/HER BEFORE THE TEESSIDE MAGISTRATES' COURT SITTING AT MIDDLESBROUGH IMMEDIATELY, UNLESS THE AMOUNT OUTSTANDING BE SOONER PAID."

11. Had the warrant for arrest been backed for bail, as it could have been, the problems that arose in this case would not have arisen.
12. His Honour Judge Taylor came to the following conclusions. The wording of the warrant above is significant in answering whether a discretion exists. He treated the word "immediately", which appears in the warrant, as applying to bringing the defaulter to the court once he is arrested. The judge took the view that on the wording of the warrant there is no requirement that the police execute the warrant immediately. He therefore came to the conclusion that there is a lawful discretion vested in the police officer in relation to executing the warrant. However, he went on to say that the discretion which exists must be exercised on Wednesbury principles, that is to say taking into account proper considerations, putting out of his mind improper considerations, exercising the discretion for the purpose for which it had been given, not acting mala fides, and not acting wholly unreasonably. In addition, the judge found that there was no contravention of Article 5 of the European Convention on Human Rights because the detention had been on the grounds of non-compliance with a lawful order of the court a matter which is recognised in Article 5 of the Convention as being a permissible basis upon which a person may be arrested. The judge added that that was subject to the proviso that the exercise of the discretion has to be reasonable (in the sense that I have indicated).
13. The judge therefore went on to answer the first preliminary question "Yes", and the second preliminary question "No". The judge did not explicitly answer the second part of the first question, namely, whether it is reasonable to exercise a discretion to delay the execution of a default warrant pending the investigation of a criminal offence.
14. Mr Justice Andrew Smith dismissed the appeal, but he did not consider that it was right to determine the first question. He anticipated that the proper answer to the first question turned on whether the discretion was properly exercised. If the discretion was not properly exercised, that would be a matter which would affect the answer to the first preliminary question. However, his natural interpretation of the warrant was the same as that of Judge Taylor. With regard to Article 5, Mr Justice Andrew Smith considered that this was a matter which would have to be decided upon the facts and so for that reason he did not express any conclusion. He considered that the only answer that could properly be given to the preliminary questions was that the police had a discretion as to when to arrest under a warrant.
15. The arguments which were advanced before Judge Taylor and before Mr Justice Smith were not the same as have been argued before us. On behalf of the appellant we have had the advantage of hearing from Mr Owen, who has put his submissions in different terms to those advanced below. Junior counsel before Mr Justice Smith, as the judge records, did not suggest that the police were not generally entitled to execute default warrants over the weekend because of the inherent delay in bringing the accused before the court. Mr Owen does not adopt the same approach. Before this court Mr Owen advanced alternative submissions. First, he submitted that the proper interpretation of the warrant, taken in conjunction with its statutory background, is that the warrant has to be executed as soon as is reasonably practicable; that there is therefore a discretion as to when to exercise the warrant, but that discretion is limited. He referred to the definition of the word "immediately" in Stroud's Judicial Dictionary which is as follows:

"The word 'immediately', in its strict sense excludes any intervening time but from earliest judicial decisions it has almost invariably meant the same as forthwith, namely with speedy and prompt action and as quickly as is reasonably possible."

16. Mr Owen primarily submits that the word "immediately", construed in that way, applies both to the arrest and to the taking before the magistrates' court. His alternative submission is that if there is a discretion, that discretion, viewed against the statutory context of the Magistrates' Courts Act, must be exercised reasonably, and that it would be unreasonable and therefore an improper exercise of discretion to have arrested the appellant at a time when it meant that, because the magistrates' court was closed, he could not appear before them for a period of 40 hours.
17. As to the interpretation of the warrant, I have no doubt as to the correctness of the views of Judge Taylor and Mr Justice Andrew Smith. The word "immediately" governs the taking before the court, but does not govern the question of when the arrest has to take place. There are many reasons why that must be so. The use of warrants to enforce the payment of fines is very important. But in relation to the administration of justice generally, they are at the lower level of the scale when compared with the conduct of investigations into the more serious criminal offences. The idea that there is an obligation on the police to break off an investigation into a criminal offence because they are in possession of a warrant which requires an individual to be taken before a magistrates' court seems to me to be highly unlikely when the inconvenience arising from a strict requirement of an immediate arrest is borne in mind. There can be all sorts of reasons why it is not sensible to arrest an individual "immediately" under a default warrant. He may need only a short period of time to pay off the fine. An urgent matter may need to be attended to by the individual concerned, and the officer, on being informed of it, may accept that a delay would be appropriate. It may be that the officer is in a position to arrest the individual at a time when it would be impossible to take the person concerned before the magistrates' court; the officer is satisfied that there is no question of the individual being unavailable if the arrest is deferred and a decision is taken that in the circumstances it would be sensible to defer the arrest until it can be immediately followed by the person concerned being taken to the magistrates' court.
18. Notwithstanding Mr Owen's arguments, in my judgment, the police have a discretion as to when to execute the warrant. The authorities indicate that the officer must comply with the terms of the warrant; but if the warrant gives the officer a discretion, which he exercises, then he complies with the terms of the warrant. The position therefore is different from that considered in Hoye v Bush (1840) 1 Man & G 775, and the other cases which are in similar terms to that decision. I see nothing in the terms of the Magistrates' Courts Act which suggests that there should be the stringency with regard to the time of the execution of the warrant for which Mr Owen contend. In particular, it seems to me that section 125(1) presupposes that there can be delay, for differing reasons, in executing a warrant. Section 125 of the Magistrates' Courts Act 1980 provides:

"(1) A warrant of arrest issued by a justice of the peace shall remain in force until it is executed or withdrawn...."

19. There often has to elapse a considerable time between the issue of a warrant by the justices and its execution. That is anticipated by the provision to which I have referred, which means that the warrant does not cease to be effective because of the passage of time as long as it has not been executed.
20. The discretion exercised by the officer is a public law discretion reviewable on Wednesbury grounds. However, the exercise of the discretion can have private law consequences. Mr Owen helpfully referred the court to Holgate-Mohammed v Duke [1984] 1 AC 437. That was not a case where a detective constable had exercised his powers of arrest under a default warrant, but he had done so under section 2(4) of the Criminal Law Act 1967 on the basis that he had suspicion that the plaintiff in that case had stolen jewellery. As appears from the headnote, the House of Lords held that the Wednesbury principles were to be applied in determining for the purposes of founding an action at common law of false imprisonment whether the discretion conferred upon a constable by section 2(4) of the Act of 1967 to arrest a person without a warrant had been exercised lawfully. In his speech, Lord Diplock acknowledged that the Wednesbury approach could mean that proceedings could not only be brought for judicial review "but also for the purpose of founding a cause of action at common law for damages for that species of trespass to the person known as false imprisonment": see page 443C.
21. It is by no means clear how the approach indicated by Lord Diplock applies in the present circumstances. However, notwith-standing the fact that the police have a discretion, it could be said that the discretion had been exercised in a way which offended the principles there laid down. It seems to me that where an officer executes a warrant which provides the lawful authority for an arrest, the scope for an action for damages would be limited. However, that has to be considered in conjunction with the reliance upon Article 5 of the ECHR by the appellant in this case.
22. In his arguments before us, Mr Owen accepted that the outcome of the appeal would not depend upon Article 5. He accepted that Article 5 added nothing to common law principles which are applicable here. Article 5 provides:

"Everyone has the right to liberty and security of person. No one shall be deprived of his liberty save in the following cases and in accordance with a procedure prescribed by law:

....

(b) the lawful arrest or detention of a person for non-compliance with the lawful order of a court or in order to secure the fulfilment of any obligation prescribed by law."

23. Prima facie, the police are entitled to rely on Article 5(1)(b) as justifying depriving the appellant of his right to liberty. However, if it is shown that the arrest was not lawful, then Article 5(5) would be relevant. It says:

"Everyone who has been the victim of arrest or detention in contravention of the provisions of this Article shall have an enforceable right to compensation."

24. From what I have said in the course of this judgment, it will be clear that Mr Justice Andrew Smith was right in taking the view that no specific answer should be given to the first question. I take the same view. Indeed, Mr Seabrook QC, who appeared on behalf of the Chief Constable, made it clear that he was not questioning the correctness of the decision of Mr Justice Andrew Smith. I for my part am grateful to both judges in the courts below for expressing their reasoning so clearly, which has enabled this appeal to be dealt with expeditiously. Notwithstanding the arguments of Mr Owen, I have come to the conclusion that the appeal in this case must be dismissed.
25. LORD JUSTICE MAY: I agree that this appeal should be dismissed for the reasons given by the Lord Chief Justice, whose account of the facts and statutory provisions I gratefully adopt.
26. In my judgment, this appeal should fail for the following brief reasons. I agree that the terms of the warrant are to be construed so that the word "immediately" qualifies the obligation on the constable to bring the person arrested before the magistrates' court and does not also qualify the obligation to arrest. That, in my view, is the natural meaning of the words used with the word "immediately" placed where it is. I would therefore reject Mr Owen's first submission.
27. On his second submission, Mr Owen is driven to accept that the police do have a discretion as to when to execute a default warrant. Since that is the limit of that which Mr Justice Andrew Smith decided, his sustainable grounds of appeal fall away.
28. Mr Justice Andrew Smith declined to answer the second part of the first preliminary question, that is if, as I would hold, the police do have a discretion, is it reasonable to delay the execution of the warrant until the investigations into the criminal offence for which the person was arrested have been concluded? He regarded the answer to that question as depending in a particular case on an examination of the particular facts. I agree, but it should be recorded that Mr Owen's primary and secondary submissions each accepted in substance that circumstances can exist in which it would indeed be reasonable, and, I would add, within the lawful bounds of their discretion, for the police to delay the execution of the default warrant until the investigation into a criminal offence for which the person arrested had been concluded. That seems to me to be a correct and inevitable concession. It may be that in a particular case such a course could go outside the bounds of the police's lawful discretion, but I would not wish to define those possibilities in the abstract.
29. LORD JUSTICE MANCE: I agree with the judgments given by the Lord Chief Justice and by Lord Justice May. I agree with their construction of the warrant. The word "immediately" qualifies only the obligation to bring the person to whom the warrant relates before the magistrates' court after the execution of the warrant. That is so both because it is the more natural meaning of the words themselves, but also for the reasons of common sense and good policy explained by the Lord Chief Justice.
30. The warrant by statute (section 125(1) of the Magistrates' Courts Act 1980) remains in force until it is executed or withdrawn. The execution of a warrant in these circumstances is a matter for the police. I see nothing inconsistent with that conclusion in the authorities cited by Mr Owen. Hoye v Bush (1840) 1 Man & G 775 and Money v Leach 3 Burr 1742 go to the fundamental question of identification of the person to whom a warrant relates. In Hoye v Bush the officer was not entitled to exercise his judgment as to whether or not a warrant directed to A was really meant for B. In Money v Leach Lord Mansfield was concerned to disapprove of the practice, which had developed "since the Revolution", of issuing open warrants directing the arrest of persons who were neither named nor described in the warrant. This was the great case involving the publishers of 'The North Briton'. The warrant required the officer to

"make strict and diligent search for the authors, printers and publishers of a seditious and treasonable paper entitled The North Briton, No 45, Saturday, April 23, 1763, printed for G Kearsley in Ludgate Street, London; and them or any of them being found, to apprehend and seize ...."

31. It is not surprising that in those circumstances Lord Mansfield, with the emphatic agreement of his fellow judges, said that the warrant was invalid for uncertainty of the person to whom it related and added:

"It is not fit, that the receiving or judging of the information should be left to the discretion of the officer. The magistrate ought to judge; and should give certain directions to the officer. This is so, upon reason of convenience."

32. He went on to say that it was also so upon authority.
33. Here the warrant related to the arrest of a specific person. A quite different issue arises as to whether, in general law or by virtue of its terms, any latitude is allowed to the police with regard to the time of its execution.
34. It is clear in another context, as Holgate-Mohammed v Duke [1994] 1 AC 437 illustrates, that warrants may confer a certain discretion in that case under statute a much more important discretion as to whether any arrest should take place at all. In the present case what is in issue is whether there is a practical discretion in the arresting officer as to when he executes a warrant. To borrow Lord Mansfield's words, it seems to me clear that "upon reason and convenience" that there should be and is.
35. I entirely endorse what my Lords have said about the possibility that in some circumstances the police could be held liable if they abuse that discretion. It was accepted by the police below and before us that police are obliged to exercise their discretion in accordance with Wednesbury principles. What those circumstances would be is a matter depending on the factual circumstances of particular cases, and what the remedy might be in such circumstances is also better left to another case where the issue squarely arises.
ORDER:Appeal dismissed with costs not to be enforced without the leave of the court; Community Legal Services Funding assessment.