England and Wales Court of Appeal (Civil Division) Decisions

IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM H.H. JUDGE TRIGGER
Birkenhead County Court.

		Royal Courts of Justice Strand, London, WC2A 2LL
		3rd July 2003

Lord Justice Kennedy:

1. This is a claimant's appeal from a decision of Judge Trigger sitting in the County Court at Birkenhead who on 31^st October 2002 gave judgment for the defendant Chief Constable. Permission to appeal was granted by Lord Justice Buxton.

Background.

2. On 29^th January 1997 three armed men attempted to rob a post office at St Helen's.
3. On 30^th April 1999 three men armed with a sawn off shotgun intercepted and robbed Securicor employees who were delivering cash at Tesco, Birkenhead. They got away with £39,000, and a scarf was recovered from the car they used to escape.
4. On 13^th August 1999 there was another armed robbery at a post office on the Wirral when £20,000 was stolen.
5. From late August 1999 onwards those offences were being investigated by DC Pugh and DC Ross under the control of Detective Inspector Matthews. The investigation was given the code name "Operation Trotter". A man named Heffey had been arrested on 14^th August 1999, but clearly he had not been acting alone, and no money had been recovered. There was reason to suspect that Dean Metcalfe (otherwise known as Dean De La Cruz) was one of the other criminals involved because he could be linked to the scarf found in the car after the second offence. He was then about 17½ years of age, and may not have had a fixed address. On occasions when stopped by the police he had given as his address 19 New Henderson Street, Liverpool 8. That property belonged to Liverpool City Council, and Anita De La Cruz, Dean Metcalfe's mother, had lived there, but by August 1999 she had long gone, and on 8^th April 1999 the tenancy had been allocated to the claimants, Mr and Mrs Keegan and their four young children. That was not something of which the police officers involved in Operation Trotter seemed to have been aware, but they did make some enquiries as to the link between Dean Metcalfe and 19 New Henderson Street.
6. The making of such enquiries was the responsibility of DC Ross who was the Field Intelligence Officer within the Force Major Incident Team. He checked the electoral roll on which the names of Anita and Joseph De La Cruz appeared in respect of that property, and in a statement which he made on 2^nd August 2002 he asserts that he made other enquiries. Such enquiries would normally have involved the Benefit Agency, various utilities, possibly the local authority as landlord, and existing force intelligence, but he was unable to say precisely what was the result of those enquires, and such notes and records as he made at the time were no longer available to him.
7. What did emerge was that Anita De La Cruz was also linked to another address, 27 South Hill Road, Southport and Dean Metcalfe had given that address when stopped on 23^rd September 1999. The conclusion reached by DC Ross was that Dean Metcalfe was therefore linked to two addresses.
8. It seems that at meetings held between DC Pugh, DC Ross and Detective Inspector Matthews on 4^th October 1999 and 18^th October 1999 it was agreed that there were reasonable grounds to arrest Dean Metcalfe on suspicion of involvement in the armed robbery at Tesco on 30^th April 1999, and to search premises connected with him. The officers knew from experience that a surveillance operation in relation to 19 New Henderson Street would be a waste of time, and that conclusion is not really in dispute in these proceedings.

Obtaining the Warrant.

9. The next step was to obtain a warrant, and on 18^th October 1999 DC Wilson, who was one of the officers assigned to Operation Trotter, applied to a magistrate for warrants to search 19 New Henderson Street and 27 South Hill Road. The applications were made under section 26 of the Theft Act 1968, with a view to their being executed early on 21^st October 1999. DC Wilson only knew what DC Ross had told him, and that was what he relayed to the magistrate. He asserted that he had reasonable cause to believe that stolen cash was in the possession of the occupier, and warrants to search were granted. No application was made for a warrant to arrest Dean Metcalfe.

Briefing.

10. Eight or nine searches were planned to take place simultaneously at 7 a.m. on 21^st October 1999, so a large number of police officers assembled at police headquarters at 6 a.m. to be briefed. The officers assigned to visit 19 New Henderson Street were Police Sergeant Gamble with constables Riding, Slater, Baker and Watts. Detective Inspector Matthews was present at the briefing, and the officers who attended were given an overview of Operation Trotter in general terms. In particular they were aware that the targets had access to firearms. Sergeant Gamble was given Dean Metcalfe as a target, to be arrested in connection with the armed robbery at Tesco on 30^th April 1999, and his package included the search warrant in respect of 19 New Henderson Street, a photograph of Dean Metcalfe, and information in relation to him. He was to be arrested if found on the premises, and the premises were to be searched for the property identified in the warrant.

Execution of the warrant.

11. Sergeant Gamble and his team arrived at 19 New Henderson Street at 7 a.m. as planned. They were totally unaware of the fact that the Keegan family were the only occupiers of the premises, and began to use a metal ram to force open the reinforced door. The family awoke and were frightened. Mr Keegan went down to the door. He was then told through the broken door that those attacking his home were police officers, and at the request of Sergeant Gamble he opened the door. Sergeant Gamble could see that Mr Keegan was not Dean Metcalfe, and realised that there had probably been a mistake, for which he apologised. Police Constable Watts quickly searched the premises to ensure that only the family was there, Sergeant Gamble said that the police would make good the damage to the door, and by 7.15 a.m. all the officers had left. In the circumstances Sergeant Gamble did not consider it appropriate to search for cash, but he did explain his interest in Dean Metcalfe, and Mr Keegan recognised the name because mail had arrived addressed to Dean Metcalfe, and others had been looking for him.

These Proceedings.

12. The appellants consulted solicitors, and a letter of claim was sent to the Chief Constable on 5^th November 1999, pointing out that the Keegan family had been in the premises since April 1999, prior to which the premises had been vacant whilst work was carried out. The letter sought damages for trespass. Initially liability was admitted, but not causation or damages, and in June 2001, after the break-down of negotiations, the appellants served their particulars of claim. It alleged trespass and false imprisonment. In amended particulars of claim dated December 2001 the appellants alleged that the entry was not for the purpose identified in the warrant, and that the warrant had been maliciously procured. By then the respondent had withdrawn the admission of liability, and in his amended defence placed reliance on section 6 of the Protection of Constables Act 1750, in relation to actions taken pursuant to the warrant, and on section 17(1)(b) of the Police and Criminal Evidence Act 1984 in relation to the search for Dean Metcalfe. Thus there were three issues in relation to liability to be considered by the trial judge, namely malicious procurement of the search warrant, trespass and false imprisonment. All three issues were resolved in favour of the respondent, and from the decision in relation to the third issue, namely false imprisonment, there is no appeal, so I need say no more about that aspect of the case.

In the County Court.

13. The judge heard evidence from all of the police officers to whom I have referred other than police constables Slater and Baker (two members of Sergeant Gamble's team). He found that –

(1) Covert surveillance of 19 New Henderson Street was considered and rejected for good reasons:

(2) During the 6 to 8 weeks prior to 21^st October 1999 the police did check with utility companies, and probably with Liverpool City Housing Department:

(3) The rough notes and summaries relating to those enquiries were still in existence in 1999 when the letter before action was sent and received. Those documents have never been produced, and because of their absence the judge inferred –

(4) That the checks revealed not only that Anita De La Cruz was no longer recorded as living at 19 New Henderson Street but that the adult claimants were recorded as living there.

(5) Before gaining entry to 19 New Henderson Street Sergeant Gamble knew of his powers under the search warrant and under section 17 of the Police and Criminal Evidence Act and, as a result of the information he had received at the briefing, he had reasonable grounds for believing that Dean Metcalfe was on the premises. Sergeant Gamble and his team knew nothing of the Keegans living there.

As to the allegation that the search warrant had been maliciously obtained the judge cited from Gibbs v Rea [1998] AC 786 the four ingredients of the tort, namely –

(1) A successful application for a search warrant,

(2) Lack of reasonable and probable cause to make the application,

(3) Malice, and

(4) Resultant damage arising from the issue or execution of the warrant.

The first and fourth ingredients were plainly satisfied. As to the second ingredient the judge cited a further passage from Gibbs, namely –

"It must be shown that the Defendant lacked any bona fide belief that he or she was placing before the issuing judge material sufficient to meet the conditions for the issue of the warrant sought. In this case the relevant conditions are, inter alia, reasonable suspicion that the specified person has carried on or has benefited from drug trafficking, and that material valuable to the investigation might be on the designated premises. That encompasses the subjective belief in good faith that material grounds for suspicion exist, and the objective requirement that the belief is reasonably held."

So far as I can ascertain the judge did not directly apply that approach to the facts of the present case, but by inference he accepted that DC Wilson was not shown to lack any bona fide belief that he was placing before the magistrate material sufficient to meet the conditions for the issue of a warrant pursuant to section 26 of the Theft Act. In other words there was reasonable cause to believe that the occupier of 19 New Henderson Street had on his premises stolen cash. For reasons to which I will return that point did need to be addressed.

14. Turning to the third ingredient, the judge rejected the submission that, as in the case of misfeasance in public office, it was unnecessary to show targeted malice, it was sufficient to show that a public officer knew that he had no power to do the act complained of and that the act would probably injure the claimant (c.f Three Rivers District Council v Bank of England (No. 3) [2000] 2 WLR 1220). But the judge went on to say that even if the Three Rivers approach was correct in relation to the third ingredient of the tort with which he was concerned he would not have found that ingredient to be satisfied, because he was not satisfied that either DC Wilson or those who had investigated prior to his application "acted with reckless indifference to the fact that the Keegans might be subjected to this forcible entry and frightening early morning visit." They were investigating serious offences, and had taken steps to acquire information and obtained certain information.
15. Turning to trespass, the judge asked himself whether the forced entry was lawful. It can be said that by referring to force he concealed the underlying question of whether the entry was lawful, but in fact it was that underlying question that the judge primarily sought to address. He recognised that the burden of proof was on the defendant, and that Sergeant Gamble and his team had an apparently valid warrant to search 19 New Henderson Street for cash. Furthermore Sergeant Gamble was aware of his powers under section 17 of the Police and Criminal Evidence Act, and he was aware of the danger from Dean Metcalfe who, it was believed, had access to firearms. If he was within the building that made it "at the very least undesirable" to give any warning of impending entry. Sanctity of the home was important, but it had to be balanced against others factors, including the risk of injury to the officers endeavouring to execute the warrant. Thus the judge found that the forced entrance was justified – "the entry itself was lawful, both as an entry and in the manner in which it was achieved."

Malicious Procurement of Search Warrant.

16. In this court Mr Simblet, for the appellant, has been critical of the Judge's failure specifically to address the second ingredient of the tort identified in Gibbs v Rea, namely whether on 18^th October 1999 the respondent had reasonable and probable cause to apply for a warrant to search for stolen cash at 19 New Henderson Street. The application was made by DC Wilson with the authority of Detective Inspector Matthews, but they were both dependent upon the information-gathering work of DC Ross, so in the circumstances of this case it is reasonable to look first at the state of mind of DC Ross. With the benefit of hindsight it is clear that there was no good reason to look for stolen cash at 19 New Henderson Street. The Keegans had been living there since early April 1999, before any money was stolen, and Dean Metcalfe was not a visitor to their home. But in August to October 1999 the perspective of DC Ross was different. He knew that when stopped in the fairly recent past Dean Metcalfe had on occasions given 19 New Henderson Street as his address, and that his mother still had a vote there. By mid October 1999 that would be a very slender basis on which to conclude that the prospects of finding at 19 New Henderson Street cash stolen on 30^th April 1999 and 13^th August 1999 were such as to justify an application for a warrant in circumstances where the premises might be occupied by persons unconnected with Dean Metcalfe, and where other inquiries could reasonably be made. That is really conceded by the respondent, because DC Ross in evidence pointed out that there were other enquiries which he regarded as routine when investigating a link between an individual and a property. An approach could be made to the landlord (in this case the City Council's Housing Department), the utilities and the Benefits Agency. Much would depend upon the questions asked. Having regard to Dean Metcalfe's age it is unlikely that any agency would know anything about him, but the landlord and the utilities and possibly the Benefits Agency would have been able to assist as to when Anita and Joseph De La Cruz ceased to occupy 19 New Henderson Street, and at the time when enquiries should have been made all of those agencies (with the possible exception of the Benefits Agency) could have advised DC Ross of the arrival of the Keegans. The judge accepted that the appropriate routine enquiries were made and, in a situation where there was no documentary or even oral evidence as to the results of the enquiries, he inferred that they yielded predictable results. In that situation it seems to me that it was incumbent upon DC Ross to investigate further, particularly in the light of his knowledge that Anita De La Cruz and Dean Metcalfe were also connected with 27 South Hill Road, to see if there was anything to link Dean Metcalfe with 19 New Henderson Street after the cash was stolen. That would have enabled him to provide Detective Inspector Matthews and DC Wilson with the information they required when the question arose as to whether a search warrant should be sought in respect of 19 New Henderson Street. In my judgment it is obvious that if the proper enquiries had been made and the results of those enquiries had been properly reported the conclusion would have been reached that in mid October 1999 there was no reasonable and probable cause to apply for a search warrant in respect of 19 New Henderson Street. Mr Wells for the respondent valiantly sought to argue to the contrary, but in my judgment his task was hopeless, and the judge should have found that the second ingredient of the tort as identified in Gibbs v Rea was made out.
17. I therefore conclude that in this case there should never have been an application for a search warrant, but if an application was to be made it is clear to me that much more information should have been provided so as to enable the magistrate properly to exercise his function of deciding whether the operational needs of the police were such as to justify the proposed invasion in the early hours of a private home (see section 15 of the Police and Criminal Evidence Act 1984 and the Code of Practice for the Searching of Premises by Police Officers).
18. There remains the question of malice, the third ingredient of the tort identified in Gibbs v Rea. In that case at 797 Gault J said –

"Malice in this context has the special meaning common to other torts and covers not only spite and ill-will but also improper motive."

At the time when Gibbs v Rea was decided it was stated in paragraph 1-41 of the 17^th Edition of Clerk and Lindsell on Torts that –

"Where proof of malice is required in tort, in many instances it is defined more broadly than spite or overtly evil intent. Proof of any dishonest, irrelevant or improper motive will suffice. In malicious prosecution, for example, it is not necessary to show that the defendant acted out of hatred or dislike of the plaintiff, but simply that he instituted the proceedings for purposes other than the pursuit of justice."

That paragraph has been re-worded in the 18^th Edition where, as paragraph 1-54, it reads –

"Malice in the sense of improper motive is a requirement of liability for malicious prosecution where it is satisfied by the institution of proceedings for purposes other than the pursuit of justice; and for malicious falsehood where it is satisfied by knowledge of the falsity of the statement. Malice in this sense may be relevant in other forms of tortious liability."

For present purposes the differences do not seem to me to be significant. The key factor in each formulation is the existence of an improper motive. As Mr Wells pointed out, in Glinski v McIver [1962] AC 726, where malicious prosecution was alleged, Lord Devlin at 766 noted, as a matter of agreement, that malice covered "any motive other than a desire to bring a criminal to justice". In the context of the present case that could be re-formulated as "any motive other than a desire to recover the stolen cash." Mr Wells also drew our attention to the decision of this court in Gizzonio v Chief Constable of Derbyshire 26^th March 1998 unreported, where the cause of action under consideration was misfeasance in public office, but I need not dwell on that decision because of what was later said in relation to that tort by the House of Lords in Three Rivers to which I have already referred (paragraph 14 above). Mr Simblet pointed out that in the latter case Lord Steyn, when dealing with the matrix of the tort at 1230 observed that "the availability of the tort of misfeasance in public office has been said to be one of the reasons justifying the non-actionability of a claim in negligence where there is an act of mal- administration". In other words, Mr Simblet contends, a victim of mal-administration should not be left without a remedy. At 1231 Lord Steyn said –

"The case law reveals two different forms of liability for misfeasance in public office. First there is the case of targeted malice by a public officer, i.e. conduct specifically intended to injure a person or persons. This type of case involves bad faith in the sense of the exercise of public power for an improper or ulterior motive. The second form is where a public officer acts knowing that he has no power to do the act complained of and that the act will probably injure the plaintiff. It involves bad faith in as much that the public officer does not have an honest belief that his act is lawful."

Mr Simblet submitted that a similar approach should be adopted in relation to the requirement of malice in the tort with which we are concerned, and that it is sufficient if the claimant proves that the public officer acted with a state of mind of reckless indifference to the illegality of his act (see Lord Steyn at 1232).

19. In Darker v Chief Constable of West Midlands Police [2001] AC 435 the plaintiffs had been indicted on counts alleging conspiracy to import drugs and conspiracy to forge traveller's cheques. During the criminal trial it emerged that there had been such inadequate disclosure by the police that the proceedings were stayed as an abuse of process. The plaintiffs then instituted civil proceedings alleging conspiracy to injure and misfeasance in public office. The defendants sought to have those proceedings struck out on the ground that the acts alleged were protected by absolute privilege or immunity. Part of the argument for the defendant was that misfeasance in public office should not constitute an exception to the immunity rule circumventing the restrictions imposed by the requirements of malicious prosecution. That was rejected in the context of a case where what was alleged was fabrication of evidence in an attempt to secure the conviction of those believed to be guilty. At 471 Lord Hutton said –

"To establish the tort of malicious prosecution the plaintiff must prove absence of reasonable and probable cause for a prosecution, and in my opinion notwithstanding that there is reasonable and probable cause to prosecute a suspect should be entitled to sue the police for malicious and dishonest conduct in fabricating evidence against him."

Mr Simblet sought to derive assistance from the decision in Darker, but it is noteworthy that in that case the distinction between malicious prosecution and misfeasance in public office was maintained. In Kuddus v Chief Constable of Leicestershire [2002] 2 AC 122 the House of Lords decided that exemplary damages could be awarded in relation to misfeasance in public office, and stated that the availability of such damages depended upon the features of the officer's behaviour rather than the precise cause of action relied upon. That does not seem to me to indicate that there should be a wholesale relaxation of the boundaries between different forms of tort.

20. We were also referred to the decision of this court in Chief Constable of Thames Valley Police v Hepburn [2002] EWCA Civ 1841, where a warrant issued for one purpose was used for another purpose. That has no application in the present case, and in my judgment the law still is that where it is alleged that a warrant has been maliciously procured the claimant can only succeed if he shows that the application for the warrant was made for an improper motive. Incompetence or negligence will not suffice. In some cases where it is shown that there was no reasonable and probable cause to seek the warrant it can be inferred that there was an improper motive. The failure to make proper enquiries may be attributable to a desire not to know what it is suspected or even known that such enquires would reveal. But if proof of the absence of reasonable and probable cause to seek the warrant alone would suffice there would be no need for the separately identified ingredient of malice. In reality the tort would impose liability for negligence, and that might well expose Chief Constables to the possibility of civil actions on almost every occasion when warrants were obtained. Of course if the present case related to events occurring after the implementation of the Human Rights Acts 1998 it would have been necessary to consider the impact of Article 8 of the European Convention on Human Rights, and the requirement of proportionality, which may afford an answer to Mr Simblet's submission that there should be no wrong without a remedy, but our task is to apply the law as it was in October 1999 to the facts of this case. When that is done I, like the judge, can find no evidence of any improper motive on the part of DC Wilson or any other officer involved in the decision to seek a warrant. Plainly, as it seems to me, the warrant was sought for the purpose set out upon the face of the warrant, namely to search for the stolen cash. That was a proper purpose. It did not cease to be so simply because the police officers were also anxious to arrest Dean Metcalfe if he could be found. I therefore conclude that the judge was right to hold that the tort of malicious procurement of the search warrant was not established because a necessary ingredient of that tort, namely malice, was not proved.

Trespass.

21. I turn now to the allegation of trespass. I have already dealt in paragraph 15 with the suggestion that the judge failed to consider the legality of the entry as opposed to the means of entry. Mr Simblet accepted that the warrant was on the face of it lawful, and that the entry of Sergeant Gamble and his team was therefore lawful if they were acting in obedience to the warrant, in order to search for cash. The claim under this head could only have any possibility of success if the warrant was simply a smoke screen, and the true purpose of entry was to arrest Dean Metcalfe. In my judgment the evidence clearly showed that the warrant was not simply a smoke screen. Recovery of cash was one of the main purposes of the operation undertaken on 21^st October 1999, and the fact that there was another purpose, namely the arrest of suspects, did not deprive the officers of the protection afforded to them by the warrant.
22. Had there been no warrant, and no intention to search for cash, Sergeant Gamble and his team would have had to rely on section 17 of the Police and Criminal Evidence Act 1984 in order to justify their forcible entry, and in the context of this case the attempt to rely upon that section might have given rise to difficulties. Section 17(1) enables a constable to enter and search any premises for the purposes of arresting a person for an arrestable offence, but by subsection (2) those powers of entry and search –

"(a) Are only exercisable if the constable has reasonable grounds for believing that the person whom he is seeking is on the premises; and

(b) Are limited, in relation to premises consisting of two or more separate dwellings, to powers to enter and search –

(i) any parts of the premises which the occupiers of any dwelling comprised in the premises use in common with the occupiers of any other such dwelling; and

(ii) any such dwelling in which the constable has reasonable grounds for believing that the person whom he is seeking may be."

The question therefore arises whether Sergeant Gamble had reasonable grounds for believing that Dean Metcalfe was at 19 New Henderson Street, or that he might be there. The latter qualification may be inappropriate because of the contrast in wording between paragraph (a) and (b)(ii) and because the whole of paragraph (b) seems to relate to a situation where there are separate dwellings making up a single set of premises. Mr Simblet submitted that the judge did not address the question of whether Sergeant Gamble believed Dean Metcalfe to be at 19 New Henderson Street, and had reasonable grounds for that belief. He submitted that Sergeant Gamble knew nothing of why Dean Metcalfe was linked to 19 New Henderson Street, but that is not quite correct. Clearly some information was given orally at the briefing, and in addition Sergeant Gamble and his team received a briefing pack, part of which read –

"Intelligence has been gathered on ….. and his associates, who have been suspected for some time of being responsible for a number of robberies on commercial premises. After research being carried out, the intelligence indicates that Heffey's associates/co-accused may be one of the following males:

Dean Anthony Metcalfe alias Dean Anthony De La Cruz dob 29.01.82.

South Hill Road L8

19 New Henderson Street L8"

Below the entry in respect of Metcalfe there are four other entries which have been deleted.

23. Mr Simblet pointed out that in O'Hara v Chief Constable of Royal Ulster Constabulary [1997] AC 286 it was made clear that a police officer could not have objectively reasonable grounds to suspect an individual of being involved in acts of terrorism simply because the officer was told by a superior officer to arrest that individual (see Lord Steyn at 293). But here Sergeant Gamble was not simply told to arrest. He was told of the background to Operation Trotter, and that as a result of research carried out by others it was thought that Dean Metcalfe might be found at one or other of two addresses. That, as it seems to me, must be capable of giving him objectively and subjectively reasonable grounds for believing that Dean Metcalfe might well be at 19 New Henderson Street. I accept, as was said by Nolan J in Johnson v Whitehouse [1984] RTR at 47 that there is a relevant distinction between suspecting and believing. The latter imports a greater degree of certainty, but the point which has troubled me in the present case is whether for the purposes of section 17(2)(a) it is sufficient for the officer to believe the person sought may well be on the premises, or whether he must actually have reasonable grounds for believing that person is on the premises. What if the person sought is known to use two addresses? The answer to that seems to be provided by reading the section as a whole. It applies to the execution of warrants of arrest as well as arrests without a warrant, and if the narrower construction were adopted the police would not be able to act against either of two known addresses so long as they knew no more than that the suspect might be at one of them. That cannot have been what Parliament intended, and that conclusion is fortified by the wording of section 17(2)(b)(ii).
24. I accept that a complainant who gives false information can be liable in malicious prosecution or false imprisonment even when the prosecution or detention is actually effected by an independent police officer (see Davidson v Chief Constable North Wales [1994] 2 All E R 597 and Martin v Watson [1996] AC 74). I also accept that where section 17 of the Police and Criminal Evidence Act is relied upon forcible entry to a home does need to be justified (O'Loughlin v Chief Constable of Essex [1998] 1 WLR 374), but none of that seems to me to assist the claimants in this case. Those responsible for sending Sergeant Gamble and his team to 19 New Henderson Street were mistaken, but the mistake does not deprive the team of legal protection, any more than the mistaken entry on the National Computer deprived the arresting officers of protection in Hough v Chief Constable of Staffordshire [2001] EWCA Civ 39. Accordingly it seems to me that even if there had been no warrant the claim of trespass would have failed. Having regard to the existence of the warrant it had no prospects of success.

Conclusion.

25. For those reasons I would dismiss this appeal.

Lord Justice Ward:

Malicious procurement of a search warrant

26. The judge, following Gibbs v Rea [1998] AC 786,797, held that the four ingredients of this tort are:

1. that there was a successful application for the search warrant;

2. that the defendant did not have reasonable and probable cause to make the application;

3. that the defendant acted with malice; and

4. that the damage resulted from the issue or execution of the warrant.

27. The judge did not make any finding on the second ingredient and, in my judgment, was in error not to do so. On the facts he found there is, however, only one answer and that is that the defendant did not have reasonable and probable cause to apply for a warrant to search these premises for the stolen cash.
28. The evidence linking these premises to this seventeen and a half year old young person was tenuous. True he had given that property as his address when it was, after all, the home of his mother. As was known to the police, his mother had moved to 21 South Hill Road and the South Hill Road property was the most recent address given by Metcalfe when stopped by the police on 23 September 1999. In those circumstances an electoral roll, the date of which was seemingly not revealed, is scant ground for a belief that New Henderson Street remained his current address.
29. The judge found, however, and with good reason, that; -

"I do infer that in the six to eight-week period…., checks were made by the police with Liverpool City Council and the utilities and that such checks revealed not just that Anita De La Cruise (sic) was no longer recorded as living at 19 New Henderson Street, but that Mr and/or Mrs Keegan were."

30. He did not draw any further inference as to what those checks would have revealed. A most rudimentary enquiry of the housing department would surely have disclosed that :-

1. Mr and Mrs de la Cruz had vacated the property in August 1998;

2. Mr and Mrs Keegan and their four children had been granted a tenancy and had entered into occupation in April 1999.

3. They were probably in possession of the property before any cash had been stolen;

4. The tenancy was granted to them as random applicants for council housing, random in the sense that any connection with the previous occupants was certainly not obvious and was more likely to be improbable;

5. The chances of Dean Metcalfe gaining access to this property and hiding the money there were, therefore, fanciful.

31. In my judgment this was shoddy detective work and it in no way justified a finding in the police's favour.
32. The claimants still need a finding that the police were actuated by malice in order to succeed. Glinski v McIver [1962] A.C. 726, 743/4 per Viscount Simonds, establishes that :-

"Since the case of Sutton v Johnstone (1785) 1 Term Rep. 493, and no doubt earlier, it has been a rule rigidly observed in theory if not in practice that, though from want of probable cause malice may be and often is inferred, even from the most expressed malice, want of probable cause, of which honest belief is an ingredient, is not to be inferred."

33. That causes me concern. Here a law abiding family have had their front door smashed by battering ram in the early hours of the morning whilst they were still asleep. It seems to have caused terror and some distress and perhaps even the psychiatric harm upon which a substantial part of the claim is based. Given the inefficiency of the police investigation, the family gain my sympathy. If malice can be inferred from the lack of reasonable and probable cause to believe that stolen cash was on the premises, why should the case not be remitted to the County Court to determine whether or not malice can be established in the light of the finding in the claimant's favour on ingredient number 2? I have given that question anxious consideration.
34. Not without a measure of reluctance, I conclude that the prospects of eventual success are so slender that it is better that this case ends here. The police may have been negligent but it is practically impossible to say that any officer acted without a bona fide belief that he was placing, or allowing another officer of the squad to place before the Justices material sufficient to meet the conditions for the issue of the search warrant. It is difficult to see any improper motive for the police action.
35. That an Englishman's home is said to be his castle reveals an important public interest, but there is another important public interest in the detection of crime and the bringing to justice of those who commit it. These interests are in conflict in a case like this and on the law as it stood when these events occurred, which is before the coming into force of the Human Rights Act 1998, which may be said to have elevated the right to respect for one's home, a finding of malice on the part of police is the proper balancing safeguard.
36. Upon careful reflection, I agree with my Lords that it is inevitable that malice will not be proved in this case.

Trespass

37. I agree that as the warrant on the face of it was lawful, entry pursuant to it was lawful and thus not a trespass upon the property.

Conclusion

38. Sympathy for the claimants is not enough. I agree that the appeal must be dismissed.

Lord Phillips, M.R.

39. For the reasons given by Kennedy LJ I agree that the tort of malicious procurement of the search warrant was not established. I also agree the existence of the warrant defeats the claim in trespass.
40. I express no opinion on the question of whether section 17(2)(a) of the Police and Criminal Evidence Act permits a constable to enter and search any premises for the purpose of arresting a person for an arrestable offence not only where he has reasonable grounds for thinking that such person is on the premises but also where he has reasonable ground for thinking such person may be on the premises. This point was not argued before us at length and I would prefer to leave it open until it has to be decided.
41. It follows that this appeal must be dismissed.