England and Wales Court of Appeal (Civil Division) Decisions

IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM Queen's Bench Division
Mr Justice Cooke
MA 291498

		Royal Courts of Justice Strand, London, WC2A 2LL
		19 July 2005

Sir Mark Potter P:

1. Mr Bell applies for leave to appeal from the judgment of Mr Justice Cooke dated 27 April 2005 after trial of an action brought by Mr Bell against the Manchester Police on the grounds of wrongful arrest and false imprisonment in respect of suspected theft; also for trespass to goods and properties seized in the course of searching various premises. Those premises were his home at Howarth Fold Farm, where he was arrested; his business at 173 Chorley New Road, Bolton; another business of his at Rockfield House, Bolton; the premises of his bookkeeper; and the offices of his accountant. Very large quantities of documents were seized.
2. These events occurred as a result of a complaint to the police by Mr Brown, a business partner of Mr Bell in the partnership of James C Bell & Partners, consulting engineers, in which Mr Bell had a 50% interest, Mr Brown 25% and a Mr Brownlow 25%. The essence of Mr Brown's complaint of theft was the dishonest division over a number of years of funds, which should have been billed by and paid to the Partnership, into the hands of Mr Bell and Mr Brownlow through the intervention in the billing and/ or payment process of the company or companies owned by Mr Bell and Mr Brownlow; see Para 11 of the judgment.
3. The officer in charge of investigating the complaint at the time, subject to the overall responsibility of a more senior officer, was Detective Sergeant Hartley, a female officer who Mr Bell complains was inexperienced and possessed minimal training in the investigation of fraud. She had taken over the investigation after initial enquires carried out by a DS Crimmins, who, having interviewed Mr Brown following receipt of his dossier of complaint, and having seen Mr Alan Rowe an Inland Revenue Inspector, wrote a report which concluded with his belief that Messrs Bell and Brownlow had committed a number of offences of theft over a period of years and that there was every likelihood that the sums involved far exceeded the £800,000 identified by Inland Revenue investigations. D.S. Crimmins recommended that the matter should be investigated further as documentary evidence should be available from a number of sources which would prove the allegations to the required standard for criminal proceedings: see paras 15-16 of the judgment.
4. The events and the investigation which led up to the arrest of Mr Bell are set out at paragraphs 17 –30 of the judgment. DS Hartley carried out further enquires and discussed matters with a newly appointed Detective Inspector, D.I. Hodgson, who agreed that it would be appropriate to proceed towards structured arrests of Mr Bell and Mr Brownlow for interview and searches and seizures of documents, followed by further detailed investigation to ascertain if there was sufficient evidence to bring charges.
5. On 14 November 1996, DS Hartley prepared an operational plan for the arrest of Mr Bell and Mr Brownlow which referred to Mr Brown's allegations against them of theft of monies from the Partnership by falsely invoicing the Partnership or Partnership clients and collecting monies due to the Partnership and diverting them. The aim of the operation was expressed to be the arrest and the interview of Mr Bell and Mr Brownlow on suspicion of theft from the Partnership. Once arrested, there was to be a search of the home address of each under S.32 of PACE for evidence in respect of theft, looking for documents and records relating to any of the limited liability companies, to the Partnership and to finances of these two partners and families. Simultaneously there was to be entry to the offices of the Partnership with Mr Brown in order to search for evidence of the same kind. Following arrest and detention at the police station, a search of Rockfield, which was the registered office of the limited companies, the offices of Mr Sharples (the Partnership's bookkeeper) and the office of their accountants, Alliotts.
6. It was and is Mr Bell's case that the enquiries made before the arrest and searches were carried out were inadequate and he is highly suspicious and critical that the pocketbook of DS Hartley for the period concerned was said to have been lost. It was Mr Bell's case, and his hope, that the pocketbook would confirm that essentially the investigation was no further forward in the inexperienced but enthusiastic hands of D.S. Hartley than it had been at the stage when it was in the hands of D.S. Crimmins who thought further investigation necessary. However, in paras 17 to 30 of the judgment, the judge set out his findings as to the propriety of the investigation, the essential honesty of DS Hartley's evidence as to the course of the events and her state of mind, namely one of genuine suspicion that Mr Bell had committed the offence or offences of theft.
7. On 19 November 1996 Mr Bell was arrested by D.S. Hartley at his home early in the morning. She recorded the words which she used at the time of the arrest some three hours later on her return to the police station as

"I am arresting you on suspicion of theft and false accounting in connection with James C Bell and Partners and the other limited companies you are involved with."

8. It was and is Mr Bell's case that those words were not spoken as recorded and all he was told was that he was being arrested on suspicion of theft. However the judge found against him on that issue for reasons fully set out at paras 30 to 37 of the judgment. Further, having reviewed the evidence as to what happened at the police station following Mr Bell's detention and interview, the judge found that, on Mr Bell's own evidence as to what he said on arrest, and by reference to a passage in the transcript of his interview in which he spoke of vindictive attacks by Mr Brown over 4 years and his efforts to involve a number of organisations to "get at us privately at what he perceived to be a wrong done to him", it was clear that Mr Bell was well aware that he had been arrested in connection with complaints made by Mr Brown about with the diversion of monies from the Partnership to limited companies in which he had an interest: see paragraph 45 of judgment.
9. In his judgment the judge set out at paras 45 to 50 the contents of Mr Bell's interview. DS Hartley's evidence was that although Mr Bell had been co-operative throughout the interview, he had not provided, so far as she was concerned, answers which suggested that he was innocent of the offences of which she suspected him. The investigation had therefore to continue. A large volume of documents had been seized from various locations I have mentioned which had to be itemised and considered before any assessment could be made as to whether charges should be brought. An inventory of the documents seized was compiled, identifying the location from which the documents had come and descending into some detail in relation to documents within particular files or folders in some cases. In all, 213 bags of material had been seized. A batch of material was returned on 20/21 November 1996 and a large batch of 159 bags of material was returned on 22 December 1997 over a year later.
10. Limited charges were brought against Mr Bell on 14 December 1998. They were later withdrawn on 8 April 1999 and a letter sent on 15 February 2000 saying that the CPS would take matters no further. At that stage more documents were released. A large batch was delivered on 1 March 2000 and further documents were sent to the Receivers of the Partnership in June/July 2000. Another batch was returned on 23 July 2001 to Mr Bell after ascertaining that he was or would be the only claimant to interpleader proceedings. Some computer data in the shape of CD ROMs which had been downloaded from computer hard drivers was not returned until 17 August 2004.
11. The search conducted at Mr Bell's home was conducted pursuant to s. 32 of PACE, following the arrest of Mr Bell. The search of the Partnership premises at 173 Chorley New Road was affected pursuant to a search warrant dated 15 November 1996.
12. A search warrant was also issued in respect of the search of the bookkeeper's premises. However, it was established in evidence, that on arrival at the premises, the documents taken by the police were handed over voluntarily by the bookkeeper on the authority of Mr Brown.
13. So far as the accountants were concerned, authority was obtained not only from Mr Brown but also from Mr Bell and Mr Brownlow, the documents being handed over on production of a faxed joint authority.
14. Finally, in relation to the search at Rockfield, a search was carried out at an office which was not under the control of Mr Bell and had been let out to tenants. No relevant documents were found or seized.
15. In a detailed and careful judgment, the judge found that there was no wrongful arrest, and hence no subsequent false imprisonment during the brief periods of detention of Mr Bell for the purpose of further investigation and interview. Nor, since the judge upheld the lawfulness of the arrest, and found that were reasonable grounds to suspect that Mr Bell's house contained evidence relating to the suspected thefts, was the search of Mr Bell's house at the time of his arrest illegal: see .32 of PACE. The judge also upheld the legality of the search of the Partnership premises pursuant to Magistrates' warrant: see further below. No cause of action arose in respect of the searches at the business premises of the bookkeeper or the accountants, given that the documents were handed over voluntary pursuant to authorisation. Finally, the search at Rockfield gave rise to no cause of action in Mr Bell who did not control the premises; nor had any documents been seized.
16. However, the judge went on to hold, that in the course of the searches, instead of removing only those documents relevant to the suspected offences, the police took away an excessive amount of documents, many of which were later returned as irrelevant. Thus a large number of documents were taken which were outside the scope of the offence and the lawful powers of seizure at that time: see R v Chesterfield Justices ex parte Bramley [2000] QB 576. The judge also held that the documents which were relevant were held and not returned by the police for an unduly long period. All should have been returned within 4 months, instead of the much longer and extended period taken. (See paras 113 to117 of the judgment). Whilst the judge expressed himself satisfied that the police had acted in good faith throughout and had reasonable grounds for suspecting Mr Bell of offences of theft, false accounting and obtaining money by false pretences, he described the investigation as "indefensibly protracted" being conducted at "desultory pace". It was 2 years from the original arrest before any charges were brought and on 8 April 1999 those charges were withdrawn.
17. The judge expressed his overall conclusion at para 126 of the judgment as follows:

"Mr Bell's claims for wrongful arrest and false imprisonment therefore fail. His claims in respect of trespass to property also fail. His claim for trespass to goods, conversion/ unlawful interference and unlawful retention succeed in principle, to the extent that it can be shown that he had an entitlement to possession and return of the material in question which will be the subject of further determination by this court if there is no agreement between the parties. As this hearing was on liability alone, any question of damages will also fall to be dealt with along with the determination of the particular documents which were wrongfully seized or wrongfully retained."

18. Mr Bell conducted the application before me in person with admirable courtesy and clarity, elaborating upon the clear skeleton argument he had placed before the court. The position is that he seeks to re-canvass every issue in the trial on appeal to this court. He does not quarrel with the judge's citation of the law or the authorities relied on, save in one respect with which I deal below. However, he does say that the judge was wrong or mistaken in his assessment of the witnesses, his findings of fact, and hence his conclusions on the lawfulness of the police actions. As I explained to Mr Bell in the course of argument, under our appellate procedure such a course is not available to him. It is the function of the trial judge to find the facts and make the inferences necessary to his decision. In the case of this kind, the appeal court will only upset the findings of the judge if he is shown to have erred in law or that there was no evidence on which he could reasonably have come to the conclusions which he did. This is not such case.
19. Mr Bell seeks a reversal of the Judge's findings that there was no wrongful arrest. He makes a number of points on the quality of the police evidence, being suspicious of the absence of notes and critical of the whole process of investigation. He says that, in the short space of DS Hartley's involvement, she had insufficient evidence to justify her stated suspicions, particularly bearing in mind that these were stale complaints on the part of a disgruntled partner. He submits that she had simply made up her mind against him and was adopting a "gung ho" attitude in order to impress her superiors.
20. However, more particularly, Mr Bell's main point is that DS Hartley had no proper grounds to suspect, nor did she suspect, any specific offence. He submits that merely to suspect "theft" in general terms, as she did, is an unfocused suspicion, insufficient in law to justify arrest. I have studied the detail of Mr Bell's submissions. As he confirms, the same points were made to the judge. The answer lies in the full and reasoned findings of the judge set out at paras 64 to 83 of the judgment and I do not propose to repeat them.
21. Mr Bell also complains that, even if the officer had reasonable grounds for suspicion, she none the less should have exercised her undoubted discretion not to exercise it. Again, a full answer is provided in paragraphs 83 to87 of the judgment as to which there is no prospect of reversal in this court.
22. Mr Bell complains that, in breach of s. 28(3) of PACE he was not fully or properly informed of the grounds of his arrest. As already indicated, the judge having heard evidence and seen the contemporary documents, was satisfied that Mr Bell was told the offences suspected were theft and false accounting. The judge also found at paragraph 89 of the judgment that the essential legal grounds were spelt out in the words "theft" and "false accounting" and the factual grounds were sufficiently set out by reference to the partnership and limited companies. Any more specific wording would have been impracticable and the phraseology used was enough to convey to Mr Bell why he was being arrested. Indeed his response, on his own version of events, was clearly to the effect that he did understand that the arrest was made in relation to the complaint of diversion of monies from the partnership to the companies which he had already discussed in some detail with Mr Brown. I can find no fault in the judge's reasoning. Nor indeed are there any grounds on which this court could find fault with the judge's comprehensive and reasoned findings concerning the arrest.
23. The same is true of the cause of action in false imprisonment. Mr Bell puts the question of false imprisonment on the ground that he was earlier falsely arrested. He accepts that, if that ground falls away, so does his cause of action for false imprisonment.
24. So far as the claim of trespass to property was concerned, the judge also dealt with this at length. He rejected the claim in respect of Rockfield House, Mr Lee's premises and the accountant's premises for reasons already given. He was correct to do so.
25. However, Mr Bell also complains of the trespass to his home constituted by the search in reliance on s. 32 of PACE and the search of the partnership premises pursuant to warrant.
26. As to the search and resulting seizure at his home, Mr Bell puts the matter on the basis that his arrest was unlawful for the reasons already canvassed and rejected by the judge on unimpeachable grounds. However, so far as the search and seizure of material at 173 Chorley New Road is concerned his argument is based upon the procedure to obtain, and the content of, the search warrant. He has two points. First that the warrant was obtained on a misleading basis; second, that it did not properly identify the material the subject of the search.
27. So far as there may have been any defect or irregularity in the procedure to obtain the warrant, the judge held at paragraph 105 of the judgment that, no application ever having been made to set aside the warrant, it remained valid on its face and was thus apt to protect the police by reason of s.6 of the Constable's Protection Act 1750. Furthermore, the police had already obtained summary judgment in respect of Mr Bell's claim for malicious procurement of the warrant, which decision had never been appealed. It was therefore not open to Mr Bell to attack the validity of the application for the warrant and the police were entitled to rely upon it unless they could be shown to have acted in excess of the powers expressed in it.
28. On the face of it, that is plainly correct. s. 6 of the 1750 Act protects any officer acting in obedience to any warrant issued under the hand or seal of any Justice. No action may be brought against an officer acting in obedience to a Justice's warrant unless or until a demand in writing for perusal of the warrant has been made and the officer has refused or neglected to comply with it within 6 days. If the officer complies with the demand, then the Justice must be joined as a co-defendant and judgment cannot be given against the constable in respect of any defect in the Justice's jurisdiction. The effect of the section is that an aggrieved person can recover damages for trespass which results from a Justice exceeding his jurisdiction, but only from the Justice. However, there are two broad limitations upon this rule. First, the officer must act in a way reasonably calculated to achieve his purpose of searching pursuant to the warrant, so that excessive unauthorised or unreasonable behaviour loses him the protection of s. 6: see for instance Price v Messenger (1800) 2 Bos & P 158. In this case, the judge held that the removal of a large number documents taken was unjustifiable: see the Chesterfield Justices Case already referred to. However, as that case also makes clear, while that is sufficient to render the seizure of the unnecessary documents unlawful, it does not invalidate the lawfulness of the search pursuant to warrant.
29. The second limitation upon the protection of an officer under section 6 is that an officer may be liable if there is a formal defect on the face of the warrant sufficiently grave to invalidate it. In this respect, the law is by no means clear as to the level of grossness or obviousness which is necessary for the officer to lose his protection by reason of such defect. In this connection, Mr Bell contends that by referring to the articles to be sought under the search warrant simply as "documentary/computer evidence" the warrant failed to "identify, so far as it is practicable, the articles… to be sought" as required by s. 15(6)(b) of PACE. He also cites s. 16(8) of PACE which provides that " a search under warrant may only be a search to the extent required for the purpose for which the warrant was issued."
30. The judge dealt with that submission in this way at para 107 of his judgment:

"… As already discussed, the basis upon which the warrant was obtained cannot be challenged indirectly by this route, and there are, in any event, authorities which show that a search warrant which refers to items in general terms (e.g. "bank accounts") in the context of suspected offences of which the Magistrates are informed, does not contravene section 15(6)(b) where it is clear that references relate to the suspected offence [or] offences. Here the offence was specified as theft and explained by DS Hartley orally."

31. Mr Bell has urged upon me that the "bank accounts" authority is not apt or sufficient to cover this case. It utterly fails to identify by type, or apply any limitation to the documents or computer evidence sought when it would plainly have been practicable to do so.
32. In my view that is an arguable point. However, it is not a point which of itself negates the defence under s.6 of the 1750 Act; there the issue is whether or not there was a formal defect on the face of the warrant sufficiently grave to invalidate it.
33. The test as to whether or not that is so, is not whether or not the terms of s.15 of the PACE have been complied with. It is a far broader test directed to the question whether, the defect relied on is such as to raise a clear doubt as to whether a an application has been lawfully made to, and granted by, the Justices in the exercise of their jurisdiction.
34. Mr Bell has not produced the warrant to me and I simply have no reason to think that any such defect could be established. The vague description of the documents sought would not in my view be sufficient for that purpose.
35. Finally, I consider that the judge was right in any event to take the view that the proper avenue for challenge to the validity of the warrant was by way of proceedings for judicial review and that, as the judge held, Mr Bell's failure to appeal against the striking out of his claim that the warrant had been maliciously applied for, put paid to his efforts to attack the validity of the warrant before the judge.
36. In all the circumstances, I do not consider that Mr Bell has any reasonable prospect of success upon his proposed appeal and I dismiss the application.