COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM LIVERPOOL COUNTY COURT
HIS HONOUR JUDGE MACMILLAN
Claim No: 4LV10960
Strand, London, WC2A 2LL
B e f o r e :
LADY JUSTICE HALLETT
LORD JUSTICE LEVESON
| CONNOR & ORS
|- and -
|CHIEF CONSTABLE OF MERSEYSIDE POLICE
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Lady Justice Hallett :
(1) If a justice of the peace or, in Scotland, the sheriff, is satisfied by information on oath that there is reasonable ground for suspecting-a) that an offence relevant for the purposes of this section has been, is being, or is about to be committed; orb) that, in connection with a firearm or ammunition, there is a danger to the public safety or to the peace,
he may grant a warrant for any of the purposes mentioned in subsection (2) below.
(2) A warrant under this section may authorise a constable or civilian officer-a) to enter at any time premises or place named in the warrant, if necessary by force, and to search the premises or place and every person found there;b) to seize and detain anything which he may find on the premises or place, or on any such person, in respect of which or in connection with which he has reasonable ground for suspecting-i) that an offence relevant for the purpose of this section has been, is being or is about to be committed; orii) that in connection with a firearm, imitation firearm or ammunition there is no danger to the public safety or to the peace.c) that an offence relevant for the purposes of this section has been, is being or is about to be committed; ord) that in connection with a firearm, imitation firearm or ammunition there is a danger to the public safety or to the peace.
(3) The power of a constable or civilian officer under subsection (2) (b) above to seize and detain anything found on any premises or place shall include power to require any information which is [stored in any electronic form] and is accessible from the premises or place to be produced in a form in which it is visible and legible [or from which it can readily be produced in a visible and legible form] and can be taken away.
(4) The offences relevant for the purposes of this section are all offences under this Act except an offence under section 22(3) or an offence relating specifically to air weapons.
(5) It is an offence for any person intentionally to obstruct a constable or civilian officer in the exercise of his powers under this section.
"You are hereby authorised, on one occasion within one month of the date hereof, to enter the said premises [or place], if necessary by force, and to search the said premises [or place] and every person found therein, and to seize and detain any firearm, imitation firearm or ammunition which you may find on the premises [or place] or on any such person, in respect of which, or in connection with which, you shall have reasonable grounds for suspecting that an offence relevant for the purposes of the said section has been, is being, or is about to be committed [or that in connection which such a firearm, imitation firearm or ammunition there is a danger to public safety or to the peace], and (if the premises are those of a registered firearms dealer) to examine any books relating to the business of a registered firearms dealer carried on the said premises [or place]."
Grounds of Appeal
1. the judge erred in law in withdrawing from the jury the factual issues relating to the obtaining of the warrant including the question of malice;
2. the judge erred in law in dismissing the appellants' claims for false imprisonment;
3. the judge displayed a bias towards the adult male appellant which amounted to an irregularity and rendered the decision of the lower court unjust;
4. the judge made an inappropriate remark which would have unfairly prejudiced the jury against the appellants;
He has permission to appeal on grounds 2 and 3 only and renewed his application for permission to appeal on grounds 1 and 4.
Ground 1: obtaining of the warrant
"I am totally, utterly satisfied that the defendant had reasonable cause to obtain the warrant to search 3 Smith Place for firearms on 20th February 2003. There is no evidence whatsoever of any improper motive or reckless indifference. The warrant was obtained, mainly, on the evidence of an informer. I will call him or her that rather than the technical term, Human CHIS. This informant was a person of good character and was not paid for this information, so it follows that they were acting out of public spiritedness. They were graded at B4, B is the highest grading that a civilian can get. A is reserved for undercover police officers. 4 means that further research, information, needs to be gained. That information was gained. Most particularly, I think, that the information gave the police reasonable cause to apply for this warrant is because some ten days earlier the same informant had given the police information upon which they acted, that firearms were at the home of a man, Singleton, who – it is significant, and I will come back to this – is known to the claimants.
As I say, ten days earlier the police acted on this information. Now, it is very, very connected with this current application. It concerned firearms. It concerned the right gang, if I can call them that. I am not going to give them the distinction of calling it a faction. It was a gang, a criminal gang. The firearm, acting on this informant's information, the police had successfully executed a warrant and found firearms at the home of the man, Singleton, who, as I say, is known(?) pertinent(?) [sic] was known to these claimants, that that, [sic] almost on its own, in my judgment would give the police ample reason to act upon this further information and execute this search warrant.
The matter does not end there because the information the police sought and obtained was to the effect that these claimants had significant connections with the right gang, not only because they knew Singleton but there is Miss Garner's sister, who is married to a man, Williams, Robert Williams, who the information is, is a lieutenant of Michael Wright, and there is further family connection. Furthermore, there is the geography. If they had been living in Kirkby or Birkenhead the matter might be different, but they are right slap bang in the geographical part of Liverpool that was the centre of this gang warfare.
Further, there is the fact that Mr Connor has a number of previous convictions. Alright, nothing to do with firearms and nothing to do with violence, but he is in my judgment just the sort of man who would be willing, and no doubt money being handed over, for payment to allow his premises to be used for the storing of firearms, a safe house, in other words."
I shall return to the concluding words of that paragraph when I rehearse Mr Thacker's submissions on Ground 3.
"In the absence of any suggestion of possession by the police of information from any other source, the evidence of the absence of any grounds of suspicion having been provided by the plaintiff himself must be accorded weight. When all the factors mentioned are knitted together they form a circumstantial case of the absence of any grounds upon which a person could reasonably suspect him of trafficking in drugs or benefiting therefrom. Having regard to the consideration that when the plaintiff has to prove a negative in relation to matters which were within the knowledge of the defendant, slight evidence will suffice to require an answer from the defendant, Mr. Rea's case called for an answer."
"1. Everyone has the right to respect for … his home…
2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society… for the prevention of disorder or crime…"
Ground 2: dismissal of the claims for false imprisonment
"It is a bedrock of our liberties that a citizen's freedom of person and of movement is inviolable except where the law unequivocally gives the state power to restrict it. If a person obstructs a police officer in the execution of his or her duty an offence is committed and a power of arrest arises. That, and not an implied power to detain or manhandle people who are doing nothing wrong, is how the law protects officers executing a search warrant from interference."
"29. As it seems to me, the justices' reliance on the Court of Appeal's decision in Hepburn's case was misplaced. They were plainly thereby led into error. The crucial distinction between Hepburn's case and the present case, although this is perhaps not as clear from the report in the Times, to which the justices were referred, as it is from the full transcript which is before us, is that the search warrant in that case was limited to the premises, whereas here the warrant applied both to the premises and to any persons found there. It is not for this court to question the conclusion reached by the Court of Appeal on the particulars facts in Hepburn's case. But the reasoning of Sedley LJ in paragraph 14, which I have rehearsed, may, on some future occasion, merit consideration. It may also be that, in Hepburn's case, the warrant was issued only under section 23(3) of the Misuse of Drugs Act 1971, for section 117 of the Police and Criminal Evidence Act was not referred to in the judgment in that case. But, in any event, for the reasons which I have already sought to explain, contrary to the observation made by Sedley LJ, there is not any general power of arrest for obstructing a police officer in the execution of his duty.
30. That said, those are not matters which affect the outcome of the present appeal because, as I have already indicated, Hepburn's case is plainly distinguishable from the present case. Furthermore, the warrant here was not only issued in relation to persons as well as premises, it was issued under both section 23 of the 1971 Act and section 15 of the Police and Criminal Evidence Act, in relation to which there are the powers enshrined in section 117 of that Act. Section 23 conferred on the officers a power to detain people for the purpose of searching them, and section 117 conferred the power to use reasonable force for the purpose of executing the warrant.
31. I accept Mr Fitzgibbon's submission that the primary focus of section 117 no doubt relates to the circumstances in which officers in executing a warrant enter premises, and it is not the entry of the premises which gives rise to the present difficulty. But it is also plain to my mind that section 117 also extends to what goes on once the premises have been entered and are being searched and also when the occupants of the premises are being searched. Whether, in a particular case, the force used is reasonable, depends on the particular facts and, in my judgment, has to be gauged in the context of the purpose for which the force is being used.
32. Here the warrant authorised a search of premises and persons for controlled drugs and documents connected with drugs offences. That authority, to be meaningful, had as it seems to me, to enable the search to be effective. It could not be effective, particularly in premises on two floors, presently occupied by a number of people, if the occupiers were permitted to move about freely within the premises while the searches were going on. Although I accept it is for the police to show, and the burden upon them is a heavy one, that the use of force was necessary and reasonable, it seems to me to be entirely reasonable that officers should seek, by no more force than is necessary, to restrict the movement of those in occupation of premises while those premises are being searched."
"The drill the Army follow is to enter the house and search every room for occupants. The occupants are all directed to assemble in one room, and when the person the soldiers have come to arrest has been identified and is ready to leave, the formal words of arrest are spoken just before they leave the house. The Army do not carry out a search for property in the house and, in my view, they would not be justified in doing so. The power of search is given "for the purpose of arresting a person," not for a search for incriminating evidence. It is however a proper exercise of the power of search for the purpose of effecting the arrest to search every room for other occupants of the house in case there may be those there who are disposed to resist the arrest. The search cannot be limited solely to looking for the person to be arrested and must also embrace a search whose object is to secure that the arrest should be peaceable. I also regard it as an entirely reasonable precaution that all the occupants of the house should be asked to assemble in one room. As Corporal Davies explained in evidence, this procedure is followed because the soldiers may be distracted by other occupants in the house rushing from one room to another, perhaps in a state of alarm, perhaps for the purpose of raising the alarm and to resist the arrest. In such circumstances a tragic shooting accident might all too easily happen with young, and often relatively inexperienced, armed soldiers operating under conditions of extreme tension. Your Lordships were told that the husband and children either had commenced, or were contemplating commencing, actions for false imprisonment arising out of the fact that they were asked to assemble in the living-room for a short period before the plaintiff was taken from the house. That very short period of restraint when they were asked to assemble in the living room was a proper and necessary part of the procedure for effecting the peaceable arrest of the plaintiff. It was a temporary restraint of very shortduration imposed not only for the benefit of those effecting the arrest but also for the protection of the occupants of the house and would be wholly insufficient to found an action for unlawful imprisonment."
"A person may use such force as is reasonable in the circumstances in the prevention of crime…"
"1. Everyone has the right to liberty and security of the 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."
"25. It is accordingly clear, as was held in HL v United Kingdom (2004) 40 EHRR 761, para 89, that
'in order to determine whether there has been a deprivation of liberty, the starting-point must be the concrete situation of the individual concerned and account must be taken of a whole range of factors arising in a particular case such as the type, duration, effects and manner of implementation of the measure in question.'
I would accept that when a person is stopped and searched under sections 44-45 the procedure has the features on which the appellants rely. On the other hand, the procedure will ordinarily be relatively brief. The person stopped will not be arrested, handcuffed, confined or removed to any different place. I do not think, in the absence of special circumstances, such a person should be regarded as being detained in the sense of confined or kept in custody, but more properly of being detained in the sense of kept from proceeding or kept waiting. There is no deprivation of liberty. That was regarded by the Court of Appeal as "the better view" (para 46), and I agree."
"34. The lawfulness requirement in the Convention addresses supremely important features of the rule of law. The exercise of power by public officials, as it affects members of the public, must be governed by clear and publicly-accessible rules of law. The public must not be vulnerable to interference by public officials acting on any personal whim, caprice, malice, predilection or purpose other than that for which the power was conferred. This is what, in this context, is meant by arbitrariness, which is the antithesis of legality. This is the test which any interference with or derogation from a Convention right must meet if a violation is to be avoided."
"First, it is quite clear that Lord Diplock was referring to civil causes of action. He introduced it with the words that it was a matter of procedure. He justified it by the legal history relating to the civil causes of action. He did not, in my judgment, lay down any rule covering resolution of the question, whether the use of force in the making of an arrest is reasonable. That, it seems to me, is a question of mixed fact and law, normally to be decided by a jury, unless, by consent, as here, it is dealt with by the judge. The issue in a civil action should be decided in the same way as the same issue would be in a criminal action, namely, in my judgment, by the jury. But the parties, as I have already said, could, by consent, have it dealt with by the judge as they did here."
Ground 3: appearance of bias
"I say "his premises", I know that the evidence is from him and from Miss Garner that he did not live there. I do not accept that for a second. It was his home. It was where his girlfriend lived, where his two children lived. He no doubt was not on the electoral roll and his name was not on the rent book, but that was just to defraud the Benefits office. He lived there. Of course he lived there, so I am quite satisfied. He was sleeping there when the police executed the warrant, so I am completely and utterly satisfied that there is no evidence to suggest to the contrary that the police had reasonable cause to suspect that there were firearms on these premises, and obtained the warrant accordingly."
Ground 4: Inappropriate and prejudicial remark
"I will deal with the evidence first of all that concerns John Connor; secondly, as it concerns Michelle Garner and then the little boy, Joseph. But, before I do that, ladies and gentlemen, it would be unrealistic if I did not mention the tragic events in Bradford over the weekend, which unfortunately highlight the dangers that the police face in their line of duty in protecting society when it concerns firearms. But, can I stress, ladies and gentlemen, the eight of you try this case on the evidence. You are not swayed by sympathy or emotion. You try this case simply on the evidence that you have been given in the various courtrooms in this building over the last week."
Ground 1: obtaining of the warrant
Ground 2: dismissal of the claims for false imprisonment
"32. Here the warrant authorised a search of premises and persons for controlled drugs and documents connected with drugs offences. That authority, to be meaningful, had, as it seems to me, to enable the search to be effective. It could not be effective, particularly in premises on two floors, presently occupied by a number of people, if the occupiers were permitted to move about freely within the premises while the searches were going on. Although I accept it is for the police to show, and the burden upon them is a heavy one, that the use of force was necessary and reasonable, it seems to me to be entirely reasonable that officers should seek, by no more force than is necessary, to restrict the movement of those in occupation of premises while those premises are being searched."
"If there was conflicting evidence as to what had happened, that is, as to what the conduct of the defendant in fact was, the jury alone was competent to resolve the conflict. But when what had happened was established, whether by uncontradicted evidence or, in the case of conflict, by the jury's finding of fact, it was for the judge to rule whether the defendant's conduct was reasonable or unreasonable. This is still the position today where an action for false imprisonment or malicious prosecution …. is tried by judge and jury. It is for the judge to decide what facts given in evidence are relevant to the question of whether the defendant acted reasonably…… it is for the judge in an action for false imprisonment or malicious prosecution to decide whether the evidence on a relevant matter does raise any issue of fact fit to be left to a jury. If there is no real conflict of evidence, there is no issue of fact calling for determination by the jury."
Ground 3: Appearance of bias
Ground 4: Prejudicial comment
LORD JUSTICE LEVESON:
LORD JUSTICE WALLER: