England and Wales Court of Appeal (Civil Division) Decisions

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URL: http://www.bailii.org/ew/cases/EWCA/Civ/2006/1549.html
Cite as: [2006] EWCA Civ 1549, [2007] UKHRR 621, [2007] HRLR 6, [2006] Po LR 28

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		Neutral Citation Number: [2006] EWCA Civ 1549
		Case No: B2/2005/2761/CCRTF

IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM LIVERPOOL COUNTY COURT
HIS HONOUR JUDGE MACMILLAN
Claim No: 4LV10960

Royal Courts of Justice
Strand, London, WC2A 2LL

22nd November 2006

B e f o r e :

LORD JUSTICE WALLER VICE PRESIDENT
LADY JUSTICE HALLETT
and
LORD JUSTICE LEVESON
____________________

Between:

	CONNOR & ORS	Appellant
	- and -
	CHIEF CONSTABLE OF MERSEYSIDE POLICE	Respondent

____________________

(Transcript of the Handed Down Judgment of
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____________________

Mr Thacker (instructed by Messrs Jackson & Canter Solicitors) for the Appellant
Mr Wells (instructed by Messrs Weightmans) for the Respondent
____________________

HTML VERSION OF JUDGMENT
____________________

Lady Justice Hallett :

The appellants appeal against the dismissal of their claims for damages (including aggravated and exemplary damages) for "trespass, assault, unlawful imprisonment, and breach of their human rights" following a trial lasting 6 days at the Liverpool County Court before HH Judge MacMillan and a jury in November 2005.

The claim was based on the obtaining and execution of a search warrant on 20^th February 2003 by the Merseyside police at 3 Smith Street Liverpool 5, the home of the second, third and fourth appellants, Ms Garner and her two young children Joseph aged 7 and Lauren aged 5. Although the father of Ms Garner's two children and described as her "partner" for the last 16 years, the appellants insist that Mr Connor did not live at the house. He did, however, spend the night of the 19^th/20^th February there and was, therefore, present when the police arrived to execute the warrant.

Background

Liverpool like so many other cities of this country has been plagued, in recent years, by a dramatic increase in the use of firearms. In 2002/3 the Merseyside police, represented in this litigation by their Chief Constable, faced a particular problem caused by the rivalry between two gangs known as the Wrights and the Gees. There were a series of serious violent incidents linked to them, involving arson attacks and the use of firearms. People, including a young child, were hurt but, miraculously given the nature of the attacks, not seriously. The situation was considered sufficiently grave for a special unit of the Merseyside police to be established known as "Operation Doncaster" tasked with investigating these incidents and collating intelligence.

In about February 2003, the police received information from a member of the public to the effect that firearms linked to the gang warfare were hidden at the home of a man, called Singleton, known apparently to the two adult appellants. The police obtained and executed a search warrant and found two firearms. The same member of the public, considered by the police to be a reliable source, informed them that the homes of Ms Garner the second appellant and her mother were being used as safe houses for the storage of weapons. In relation to 3 Smith Street, the information suggested that two shotguns, possibly used in recent shooting incidents, and belonging to the alleged leader of one the gangs, Michael Wright, were stored in the loft. The informant who has remained unidentified (for obvious reasons) is of good character and demanded no payment for the information.

The police were aware of a number of links between the appellants and the Wrights. Ms Garner is the sister of a man whom the police believe is an active member of the Wright gang. Her sister lived with a man described as the Wright family's "lieutenant" at an address thought to be linked to Michael Wright. Liverpool 5, the area of Liverpool in which 3 Smith Place is situated, was at the heart of the gang warfare. This information was conveyed to a senior officer, Superintendent Cooper who, having been assured that the information had been verified to the extent possible, and having considered all the options, decided to act upon it.

The information was laid before a magistrate by Detective Constable McRae, one of the Operation Doncaster team. He sought a warrant under section 46 of the Firearms Act 1968. Section 46 provides as follows:

(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; or

b) 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; or

ii) 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; or

d) 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.

The magistrate was satisfied that section 1 (b) was satisfied, namely that there were reasonable grounds for suspecting that "in connection with a firearm or ammunition there is a danger to the public safety or to the peace". Accordingly, he or she issued a search warrant under section 46. The warrant dated 19^th February authorised the Merseyside Police force as follows under the heading "Direction"

"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]."

Given the risks inherent in the operation, an Assistant Chief Constable authorised the deployment of armed officers. The warrant was executed at about 6.00 am by a number of such officers, who did not include DC McRae or Superintendent Cooper. The search was conducted in two parts: first, the removal of all occupants of the house and the making of the house secure; second, a more detailed specialist firearms search.

At about 6.00 am Mr Connor and Ms Garner awoke to a knock on the front door. Armed police surrounded the house. They were dressed in full protective clothing which included eye and face protection. They shouted out warnings of their presence and told the occupants to leave the house by the front door. Ms Garner decided to leave by the back door. She claimed this was because she was told to take her dog there. At the back door, she said she found masked police officers pointing guns at her. This was denied. She said she was grabbed and put against a fence. This too was denied. She was undoubtedly handcuffed for a very short time and then searched for weapons. She was released and allowed to return to the house to fetch both her children and some warm clothes. She claimed the police manhandled her and ignored her protestations about her children. The officers maintained that she deliberately tried to exacerbate the situation by her shouting and screaming and by her aggressive attitude.

She was taken from the house with the children and, as she described it, "put" in a police car. She then sat with the children in the police car, talking to the driver, in what he described as an hysterical and aggressive fashion, until, on his version of events, she asked to be driven to the home of Mr Connor's mother some 40 minutes or so later. She insisted that she was told she was going there and she was not driven there at her request. She claimed the period in the police car amounted to unlawful detention of her and the children. The respondent maintained she was free to go at any time.

Meanwhile the first appellant, who told the police he had been expecting them, had been escorted from the house. Guns were undoubtedly pointed at him. He was handcuffed and detained in a police car for less than an hour awaiting the completion of the first part of the search and the arrival of the specialist firearms search team. He was told he was not under arrest, but he said he could not leave because he was still in handcuffs and the car doors were locked. He was described as being in jovial mood and "not bothered" that the police were searching the house. He accompanied the police as they searched each room. When the search was completed they removed his hand cuffs and told him he was free to go. No firearms were found.

Mr Connor, who has a number of convictions for offences of assault, dishonesty, criminal damage and obstructing the police, claimed that the police targeted him because he has sued them in the past. Both he and Ms Garner suggested that the police had no reasonable cause for seeking the warrant and acted out of malice. Further, they claimed the police acted unlawfully and disproportionately in the manner of its execution by pointing guns at them, handcuffing them and detaining them whilst the search was conducted. Ms Garner also claimed she had been assaulted in the back yard.

The judge left the jury to decide whether or not guns had been pointed at the appellants and if so whether it was reasonable to do so, whether the handcuffing of the appellants was reasonable and whether Ms Garner was assaulted by a police officer in her back garden.

The jury found against the appellants on all the questions put to them. In other words, they found that the police had proved it was reasonable to point a gun or guns at Mr Connor; that if a gun or guns were pointed at Ms Garner that too was reasonable, both at the front door and the back door; that the third appellant Joseph had failed to establish that guns were pointed at him; that the police had proved it was reasonable to handcuff Ms Garner and Mr Connor; and, finally, that Ms Garner had failed to establish she had been assaulted in the back yard.

Grounds of Appeal

Mr Thacker, on behalf of the appellants, advanced 4 grounds for appealing the decisions of the jury and the judge:

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

At the conclusion of the evidence the judge heard submissions from counsel on what issues should be left to the jury and in what form. In relation to the issue of reasonable cause for obtaining the warrant and malice he ruled, as follows, at pages 6B to 7A

"I am totally, utterly satisfied that the defendant had reasonable cause to obtain the warrant to search 3 Smith Place for firearms on 20^th 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 support of the proposition that there was no reasonable basis for obtaining the warrant, Mr Thacker reminded the court that the information relied on came from an informant and he argued it was "contradictory" in nature. By this, he meant it was not known precisely what would be found at Ms Garner's home. It was not clear whether the house was used for the storage of 1 or 2 shotguns, or whether the shotgun would be full length or sawn off. He further submitted that the links between Ms Garner's family and the Wright gang were not sufficiently established. Given the amount of material available it was disproportionate, he suggested, to raid someone's home, remove the occupants at gunpoint, and detain them in a police car, whilst the search was carried out. He submitted the way in which the search was carried out supported his contention that throughout the police acted from malice.

Mr Thacker did not suggest there was a strong case of malice, far from it. He relied, however, upon the decisions of the Privy Council in Gibbs v Rea [1998] AC 786 and of the Court of Appeal in Paul v Chief Constable of Humberside Police [2004] EWCA Civ 308 in support of his proposition that only "slight" evidence of malice is required in order to justify leaving the issue to the jury. Mr Gibbs sued Detective Inspector Rea for malicious procurement of search warrants under Misuse of Drugs legislation, which authorised the search of his home and his place of employment. The officer simply denied malice and apart from the production of the information and the warrants, the defendant called no evidence. Gault J giving the judgment of the majority of the Privy Council on page 800 at letter D said this:

"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."

In Paul the Court of Appeal pointed out that Gibbs provided "a useful reminder of the fact that a claimant cannot ordinarily be expected to produce direct evidence on these matters [namely lack of reasonable and probable cause and malice]".

Further, reliance was placed upon the decision of the European Court of Human Rights in Keegan v United Kingdom, [2006] ECHR 764 both in relation to this ground and ground 2 in relation to the use of force permissible when carrying out a search of a person's home. This decision was given after an appeal to this Court, Keegan v Chief Constable of Merseyside Police [2003] EWCA Civ 936, [2003] 1 WLR 2187, in which the case at first instance was decided prior to the coming into force of the Human Rights Act 1998.

In Keegan, the claimants brought a claim for malicious procurement of a search warrant on the basis that there had been an unjustified search of their home. The Court of Appeal agreed that there had been poor detective work, but agreed with the trial judge's conclusion that there was insufficient evidence of malice to go before a jury. Before the European Court, the Keegan family invoked Article 8 of the European Convention on Human Rights (ECHR) which provides where relevant:

"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…"

The Court agreed with the submission advanced on behalf of the Keegans that the requirement that they prove malice was too restrictive when Article 8 rights were at stake. The Court suggested that the question of good faith was irrelevant, in an Article 8 claim. Adequate protection was provided to the police if they could show the existence of reasonable and probable cause for obtaining a warrant. On the facts in Keegan, the court held that the police had failed take sufficient steps properly to verify the claimants' alleged involvement with the offence being investigated. Accordingly, they had acted disproportionately.

Mr Thacker argued, therefore, that for the purposes of Article 8, the necessary factual matrix needs to be analysed before there can be a proper consideration of whether a public authority is entitled to obtain a warrant in order to carry out a search. Since Keegan makes it plain that there is no need to establish malice in order to make good an Article 8 claim in the present context, he submitted it was not open to the judge to remove the relevant issues of fact from the jury.

Mr Wells, on behalf of the respondent, referred us to various documents which were before the court below and supported by witness statements and evidence from the officers responsible for the various stages of the procedure. These included the copy warrant, the Briefing Sheet, the Firearms Policy Document, the Firearms Risk assessment and police note books. All these documents had been redacted for reasons of public interest immunity.

I do not intend to rehearse the contents of them or indeed summarise them. Suffice it to say, that on their face the documents show that the police acted honestly and considered all their options very carefully. The relevant officers appear to have been acutely conscious of the fact that the search was to be carried out at the home of a mother and two young children. Indeed, this was one of the factors they bore very much in mind in reaching their conclusion that to do nothing was not an option. The appellants could point to no evidence to contradict those assertions and I did not understand Mr Thacker to be arguing strenuously to the contrary. Thus, the evidence in this respect appears to have been all one way: the police officers concerned believed that, because the interests of safety were paramount, they were acting proportionately in asking for a court order to search the appellants' home. Although this, of course, begs the question of whether the police were, in fact, acting proportionately, to which I shall return in my conclusions, it does raise a real question mark over whether there ever was any basis here for claiming the police acted from malice or without reasonable and probable cause.

Ground 2: dismissal of the claims for false imprisonment

In relation to this ground, Mr Thacker's primary submission was that in the absence of express statutory authority in the Firearms Act to permit the Merseyside police to use reasonable force (and therefore detain) the appellants, there was no power in law to detain them. He derived support for this proposition from a decision of this court differently constituted in Thames Valley Police v Hepburn [2002] EWCA Civ 1841. Sedley LJ giving the lead judgment said at para 14:

"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."

The facts of Hepburn were not on all fours with the facts of the present case. The court was there concerned with a warrant, issued under the Misuse of Drugs Act 1971, to search a public house (not its occupants) for controlled drugs and any documents related thereto. Mr Thacker also conceded that Sedley LJ may have based his observations in paragraph 14 in part upon a false premise, namely that, at the time, there was a general power to arrest someone for obstructing a police officer in the execution of their duty. Nevertheless, Mr Thacker submitted that what he described as Sedley LJ's "statement of general principle" holds good: unequivocal statutory authority is required before a police officer executing a search warrant under any Act is entitled to detain anyone. He argued it was not open to the respondent, therefore, to rely upon an implied power or one derived from the doctrine of necessity.

He reminded the court of the terms of the Firearms Act and invited us to note that there is no express power under section 46 of the Firearms Act 1968 to use force. The power is a limited one namely to search and there is no implied power to detain or manhandle people who are doing nothing wrong. He also suggested it was significant that section 46(5) of the Firearms Act 1968 makes it an offence to obstruct a police officer who is acting in the course of his or her duty when carrying out a search for firearms. This, he contended, indicates that Parliament gave some thought to the consequences which should follow where a person attempts to prevent a search and came to the conclusion that the act of so doing should be criminalised. If Parliament had wished to give the police power to use force it could have done so.

However, Hepburn does not stand alone. Mr Wells on behalf of the respondents countered with two decisions one of the Divisional Court in DPP v Meaden [2003] EWHC 3005 (Admin)[2004] 1WLR 945 and one of the House of Lords in Murray v Ministry of Defence [1988] 1 WLR 692.

In Meaden the relevant warrant was issued under section 23 of the Misuse of Drugs Act and purported to be issued under section 15 of the Police and Criminal Evidence Act 1984. At para 29 of Meaden Rose LJ giving the lead judgment said this:

"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."

Mr Thacker suggested that the respondent's reliance upon the decision in Meaden was misplaced. Although, as I have indicated, he accepted that Rose LJ may well have been right to question part of the reasoning in Hepburn, he argued that we should not adopt Rose LJ's reasoning in Meaden because it, in turn, was flawed. He then developed an interesting argument which, for reasons that will become apparent, I need not rehearse in full. In summary, he argued that sections 15 and 16 of the Police and Criminal Evidence Act (PACE) do not confer powers on a constable, they regulate police powers. Section 117 of PACE which authorises the use of reasonable force in the exercise of police powers only applies to powers conferred under the Act. He submitted, therefore, that both in Meaden and in the present case the police could not rely upon the provisions of section 117 to justify the use of reasonable force in the exercise of a power which was in fact conferred by another Act.

Whatever the strengths of that argument, Mr Thacker, in my view, still faced the hurdle of Rose LJ's observations in para 32 (already cited) which accords with the reasoning of the House of Lords in Murray. The facts of Murray were that an Army corporal was instructed to go to a house and there arrest a suspected terrorist pursuant to a statutory power to arrest and search. At page 700 B Lord Griffiths giving the leading speech in the House of Lords described the procedure adopted in this way:

"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."

From those words Mr Wells derived support for the proposition that there is an implied power to ensure the safe and effective execution of a lawful order, at the very least where safety of the citizen is at stake. Mr Wells argued that the decision in Murray was on all fours with the facts of this case and that if there was an implied power in Murray to restrain the occupants of the house for a short time, on the facts of this case there must have been an implied power to detain the appellants for a reasonable period of time.

Mr Thacker, for his part, attempted simply to distinguish Murray on its facts on the basis that the period of detention (namely the assembly of people in one room whilst a search was carried out) was very short. In this case, the appellant Mr Connor was detained for what he described as a considerable period of time and in handcuffs. He failed to address, as I recall, the broader question of whether the House of Lords accepted in Murray the existence of an implied power of the kind asserted by Mr Wells.

He also dismissed Mr Wells' argument that, in any event, there remains the power under section 3 of the Criminal Law Act 1967 for any citizen to use reasonable force to prevent crime as being irrelevant for present purposes. Section 3 where relevant reads:

"A person may use such force as is reasonable in the circumstances in the prevention of crime…"

Mr Thacker submitted, as I understood it, that there was no crime here to prevent and if the appellants had obstructed the police in the execution of their duty to search for firearms the proper course was to arrest them under section 46(5).

Before leaving the issue of unlawful detention, Mr Thacker returned to the ECHR and argued that the detention of the appellant or appellants on the facts of this case amounted to a deprivation of liberty sufficient to engage Article 5. Article 5, where relevant, provides:

"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."

He brought to our attention the recent decision of the House of Lords in R (on the application of Gillan) v Commissioner of Police for the Metropolis [2006] UKHL 12, [2006] 2 WLR 537 which concerned the legality of stop and search powers under anti-terrorist legislation. Lord Bingham, with whom the other Law Lords agreed on this issue, pointed out that there was a broad measure of agreement in the Strasbourg jurisprudence as to what would constitute detention under Article 5. At para 25 of Gillan Lord Bingham said this:

"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."

Lord Bingham then went on to consider whether, if there had been a deprivation of liberty, the interference with the Article 5 right was prescribed by law and stated the following general proposition:

"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."

Applying these principles, Mr Thacker argued the appellants here were plainly detained. Mr Connor was handcuffed and not permitted to leave the property. Ms Garner was removed from the property and kept in the police car against her will, along with her children. This is not a case, he said, like Gillan, where there was a detention for a short period of time so that a relatively un-intrusive procedure could be carried out. Rather, he said, the appellants were kept out of the way so that their home could be searched. Pausing there, I think Mr Thacker meant so that Ms Garner's home could be searched. Mr Connor insists 3 Smith Street is not his home.

Mr Thacker then turned to the doctrine of necessity and questioned whether or not the doctrine of necessity, as applied here, would survive examination by Europe. Mr Thacker submitted the doctrine of necessity is very limited in its application. He contended that as a broad-ranging doctrine, it does not satisfy the requirement that the law is "clear and accessible". Indeed, he argued in circumstances such as exist in the present case, the doctrine allows for the arbitrary use of power which is not permitted by the Convention.

Mr Wells reminded the court that in McVeigh and others v UK [1981] 5 EHRR 71, the European Commission of Human Rights held that, in limited circumstances, Article 5 (1) (b) will apply to justify short-term detention even though there has been no prior non-compliance with an obligation, where necessary to make the execution of an obligation effective, at the time when it arises. The nature of the obligation must be considered and whether it is necessary in a democratic society to fulfil it immediately, balancing that with the right to liberty. He relied upon that principle to justify a relatively short term detention in a case where suspected firearms were concerned. The balance, he argued, was clearly in favour of securing immediate and undisputable compliance with the obligation not to obstruct the search.

Further, Mr Wells contended that 'necessity' is recognised as a proper basis for action as long as the power and its exercise meet the requirements of lawfulness and lack of arbitrariness. In HL v UK, referred to in, Gillan the European Court accepted the existence of the doctrine of necessity, but held on the facts of that case it did not meet the requirements of the ECHR. He submitted that this case is different in that in this case the checks on arbitrariness are in place. First, a magistrate had to be satisfied there were reasonable grounds for believing that firearms constituted a danger to the public. Second, the warrant specifically authorised entry by force and search of the premises and the occupants for firearms. Reasonable thought would make it clear to all that guns might be used and that restraint might be used to ensure that the situation was controlled very tightly. There was therefore, the required element of predictability. The warrant itself was only valid for a limited period, it was restricted in its terms and any one affected by the way in which it was executed had the right to challenge the lawfulness of the respondent's behaviour in court.

Finally, on this ground Mr Thacker argued that if the doctrine of necessity depends on the facts of each case then this is an issue that should have been left to the jury to decide. For this he derived support from the decision in Pollard v Chief Constable of West Yorkshire Police [1998] EWCA Civ 732. Henry LJ considered the effect of Dallison v Caffery [1965] 1 QB 348 and a submission that Dallison was authority for the proposition that all questions of reasonableness arising between a claimant and the police are questions of law to be determined by the judge. He observed towards the end of his judgment (for which we have no page numbers in the copy provided for us):

"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."

For his part, Mr Wells argued the basis of the justification of any detention was clearly one of law, namely the proper analysis of the powers exercisable as a result of the issue of the search warrant. The judge was correct, therefore, in determining this issue without reference to the jury. He submitted that Mr Thacker fell into error in relying upon Pollard. In Pollard the court was concerned with the question of reasonableness when force is being used to effect an arrest. For the reasons set out by Diplock L.J. in Dallison the issue of reasonableness in false imprisonment is treated differently from the issue of reasonableness in assault. In the instant case, the judge properly left the issues of reasonableness in the use of force to the jury.

Ground 3: appearance of bias

I now return to the judge's observations when he ruled on the issue of reasonable cause for applying for the warrant. Having averted to the evidence that the appellant had previous convictions, and might well be predisposed to look after firearms at his premises for money, the judge went on to make certain observations about whether 3 Smith Street was indeed the appellant's premises. At page 97A he said this:

"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."

Mr Thacker complained, with justification, that it had never been put to the appellants that they were involved in a benefit fraud and it did not form any part of the case. Despite Mr Connor's numerous brushes with the law, he has been left with a sense of grievance at the judge's slur on his character. Mr Thacker argued this comment would lead the hypothetical fair minded observer to conclude that the judge was biased.

Mr Wells rightly did not adopt the judge's comment nor did he contend that the finding or comment was necessary for the determination of any issue between the parties. He accepted no evidence was led about benefit fraud and, therefore, any comment must have been speculative. However, he wished to emphasise that the comment came after a full hearing in which the question of where the male adult appellant lived was raised and therefore did not, he argued, indicate any tendency on the part of the judge to prejudge the issue.

Ground 4: Inappropriate and prejudicial remark

Finally, complaint was made that during the course of his summing up to the jury, the learned judge made reference to the shooting of two police officers in Bradford, on the weekend immediately prior to the summing up. At our page B 114 he said this:

"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."

Mr Thacker wished to emphasise that throughout the trial, reference was made by various police officers to the importance of following certain procedures when dealing with firearms in order to minimise the danger to both the police and the public. In addition, Mr Wells, counsel for the police, in his closing speech, made reference to the fact that the police officers, in carrying out the search, were protecting the public.

Accordingly, Mr Thacker argued this was a case in which the crucial issues, insofar as the jury were concerned, related to the propriety of the police's actions. In that context, the reference by the judge to the Bradford shootings was wholly inappropriate. In particular, he asserted that the learned judge's comments would have been perceived by the jury as reiterating the police case that the manner in which the search was carried out was entirely proper and reasonable.

Conclusions

Ground 1: obtaining of the warrant

The first observation I would make is that this is not a case like Gibbs where the police decided to interfere considerably in a man's private and professional life and then declined to tell him why they had done so. Here, the respondent has informed the appellants and the court in terms why his officers applied for the warrant. It is not suggested those officers misled, or lied to, the magistrate in obtaining the warrant or that they had reason to believe that the information was false. On the contrary, they had good reason to believe that it was true. The informant was known to have provided accurate information of a very similar kind in the recent past.

To my mind, given the incidence of gun related crimes on the streets of Liverpool, at this time, particularly in relation to the Gee/Wright factions, the police could have been severely criticised if they had done nothing or if they had taken days or weeks to investigate the information further. In that time, innocent lives might have been lost. I am satisfied the police had to act quickly provided, of course, they did not act carelessly, and they did not. It is evident from the documentation put before us that they gave every aspect of this case very careful and proper consideration.

In the time available, they established that the information came from someone whose identity they knew, who was of good character, and who did not seek any financial reward for helping the police on this occasion. The informant had provided information which had led to the recovery of two pistols linked to this spate of gun crime and that recovery meant there were two less firearms available for use by these criminal gangs.

For my part, I simply did not follow the argument that, because the police could not be certain how many firearms they might find or how long they would be, the police should not have acted upon the information. Whether the guns were full length or sawn off was wholly academic in so far as the obtaining and execution of a warrant to search for them was concerned. If there was even one firearm hidden in the house it was held unlawfully, in connection with gang violence and a potentially lethal weapon. It was a danger to the public.

Further, the informant had not simply chosen someone from the telephone book to accuse of storing guns for money. There were established and, as far as I can tell, unchallenged connections between the appellants (one of whom had a criminal record) and members of the gang who, it was thought, had left the guns at the house for safe keeping. The house was convenient to the gunmen being in a particular area of Liverpool. It was not, as the judge observed, miles away from the centre of the gang's activities.

Given the extent, content and apparent reliability of that material, therefore, it was, in my view, entirely appropriate for the police to apply to the court for a search warrant. They had reasonable and probable cause for doing so. There was a "pressing social need" of the kind referred to in para 30 of the judgment of the European Court in Keegan. The search was proportionate to the legitimate aim of removing illegal and lethal weapons from the hands of criminals and any interference with the appellants' Article 8 rights was, therefore, justified. To my mind the right, and a fair, balance was struck between the relevant interests. I should say that for these purposes I have put to one side the question of malice.

However, in so far as Mr Thacker still pursues the allegation of malice, I note that the only features of the case to which Mr Thacker could draw our attention were that the police knew the appellant Mr Connor had no convictions for firearms offences, he had sued the police in the past and the amount of force used in the execution of the warrant. I can deal with the first two of those features shortly. First, it is the experience of those of us who sit in the criminal courts that the fact that someone has no record of committing a particular category of offence, in the past, is no guarantee they will not offend that way in the future. Second, I can find no reference anywhere in the material put before us to suggest that the officers concerned in obtaining the warrant knew of Mr Connor's past history of suing the police. Even if they were aware, there is no evidence whatsoever that they have been influenced by that knowledge so as to target Mr Connor improperly.

Lastly, I had some difficulty in following Mr Thacker's argument that the amount of force allegedly used in the execution of the warrant in some way indicated that there was malice on the part of the senior officer Superintendent Cooper, the officers who provided him with the information and DC McRae who obtained the warrant. There was nothing on the material that I have seen to link what the appellants say happened at the hands of the armed police officers executing the warrant and the obtaining of the warrant itself. Superintendent Cooper and DC McRae were not even present at the search of the Garner house and there is absolutely no suggestion that they instructed their colleagues to act in a heavy handed fashion. If anything, the number of officers deployed, the extent to which they were protected, and the precautions taken, all indicate to me that the police took the threat of firearms in the house very seriously. The jury seem to have accepted they were right to do so.

Thus, even if, as Mr Thacker argued, the Privy Council has decided that, in a case such as the present, a claimant needs only slight evidence of malice to raise it as an issue fit for determination by the fact finder (about which, as a statement of general principle I have my doubts), it is still a matter for the judge to determine whether or not there is any evidence at all. In this case there was none. There was simply the appellants' assertion. That is not enough.

Accordingly, I was not persuaded that the judge erred in law or in fact in withdrawing the issue of reasonable cause and malice from the jury or that the appellants have lost anything as a result.

Ground 2: dismissal of the claims for false imprisonment

Given that there were, on any objective view, good grounds for suspecting there were firearms at 3 Smith Street and possibly a criminal prepared to use them, I confess Mr Thacker's submissions appeared to me, at times, to lose touch with reality. If there was a danger to the public, there was also a danger to the occupants of the house. It was in the appellants' own interests, as well as the interests of those searching the house, for them to be kept out of harm's way. As a matter of common sense, it seems to me nonsensical to suggest that police officers, who genuinely believe that the risk of a shot or shots being fired is real, are not entitled to remove the occupants of the house, at least until they are satisfied that no-one remains in the house armed and dangerous to all concerned. With the benefit of hindsight, we know there were, in fact, no guns hidden at the house, but, at the time the search was planned and executed, the officers did not know that. For all they knew the informant was right again and the situation was dangerous. They were not, as Mr Wells pointed out, simply looking for drugs or stolen property.

With those observations in mind, I turn to the legal principles to be applied to the facts in this case. For my part, I have no hesitation is adopting the observations of Rose LJ in Meaden at para 32, which I repeat, to the following effect:

"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."

This is entirely consistent with my understanding of the principles of common law relating to the use of reasonable force and the principles embodied in both section 3 of the Criminal Law Act and section 117 of the PACE.

Like Rose LJ, I too would distinguish the decision in Hepburn. I respectfully agree it should be confined to its own facts. It is common ground that Sedley LJ's reasoning appears to have been based, at least in part, on a false premise. I am reluctant, therefore, to derive from it any point of principle other than the principles that the use of force must be in accordance with the law and the burden on the police justifying an interference with civil liberties of the kind we have here is a heavy one. Their conduct will be closely scrutinised by the courts.

Further, in Murray Lord Griffiths did not restrict his comments to a consideration of the powers of the corporal in relation to the arrest of the terrorist suspect, as seems to have been assumed. He referred specifically to the "restraint" of people who were not themselves the subject of suspicion in order that the arrest of a suspect could be properly and safely carried out. He accepted, therefore, the existence of an implied power which was necessary to ensure the safe and effective exercise of an express power. For these purposes, I draw no distinction between an implied power and a necessary power which seem to me to be complementary images of each other. What is necessary and, therefore, to be implied will all be a matter of fact and degree.

It follows that I do not accept Mr Thacker's submission that, absent a provision in the Firearms Act, specifically authorising the use of reasonable force in the execution of a warrant under the Act, the police do not have the power to restrain or detain, even in very limited circumstances, those who might otherwise put lives in danger or themselves be put in danger.

I do not accept that the doctrine of necessity is "so broadly based a doctrine that it offends the principles of accessibility and clarity", as developed under the jurisprudence of the ECHR, as Mr Thacker argued. I see considerable force in Mr Wells' submissions that it is entirely predictable that police officers searching a house and occupants for firearms are likely to take the kind of precautions they took here to eliminate or limit the element of danger to those present. It was entirely predictable that they would wish to remove outside those who might otherwise obstruct the search, had they been so inclined or those who might, unwittingly, put themselves and others in danger.

Thus, having accepted there was here, in principle, a power to take reasonable and necessary steps to detain the occupants of the house in the course of the execution of this search warrant, I turn to the question of whether or not, on the facts, any of these appellants were detained, if so whether it was lawful and to whom the responsibility should have fallen to decide each issue.

As far as Mr Connor is concerned it was common ground, he was detained. In his case, therefore, the only question to be determined was whether his detention was reasonable and necessary. There was no factual issue for the jury to decide. The law is clear: it was for the judge alone to decide the lawfulness of the detention itself. Pollard has not changed the law as adumbrated by Diplock LJ in Dallison v Caffery. At page 372 letter B/C having reviewed the development of the demarcation between the responsibilities of judge and jury in actions for false arrest, imprisonment and malicious prosecution, Diplock LJ said this:

"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."