England and Wales Court of Appeal (Civil Division) Decisions

IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
(HIS HONOUR JUDGE CHRISTOPHER VOSPER QC)

		Sitting at: Cardiff Civil Justice Centre 2 Park Street Cardiff CF10 1ET
		22 November 2010

Lord Justice Pitchford:

1. On 10 June 2009 His Honour Judge Christopher Vosper QC, sitting at the County Court in Swansea, dismissed the claimants' action for damages brought under section 7 of the Human Rights Act 1998. This is the claimant's appeal against that ruling brought with the permission of Arden LJ.PRIVATE 
2. The claimants are husband and wife. On 16 March 2006 officers entered their home in order to execute a search warrant issued the day before by a Justice of the Peace sitting at Llandrindod Wells. The warrant was issued pursuant to section 26(1) of the Theft Act 1968, which provides that if upon an information made on oath "there is reasonable cause to believe that any person has in his custody or possession or on his premises any stolen goods, the Justice may grant a warrant to search for and seize the same".
3. The warrant, granted on the application of Detective Constable Haydn Lavin empowered officers "to enter and search premises at Cherry Holt, Llais Yr Afon, Garth, Llandrindod Wells to include persons, vehicles and outbuildings associated with the address and search for stolen property, namely vehicles, vehicle parts and any associated paraphernalia and documentation".
4. The search was carried out at about 8am on 16 March 2006 and was completed an hour and a half later. No property was seized.
5. By their Particulars of Claim the claimants asserted that the decision to obtain the search warrant and the decision to search their property constituted an interference with their right under Article 8.1 of the European Convention on Human Rights to respect for their home. If the search was sought and performed in pursuit of a legitimate object, namely the prevention of crime, it was nevertheless contrary to Article 8.2 an unnecessary, unreasonable and disproportionate means of pursuing that objective. The evidence and the investigation of it at trial concerned almost entirely an examination of the proportionality of the decision to apply for the warrant.
6. The essence of the claim was that Detective Constable Lavin acted when seeking the warrant upon information that he knew or should have known was false or materially inaccurate. He failed to take sufficient steps to corroborate the information upon which he was acting and those which he did take revealed that the information was unreliable. There was, accordingly, no reasonable cause to believe that the claimants had in their custody or possession any stolen property.
7. The Chief Constable took a preliminary point, which was that section 6, Protection of Constables Act 1750 acted to protect any constable from liability for acting in obedience to a warrant under the hand of a Justice of the Peace. It followed that the Chief Constable could not be vicariously liable under section 88(1) of the Police Act 1996 for such actions by his officers.
8. Secondly, insofar as the action was founded upon the inadequacy of information provided to the Justice, it was an attack upon the lawfulness of the warrant which was not properly the subject of an action for damages in the county court and should be pursued, if at all, in the High Court. The claimants' response was that section 6 could not provide Detective Constable Lavin with protection from a claim based upon the inadequacy of his cause to believe the presence of stolen property at the claimants' address and the claim should proceed on its merits.
9. The judge agreed with submissions made on behalf of the claimants at trial by Mr Thacker, who was at that time acting for them, and proceeded to hear the claim on its merits.
10. The evidence before the judge was in summary as follows. In 2003 the male claimant, Mr Raymond Williams, pleaded guilty at Cardiff Crown Court to a charge of conspiracy to handle stolen motor cars. On 10 April of that year he was sentenced to a period of two years' imprisonment. On 27 November 2003 he was released on home curfew.
11. Two years later on 22 November 2005 an anonymous caller to the South Wales Police Crimestoppers telephone line reported that Mr Williams was selling stolen cars from his home address, that he was advertising them for sale at reduced prices in the Hereford Times and was selling an average of two cars per week. An accurate description of Mr Williams was provided. The caller also said that Mr Williams had recently registered a property company with a former inmate at Usk Prison. Mr Williams had in fact served his sentence at HM Prison Prescoed in Usk. The Crimestoppers team discovered that the name and address given by the anonymous caller were accurate and eventually on 9 December 2005 the report was passed to Builth Wells Police Station.
12. Builth Wells Police Station was in a rural location, staffed by approximately six officers. Police Sergeant Bowen issued instructions for further inquiries to be made, but as a matter of fact the report was first acted upon by Detective Constable Lavin on 8 March 2006. It is a requirement of Code B of the Police and Criminal Evidence Act 1984 that reasonable steps by the police are required to check the accuracy and reliability of the information with which the police have been provided. Corroboration should be sought before acting upon information provided anonymously. A failure to take elementary steps to verify the connection between the premises and the offence being investigated may amount to a breach of Article 8.
13. It is conceded on behalf of the Chief Constable by Mr Jeremy Johnson, who appeared for the defendant in the court below and represents the respondent before us today, that whether or not Code B applied expressly to an application for a warrant under the Theft Act, it was the obligation of the officer to act in accordance with the principles there described. In Keegan v United Kingdom [2006] ECHR 764, the European Court of Human Rights examined the application of Article 8 in circumstances in which the suspected person had ceased some time before to live at the premises in which the search had been carried out. Concluding that there had been a breach of Article 8, the European Court said this, commencing at paragraph 34 of its judgment:

"34. The fact that the police did not act maliciously is not decisive under the Convention which is geared to protecting against abuse of power, however motivated or caused (see, mutatis mutandis, McLeod, cited above, where the police suspected a breach of the peace might occur). The Court cannot agree that a limitation of actions for damages to cases of malice is necessary to protect the police in their vital functions of investigating crime. The exercise of powers to interfere with home and private life must be confined within reasonable bounds to minimise the impact of such measures on the personal sphere of the individual guaranteed under Article 8 which is pertinent to security and well-being … In a case where basic steps to verify the connection between the address and the offence under investigation were not effectively carried out, the resulting police action, which caused the applicants considerable fear and alarm, cannot be regarded as proportionate.

35. As argued by the applicants, this finding does not imply that any search, which turns out to be unsuccessful, would fail the proportionality test, only that a failure to take reasonable and available precautions may do so."

14. Detective Constable Lavin sent an enquiry to the Hereford Times and on 10 March he drove to the Garth to ascertain whether there were motor cars stored at the claimants' home. Their property was generally in a rural and quiet location, although as we have been informed this morning there were other households close by. Detective Constable Lavin did not wish to park in case, he said, his movements were observed and aroused suspicion. He drove past the entrance and saw three cars parked on the property. He repeated his manoeuvre, attempting to memorise the registered numbers of vehicles he could see within. He then stopped to make a note. The first registration number he misremembered as X821 PBH. That number he discovered was registered to an address in Surrey. In fact the correct number was X821 EHB, which was registered to Mr Williams' Volvo. The second number recorded was B331 HUX. There was no PNC record of that number. The correct number was P331 HUX, a Mazda car registered to Mrs Williams. The third vehicle's number was correctly recorded as S759 AWP. It belonged to an Alfa Romeo registered to an owner in Gloucestershire. In fact the vehicle belonged to Mr Williams who said that he had purchased it in late January 2006. The judge found (paragraph 17 of his judgment) that the error was probably made in the Records Office when transferring a cherished number from the Alfa Romeo at the time of Mr Williams' purchase.
15. On 14 March Detective Constable Lavin was informed by the newspaper that Mr Williams had placed advertisements in the Hereford Times on three occasions within the preceding eight to nine months. One of them was for the sale of an Alfa Romeo motor car in March 2006.
16. In his second witness statement (paragraph 15, page C53 of the trial bundle), Detective Constable Lavin expressed the opinion that even if he had known that all the vehicles were registered to the claimants he would have applied for the warrant, since he could only be sure of origin by inspecting the chassis numbers. However, it was on the strength of the evidence he had obtained that Detective Constable Lavin sought the approval of his inspector which he obtained and made application for the search warrant. He informed the magistrate that his reasonable cause arose from human intelligence to the effect that the person at the address given was selling stolen vehicles. The intelligence would not be used in evidence, nothing was known about the source, the advertisements in the Hereford Times in the opinion of the officer seemed to corroborate the report.
17. At trial a number of criticisms were made of Detective Constable Lavin's enquiries. The existence of three advertisements inserted within a period of eight to nine months did not, it was said, support the anonymous allegation that Mr Williams had been selling two cars per week. The officer failed to carry out a check at Companies House as to whether Mr Williams had formed a property company with a former inmate of the prison at Usk. He failed to ascertain whether the vehicles in the Hereford Times had been for sale at low prices. It was asserted that the officer cannot have performed a vehicle online descriptive service check, a VODS check, properly. If he had, it would have revealed that the Volvo, Mazda and Alfa Romeo were all registered at the claimants' address. In submissions made to the court this morning, a further allegation has been made in respect of the VODS check to which I shall turn in a moment.
18. The judge did not accept these criticisms. He said (paragraph 22 of his judgment) that while the Hereford Times could not confirm the number of cars alleged by the anonymous source to have been sold through the newspaper, three advertisements in eight to nine months for different vehicles was an unusual number. Had there been no advertisements in the Hereford Times the judge concluded that would have been a ground for suspicion. As to the absence of a Companies House search, the judge noted (paragraph 25) that Detective Constable Lavin was provided with intelligence from another source, a Gwent police officer, that Mr Williams had indeed been planning with a former inmate to set up a company. The source of that intelligence was said to be a family member of the former inmate.
19. As to the failure to investigate the prices at which the vehicles had been advertised in the Hereford Times, the judge concluded (paragraph 28) that even if the prices were "above book", DC Lavin would have been justified in concluding that it did not undermine the reliability of the original intelligence report.
20. As to the puzzle about the results of the VODS search, the judge noted at paragraphs 29 and 30 that he had no evidence before him about the data base search by the VODS check. A VODS check had, according to DC Lavin's briefing note to the search officers, revealed only a motorcycle and an Austin A40 motorcar registered at the claimants' address. The judge concluded that he could not properly infer that Detective Constable Lavin had in this respect been at fault.
21. The judge directed himself as to the test to be applied by extensive reference to the judgment in Keegan. He continued at paragraph 39 of his judgment:

"39. Applying those principles to this case I must accordingly ascertain whether in the circumstances of the case the entry of the claimants' home was proportionate to the legitimate aim being pursued by DC Lavin in the sense that it struck a fair balance between their right to respect for their home on the one hand and the prevention of crime on the other. I must carry out that exercise by assessing whether the reasons adduced to justify the search were relevant and sufficient."

The judge then reached the following conclusions of fact at paragraph 40 of his judgment:

"40. Here the position as DC Lavin and his inspector understood it was:

(1) the first claimant had two years before the date of the Crimestoppers report been released from prison, having been sentenced for "car ringing" offences;

(2) there was a Crimestoppers report saying that he was doing the same thing, in which the caller had correctly given the first claimant's name and address;

(3) he had placed three advertisements in the Hereford Times offering three different cars for sale over a relatively short time;

(4) DC Lavin had seen three cars in the driveway of his house;

(5) one of those cars was the Alfa Romeo, which was registered to somebody living in Gloucestershire;

(6) the Alfa Romeo was at that time the subject of an advertisement in the newspaper."

22. In the judge's view these findings were sufficient to constitute a reasonable cause to believe that Mr Williams had in his custody or possession stolen vehicles or parts and accompanying documentation. He did not accept the submission made by Mr Thacker on the claimant's behalf that put at its highest the evidence could support the belief only in respect of the Alfa Romeo in which case a search warrant was unjustified. Mr Thacker submitted that the officer need only have visited the claimants and sought information from them. He went so far as to suggest that Detective Constable Lavin could have arrested Mr Williams and searched the house under powers provided by the Police and Criminal Evidence Act 1984 without the necessity for a search warrant. The judge disagreed with these submissions. He found at paragraph 47 that, in the circumstances as they presented themselves to DC Lavin, he took the reasonable view that some degree of compulsion was required but that it was unnecessary to go so far as carrying out an arrest in order to achieve it. For those reasons the interference with the claimants' right to respect to their home was justified under Article 8.2 as being in accordance with law and necessary in a democratic society for the prevention of crime.
23. Mr and Mrs Williams have appeared before the court in person, and it became immediately obvious why. Mr Williams submitted on their behalf that they had been inadequately represented at trial since Mr Thacker had declined to accept instructions from them as to the basis upon which their claim should be put. In essence it was Mr Williams' case that the behaviour of Detective Constable Lavin, supported by his wife, Police Constable Louise Lavin, was malicious.
24. The judge referred in his judgment to a turn of events which occurred in the course of Mr Williams' evidence at trial. During that evidence Mr Williams raised for the first time the possibility of malice and collusion. It is referred to in paragraphs 10 and 11 of the judgment. Those matters had, the judge noted, not been put by counsel, Mr Thacker, in cross-examination. The judge concluded that there was no evidence, despite the evidence of Mr Williams, to support the inference that Detective Constable Lavin had been motivated by malice or other dishonesty. He noted that Mr Thacker had felt unable to argue that such inferences were reasonably available.
25. In his submissions Mr Williams has said two things to the court. At stages he suggested that in his evidence Detective Constable Lavin had lied; at others he suggested that Detective Constable Lavin had merely act negligently. The allegation of malice currently made is based upon evidence given at the trial and criticisms made at the trial about the conduct of Detective Constable Lavin. Mr and Mrs Williams contend that the judge was wrong to find that Detective Constable Lavin made an understandable mistake in recording the registration numbers of the Jaguar and the Mazda. It was submitted in writing that it was clear that Detective Constable Lavin made his application for the warrant thinking that the Jaguar was a stolen vehicle. The judge was wrong to find that the reliability of the source was not undermined by Detective Constable Lavin's observations of the claimants' home.
26. Thirdly, further steps should have been taken to check the veracity of the information which had been received. When the report was received at Builth Wells Police Station Sergeant Bowen had written a note to two officers, Police Constable Watkins and Police Constable Louise Lavin, instructing that steps be taken to follow up the report, namely a PNC check and a VODS check, that enquiries be made with the Hereford Times and that the claimants' neighbours be asked whether there had been a turnover of vehicles at the claimants' address. Pressure of work had delayed action on these instructions until DC Lavin returned to work in March 2006 after a period of sick leave. He elected not to carry out enquiries with neighbours in case the claimants were alerted. It is again asserted that a search at Companies House would have revealed no recent acquisition of a company. On the contrary, it would have revealed that Mr Williams had held directorships in a number of companies over the years. At trial his evidence was that he had started a company in 1999.
27. It is said that the judge was wrong to reject the argument that the price of sales made through the Hereford Times should have been investigated, since they would or might have disclosed one reason to think that the intelligent source was unreliable.
28. Mr Williams insisted that had a VODS check been carried out as DC Lavin's note to the searching officers indicated, it must have revealed that the three cars observed by Mr Lavin at his property were registered to that address. As I have indicated, the evidence before the judge was limited. In the intelligence report which Detective Constable Lavin wrote to the searching officers he informed them that the VODS check had revealed only a motorcycle and an Austin A40 car. The judge's conclusion was that he could not infer in the light of the evidence before him that Detective Constable Lavin had been at fault.
29. It is not in my judgment open to this court upon the evidence heard by the judge to substitute a view that there was malice in any of the activities of Detective Constable Lavin. It is right, however, that Mr Williams' assertions as to the inadequacy of the belief that a stolen motorcar was upon his property should be examined.
30. Mr Williams' complaints seem to me to proceed under a misunderstanding of the officer's duty. It was not his responsibility to seek confirmation of every averment of fact made by the anonymous source to Crimestoppers. He was with the aid of that intelligence investigating whether a crime had been committed. Three years before Mr Williams had been convicted of a conspiracy to handle stolen motor cars which had been ringed, evidence for which was gathered amongst other things from a search at the same address.
31. It was said by the anonymous source that Mr Williams was now using the Hereford Times to advertise stolen cars. The officer confirmed that Mr Williams had in the recent past placed three advertisements in that newspaper for the sale of cars. One of them was an Alfa Romeo. Upon his PNC check, he found that the Alfa Romeo parked at the claimant's home was registered to a man in Gloucestershire.
32. The judge was, in my opinion, plainly entitled to find that whatever further enquiries might have revealed the evidence established reasonable cause to believe that Mr Williams had at least one stolen car on his property. That was in my judgment ample evidence to support a belief that Mr Williams was dealing in stolen cars. The fact that Detective Constable Lavin made a mistake about the second and third cars was not in the end to the point.
33. All steps identified on the claimants' behalf at trial, repeated before us in this appeal, could have been taken and if enquiries had proceeded beyond the search they probably would have been taken, but they were not steps which in my view had to be taken before Detective Constable Lavin could assert his reasonable belief. He was not engaged in an investigation to prove that the informant was reliable in all respects. He was engaged in an investigation to ascertain whether the information was sufficiently reliable to justify the application for a search warrant. It would never be necessary in this case to support the veracity of the anonymous witness because he or she was anonymous and the evidence was inadmissible. Proof of dealing in stolen motor cars would not depend upon establishing the credibility of the anonymous witness, but upon proof of the transactions themselves. The judge found that it was not DC Lavin's responsibility that the current keeper of the Alfa Romeo was incorrectly registered. In my judgment that finding cannot sensibly be challenged.
34. While, therefore, the information on which DC Lavin formed his belief was inaccurate, it was reasonable for him to have based his belief upon it and his response, namely to apply for a search warrant, was equally reasonable and, as the judge found, proportionate.
35. It is appropriate that I should add that the Chief Constable has repeated publicly in the course of the hearing before us that there is no question that Mr and Mrs Williams had any stolen vehicle on their property at the time when the search was carried out.
36. It is argued in writing and briefly referred to by Mr Williams this morning that the judge should have given separate consideration to the proportionality of DC Lavin's application in relation to its interference with Mrs Williams' separate right of respect for her home. However, as it seems to me, the basis for the challenge made to DC Lavin's action is identical in both cases. No consideration discrete to Mrs Williams' position has been argued on her behalf so as to establish the disproportionality alleged. Either the application for a warrant was justified on the grounds put forward on behalf of the Chief Constable or it was not.
37. Accordingly, I have reached the conclusion that upon the merits the learned judge fell into error neither in his approach to the evidence which he had heard nor in the conclusions which he reached in respect of it. For that reason, it does not seem to me to be necessary for the court to consider the effect of section 6 of the Act of 1750 and the arguments which sequentially follow from its provisions.
38. I would note in particular that this has not been the subject of full argument on behalf of the appellants and in those circumstances I would decline on this occasion to express a view about them.

Lord Justice Elias:

39. I agree.

Lord Justice Carnwath:

40. I agree. Like my Lord, I would emphasise that in the light of the evidence as has emerged before the court and as is now accepted by the Chief Constable, there was no basis for any inference that Mr Williams or his wife were in fact involved in handling cars or in any other unlawful activity. With hindsight, therefore, it is difficult not to feel regret that they were subjected to the inevitably very unpleasant experience of a full search of their house on grounds that have turned out to be unfounded.
41. However, as my Lord has explained, that is not enough to establish their case under the Human Rights Act and I agree that their appeal must fail.

Order: Appeal dismissed