England and Wales Court of Appeal (Civil Division) Decisions

IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION, DIVISIONAL COURT
REF: CO7183/2011

		Royal Courts of Justice Strand, London, WC2A 2LL
		18/07/2013

Lord Justice Maurice Kay :

1. This appeal is concerned with the question whether the execution of certain search warrants at premises described as squats in Camberwell Road on 28 April 2011 was a lawful exercise of police powers pursuant to those warrants (which authorised the police to enter the premises to search for stolen bicycles, bicycle equipment, electrical goods and computer equipment), or an unlawful misuse of such powers on the ground that the dominant purpose of the search and entry was not to search for stolen goods but was to facilitate pre-emptive action in the form of detention of persons who were suspected of being likely participants in disorder on the occasion of the Royal Wedding which was to take place on 29 April 2011. On 18 July 2012, the Divisional Court (Richards LJ and Openshaw J) held that the execution of the search warrants was lawful: 2012 [EWHC] 1947 (Admin). The appellants appeal to this Court, permission having been granted by Lloyd-Jones LJ. The judgment of the Divisional Court was a composite judgment which dealt with four cases concerning the policing activity at about that time. This appeal is concerned only with the execution of the search warrants at the premises in Camberwell Road. Another appeal, heard by a different constitution of this Court, relates to one of the other cases decided by the Divisional Court, which concerned allegations of unlawful arrest at various locations in central London on the day of the Royal Wedding.
2. The present appeal is essentially a challenge to the factual finding that the dominant purpose of the police in executing the search warrants was that for which the power of search had been conferred (stolen goods) rather than to take pre-emptive action in order to prevent disruption of the Royal Wedding. Accordingly, it is necessary to set out the facts at some length. The following account is taken from paragraphs 86 to 102 of the judgment of the Divisional Court.

The facts

3. Part of the background to the policing of the Royal Wedding was the violent aftermath of earlier student demonstrations and TUC Day of Action. The police investigation into the criminal events arising out of the former was named Operation Malone, and the police investigation into the criminal events arising out of the latter was named Operation Brontide. The two investigations were linked.
4. Ongoing review of CCTV and intelligence in Operation Brontide had revealed approximately 200 outstanding criminal suspects. There was concern, but no direct evidence, within Operation Brontide that anarchist groups intent on creating disorder of the type recently experienced would attempt to disrupt central London on the day of the Royal Wedding with acts of criminality and serious disorder. As a result there was a perceived need to accelerate the identification and arrest of the outstanding Operation Brontide (and Operation Malone) suspects. Operation Brontide was asked to work with the Royal Wedding Intelligence Co-ordinating Committee, chaired by Commander Johnson (Bronze 14), to consider what preventative action and enquiries could be taken and made prior to the Royal Wedding.
5. During the previous disorders, squats had been used as convergence centres for organised disorder. One of the people arrested at the TUC Day of Action was associated with one of four known squats in Camberwell Road (at nos. 274, 300, 302 and 304), and through that link there was intelligence suggesting that outstanding Operation Brontide suspects might be living at the Camberwell squats. There was, moreover, a concern that individuals in the squats might be gathering to disrupt the Royal Wedding. Accordingly, authorisation was obtained on 14 April for a covert surveillance operation on the four known squats, which was carried out by the Territorial Support Group (TSG) under the command of Chief Inspector (now Superintendent) Woolford. The operation, conducted over a number of days between 22 and 27 April, revealed no direct evidence of Operation Brontide suspects. It did, however, reveal a pattern of behaviour indicating that the squats were being used as an exchange or dealing point for stolen goods, in particular computer equipment but also bicycles and bike parts.
6. By 27 April the decision had been taken to seek search warrants in respect of the four known squats. The essential rationale behind the decision can be seen from this passage in the witness statement of Commander Broadhurst (Gold):

"By now, the intelligence cell had identified a number of premises being used as squats, and I was genuinely concerned that one or more of these squats could be housing individuals with intent to commit criminal acts against the Royal Wedding. However, I was not minded to take action against them without a sound legal basis and Bronze Crime, Detective Chief Superintendent Matthew Horne, was able to satisfy me that substantive criminal offences had been identified at each of the squats and that warrants could legitimately by applied for to enter those premises. The intention was not to stop any individuals or groups from engaging in protest, but to prevent any criminal activity or unlawful disruption of the Royal Wedding."

7. In similar vein, when commenting on an entry in his log for the previous day, 26 April, Commander Broadhurst stressed (at para 44 of his statement) that "I made it quite clear that I did not want speculative action, but would only endorse police activity where there was a good chance of a Brontide subject being present or where we had a clear legal basis for entering such as at Camberwell …".
8. The application for the four warrants was made on 27 April at Bromley Magistrates' Court because of a concern that the proximity of Camberwell Green Magistrates' Court to the squats could potentially compromise the operation. The informations were sworn by Police Constable Anderson in materially identical form, referring to the surveillance operation and the matters giving rise to suspicion as to the handling of stolen goods on the premises. In his witness statement, PC Anderson says that at the hearing, in response to a request by the magistrate to be told more about the background, he spent about four or five minutes giving a verbal account of how the request for search warrants had arisen out of the surveillance operation.
9. The magistrate then issued the warrants, which authorised the police to enter the premises to search for bicycles, bicycle equipment, electrical goods and computer equipment pursuant to s.26 of the Theft Act 1968.
10. At the time when the warrants were applied for, no decision had been taken as to whether or when they would be executed. Commenting on a log entry at 8.30 a.m. on 27 April, Commander Broadhurst said in his witness statement:

" … I had a genuine fear that there were people in the premises we had identified who would attempt to disrupt the wedding if they could. However, I know that it is extremely difficult to prove a person's intent and that we would not necessarily find material evidence in any of the premises that would give us sufficient to charge them immediately. The likelihood was that most individuals would have to be bailed which, if we entered the premises too early, would mean many of them being released to be free to cause problems on the day of the wedding if that was indeed their intention. It was important, therefore, to time any entries or arrests on these premises so that, as far as possible, individuals could be lawfully detained during the time of the wedding ceremony."

11. Commenting on a log entry at 3.00 p.m. on the same day which recorded his agreement that the Camberwell warrants, among others, could be executed, he stated:

" … Bronze Crime had fully briefed me on all the squats and informed me that Magistrates had issued warrants for all those premises. From his observations and the research that had been done, there was no evidence linking them to disruption of the wedding, but the only way to find out would be to enter the premises and speak to the individuals inside. Given that criminal offences had been identified at all premises and that we had a lawful basis supported by warrants to enter, I gave authority for the warrants to be executed."

12. Commander Johnson then decided that the warrants should be executed on the morning of 28 April. In relation to a log entry recording this decision, he said in his witness statement:

" … I made the decision to instigate the action against the various premises. This was based on the facts presented to me by the investigating officers, i.e. that they suspected criminal activity at the various premises, and the fact that the premises were being used by people who were likely to be planning or involved in criminal activity on the day of the royal wedding. I made the decision to take the action before the royal wedding, (to bring forward police action), which I believed would have the added benefit of making the royal wedding day less likely to be subject to criminal activity. This I believed was a proportionate step in preventing crime whilst undertaking our other primary responsibility of investigating crime and arresting offenders if crime was committed."

13. Superintendent Woolford made a similar point at para 23 of his witness statement: "[i]t obviously makes sense for police to choose the time to execute the search warrant in order to derive maximum investigative and crime prevention advantage from that timing".
14. When TSG officers entered the four squats in execution of the warrants, at 7.05 a.m. on 28 April, many of the occupants were seen to run to a fifth set of premises, at nos. 294-298 Camberwell Road, about which the police had previously been unaware. This led to an emergency application for a search warrant in respect of those premises too. The additional information was sworn by Police Constable Sharp. It referred to the observations, to the goods seen going in and out, and to the people seen to run into nos. 294-298 when the warrants were executed at the other premises; and it expressed the belief that the occupants and stolen items were now at nos. 294-298. The warrant issued pursuant to that information authorised a search for stolen bicycles, bike parts and computers.
15. During the search of the squats, a large quantity of computer equipment believed to be stolen was seized. Ms Pearce said in a witness statement that there were numerous bicycles and bike parts on the premises, and PC Anderson referred in his statement to having seen a mountain bike frame that to his mind was very likely to have been stolen, but there is no record of any of those items being seized. Several toothbrushes were seized, presumably for purposes of DNA analysis.
16. Over 100 flyers for the "Zombie Wedding" at Soho Square and referring inter alia to "maggot confetti" were observed, and four samples were seized. The reference to "maggot confetti" related to a plan to throw live maggots at the Royal Wedding procession close to Westminster Abbey.
17. Police observed evidence of electricity being abstracted illegally, and the persons present, including the two claimants, were arrested for abstracting electricity.
18. Commander Broadhurst was given updates in the course of the day. Commenting on the first update, at 8.30 a.m., he said in his witness statement:

" … At all premises, the lengthy task of thoroughly searching, investigating and interviewing those present was only now beginning. My initial reaction was that no conspiracy had been uncovered inasmuch as at none of the premises had we found plans, weapons or other paraphernalia that was obviously intended to be used on the day of the wedding to cause disruption or damage. This was an obvious relief to me, but did not mean that some of those present did not have that intent. I now awaited a thorough investigation from Bronze Crime and his team as to what offences had been committed and what the intentions of those individuals present were."

19. A log entry at noon on the same day, on which Commander Broadhurst commented in the following paragraph of his witness statement, included this:

"Flyers for the anti-monarchy Soho Square event were found at Camberwell but no conspiracy has been uncovered. I have issued a press release that says the raids were intelligence led, crime operations that were brought forward because of fears about the wedding".

20. An article on the Daily Telegraph website, timed at 5.20 p.m. on 28 April stated: "The Metropolitan Police admitted they had brought the raids forward because they feared those arrested may plan to disrupt the wedding".
21. Following their arrest the claimants were taken to Harrow Road police station (the designated station for Operation Brontide), arriving at about 11.45 a.m. Their detention was authorised. They were interviewed at 5.55 p.m. by officers from Operation Malone and Operation Brontide. At 8.25 p.m. and 8.45 p.m. respectively they were further arrested on suspicion of conspiracy to cause a public nuisance, the basis of the suspicion being the flyers found at the premises. They were then bailed on conditions that prevented them from entering Westminster (and therefore precluded their presence in the area of the Royal Wedding). The electricity provider later decided to make no formal complaint concerning the alleged abstraction of electricity at the premises, and the CPS decided that there was insufficient evidence of a conspiracy to cause a public nuisance. The claimants' bail was therefore cancelled on 2 June.

The law

22. The procedure for obtaining a search warrant is set out in section 15 of the Police and Criminal Evidence Act 1984. Section 16 then deals with the execution of search warrants. The following provisions of section 16 are of particular relevance in the present case:

"(1) A warrant to enter and search premises may be executed by any constable.

…

(3) Entry and search under a warrant must be within [three months] from the date of its issue.

…

(8) A search under a warrant may only be a search to the extent required for the purpose for which the warrant was issued."

23. As I have said, the central issue in this case is as to the dominant purpose of the officers who executed the search warrant. The leading authority is R v Southwark Crown Court ex parte Bowles [1998] AC 641, which was concerned with an application for a production order under section 93H of the Criminal Justice Act 1988. That statute was concerned with the recovery of the proceeds of criminal conduct. The issue was whether an order obtained for the purpose of assisting in the recovery of the proceeds of criminal conduct could be used also in relation to the investigation of prior criminal offences. In the Divisional Court Simon Brown LJ stated [1998] QB 243, at page 250:

"In my judgment, therefore, it would be wrong to construe the words in section 93H(1) 'an investigation into whether any person has benefited from any criminal conduct' for all the world as if they were synonymous with 'an investigation into whether any conduct from which a person has benefitted was criminal, effectively the construction for which [counsel for the Director of Public Prosecutions] contends."

24. In a later passage he stated (at page 251):

"… the question to be asked is this: What is the dominant purpose of the application? Is it for criminal investigation purposes – to determine whether an offence has been committed and, if so, to provide evidence of that offence – or is it to determine, in respect of criminal offending – although not necessarily a specific offence which the prosecution already has reasonable grounds for believing (rather than merely suspecting) has been committed – whether, and, if so, to what extent, someone has benefitted from it, or the whereabouts of the proceeds."

25. In the House of Lords the only substantive judgment was given by Lord Hutton. He referred to the dominant purpose test which had been adopted by the Divisional Court and to the test contended for by the Director of Public Prosecutions which would have required the judge in the Crown Court to be satisfied that the police officer applying for the order "had the genuine purpose of investigating the proceeds of criminal conduct and that the application for the order was not a mere device in order to investigate the commission of an offence and to obtain evidence to support a prosecution". Lord Hutton said (at page 651B-F):

"I would make two observations … The first is that if the true construction of section 93H be the one which I have suggested, then I consider that in the great majority of cases the Circuit Judge will not be faced with a situation where it appears that the police are actuated both by the purpose of investigating the proceeds of criminal conduct and by the purpose of investigating the commission of an offence, and that the judge will only have to consider whether he is satisfied (in addition to the matter certified in section 93H(4)) that the purpose of the application is to investigate the proceeds of criminal conduct. Secondly, in my opinion the nature of the dominant purpose test is well stated in Wade and Forsyth on Administrative Law, 7^th edition, (1994), page 436:

'Sometimes an Act may serve two or more purposes, some authorised and some not, and it may be a question whether the public authority may kill two birds with one stone. The general rule is that its action will be lawful provided that the permitted purpose is the true and dominant purpose behind the Act, even though some secondary or incidental advantage may be gained for some purpose which is outside the authority's powers. There is a clear distinction between this situation and its opposite where the permitted purpose is a mere pretext and a dominant purpose is ultra vires.

In those cases where consideration may have to be given to the distinction between the two purposes, or where it may appear that the two purposes may co-exist (an example being where the police wish to investigate a case of living on the earnings of a prostitute), I think that there will be little practical difference between applying the test adopted by Simon Brown LJ and applying the test propounded [counsel for the Director of Public Prosecutions], but if a difference were to result, I consider it to be clear that the dominant purpose test is the appropriate one to apply."

There being no significant dispute about the law in the present case, I need say no more about it at this stage.

The parameters of this case

26. It is appropriate to emphasise that this case is about one thing and one thing only, namely the lawfulness or otherwise of the execution of the search warrants. The applications for judicial review did not seek to challenge the obtaining of the search warrants, nor is any claim made in relation to the lawfulness of the arrests or detentions. We have to focus on the question of dominant purpose in relation to the execution of the search warrants. Moreover, Mr Alex Bailin QC, on behalf of the appellants, frankly concedes that he has undertaken the task of seeking to establish that the finding of the Divisional Court in relation to dominant purpose is unsustainable. Indeed, he does not resist the description of this appeal as a perversity challenge.

The case for the appellants

27. On behalf of the appellants, Mr Bailin emphasises the following points. First, the timing of the execution of the warrants was deliberately chosen to maximise the prospect of preventing disruption of the Royal Wedding. Secondly, Commander Broadhurst later expressed "obvious relief" that "no conspiracy had been uncovered inasmuch as at none of the premises had we found plans, weapons or other paraphernalia that was obviously intended to be used on the day of the wedding to cause disruption or damage". Thirdly, having arrested the appellants and others, police officers took them not to a nearby police station but to Harrow Road Police Station, from where Royal Wedding operations were being conducted. Fourthly, the officers who executed the search warrants were TSG or Operation Brontide officers. Fifthly, the key decisions were taken by senior officers in the Royal Wedding team. This included the decisions as to whether and when to execute the warrants. These factors, between which there is a degree of overlap, are said to lead inexorably to the conclusion that the dominant purpose behind the execution of the warrants was to effect preventative action in relation to the apprehended disruption of the Royal Wedding and not to advance a criminal investigation into the theft or handling of some computers and bicycles.

Discussion

28. It is clear beyond doubt that the timing of the execution of the search warrants was related to the Royal Wedding. The evidence of Commander Broadhurst and Commander Johnson (paragraphs 10-12, above) is candid about that. The question is whether the factor which conditioned the timing also establishes the dominant purpose of the execution of the warrants. The Divisional Court dealt with this question in the following passage (at paragraph 234):

"There can be no doubt that the attention given to the Camberwell squats in the first place and the subsequent decisions to apply for and execute search warrants at the premises, including the timing of the searches, were heavily influenced by a concern to prevent disruption of the Royal Wedding. But it does not follow that the prevention of disruption of the Royal Wedding, rather than a search for stolen goods, was the dominant purpose of the police in executing the warrants, ie in exercising the powers of search conferred by the warrant … So there were lawful warrants, granted on 27 and 28 April, authorising searches of the premises. It is very difficult to see how the execution of those warrants on 28 April by carrying out the searches authorised by the warrants can have been vitiated by the existence of an ulterior dominant purpose that did not impinge on the validity of the warrants themselves."

29. Mr Bailin submits that this analysis is wrong because it artificially hives off the issue of timing from the actuality of execution. Mr Sam Grodzinski QC, on the other hand, seeks to maintain a distinction between the purpose of executing the search warrants and the operational decision as to timing.
30. In my judgment, Mr Grodzinski's submission, which reflects the analysis of the Divisional Court, is correct. He supports it by reference to this hypothetical scenario. Suppose that police officers, in the course of an investigation into serious organised crime, reasonably suspect that incriminating material is present in a particular house and they lawfully obtain a warrant authorising them to search the house. At the time, they intend to execute the warrant on day 1. However, before the intended time arrives, they acquire intelligence that on day 2 the leader of the gang will be present in the house. They postpone execution to day 2 in the hope of being able to arrest the gang leader for the same and other, yet more serious, offences at the same time. Is it to be said that the successful execution of the lawfully obtained search warrant on Day 2 is for the dominant purpose of arresting the gang leader rather than for the recovery of material for which the warrant was obtained? Surely not.
31. By parity of reasoning, in the present case the lawfully obtained search warrants were executed for the purpose for which they were obtained, namely the recovery of the specified stolen goods which, as a result of the surveillance, the officers had every reason to believe were in the premises. That the searches were carried out in accordance with the authorisations bestowed by the warrants is incontrovertible. I refer to the following passages in the judgment of the Divisional Court:

"235 … The police seized substantial quantities of computer equipment falling within the description of goods for which the search was authorised.

243 … None of the witnesses say that the officers searched for material outside the scope of the warrants. Most of the articles seized, namely the computer equipment, fell clearly within their scope. The seizure of the Zombie Wedding flyers is entirely consistent with the exercise of the powers conferred by s.19 and does not begin to show that the search extended to material outside the scope of the warrants: an officer was entitled to seize the flyers pursuant to s.19 if he came across them on the premises while searching for articles within the scope of the warrants."

The reference to section 19 is a reference to section 19(3)(a) of the Police and Criminal Evidence Act and the principle that officers are not required to adopt "tunnel vision" when carrying out authorised searches: R v Chesterfield Justices, ex parte Bramley [2000] QB 576, 584F, per Kennedy LJ.

32. These factors dispose me to the view that the timing of the execution of the warrants was the result of an operational decision which was conditioned by a desire to maximise Royal Wedding security gains but which did not mean that the dominant purpose of the search itself was anything other than that which was authorised by the lawfully obtained warrants. It would be quite different if, for example, the searching officers had taken little or no interest in computers but had concentrated on a search for Royal Wedding disruption evidence. If police officers were not permitted to decide upon the timing for the execution of a lawfully obtained warrant with an eye on a collateral advantage, their operational freedom of manoeuvre would be unjustifiably inhibited.
33. At this point, I should deal with a subsidiary submission advanced by Mr Bailin. It is to the effect that we should not be impressed, as the Divisional Court was (at paragraph 234), by the fact that there has been no legal challenge to the obtaining of the warrants. Mr Bailin suggests that this was because the appellants did not have access to, indeed were denied, the necessary material for the mounting of such a challenge. He complains that not enough is known about what transpired between the informing officers (Police Constables Anderson and Sharp) and the magistrates to enable a challenge to be formulated. I do not accept this submission. Police Constable Anderson, who made the initial application, provided a reasonably detailed, albeit not comprehensive or verbatim account. In judicial review proceedings, it was appropriate to take it at face value. No application was made to cross-examine him or anyone else. Indeed, when Mr Grodzinski had submitted at an early stage in the proceedings in the Divisional Court that the case for the claimants might have been better pleaded as a common law action for damages with live evidence and cross-examination, his submission was opposed by the claimants. The proceedings remained limited to judicial review. The claimants chose to deny themselves the opportunity to probe beyond the documentary material through processes of disclosure and cross-examination. In these circumstances, the Divisional Court was entitled to attach significance to the fact that the search warrants were lawfully obtained.
34. I now return to the five substantive points upon which Mr Bailin relies. In his formulation they numbered six but the sixth, concerning the identity of the decision-makers in relation to the timing of the execution of the warrants, is in fact a particular aspect of the fifth. The second point concerns Commander Broadhurst's "relief" that the searches uncovered no evidence of a Royal Wedding disruption conspiracy. I regard this as a non-point. It is hardly surprising that Commander Broadhurst was relieved. Such relief was entirely to be expected, whether Royal Wedding considerations were the dominant or an ancillary purpose for executing the search warrants.
35. The third and fourth points are connected. They arise out of the fact that the searches of premises in Camberwell Road for stolen goods were carried out not by local officers but by TSG or Operation Brontide officers and, when arrests took place, those arrested were taken not to the local police station but to Harrow Road, from where Royal Wedding operations were being conducted. I can understand why these factors arouse a degree of suspicion but they have to be considered in context. The lawful surveillance which preceded the obtaining of the search warrants related to "a perceived need to accelerate the identification and arrest of the Operation Brontide (and Operation Malone) suspects" (Divisional Court judgment, paragraph 87). It was therefore natural and advantageous that Brontide officers should be involved in the surveillance and that, having been so involved, they should also be deployed in the execution of the warrants. Moreover, any suspicion that is aroused is allayed by the striking evidence of the conduct of the searches. It is highly significant that the searching officers did not search for Royal Wedding disruption paraphernalia. It tends to contraindicate a dominant purpose of that kind. Whilst there was a relationship between (a) outstanding Operation Brontide suspects, (b) Royal Wedding preventative action, (c) criminality observed or reasonably suspected during surveillance, (d) the obtaining of the search warrants and (e) their execution, that does not compel a conclusion that Royal Wedding preventative action was the dominant motive at all stages.
36. The fifth point, relating to the key decision-makers, is susceptible to the same analysis. I refer again to the evidence of Commander Johnson, set out at paragraph 12, above. It comes back to the same point. Whilst the timing of the searches was Royal Wedding related, the decision to proceed with them "was based on the facts presented to me by the investigating officers, ie that they suspected criminal activity at the various premises, and the fact that the premises were being used by people who were likely to be planning or involved in criminal activity on the day of the Royal Wedding. I made the decision to take action before the Royal Wedding, (to bring forward police action), which I believed would have the added benefit of making the Royal Wedding day less likely to be subject to criminal activity" (my emphasis). Once again, this supports a conclusion that the dominant purpose of the searches, as opposed to their timing, was to execute the warrants for the purpose which they authorised. At the very least, it is difficult to go behind this evidence on judicial review.
37. The same applies to the evidence of Commander Broadhurst. The fact that he says that he only endorsed the searches "if we had a clear legal basis for entering" (witness statement, paragraph 44) is not determinative. Standing alone it is akin to self-certification and it is question-begging. However, the fact that he had sought and obtained assurances that "substantial criminal offences had been identified at each of the squats and that warrants could be legitimately applied for to enter the premises" is highly relevant to the dominant purpose. Everything else leads back to timing of execution and the way in which the searches were conducted. Whilst these senior officers – "the key decision-makers" – were obviously concerned to ensure that everything that could properly be done to minimise the risk of disruption of the Royal Wedding was done, it does not follow that decisions taken as to the timing of the execution of lawfully obtained search warrants rendered unlawful searches which were substantively justified and authorised.

Conclusion

38. For all these reasons, I am satisfied that the judgment of the Divisional Court was correct. Although at various points it referred to the decision to apply for and execute the search warrants, including the timing, as "heavily influenced by a concern to prevent disruption of the Royal Wedding" (paragraph 234) and to its having the "underlying motivation" of such a concern (paragraph 236), that did not prevent the dominant purpose of the searches being the one authorised by the warrants. I would dismiss the appeal.

Lord Justice Patten:

39. I agree.

Lord Justice Fulford:

40. I also agree.