England and Wales High Court (Administrative Court) Decisions

IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
(DIVISIONAL COURT)

		Royal Courts of Justice Strand London WC2
		5 October 1998

MR JUSTICE SEDLEY: By leave of Hidden J granted on the papers, Mr Codner moves for an order of mandamus to require the justices to state a case.

The justices had tried the applicant, Mr Linehan, on two charges of assaulting police officers in the execution of their duty and had convicted him. Asked to state a case, they had refused on the ground that the application was frivolous. It is sufficient to summarise the reasons why this Court considers the application not to have been frivolous.

Mr Linehan, the applicant, was the father of a young man who had been arrested. The police wanted to search his home which was also Mr Linehan's home. It is highly probable that they tried to do so under section 18 of the Criminal Evidence Act 1984 which gives power, on the written authority of a senior officer, to follow up an arrest with a search. It stands in distinction to the power of search under a warrant conferred now by section 16 of the same Act. The distinction appears to matter (although it may not turn out to matter) because while Mr Codner tells us that the high probability is that this was an authority rather than a warrant case, the justices' refusal to state a case

is predicated entirely upon the view that the search was being conducted under a warrant. In relation to both, however, the law in the one case and the law together with the Code in the other, provides comprehensively for a copy of the relevant document to be made, to be shown to the householder and to be left with him in due course.

No document, warrant or authority was produced to the justices. Instead, they proceeded upon parol evidence of its existence. The kind of confusion to which such a process can give rise is amply demonstrated by the fact that it is still not known whether it was a warrant or authority that was being executed.

In my judgment the consequence is that there is at least one issue upon which the justices ought to have stated a case and should now be required to do so. The issue is whether they could lawfully have proceeded by parol evidence to make findings which were critical to the question whether the two officers were assaulted in the execution of their duty.

There are also questions of the other circumstances in which the confrontation came to occur. There appears to be an issue as to whether the officers offered to show their warrant or authority to the applicant through his window.

It seems to me that the issues will be best stated, subject to anything further that Mr Codner may wish to say about this formulation, if the justices are required to state a case upon the following questions, namely, whether the justices were entitled to find that the officers were acting in the execution of their duty (a) without the production in Court of the warrant or notice of authority under which they were purporting to act, and (b) in the circumstances found by the justices relating to the production to the appellant, of the warrant or the notice of authority.

The second limb is contingent because it depends upon what findings of fact the justices make. This is not entirely clear from their Clerk's letter, and it must be made clear in the case stated.

LORD JUSTICE BROOKE: I agree.

MR CODNER: I am grateful. So far as these proceedings are concerned if Mr Linehan has his costs out of Central Funds.

LORD JUSTICE BROOKE: Yes, very well.

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