England and Wales High Court (Administrative Court) Decisions

IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
(CROWN OFFICE LIST)

		Royal Courts of Justice Strand London WC2
		8 October 1999

1. LORD JUSTICE LAWS: This is an appeal by way of Case Stated against a decision of the Brent Justices made on 4th December 1997 when they convicted the Applicant of two charges of assaulting a constable in the execution of his duty, contrary to section 89(1) of the Police Act 1996.
2. The Magistrates found the following facts which related to an incident on 27th September 1997 (paragraph 2 of the case).

"i. Police Officers attended the appellant's home address to conduct a search under s.18 Police & Criminal Evidence Act 1984, an occupant of the address, Paul Linehan having previously been arrested."

3. I interpolate: Paul Linehan is the Applicant's son.

"ii. The Police Officers identified themselves as such and requested entry.

iii. The appellant requested the officers to slide their warrant under the door.

iv. The officers fearing destruction of the warrant at the hands of the appellant alternatively offered to show the warrant at a nearby window.

v. The appellant refused to come to the window to view the warrant.

vi. The Officers warned the appellant that they would force the door and proceeded to do so.

vii. The appellant threw a liquid through an opening in the door created by the officers striking two of the officers in the face.

viii. The officers completed entry and arrested the appellant."

4. The case proceeds to summarise the evidence given. The summary of the prosecution evidence includes this:

"These witnesses [that is the officers] gave evidence that they attended the address with a set of keys taken from a person previously arrested and a written authority under s.18 Police and Criminal Evidence Act 1984, referred to as a warrant throughout in order to search for the proceeds of a burglary."

5. I break off there. The summary of the defence evidence, that is the testimony of the Applicant and a lady Evelyn Linehan, I assume his wife, includes this:

"These witnesses stated that there was a banging on an internal door. That their son, Paul Linehan, had been arrested and was normally resident at the premises."

6. The reference in the case to a "warrant" is a reference to a written authorisation under section 18(4) of the Police and Criminal Evidence Act which is in these terms:

"Subject to subsection (5) below, [which is not material] the powers conferred by this section [that is power of entry and search after an arrest had been made] may not be exercised unless an officer of the rank of inspector or above has authorised them in writing."

7. At the hearing, the Applicant contended that there was no case to answer on the ground that no authority to search had been produced. The magistrates must have rejected that argument, although the case discloses no reasoning on the point because they convicted the Applicant. The question for the opinion of this Court is drawn as follows:

"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

(b) in the circumstances found by the Justices relating to the production to the Appellant of the warrant or notice of authority."

8. In his skeleton argument, Mr Codner for the Applicant asserts that the officers were not acting in the execution of their duty. Reliance is placed on Code B5.4, 5.5 and 5.7 of the Codes of Practice issued by the Secretary of State under section 67 of the Police and Criminal Evidence Act. Code 5.6, in my judgment, is also of importance. These provisions of the Code, so far as material, provide as follows:

"5.4 The officer in charge shall first attempt to communicate with the occupier or any other person entitled to grant access to the premises by explaining the authority under which he seeks entry to the premises and ask the occupier to allow him to [enter]."

9. There are then certain exceptions. "5.5 Where the premises are occupied the officer shall identify himself (by warrant or other identification number in the case of inquiries linked to the investigate of terrorism) and, if not in uniform, show his warrant card... and state the purpose of the search and the grounds for undertaking it...
10. 5.6 Reasonable force may be used if necessary to enter premises if the officer in charge is satisfied that the premises are those specified in any warrant, or in exercise of the powers described in 3.1 to 3.3 above..." Those powers so described include a power conferred by an authorisation under section 18(4).

"5.7 If an officer conducts a search to which this code applies he shall, unless it is impracticable to do so, provide the occupier with a copy of a notice in a standard format:

(i) specifying whether the search is made under warrant, or with consent, or in theexercise of the powers described in 3.1 to 3.3 above..."

11. It seems to me that these provisions of the Code contemplate at least that an officer who proposes to enter premises by force and is in possession of an authorisation given under section 18(4) must explain to the occupier, insofar as it is practicable to do so, the reason why he intends so to act.
12. The facts recorded as having been found in the Case Stated do not include any proposition to the effect that the officers explained that they proposed to search the premises for the proceeds of a burglary for which the Applicant's son had been arrested.
13. It is submitted for the prosecution that at least the Court ought to infer that the Applicant knew perfectly well that that was the purpose for which the officer proposed to enter the premises.
14. Mr Lewis draws attention to that passage in the police evidence which I have already set out, namely the statement that the officers attended the address with a written authority in order to search for the proceeds of a burglary, and he refers also to the truncated sentence or part sentence in the record of evidence given for the defence:

"That their son Paul Linehan had been arrested and was normally resident at the premises."

15. We have faced considerable difficulty in this case because, as it seems to me, the case as it is stated does not grapple with the real issue that arises out of these convictions. That issue is whether the officers may be said not to have acted in the execution of their duty by virtue of the fact that no proper explanation was given of the reason for their intention to enter and search the premises. It is not apparent from the terms of the Case Stated that a clear inference is available to us to the effect that there was evidence accepted by the magistrates that the Appellant knew perfectly well the reason why the officers were there. Maybe there was, maybe there was not. In fact, Mr Codner has, as it were on a de bene esse basis, given us certain indications as to the state of the evidence in the lower court which might very well assist the case for the defence; but the short point is that we do not get any sufficient assistance from this stated case in order to ascertain the answers to the critical questions of fact necessary for a determination of the issue, whether these convictions are good or bad. It was incumbent on the magistrates to make clear whether or not they found:
16. (a) that the officers explained the reason for their presence and the reason why they proposed to force entry to the premises and/or,
17. (b) whether the Appellant was or was not aware of that reason in any event.
18. As I say, I am not prepared to infer that the Appellant was so aware and there is certainly no basis for inferring that the officers explained the reason for their presence. Indeed, as it happens, it is at least common ground between the parties that they did not say that they were attending at the premises in order to search for the proceeds of a burglary.
19. In O'Loughlin v Chief Constable of Essex [1998] 1 WLR 374, Buxton LJ said this at 392D:

"This paragraph strictly speaking did not apply in the present case, because no search was contemplated. It is, however, a strong indication of the importance and relevance of the officer who seeks entry explaining his authority, and certainly explaining the reason why he seeks entry. I therefore respectfully agree with the burden of Donaldson LJ's judgment that a very important factor in deciding whether the police have proved that use of force to enter was necessary... is whether before using force the police have explained the (proper) reason why they require entry, and none the less have been refused."

20. That factor in my judgment, so far as one can glean the reality from this defective Case Stated, is missing here. It follows, as I see the matter, that the proper answer to question 1B in the case is in the negative. The Justices were not entitled to find that the officers were acting in the execution of their duty in the circumstances which related to the production to the Appellant of the notice of authority.
21. That is sufficient to dispose of the appeal but, for completeness, I should say that I would answer question 1A affirmatively, that is to say, the Justices were, in my judgment, entitled to find that the officers were acting in the execution of their duty without the production in court of the notice of authority. There was plainly admissible evidence before the Court that the officers were in fact in possession of such an authority. There is nothing, in my judgment, therefore in 1A.
22. Mr Codner has also submitted that in certain other respects, on the facts found, it should be held that the officers acted unreasonably. He submits that it was unreasonable of them not to accede to the Appellant's request to slide the warrant or authority under the door, and unreasonable also that they should break down the door immediately after giving a warning to that effect without further parley or negotiations. It does not seem to me that we are in any position to reach sensible determinations on those matters. The case does not disclose such details in the evidence as might make it possible to do so.
23. In short, I would allow this appeal and answer question 1B in the negative, as I have said. If my Lord agrees, it would follow that the convictions fall to be quashed.
24. MR JUSTICE POTTS: I agree.
25. MR CODNER: May I have my costs from Central Funds?
26. LORD JUSTICE LAWS: A Defendant's Cost Order under the Prosecution of Offences Act 1985.
27. MR CODNER: No, it would follow that it would be in exactly the same terms my Lord as the order made by my Lords' brethren when they granted our order of mandamus and ordered the costs of the Applicant be ascertained by the Master of the Crown Office in favour of the Applicant.
28. LORD JUSTICE LAWS: You are asking for the authority for an order for costs out of Central Funds? It is a defendant's costs order, is it not?
29. MR CODNER: I do not know. When I win I get my costs and I always do.
30. LORD JUSTICE LAWS: It is helpful if counsel is actually able to assist on the jurisdictional basis of any order that he is seeking. You do not seek an inter-partes order against the CPS?
31. MR CODNER: No.
32. LORD JUSTICE LAWS: Yes.
33. MR CODNER: I am much obliged, my Lord.