QUEEN'S BENCH DIVISION
B e f o r e :
(Vice President of the Court of Appeal, Criminal Division)
MR JUSTICE JACKSON
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MR FRANCIS FITZGIBBON (instructed by Hamnett &Osborne Tisshaw, 48-52 South Road, Haywards Heath, West Sussex, RH16 4LA) appeared on behalf of the DEFENDANT
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"We were of the opinion that the police officers had stepped outside their duty by not allowing the Respondent to move about the premises. The police had no express power to detain the Respondent and he was therefore falsely imprisoned. When the Respondent obstructed the search the officers' remedy was to arrest him in accordance with the case of Hepburn. The police on failing to arrest the Respondent detained him unlawfully and therefore acted outside their duty. An essential element of both of the offences was missing and therefore there was no case to answer and the case was dismissed."
"Are police officers that are executing a search warrant of a property acting within the execution of their duty if they ask individuals within the property to go into and remain in certain rooms whilst they are searching other rooms in the property? Further, are they entitled to prevent individuals from leaving the property altogether?"
It is to be noted that in posing those questions the justices refer to the search warrant in relation to the property. They do not refer to the material aspect of this search warrant, which related to persons within the premises as well as the premises. To those questions, in due course, I shall return.
"(d) that the constable has reasonable grounds for believing that arrest is necessary to prevent the relevant person:
(i) causing physical injury to himself or any other person;
(ii) suffering physical injury;
(iii) causing loss of, or damage to, property."
Accordingly, submits Mr Davies, when the judgment of the Court of Appeal in Hepburn  EWCA Civ 1841 is considered in the full transcript (that full transcript not, as I have said, being before the justices at the time of their decision) paragraph 14 of Sedley LJ's judgment is not, as it stands, a correct statement of the law. Sedley LJ said:
"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."
"Powers to search and obtain evidence ...
(2) If a constable has reasonable grounds to suspect that any person is in possession of a controlled drug ... the constable may-
(a) search that person, and detain him for the purpose of searching him ....
(3) If a justice of the peace ... is satisfied by information on oath that there is reasonable ground for suspecting-
(a) that any controlled drugs are, in contravention of this Act or of any regulations made thereunder, in the possession of a person on any premises; or
(b) that a document directly or indirectly relating to, or connected with, a transaction or dealing which was, or an intended transaction or dealing which would if carried out be, an offence under this Act ..."
A search warrant can be issued. Section 23 continues:
(4) A person commits an offence if he-
(a) intentionally obstructs a person in the exercise of his powers under this section."
"Power of constable to use reasonable force
Where any provision of this Act
(a) confers a power on a constable; and
(b) does not provide that the power may only be exercised with the consent of some person, other than a police officer,
the officer may use reasonable force, if necessary, in the exercise of the power."
"B:5.9 Premises may be searched only to the extent necessary to achieve the object of the search, having regard to the size and nature of whatever is sought."
And B:5.10 provides:
"Searches must be conducted with due consideration for the property and privacy of the occupier of the premises searched, and with no more disturbance than necessary. Reasonable force may be used only where this is necessary because the co-operation of the occupier cannot be obtained or is insufficient for the purpose."
"severe burden which a constable has to discharge when trying to prove that the use of force was really necessary in order to justify his use of force."
That observation, for my part, I bear in mind.
"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."