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 WC2A 2LL
		16th June 2009

(This transcript has been prepared without the assistance of documents)

LORD JUSTICE STANLEY BURNTON: This is an application to commit the Chief Constable of the Avon and Somerset Police for breach of an order of this court made on 8th May 2009, [2009] EWHC 942 (Admin) The order related to a search warrant which had been executed in respect of premises of the claimants, and in particular Mr Bates, the first claimant, who is a computer expert who has been retained over a number of years by clients, both prosecution and defence, where evidence was required as to the data on computer hard, and no doubt other, drives. It was because there was a likelihood of the material on his computers containing legally privileged and other professionally confidential material that this court quashed the search warrant which had been made under section 8 of the Police and Criminal Evidence Act 1984 ("PACE").

The order made by the court contained a declaration that the entry into the claimant's premises and the seizures of property by the Avon and Somerset Police had been unlawful. Paragraph 3 was as follows:

"All items seized under the warrant be returned to the claimants, save that hard copy images be retained by the first defendant in circumstances such that they are sealed and untouched until such time as there be agreement between the parties as to examination or disposal of the same".

The other provisions of the order are not material for present purposes, though it is to be noted that there were directions given relating to the trial of the claimants' claim for damages. Their claim for damages remains extant and no doubt will be pursued following these committal proceedings.

It is to be noted that there was no date given in paragraph 3 for compliance with the order. The order was headed "Consent Order". In truth, although its terms were agreed, it was not a consent order in the sense that the Chief Constable had accepted before the court and agreed that his warrant had been unlawful. The court had determined the unlawfulness of the warrant and the order was a consequence of the judgment of the court. It is common in those circumstances for there to be agreement as to the terms of the order, but it was not in fact a consent order.

The order took effect pursuant to Part 40.7 of the Civil Procedure Rules immediately, and there was an immediate obligation on the Chief Constable to comply with paragraph 3. He did not do so. Instead he gave an interview to a journalist in the Sun which gave grounds for concern that he might not comply with the order. There was other publicity in The Times, all of which tended to bring Mr Bates, the first claimant, into disrepute as a result of suggestions that there was salacious material which he had on the computers otherwise than for purely professional purposes. However, that publicity is not the subject of the committal proceedings. The Chief Constable not having returned the material which was to be returned under paragraph 3, not the hard copies but the other items, Mr Bates applied to this court ex parte for an order giving him permission to apply for an order for committal against the Chief Constable, on the basis that he had failed to comply with the order. On 21st May 2009 this court gave permission to apply to the Divisional Court for an order of committal against the Chief Constable for failure to comply with the order of the Divisional Court of 8th May 2009. Directions were given for the hearing of the committal proceedings. Those proceedings are before this court today.

The point has been taken, and on one view it is a technical point but it is also an important point, that the committal proceedings could not succeed because, although the order took effect immediately, no time was specified in the order by which the items to which it referred in paragraph 3 were to be returned. I said a moment ago that that requirement may be regarded as a technical requirement, and in a sense it is, but it is also a requirement of substance because it is important that those who are the subject of such orders know with precision at what time they will be in breach of a court order and liable to be in prison for contempt if they do not comply with the order, and the order here clearly is an order to do an act.

The need for a time to be specified in the order is, in my judgment, made clear by RSC 45 rule 5(1)(a) and confirmed by the provision in rule 6(2). The provision in rule 6(2) authorises the court to make an order requiring the act to be done within a specified time if the original order did not do so. Effectively it provides a means for remedying a defect in the original order.

It is no doubt from the point of view of Mr Bates a matter of regret that the original order did not contain a specific time by which the items were to be returned. Had it done so, the point now taken could not have been taken and it would have been unnecessary for any application to be made under rule 6(2) in order to obtain an order which could be enforced by committal proceedings.

It appears that the omission arose as a result of exigencies of time when the Divisional Court, having distributed a judgment in draft, the parties had to come together to agree the terms of an order. But such exigencies, the fact that the claimant's solicitor may or may not have been lulled into believing that undertakings which were not incorporated in a court order would, given the office of the Chief Constable, be complied with, that a point such as that now taken would not be taken by him, all those are matters no doubt which led to the omission. But the omission was nonetheless an omission, and in my judgment it cannot be overlooked by reason of the circumstances which led to or the motives for the omission, or indeed the circumstances which, we understand, led to the present application being made in the form it has been made, rather than its being preceded by an application under rule 6(2) for a time to be specified. That would have been heard inter parties. No doubt if that had not led to the return of the items a time would have been specified, and it would have been a short amount of time such as that specified in the terms of the undertaking that the Chief Constable has now agreed to be given.

It is regrettable that in a case involving a Chief Constable the matter has come this far, but in my judgment this is not a case where there is an enforceable committal established against the Chief Constable for the reasons that I have given. In those circumstances, I would dismiss the application to commit him.

MR JUSTICE WILKIE: I agree.

MR JUSTICE CALVERT SMITH: I agree.

DEFENCE: My Lords, in that event I do have an application. My Lords, following what your Lordships have said the proper course would have been to make an application under rule 45. That would then have given a date for compliance. If that had happened these proceedings would not have been commenced. The most that might have happened -- and I do not say it would or would not, but I doubt it -- is that there might have been some dispute over compliance with the order of 8th May, that may well still have arisen, but not these proceedings. These proceedings have been launched, serious allegations have been made and expanded since 20th May against the Chief Constable, and in our respectful submission we pointed out twice in correspondence, on 22nd May and 1st June, to the claimants that this application should be discontinued. It has not been, we are a publicly funded body and I am respectfully suggesting that we should be entitled to our costs.

LORD JUSTICE STANLEY BURNTON: Thank you.

DEFENCE: I do make the application that they should be on an indemnity basis and that there should be a detailed assessment, not necessarily a summary assessment.

LORD JUSTICE STANLEY BURNTON: In my judgment we referred, albeit in summary form, to elements of the conduct of the Chief Constable which were unhappy. There was also reference by my Lord to the fact that statements were made in relation to some of the material held by Mr Bates, held by him in a professional capacity, indicating that access was required in order to identify children that were involved in those photographs, notwithstanding the fact that he had them in a professional capacity and they related to trials or prosecutions which had taken place some time before. We consider it regrettable that it took these proceedings for the Chief Constable to comply with an order of the court. The separate application to strike out was unnecessary. As I have already indicated, the matter could have been dealt with by way of defence. In those circumstances we consider that the appropriate order to make for costs is no order for costs.

MR JONES: My Lord, we shall certainly accept my learned friend's invitation to renew our deep concerns about the way the Divisional Court was misled in the damages hearing, and we look for a reply there.

LORD JUSTICE STANLEY BURNTON: I should have made it clear, and I do, that nothing that has been said this morning reflects on or affects the claim for damages, I do not know whether that is good or bad or what the amount would be, or any other claim that may be made as a result of these matters.

MR JONES: Thank you, my Lord.

DEFENCE: Can I just say this if I may. My learned friend referred to the Divisional Court being misled. I am not going to be drawn into a debate about this --

LORD JUSTICE STANLEY BURNTON: We have not referred to that. It is the conduct of the Chief Constable since the order was made which has been of concern to us.

DEFENCE: That is all.

LORD JUSTICE STANLEY BURNTON: Thank you.