Connor & Ors v Chief Constable of Merseyside Police

The appellants appeal against the dismissal of their claims for damages (including aggravated and exemplary damages) for “trespass, assault, unlawful imprisonment, and breach of their human rights” following a trial lasting 6 days at the Liverpool County Court before HH Judge MacMillan and a jury in November 2005.

The claim was based on the obtaining and execution of a search warrant on 20^th February 2003 by the Merseyside police at 3 Smith Street Liverpool 5, the home of the second, third and fourth appellants, Ms Garner and her two young children Joseph aged 7 and Lauren aged 5. Although the father of Ms Garner’s two children and described as her “partner” for the last 16 years, the appellants insist that Mr Connor did not live at the house. He did, however, spend the night of the 19^th/20^th February there and was, therefore, present when the police arrived to execute the warrant.

Liverpool like so many other cities of this country has been plagued, in recent years, by a dramatic increase in the use of firearms. In 2002/3 the Merseyside police, represented in this litigation by their Chief Constable, faced a particular problem caused by the rivalry between two gangs known as the Wrights and the Gees. There were a series of serious violent incidents linked to them, involving arson attacks and the use of firearms. People, including a young child, were hurt but, miraculously given the nature of the attacks, not seriously. The situation was considered sufficiently grave for a special unit of the Merseyside police to be established known as “Operation Doncaster” tasked with investigating these incidents and collating intelligence.

In about February 2003, the police received information from a member of the public to the effect that firearms linked to the gang warfare were hidden at the home of a man, called Singleton, known apparently to the two adult appellants. The police obtained and executed a search warrant and found two firearms. The same member of the public, considered by the police to be a reliable source, informed them that the homes of Ms Garner the second appellant and her mother were being used as safe houses for the storage of weapons. In relation to 3 Smith Street, the information suggested that two shotguns, possibly used in recent shooting incidents, and belonging to the alleged leader of one the gangs, Michael Wright, were stored in the loft. The informant who has remained unidentified (for obvious reasons) is of good character and demanded no payment for the information.

The police were aware of a number of links between the appellants and the Wrights. Ms Garner is the sister of a man whom the police believe is an active member of the Wright gang. Her sister lived with a man described as the Wright family’s “lieutenant” at an address thought to be linked to Michael Wright. Liverpool 5, the area of Liverpool in which 3 Smith Place is situated, was at the heart of the gang warfare. This information was conveyed to a senior officer, Superintendent Cooper who, having been assured that the information had been verified to the extent possible, and having considered all the options, decided to act upon it.

The information was laid before a magistrate by Detective Constable McRae, one of the Operation Doncaster team. He sought a warrant under section 46 of the Firearms Act 1968. Section 46 provides as follows:

that an offence relevant for the purposes of this section has been, is being, or is about to be committed; or

that, in connection with a firearm or ammunition, there is a danger to the public safety or to the peace,

A warrant under this section may authorise a constable or civilian officer-

to enter at any time premises or place named in the warrant, if necessary by force, and to search the premises or place and every person found there;

to seize and detain anything which he may find on the premises or place, or on any such person, in respect of which or in connection with which he has reasonable ground for suspecting-

that an offence relevant for the purpose of this section has been, is being or is about to be committed; or

that in connection with a firearm, imitation firearm or ammunition there is no danger to the public safety or to the peace.

that an offence relevant for the purposes of this section has been, is being or is about to be committed; or

that in connection with a firearm, imitation firearm or ammunition there is a danger to the public safety or to the peace.

The power of a constable or civilian officer under subsection (2) (b) above to seize and detain anything found on any premises or place shall include power to require any information which is [stored in any electronic form] and is accessible from the premises or place to be produced in a form in which it is visible and legible [or from which it can readily be produced in a visible and legible form] and can be taken away.

The offences relevant for the purposes of this section are all offences under this Act except an offence under section 22(3) or an offence relating specifically to air weapons.

It is an offence for any person intentionally to obstruct a constable or civilian officer in the exercise of his powers under this section.

The magistrate was satisfied that section 1 (b) was satisfied, namely that there were reasonable grounds for suspecting that “in connection with a firearm or ammunition there is a danger to the public safety or to the peace”. Accordingly, he or she issued a search warrant under section 46. The warrant dated 19^th February authorised the Merseyside Police force as follows under the heading “Direction”

Given the risks inherent in the operation, an Assistant Chief Constable authorised the deployment of armed officers. The warrant was executed at about 6.00 am by a number of such officers, who did not include DC McRae or Superintendent Cooper. The search was conducted in two parts: first, the removal of all occupants of the house and the making of the house secure; second, a more detailed specialist firearms search.

At about 6.00 am Mr Connor and Ms Garner awoke to a knock on the front door. Armed police surrounded the house. They were dressed in full protective clothing which included eye and face protection. They shouted out warnings of their presence and told the occupants to leave the house by the front door. Ms Garner decided to leave by the back door. She claimed this was because she was told to take her dog there. At the back door, she said she found masked police officers pointing guns at her. This was denied. She said she was grabbed and put against a fence. This too was denied. She was undoubtedly handcuffed for a very short time and then searched for weapons. She was released and allowed to return to the house to fetch both her children and some warm clothes. She claimed the police manhandled her and ignored her protestations about her children. The officers maintained that she deliberately tried to exacerbate the situation by her shouting and screaming and by her aggressive attitude.

She was taken from the house with the children and, as she described it, “put” in a police car. She then sat with the children in the police car, talking to the driver, in what he described as an hysterical and aggressive fashion, until, on his version of events, she asked to be driven to the home of Mr Connor’s mother some 40 minutes or so later. She insisted that she was told she was going there and she was not driven there at her request. She claimed the period in the police car amounted to unlawful detention of her and the children. The respondent maintained she was free to go at any time.

Meanwhile the first appellant, who told the police he had been expecting them, had been escorted from the house. Guns were undoubtedly pointed at him. He was handcuffed and detained in a police car for less than an hour awaiting the completion of the first part of the search and the arrival of the specialist firearms search team. He was told he was not under arrest, but he said he could not leave because he was still in handcuffs and the car doors were locked. He was described as being in jovial mood and “not bothered” that the police were searching the house. He accompanied the police as they searched each room. When the search was completed they removed his hand cuffs and told him he was free to go. No firearms were found.

Mr Connor, who has a number of convictions for offences of assault, dishonesty, criminal damage and obstructing the police, claimed that the police targeted him because he has sued them in the past. Both he and Ms Garner suggested that the police had no reasonable cause for seeking the warrant and acted out of malice. Further, they claimed the police acted unlawfully and disproportionately in the manner of its execution by pointing guns at them, handcuffing them and detaining them whilst the search was conducted. Ms Garner also claimed she had been assaulted in the back yard.

The judge left the jury to decide whether or not guns had been pointed at the appellants and if so whether it was reasonable to do so, whether the handcuffing of the appellants was reasonable and whether Ms Garner was assaulted by a police officer in her back garden.

The jury found against the appellants on all the questions put to them. In other words, they found that the police had proved it was reasonable to point a gun or guns at Mr Connor; that if a gun or guns were pointed at Ms Garner that too was reasonable, both at the front door and the back door; that the third appellant Joseph had failed to establish that guns were pointed at him; that the police had proved it was reasonable to handcuff Ms Garner and Mr Connor; and, finally, that Ms Garner had failed to establish she had been assaulted in the back yard.

Mr Thacker, on behalf of the appellants, advanced 4 grounds for appealing the decisions of the jury and the judge:

the judge erred in law in withdrawing from the jury the factual issues relating to the obtaining of the warrant including the question of malice;

the judge erred in law in dismissing the appellants’ claims for false imprisonment;

the judge displayed a bias towards the adult male appellant which amounted to an irregularity and rendered the decision of the lower court unjust;

the judge made an inappropriate remark which would have unfairly prejudiced the jury against the appellants;

At the conclusion of the evidence the judge heard submissions from counsel on what issues should be left to the jury and in what form. In relation to the issue of reasonable cause for obtaining the warrant and malice he ruled, as follows, at pages 6B to 7A

In support of the proposition that there was no reasonable basis for obtaining the warrant, Mr Thacker reminded the court that the information relied on came from an informant and he argued it was “contradictory” in nature. By this, he meant it was not known precisely what would be found at Ms Garner’s home. It was not clear whether the house was used for the storage of 1 or 2 shotguns, or whether the shotgun would be full length or sawn off. He further submitted that the links between Ms Garner’s family and the Wright gang were not sufficiently established. Given the amount of material available it was disproportionate, he suggested, to raid someone’s home, remove the occupants at gunpoint, and detain them in a police car, whilst the search was carried out. He submitted the way in which the search was carried out supported his contention that throughout the police acted from malice.

Mr Thacker did not suggest there was a strong case of malice, far from it. He relied, however, upon the decisions of the Privy Council in Gibbs v Rea [1998] AC 786 and of the Court of Appeal in Paul v Chief Constable of Humberside Police [2004] EWCA Civ 308 in support of his proposition that only “slight” evidence of malice is required in order to justify leaving the issue to the jury. Mr Gibbs sued Detective Inspector Rea for malicious procurement of search warrants under Misuse of Drugs legislation, which authorised the search of his home and his place of employment. The officer simply denied malice and apart from the production of the information and the warrants, the defendant called no evidence. Gault J giving the judgment of the majority of the Privy Council on page 800 at letter D said this:

In Paul the Court of Appeal pointed out that Gibbs provided “a useful reminder of the fact that a claimant cannot ordinarily be expected to produce direct evidence on these matters [namely lack of reasonable and probable cause and malice]”.

Further, reliance was placed upon the decision of the European Court of Human Rights in Keegan v United Kingdom, [2006] ECHR 764 both in relation to this ground and ground 2 in relation to the use of force permissible when carrying out a search of a person’s home. This decision was given after an appeal to this Court, Keegan v Chief Constable of Merseyside Police [2003] EWCA Civ 936, [2003] 1 WLR 2187, in which the case at first instance was decided prior to the coming into force of the Human Rights Act 1998.

In Keegan, the claimants brought a claim for malicious procurement of a search warrant on the basis that there had been an unjustified search of their home. The Court of Appeal agreed that there had been poor detective work, but agreed with the trial judge’s conclusion that there was insufficient evidence of malice to go before a jury. Before the European Court, the Keegan family invoked Article 8 of the European Convention on Human Rights (ECHR) which provides where relevant:

The Court agreed with the submission advanced on behalf of the Keegans that the requirement that they prove malice was too restrictive when Article 8 rights were at stake. The Court suggested that the question of good faith was irrelevant, in an Article 8 claim. Adequate protection was provided to the police if they could show the existence of reasonable and probable cause for obtaining a warrant. On the facts in Keegan, the court held that the police had failed take sufficient steps properly to verify the claimants’ alleged involvement with the offence being investigated. Accordingly, they had acted disproportionately.

Mr Thacker argued, therefore, that for the purposes of Article 8, the necessary factual matrix needs to be analysed before there can be a proper consideration of whether a public authority is entitled to obtain a warrant in order to carry out a search. Since Keegan makes it plain that there is no need to establish malice in order to make good an Article 8 claim in the present context, he submitted it was not open to the judge to remove the relevant issues of fact from the jury.

Mr Wells, on behalf of the respondent, referred us to various documents which were before the court below and supported by witness statements and evidence from the officers responsible for the various stages of the procedure. These included the copy warrant, the Briefing Sheet, the Firearms Policy Document, the Firearms Risk assessment and police note books. All these documents had been redacted for reasons of public interest immunity.

I do not intend to rehearse the contents of them or indeed summarise them. Suffice it to say, that on their face the documents show that the police acted honestly and considered all their options very carefully. The relevant officers appear to have been acutely conscious of the fact that the search was to be carried out at the home of a mother and two young children. Indeed, this was one of the factors they bore very much in mind in reaching their conclusion that to do nothing was not an option. The appellants could point to no evidence to contradict those assertions and I did not understand Mr Thacker to be arguing strenuously to the contrary. Thus, the evidence in this respect appears to have been all one way: the police officers concerned believed that, because the interests of safety were paramount, they were acting proportionately in asking for a court order to search the appellants’ home. Although this, of course, begs the question of whether the police were, in fact, acting proportionately, to which I shall return in my conclusions, it does raise a real question mark over whether there ever was any basis here for claiming the police acted from malice or without reasonable and probable cause.

In relation to this ground, Mr Thacker’s primary submission was that in the absence of express statutory authority in the Firearms Act to permit the Merseyside police to use reasonable force (and therefore detain) the appellants, there was no power in law to detain them. He derived support for this proposition from a decision of this court differently constituted in Thames Valley Police v Hepburn [2002] EWCA Civ 1841. Sedley LJ giving the lead judgment said at para 14:

The facts of Hepburn were not on all fours with the facts of the present case. The court was there concerned with a warrant, issued under the Misuse of Drugs Act 1971, to search a public house (not its occupants) for controlled drugs and any documents related thereto. Mr Thacker also conceded that Sedley LJ may have based his observations in paragraph 14 in part upon a false premise, namely that, at the time, there was a general power to arrest someone for obstructing a police officer in the execution of their duty. Nevertheless, Mr Thacker submitted that what he described as Sedley LJ’s “statement of general principle” holds good: unequivocal statutory authority is required before a police officer executing a search warrant under any Act is entitled to detain anyone. He argued it was not open to the respondent, therefore, to rely upon an implied power or one derived from the doctrine of necessity.

He reminded the court of the terms of the Firearms Act and invited us to note that there is no express power under section 46 of the Firearms Act 1968 to use force. The power is a limited one namely to search and there is no implied power to detain or manhandle people who are doing nothing wrong. He also suggested it was significant that section 46(5) of the Firearms Act 1968 makes it an offence to obstruct a police officer who is acting in the course of his or her duty when carrying out a search for firearms. This, he contended, indicates that Parliament gave some thought to the consequences which should follow where a person attempts to prevent a search and came to the conclusion that the act of so doing should be criminalised. If Parliament had wished to give the police power to use force it could have done so.

However, Hepburn does not stand alone. Mr Wells on behalf of the respondents countered with two decisions one of the Divisional Court in DPP v Meaden [2003] EWHC 3005 (Admin)[2004] 1WLR 945 and one of the House of Lords in Murray v Ministry of Defence [1988] 1 WLR 692.

In Meaden the relevant warrant was issued under section 23 of the Misuse of Drugs Act and purported to be issued under section 15 of the Police and Criminal Evidence Act 1984. At para 29 of Meaden Rose LJ giving the lead judgment said this:

Mr Thacker suggested that the respondent’s reliance upon the decision in Meaden was misplaced. Although, as I have indicated, he accepted that Rose LJ may well have been right to question part of the reasoning in Hepburn, he argued that we should not adopt Rose LJ’s reasoning in Meaden because it, in turn, was flawed. He then developed an interesting argument which, for reasons that will become apparent, I need not rehearse in full. In summary, he argued that sections 15 and 16 of the Police and Criminal Evidence Act (PACE) do not confer powers on a constable, they regulate police powers. Section 117 of PACE which authorises the use of reasonable force in the exercise of police powers only applies to powers conferred under the Act. He submitted, therefore, that both in Meaden and in the present case the police could not rely upon the provisions of section 117 to justify the use of reasonable force in the exercise of a power which was in fact conferred by another Act.

Whatever the strengths of that argument, Mr Thacker, in my view, still faced the hurdle of Rose LJ’s observations in para 32 (already cited) which accords with the reasoning of the House of Lords in Murray. The facts of Murray were that an Army corporal was instructed to go to a house and there arrest a suspected terrorist pursuant to a statutory power to arrest and search. At page 700 B Lord Griffiths giving the leading speech in the House of Lords described the procedure adopted in this way:

From those words Mr Wells derived support for the proposition that there is an implied power to ensure the safe and effective execution of a lawful order, at the very least where safety of the citizen is at stake. Mr Wells argued that the decision in Murray was on all fours with the facts of this case and that if there was an implied power in Murray to restrain the occupants of the house for a short time, on the facts of this case there must have been an implied power to detain the appellants for a reasonable period of time.

Mr Thacker, for his part, attempted simply to distinguish Murray on its facts on the basis that the period of detention (namely the assembly of people in one room whilst a search was carried out) was very short. In this case, the appellant Mr Connor was detained for what he described as a considerable period of time and in handcuffs. He failed to address, as I recall, the broader question of whether the House of Lords accepted in Murray the existence of an implied power of the kind asserted by Mr Wells.

He also dismissed Mr Wells’ argument that, in any event, there remains the power under section 3 of the Criminal Law Act 1967 for any citizen to use reasonable force to prevent crime as being irrelevant for present purposes. Section 3 where relevant reads:

Mr Thacker submitted, as I understood it, that there was no crime here to prevent and if the appellants had obstructed the police in the execution of their duty to search for firearms the proper course was to arrest them under section 46(5).

Before leaving the issue of unlawful detention, Mr Thacker returned to the ECHR and argued that the detention of the appellant or appellants on the facts of this case amounted to a deprivation of liberty sufficient to engage Article 5. Article 5, where relevant, provides:

He brought to our attention the recent decision of the House of Lords in R (on the application of Gillan) v Commissioner of Police for the Metropolis [2006] UKHL 12, [2006] 2 WLR 537 which concerned the legality of stop and search powers under anti-terrorist legislation. Lord Bingham, with whom the other Law Lords agreed on this issue, pointed out that there was a broad measure of agreement in the Strasbourg jurisprudence as to what would constitute detention under Article 5. At para 25 of Gillan Lord Bingham said this:

Lord Bingham then went on to consider whether, if there had been a deprivation of liberty, the interference with the Article 5 right was prescribed by law and stated the following general proposition:

Applying these principles, Mr Thacker argued the appellants here were plainly detained. Mr Connor was handcuffed and not permitted to leave the property. Ms Garner was removed from the property and kept in the police car against her will, along with her children. This is not a case, he said, like Gillan, where there was a detention for a short period of time so that a relatively un-intrusive procedure could be carried out. Rather, he said, the appellants were kept out of the way so that their home could be searched. Pausing there, I think Mr Thacker meant so that Ms Garner’s home could be searched. Mr Connor insists 3 Smith Street is not his home.

Mr Thacker then turned to the doctrine of necessity and questioned whether or not the doctrine of necessity, as applied here, would survive examination by Europe. Mr Thacker submitted the doctrine of necessity is very limited in its application. He contended that as a broad-ranging doctrine, it does not satisfy the requirement that the law is “clear and accessible”. Indeed, he argued in circumstances such as exist in the present case, the doctrine allows for the arbitrary use of power which is not permitted by the Convention.

Mr Wells reminded the court that in McVeigh and others v UK [1981] 5 EHRR 71, the European Commission of Human Rights held that, in limited circumstances, Article 5 (1) (b) will apply to justify short-term detention even though there has been no prior non-compliance with an obligation, where necessary to make the execution of an obligation effective, at the time when it arises. The nature of the obligation must be considered and whether it is necessary in a democratic society to fulfil it immediately, balancing that with the right to liberty. He relied upon that principle to justify a relatively short term detention in a case where suspected firearms were concerned. The balance, he argued, was clearly in favour of securing immediate and undisputable compliance with the obligation not to obstruct the search.

Further, Mr Wells contended that ‘necessity’ is recognised as a proper basis for action as long as the power and its exercise meet the requirements of lawfulness and lack of arbitrariness. In HL v UK, referred to in, Gillan the European Court accepted the existence of the doctrine of necessity, but held on the facts of that case it did not meet the requirements of the ECHR. He submitted that this case is different in that in this case the checks on arbitrariness are in place. First, a magistrate had to be satisfied there were reasonable grounds for believing that firearms constituted a danger to the public. Second, the warrant specifically authorised entry by force and search of the premises and the occupants for firearms. Reasonable thought would make it clear to all that guns might be used and that restraint might be used to ensure that the situation was controlled very tightly. There was therefore, the required element of predictability. The warrant itself was only valid for a limited period, it was restricted in its terms and any one affected by the way in which it was executed had the right to challenge the lawfulness of the respondent’s behaviour in court.

Finally, on this ground Mr Thacker argued that if the doctrine of necessity depends on the facts of each case then this is an issue that should have been left to the jury to decide. For this he derived support from the decision in Pollard v Chief Constable of West Yorkshire Police [1998] EWCA Civ 732. Henry LJ considered the effect of Dallison v Caffery [1965] 1 QB 348 and a submission that Dallison was authority for the proposition that all questions of reasonableness arising between a claimant and the police are questions of law to be determined by the judge. He observed towards the end of his judgment (for which we have no page numbers in the copy provided for us):

For his part, Mr Wells argued the basis of the justification of any detention was clearly one of law, namely the proper analysis of the powers exercisable as a result of the issue of the search warrant. The judge was correct, therefore, in determining this issue without reference to the jury. He submitted that Mr Thacker fell into error in relying upon Pollard. In Pollard the court was concerned with the question of reasonableness when force is being used to effect an arrest. For the reasons set out by Diplock L.J. in Dallison the issue of reasonableness in false imprisonment is treated differently from the issue of reasonableness in assault. In the instant case, the judge properly left the issues of reasonableness in the use of force to the jury.

I now return to the judge’s observations when he ruled on the issue of reasonable cause for applying for the warrant. Having averted to the evidence that the appellant had previous convictions, and might well be predisposed to look after firearms at his premises for money, the judge went on to make certain observations about whether 3 Smith Street was indeed the appellant’s premises. At page 97A he said this:

Mr Thacker complained, with justification, that it had never been put to the appellants that they were involved in a benefit fraud and it did not form any part of the case. Despite Mr Connor’s numerous brushes with the law, he has been left with a sense of grievance at the judge’s slur on his character. Mr Thacker argued this comment would lead the hypothetical fair minded observer to conclude that the judge was biased.

Mr Wells rightly did not adopt the judge’s comment nor did he contend that the finding or comment was necessary for the determination of any issue between the parties. He accepted no evidence was led about benefit fraud and, therefore, any comment must have been speculative. However, he wished to emphasise that the comment came after a full hearing in which the question of where the male adult appellant lived was raised and therefore did not, he argued, indicate any tendency on the part of the judge to prejudge the issue.

Finally, complaint was made that during the course of his summing up to the jury, the learned judge made reference to the shooting of two police officers in Bradford, on the weekend immediately prior to the summing up. At our page B 114 he said this:

Mr Thacker wished to emphasise that throughout the trial, reference was made by various police officers to the importance of following certain procedures when dealing with firearms in order to minimise the danger to both the police and the public. In addition, Mr Wells, counsel for the police, in his closing speech, made reference to the fact that the police officers, in carrying out the search, were protecting the public.

Accordingly, Mr Thacker argued this was a case in which the crucial issues, insofar as the jury were concerned, related to the propriety of the police’s actions. In that context, the reference by the judge to the Bradford shootings was wholly inappropriate. In particular, he asserted that the learned judge’s comments would have been perceived by the jury as reiterating the police case that the manner in which the search was carried out was entirely proper and reasonable.

The first observation I would make is that this is not a case like Gibbs where the police decided to interfere considerably in a man’s private and professional life and then declined to tell him why they had done so. Here, the respondent has informed the appellants and the court in terms why his officers applied for the warrant. It is not suggested those officers misled, or lied to, the magistrate in obtaining the warrant or that they had reason to believe that the information was false. On the contrary, they had good reason to believe that it was true. The informant was known to have provided accurate information of a very similar kind in the recent past.

To my mind, given the incidence of gun related crimes on the streets of Liverpool, at this time, particularly in relation to the Gee/Wright factions, the police could have been severely criticised if they had done nothing or if they had taken days or weeks to investigate the information further. In that time, innocent lives might have been lost. I am satisfied the police had to act quickly provided, of course, they did not act carelessly, and they did not. It is evident from the documentation put before us that they gave every aspect of this case very careful and proper consideration.

In the time available, they established that the information came from someone whose identity they knew, who was of good character, and who did not seek any financial reward for helping the police on this occasion. The informant had provided information which had led to the recovery of two pistols linked to this spate of gun crime and that recovery meant there were two less firearms available for use by these criminal gangs.

For my part, I simply did not follow the argument that, because the police could not be certain how many firearms they might find or how long they would be, the police should not have acted upon the information. Whether the guns were full length or sawn off was wholly academic in so far as the obtaining and execution of a warrant to search for them was concerned. If there was even one firearm hidden in the house it was held unlawfully, in connection with gang violence and a potentially lethal weapon. It was a danger to the public.

Further, the informant had not simply chosen someone from the telephone book to accuse of storing guns for money. There were established and, as far as I can tell, unchallenged connections between the appellants (one of whom had a criminal record) and members of the gang who, it was thought, had left the guns at the house for safe keeping. The house was convenient to the gunmen being in a particular area of Liverpool. It was not, as the judge observed, miles away from the centre of the gang’s activities.

Given the extent, content and apparent reliability of that material, therefore, it was, in my view, entirely appropriate for the police to apply to the court for a search warrant. They had reasonable and probable cause for doing so. There was a “pressing social need” of the kind referred to in para 30 of the judgment of the European Court in Keegan. The search was proportionate to the legitimate aim of removing illegal and lethal weapons from the hands of criminals and any interference with the appellants’ Article 8 rights was, therefore, justified. To my mind the right, and a fair, balance was struck between the relevant interests. I should say that for these purposes I have put to one side the question of malice.

However, in so far as Mr Thacker still pursues the allegation of malice, I note that the only features of the case to which Mr Thacker could draw our attention were that the police knew the appellant Mr Connor had no convictions for firearms offences, he had sued the police in the past and the amount of force used in the execution of the warrant. I can deal with the first two of those features shortly. First, it is the experience of those of us who sit in the criminal courts that the fact that someone has no record of committing a particular category of offence, in the past, is no guarantee they will not offend that way in the future. Second, I can find no reference anywhere in the material put before us to suggest that the officers concerned in obtaining the warrant knew of Mr Connor’s past history of suing the police. Even if they were aware, there is no evidence whatsoever that they have been influenced by that knowledge so as to target Mr Connor improperly.

Lastly, I had some difficulty in following Mr Thacker’s argument that the amount of force allegedly used in the execution of the warrant in some way indicated that there was malice on the part of the senior officer Superintendent Cooper, the officers who provided him with the information and DC McRae who obtained the warrant. There was nothing on the material that I have seen to link what the appellants say happened at the hands of the armed police officers executing the warrant and the obtaining of the warrant itself. Superintendent Cooper and DC McRae were not even present at the search of the Garner house and there is absolutely no suggestion that they instructed their colleagues to act in a heavy handed fashion. If anything, the number of officers deployed, the extent to which they were protected, and the precautions taken, all indicate to me that the police took the threat of firearms in the house very seriously. The jury seem to have accepted they were right to do so.

Thus, even if, as Mr Thacker argued, the Privy Council has decided that, in a case such as the present, a claimant needs only slight evidence of malice to raise it as an issue fit for determination by the fact finder (about which, as a statement of general principle I have my doubts), it is still a matter for the judge to determine whether or not there is any evidence at all. In this case there was none. There was simply the appellants’ assertion. That is not enough.

Accordingly, I was not persuaded that the judge erred in law or in fact in withdrawing the issue of reasonable cause and malice from the jury or that the appellants have lost anything as a result.

Given that there were, on any objective view, good grounds for suspecting there were firearms at 3 Smith Street and possibly a criminal prepared to use them, I confess Mr Thacker’s submissions appeared to me, at times, to lose touch with reality. If there was a danger to the public, there was also a danger to the occupants of the house. It was in the appellants’ own interests, as well as the interests of those searching the house, for them to be kept out of harm’s way. As a matter of common sense, it seems to me nonsensical to suggest that police officers, who genuinely believe that the risk of a shot or shots being fired is real, are not entitled to remove the occupants of the house, at least until they are satisfied that no-one remains in the house armed and dangerous to all concerned. With the benefit of hindsight, we know there were, in fact, no guns hidden at the house, but, at the time the search was planned and executed, the officers did not know that. For all they knew the informant was right again and the situation was dangerous. They were not, as Mr Wells pointed out, simply looking for drugs or stolen property.

With those observations in mind, I turn to the legal principles to be applied to the facts in this case. For my part, I have no hesitation is adopting the observations of Rose LJ in Meaden at para 32, which I repeat, to the following effect:

This is entirely consistent with my understanding of the principles of common law relating to the use of reasonable force and the principles embodied in both section 3 of the Criminal Law Act and section 117 of the PACE.

Like Rose LJ, I too would distinguish the decision in Hepburn. I respectfully agree it should be confined to its own facts. It is common ground that Sedley LJ’s reasoning appears to have been based, at least in part, on a false premise. I am reluctant, therefore, to derive from it any point of principle other than the principles that the use of force must be in accordance with the law and the burden on the police justifying an interference with civil liberties of the kind we have here is a heavy one. Their conduct will be closely scrutinised by the courts.

Further, in Murray Lord Griffiths did not restrict his comments to a consideration of the powers of the corporal in relation to the arrest of the terrorist suspect, as seems to have been assumed. He referred specifically to the “restraint” of people who were not themselves the subject of suspicion in order that the arrest of a suspect could be properly and safely carried out. He accepted, therefore, the existence of an implied power which was necessary to ensure the safe and effective exercise of an express power. For these purposes, I draw no distinction between an implied power and a necessary power which seem to me to be complementary images of each other. What is necessary and, therefore, to be implied will all be a matter of fact and degree.

It follows that I do not accept Mr Thacker’s submission that, absent a provision in the Firearms Act, specifically authorising the use of reasonable force in the execution of a warrant under the Act, the police do not have the power to restrain or detain, even in very limited circumstances, those who might otherwise put lives in danger or themselves be put in danger.

I do not accept that the doctrine of necessity is “so broadly based a doctrine that it offends the principles of accessibility and clarity”, as developed under the jurisprudence of the ECHR, as Mr Thacker argued. I see considerable force in Mr Wells’ submissions that it is entirely predictable that police officers searching a house and occupants for firearms are likely to take the kind of precautions they took here to eliminate or limit the element of danger to those present. It was entirely predictable that they would wish to remove outside those who might otherwise obstruct the search, had they been so inclined or those who might, unwittingly, put themselves and others in danger.

Thus, having accepted there was here, in principle, a power to take reasonable and necessary steps to detain the occupants of the house in the course of the execution of this search warrant, I turn to the question of whether or not, on the facts, any of these appellants were detained, if so whether it was lawful and to whom the responsibility should have fallen to decide each issue.

As far as Mr Connor is concerned it was common ground, he was detained. In his case, therefore, the only question to be determined was whether his detention was reasonable and necessary. There was no factual issue for the jury to decide. The law is clear: it was for the judge alone to decide the lawfulness of the detention itself. Pollard has not changed the law as adumbrated by Diplock LJ in Dallison v Caffery. At page 372 letter B/C having reviewed the development of the demarcation between the responsibilities of judge and jury in actions for false arrest, imprisonment and malicious prosecution, Diplock LJ said this:

In allocating responsibility for deciding the issues in cases such as this, therefore, a distinction has apparently been drawn between the reasonableness of force used in effecting an arrest (which is a mixed question of law and fact: see Pollard) and the reasonableness of imprisonment or detention (see Dallison). Pollard does not, therefore, purport to change the law, as Mr Thacker seemed to argue, and a detainee is not entitled to a decision from a jury as to the reasonableness and, therefore, lawfulness of his detention.

As to the lawfulness of Mr Connor’s admitted detention, for my part Mr Thacker failed to persuade me that the judge was wrong to rule in the way that he did. Mr Connor, for obvious reasons, was considered more of a threat than Ms Garner and her young children. The police were not to know that, in fact, it would be the mother of two young children who would cause more trouble. Given the risks inherent in the operation, the police, in my view, were entitled to ensure that Mr Connor was detained somewhere safe until the house was secure. The jury found his detention in handcuffs was justified. He could have been detained outside the house, but it was a cold winter’s morning. He was detained in a warm police car and only for so long as was necessary to conclude the first part of the search. He then accompanied the police on the search, which is usual practice. His period of restraint may not have been as short as it was in the case of Murray but it was restraint of relatively short duration, in not particularly unpleasant conditions, and the restraint was imposed not only for the benefit of those effecting the search, but also for the protection of all those in and about the house. In my view, it is simply unarguable that on the facts of this case his detention was unnecessary and disproportionate.

As far as the other three appellants were concerned, it was not common ground that Ms Garner and the children were detained. Mr Thacker makes two concessions as far as their periods of alleged detention were concerned. First, somewhat surprisingly given his other submissions, he accepted that the officers were entitled to direct them to leave the house, leave the back yard and sit in the car and had the appellants refused to comply with those directions, Ms Garner could have been lawfully arrested. Second, he accepted that Ms Garner could only succeed in relation to the period in the car if she could prove that she only complied with police directions or guidance because her will was overborne.

I confess I was somewhat surprised by what Mr Thacker appeared to be suggesting, namely that the police should have arrested Ms Garner in the back yard, rather than restrain her and try to quieten her down with the use of handcuffs for a minute or two, and then escort her to sit in a car to await the end of the search. To have arrested her and taken her from her children would have involved a far greater interference with their lives.

If, therefore, it would have been lawful to arrest Ms Garner and if as the jury found it was reasonable to handcuff her, I find it difficult to follow the basis for Mr Thacker’s complaint about the way the back yard incident was handled in the lower court. In effect, Ms Garner has her finding from the jury about the reasonableness of her period of her time in handcuffs. Mr Thacker does not suggest the jury’s finding was perverse or not open to them, presumably because there was evidence she was being obstructive. Any detention was for a very short period and evidently necessary, if the police officers were going to bring the situation under control. Thus, I see nothing in this limb of Mr Thacker’s submissions.

In my view, the only relevant period when Ms Garner and the children may have been detained was the time they spent in the police car. However, having considered the evidence as put before us by Mr Thacker, I came to the same conclusion as the trial judge. If the police were acting within their powers in ensuring the removal of Ms Garner and the children from the house for their own safety as much as anyone else’s, they had to wait somewhere. They were allowed to wait in a police car rather than on the street. Their so called detention in the police car amounted to little more than an act of common humanity. One wonders what complaint Ms Garner would have made, had she and the children been left to freeze on the steps of their home surrounded by armed and masked officers.

Unlike Mr Connor, she was no longer in handcuffs and she did not suggest the doors were locked. There was no evidence to contradict the respondent’s assertion that she was free to get out of the car at any time. After a relatively short period, the police went out of their way, literally, to drive her and the children to a place of safety. She does not claim that she ever asked to leave the car or tried to do so and was restrained. The high watermark of her case was that she said she was escorted to and “put” in the car. She did not suggest that anyone actually physically manhandled her into the car. She did not say that she only got into the car and stayed there because her will was overborne.

Thus, the only difference between her and the police seemed to be whether or not she was driven away at her request. I do not accept that this issue was so significant it required resolution by the jury. On any view, request or no, the decision came at the very end of her alleged detention. In the meantime, she seems to have sat in the police car without any kind of pressure or restraint. Thus, even if the jury had been asked whether she was driven off at her request and they had accepted her evidence on this point (having rejected it, I note, on every other point) I fail to see how it would have advanced her case to any material degree. There was, therefore, no factual issue upon which the judge required the jury’s decision, the evidence was virtually agreed. There was no evidence that her will was overborne and that she and the children were, therefore, detained.

Having given careful consideration to the “factual matrix” of this case and the circumstances of each appellant as invited to do by Mr Thacker, in my view, it was clearly open to the judge to find as he did. If there was any detention of any of the appellants, it was necessary and proportionate and in accordance with a procedure prescribed by law to secure the fulfilment of an important obligation, namely compliance with a court order.

Thus, to my mind, even if Article 5 was engaged by this particular police operation, there was no breach of the appellants’ rights.

On one view, the question of where the adult male appellant lived was relevant to some of the issues raised, for example whether or not the application for a search warrant was targeted at the appellant, and whether his rights “at home” were violated. Had that been the way the case was argued, whether or not there was a reason for the appellants’ claiming to live apart might also then have become relevant. However, that was not the way the case was put and the parties agree that the judge’s finding that the appellants were involved in a benefit fraud was unnecessary given the way the case was presented at trial.

I find that the comment was not only unnecessary it was also inappropriate and inadvisable. However, the fact that the judge made a gratuitous and inadvisable comment, which suggested the appellant or appellants were guilty of a criminal offence, is not enough, in my view, to amount a sufficient ground of appeal on the facts here.

The following factors appear to me be relevant. First, the judge had heard the evidence. This was one comment in a lengthy trial and gave no support to the notion that the judge had tried the case as a whole in a biased way. Second, the judge was not the fact finder. Third, the judge’s rulings on the law were not, in my view, wrong. He did not, therefore, display this alleged bias against the appellants in making his rulings or in the presence of the jury who were the fact finders. His summing up to the jury (save for the comment which features in Ground 4) has not been the subject of any criticism. Thus, whatever the appellants may feel about the comment, I am satisfied that it can have had no adverse impact upon the fairness of the trial. The rulings and the decisions of the jury were not “unjust” as Mr Thacker claimed. To my mind, therefore, this third ground does not constitute a sustainable ground of appeal.

I can deal with this ground very shortly. The judge was bound to comment on the tragic shooting of two police officers during the trial and could have been rightly criticised had he not done so. All of us living in the United Kingdom at the time will recall the massive publicity the incident attracted in every newspaper, national and local, and on television and radio news bulletins. A young and popular woman police officer was shot dead and a colleague seriously injured whilst trying to do their job. Far from criticising the judge for referring to the incident, in my view it would have been remiss of him, given the background of this trial, not to direct the jury that, however difficult and dangerous a job the police may have on occasions, the jury must put all emotions to one side and to try the case on the evidence they had heard.

This he did. I am not persuaded in those circumstances that this remark was prejudicial to the appellants or that it forms a good ground for attacking the jury’s decisions. They had heard the evidence, and counsel’s submissions over a number of days. There is nothing in the material put before us to suggest that they approached their task other than conscientiously, in accordance with their oath and the directions of the judge. There was ample evidence, if accepted, to support their conclusions.

Thus, I would dismiss the appeal on the grounds for which permission to appeal has been given and reject the renewed application for permission to appeal on the other two grounds.

I also agree.