Khan v Commissioner of Police for the Metropolis

This is an appeal against the judgment of HHJ Faber sitting at the Central London County Court on 21 November 2007. The issue was whether the Commissioner of Police of the Metropolis (“the appellant”) by his police officers was entitled to search the home of Mr Riaz Khan (“the respondent”) at 49 Tindall Road, Leyton, E10 6QJ. The respondent was not represented at the hearing and has appeared in person in court today. The judge held that the appellant was not so entitled and awarded the respondent £1,250 damages for trespass to property. The judge granted permission to appeal.

On behalf of the appellant. Mr Shetty submits that the search of the premises was lawfully conducted under Section 18(1) of the Police and Criminal Evidence Act 1984 (“the 1984 Act”), as amended. Parts II and III of the 1984 Act provide a comprehensive code setting out powers of entry, search and seizure (Part II) and arrest (Part III). The relevant sections have been amended by the Serious Organised Crime and Police Act 2005, section 111, Schedule 7, Part 3 so as to define powers consistently by reference to “indictable” offences. The relevant amendments took effect on 1 January 2006. Previously, different expressions had been used in different sections.

Section 18 (as amended) provides:

“Entry and search after arrest.

1)

Subject to the following provisions of this section a constable may enter and search any premises occupied or controlled by a person who is under arrest for an indictable offence, if he has reasonable grounds for suspecting that there is on the premises evidence, other than items subject to legal privilege, that relates --

a)

to that offence; or

b)

to some other indictable offence which is connected with or similar to that offence.

2)

A constable may seize and retain anything for which he may search under subsection (1) above.

3)

The powers of search conferred by subsection (1) above is only a power of search to the extent that it is reasonably required for the purpose of discovering such evidence.

4)

Subject to subsection (5) below the powers conferred by this section may not be exercised unless an officer of the rank of inspector or above has authorised them in writing.

5)

A constable may conduct a search under subsection (1) --

(a)

before the person is taken to a police station or released on bail under section 30A, and

(b)

without obtaining an authorisation under subsection (4),

if the condition in subsection 5(A) is satisfied.

(5A) The condition is that the presence of the person at a place (other than a police station) is necessary for the effective investigation of the offence.

6)

If a constable conducts a search by virtue of subsection (5) above he shall inform an officer of the rank of inspector or above that he has made the search as soon as practicable after he has made it. 7) An officer who --

(a)

authorises a search or

(b)

is informed of a search under subsection (6) above shall make a record in writing --

(i)

of the grounds for the search; and

(ii)

the nature of the evidence that was sought.

8)

If the person who was in occupation or control of the premises at the time of the search is in police detention at the time the record is to be made, the officer shall make the record as part of his custody record.”

Thus Section 18 imposes requirements and provides safeguards. The present case turns on whether the premises were “occupied or controlled” by the person under arrest, Mr Mohammed Khaff Khan (“MKK”), within the meaning of Section 18(1).

The judge rejected the appellant’s submission “that the requirement that the premises should be occupied or controlled by the person who is under arrest is qualified by reference to the belief or knowledge of the author authorising the search or of the officer actually entering or making the search of the premises” (paragraph 25). The judge added at paragraph 26:

“I can see no ground, as a matter of law, for implying any qualification to that absolute requirement into this provision of the statute despite the practical difficulties to which it is said to give rise on the part of the police.”

The search was conducted between 3am and 3.30 am on the morning of 17 April 2006. As the judge put it, it was “the search of a family home in the presence of children in the early hours of the morning”. The respondent was present, as was his wife, who was upset, and two children whose bedrooms were searched. Nothing of relevance was found. The respondent objected to the search.

The suspect, MKK, had given a false name and address to the police when he was taken into custody. One of the addresses given to the police was 49 Tindall Road. He had given that address to the police on previous occasions.

MKK and another man had been arrested on the evening of 16 April at an ATM machine on Oxford Street. When searched, he was found to have cloned or skimmed cards in his possession and a large quantity of cash. Nothing was found at 49 Tindall Road that connected MKK in any way with those premises. He had also given another false address. The police had doubts about the truthfulness of his statements. It was claimed by the police that there had been similar cashpoint crimes involving a BMW car that was connected to the respondent’s address.

The judge considered evidence available to the police about MKK, and the other man arrested at the same time, and their use of motor vehicles. We assume, without deciding the point, that the police had, under section 18(1), reasonable grounds for suspecting that there was on the premises evidence relating to the offence or an offence connected with it. The judge concluded, at paragraph 41:

“There is no evidence that MKK ever lived or stayed at these premises. There is no evidence that he ever kept any property there. There is no evidence, in those circumstances, that he either owned or occupied any part of those premises and no evidence, therefore, to be left to the jury as to that issue.”

The judge did not, and did not need to, make a finding as to whether the police’s belief that MKK was in occupation or control of the premises was a reasonable belief. We do not make a finding either.

On behalf of the appellant, it is submitted that section 18 of the 1984 Act provides the procedure by which police can search an address that is connected with the arrested person. Subject to compliance with the other requirements, the existence of evidence suggesting that the person under arrest occupied or controlled the premises empowered a search under Section 18. A literal construction of the expression “premises occupied or controlled by a person” makes Section 18 unworkable, it is submitted. The police could rarely be sure that the arrested person was in occupation or control of the premises when the decision whether to search needed to be made. The power to search premises when the police have reasonable grounds to believe that they are connected with an arrested person is, it is submitted, important to them in their task of detecting crime and bringing offenders to justice. The section should be construed to make a search lawful when a police officer has a reasonable belief that the arrested person controls or occupies the premises sought to be searched.

In support of the submission that a literal construction of Section 18 would make it unworkable, reliance is placed on the lack of clarity and certainty in the expression “occupation or control”. A police officer can rarely be certain that a person arrested other than on the premises is in occupation or control of particular premises. Reasonable belief should be sufficient.

No authority directly on the point has been brought to our attention. In Krohn v DPP [1997] EWHC Admin 286 (1997 COD 345) the lawfulness of a search under section 18 turned on the failure by a senior police officer to make a record in writing under section 18(7) of the grounds for searching the defendant’s flat and the nature of the evidence sought. Brooke LJ stated, at paragraph 25:

“…in my judgment this court would be doing the investigation of crime no service if it were to hold that the failure of the acting inspector back at the police station to make a record of the matters set out in sub-section (7) rendered the actions of the officers at the scene unlawful”.

Brooke LJ stated, at paragraph 20, that “the court may readily find reasons for overlooking trivial or unimportant irregularities.”

Agreeing, Blofeld J stated at paragraph 26:

“the powers that relate to the entry on to private property by police officers or other similar, whether deriving from common law or by statute, have to be exercised with the greatest care where the provisions are clear, as they are in Section 18 of the [1984 Act]. [The case] should not be taken as a precedent that can be used in other cases if there should again be a breach of section 18(7)].”

In that context, Brooke LJ stated that it would be wrong for the court to re-open the issue of occupation or control which had not been raised at the trial. The premises were owned and occupied by the father of the arrested man, who had not visited them for two months. However, Brooke LJ stated:

“I mention this in order to lay stress on the requirement of Section 18(1) that the premises in question must as a matter of fact or perhaps mixed fact and law be occupied or controlled by the person under arrest if a search of them is to be lawful. A senior officer cannot make lawful that which is unlawful simply by granting his authority.”

That statement is obiter but Brooke LJ saw fit to refer to the requirement without doubting its effect.

It is also submitted that a literal construction of section 18(1) produces an absurd, unreasonable and irrational result. Reliance is placed on the statement of Lord Millett in Rv Secretary of State for the Environment, Transport and the Regions  ex parte Edison First Power Ltd  [2003] UKHL 20. Lord Millett considered it well established that the courts will:

“presume that Parliament did not intend a statute to have consequences which are objectionable or undesirable; or absurd; or unworkable or impracticable; or merely inconvenient; or anomalous or illogical; or futile or pointless.

117.

But the strength of these presumptions depends on the degree to which a particular construction produces an unreasonable result.”

Other powers of entry are available to the police in the discharge of their duties. Section 32 of the 1984 Act, as amended, empowers a constable to search an arrested person, in any case where the person to be searched has been arrested at a place other than a police station, if the constable has reasonable grounds for believing that the arrested person may present a danger to himself or others. Subject to safeguards in the section, the constable may enter and search any premises in which a person arrested on an indictable offence was when arrested, or immediately before he was arrested, for evidence relating to the offence (Section 32(2)(b)). Section 32 (6) provides that the power must not be exercised unless the constable has reasonable grounds for believing that there is evidence, for which a search is permitted under the paragraph, on the premises. The common law power of a police officer, who entered a house and arrested a suspect pursuant to a warrant of arrest, to search the entire house and seize any articles which provided evidence against the suspect has survived the 1984 Act (R (Rottman) v Commissioner of Police for the Metropolis [2002] 2 AC 692).

However, in Hewitson v Chief Constable of Dorset Police & Anr [2003] EWHC 3296 Admin, the Divisional Court declined to extend the common law power to search premises to a case where a person had been arrested two hours previously in a nearby road. Jackson J referred to the common law principle, now reinforced, he said, by Article 8 of the European Convention on Human Rights, that “a person’s private property should not be subject to arbitrary invasion or intrusion”. Agreeing with Jackson J, Rose LJ stated that, in considering the limits of the common law power of search, courts must balance the interests of the public in having evidence which may support criminal charges with the right that “there should not be excessive intrusion into the homes of members of the public.”

A search may, of course, be conducted under a search warrant issued by a Justice of the Peace under section 8 of the 1984 Act. The Justice of the Peace must first be “satisfied” that there are reasonable grounds for believing that the requirements of the section are met. It is submitted that obtaining such a warrant may involve delay and that delay may be fatal to finding relevant evidence. It is submitted that Section 18, which is very frequently employed, construed as it should be, satisfies an important need in the administration of criminal justice.

I see no justification for reading Section 18 other than in accordance with its plain words. The power may be exercised only at premises “occupied or controlled” by the person under arrest. The scope of the concept “occupation or control” is for decision on another day, though I would not expect it to be construed restrictively. The requirement for occupation or control is central and fundamental to the operation of Section 18 and its absence cannot be treated as a “trivial or unimportant irregularity” of the kind tolerated in Krohn.

The expressions “reasonable belief” and “reasonable grounds” appear in different contexts in sections 8, 18 and 32 of the 1984 Act already cited and the omission in the relevant part of section 18 (1) cannot have been accidental. Moreover Parliament plainly reviewed the operation of the relevant powers when passing the 2005 Act, which included amendments, and it was not decided to qualify the requirement for occupation or control, which was also introduced, for certain purposes, into section 8.

I find nothing absurd in the construction favoured by the judge. The power in section 18 is more limited than that for which Mr Shetty contends but will be exercisable in those cases, likely to be significant in number, where the arrested person’s occupation or control of the premises is known or can readily be ascertained. In other cases a search warrant may be sought under Section 8, which, like Section 18, now applies to indictable offences. In Section 8, the authority to enter and search is conferred by a Justice of the Peace; in Section 18 it is conferred by a police officer of the rank of inspector or above (section 18 (4)), but in my view there is nothing absurd about the distinction.

Further, to give the words their ordinary meaning asserts the right to respect for private and family life and home provided by Article 8 of the European Convention on Human Rights (“the Convention”). Section 18 of the 1984 Act must be read so far as it is possible to do in a way which is compatible with Convention rights (Section 3 (1) of the Human Rights Act 1998). Article 8 (2) does permit interference with the exercise of the right in the interests of national security or public safety but the entitlement to justify interference does not permit section 18 to be read so as to insert words that the power may be exercised as long as a constable has reasonable belief in the arrested person’s occupation or control.

For those reasons I would dismiss this appeal.

I agree that the appeal should be dismissed for the reasons which Pill LJ has given. Briefly in my own words I agree for these reasons. In the light of the amendments to sections 8, 18 and 32 of the Police and Criminal Evidence Act 1984, which came into force in January 2006 and which were in force in the amended versions at the date of the events relevant to this appeal, there were, in my view, three cumulatively overwhelming reasons why the construction of section 18 for which Mr Shetty contends should be rejected. Mr Shetty’s main submission in support of his construction is that if the words “premises occupied or controlled by a person who is under arrest for an indictable offence” are construed literally, and without a qualification as to reasonable belief, operational police practices will be absurdly impeded. The police will in practice, if they use section 18, always be at risk of a civil claim for trespass if it turns out, for instance, that the person arrested has given a false address.

The three overwhelming reasons against this construction in my view are first that the construction offends the plain meaning of the words used in a sentence in which the use of the words “reasonable grounds for suspecting” shows that the draftsman was alive to the need to introduce reasonable grounds when this was intended. Second, Parliament made amendments to section 18 and also to sections 8 and 32 by section 111 of the Serious Organised Crime Act 2005 but did not seek to clarify by amendment section 18 to include the reasonable belief for which Mr Shetty contends. This must be seen as deliberate. Third, the amended versions of section 8 and 18 contain no difference, as they formerly did, between the offences in respect of which the powers may be used. Each now applies in respect of an indictable offence. This means that operational policing is only affected to the extent that the police may think it necessary to obtain a warrant from a magistrate under section 8 rather than to obtain authority from a senior police officer. This inconvenience, if inconvenience it is, does not give rise to an absurdity and does not justify a construction of section 18 which the words do not sustain and which, as Pill LJ has said, would offend against Article 8 of the human rights Convention.

For these reasons I agree that the appeal should be dismissed.

I also agree and I agree with that the appeal should be dismissed for the reasons given by both of my Lords. This was an attempt on behalf of the police to deploy a less rigorous regime than that for which the statute provided. That that is so is confirmed by the amendments contained within the 2005 Act to which both my Lords have referred. By those amendments Parliament did not see fit to free the police from the important constraints placed upon them in relation to searches of domestic and other premises consistent with the protection afforded by Article 8. The argument on behalf of the Metropolitan Police was that, if properly construed, section 18(1) conferred a power to search based upon the state of mind of the police officer seeking to search those premises, namely that he had reasonable grounds not merely for suspecting that there was evidence, as identified in the section, but also reasonable grounds for suspecting that they were occupied or controlled by a person under arrest.

In my judgment Parliament made it clear, both in the original 1984 Act, to which unfortunately the attention of the judge was confined, and in the amendment, that the conditions for search were not merely to be confined to the state of mind of the officer seeking to search the premises. The conditions for search related also to the status of the premises, scilicet that they were occupied or controlled by the arrested person.

Secondly, it is plain that in the context of the statutory regime as a whole no power was conferred in the circumstances asserted by Mr Shetty on behalf of the respondent. The statutory regime carefully identifies those circumstances in which police officers may search premises, either with the sanction of a Justice of the Peace or with the sanction of an inspector or in the light of the arrest of a person on the premises as described in section 32.

For those reasons, which are not intended to be in any way inconsistent with the reasons given by my Lords, I too would dismiss this appeal.

Accordingly the appeal is dismissed.