Hewitson v Dorset Police & Anor

MR JUSTICE JACKSON: This judgment is in six parts: namely, part one, introduction; part 2, the facts; part 3, the present proceedings; part 4, the law; part 5, application of the law to the present case; part 6, conclusion.

In these proceedings for judicial review the claimant challenges the legality of a search carried out by police officers at a flat in Poole during which certain items belonging to the claimant were found and seized. At the hearing today, the claimant is represented by Mr Alun Jones QC; the police are represented by Mr Iain Ross; the Government of France, the interested party, are represented by Mr John Hardy.

After these few words of introduction, I must now outline the facts.

On 3 February 2003, French Customs Officers stopped a Saab motor car at the motorway toll of Biriatou. The car was being driven by Timothy Wright. The front seat passenger was his brother Andrew Wright. The vehicle was searched and found to contain 89.2 kgs of cannabis. The Wright brothers were arrested. In due course they were questioned on a number of occasions. Initially Timothy Wright made admissions; subsequently Andrew Wright made admissions. They admitted that they had been transporting cannabis through France on three occasions and named the claimant as the organiser of the operation.

On 13 February 2003 Monsieur Thierry May, an examining magistrate sitting in the Tribunal de Grande Instance of Bayonne, issued an international warrant for the arrest of the claimant. On 28 February 2003 a district judge at Bow Street Magistrates' Court issued a UK arrest warrant for the arrest of the claimant pursuant to section 8(1)(b) of the Extradition Act 1989.

The Dorset Police were asked to assist, because it was believed that the claimant was living in Dorset at the time. According to intelligence held by the police, the claimant was living with a woman called Jane Passierb at flat B, 123 Commercial Road, Parkstone in Poole. Clearly this intelligence had some factual basis, since in his recent witness statement the claimant says that Jane Passierb lives at 123B Commercial Road in Parkstone, she has been his girlfriend for a few months and he has sometimes stayed overnight at her address. It appears that 123B Commercial Road is a flat rented by Miss Jane Passierb.

On Monday 3 March, PC Hubbard of Dorset Police kept observation on that area of Commercial Road. He saw the claimant coming and going at various times. The precise movements of the claimant during the day of 3 March are a matter of dispute between the parties. It is not necessary to resolve that dispute and I shall not go into detailed evidence concerning that matter. At 5.55pm, PC Hubbard arrested the claimant in Station Road, Poole. He arrested the claimant pursuant to the warrant issued by the magistrate at Bow Street. There is an issue between the parties as to whether the point in Station Road at which PC Hubbard arrested the claimant was 100 metres or 300 metres away from 123B Commercial Road. On instructions today, Mr Ross, for the police, told us the distance was 100 metres, whereas the claimant adheres to his evidence that the distance is 300 metres. This is an issue of fact which it is neither necessary nor possible for this court to resolve today.

Following the claimant's arrest, he was taken in custody to Poole Police Station. Police officers then decided to search the flat at 123B Commercial Road. Keys to that flat were found in the claimant's possession at the police station. Detective Inspector Smith, in his witness statement, explains that the police considered three possible procedures which might be implemented in order to carry out that search. The first procedure is not relevant to the issues in this case and I make no mention of it. The second procedure considered by Inspector Smith was to obtain a search warrant to authorise the search of 123B Commercial Road. However, Inspector Smith considered, he says in his statement, that there would be unacceptable delay involved in obtaining such a warrant. The third procedure considered by the police was to carry out a search pursuant to section 32 of the Police and Criminal Evidence Act 1984, and that was in the end the route which they decided to follow. The police proceeded to carry out a search purportedly pursuant to section 32 of that Act.

At 8.05pm that evening, Police Sergeant Hodge attended the flat at 123B Commercial Road and searched it. The search lasted for two hours. Throughout the search, Miss Jane Passierb, who was present in the flat, was co-operative. During the search Police Sergeant Hodge seized a number of items which appeared to be relevant to the alleged offences committed in France, for which the claimant had been arrested. Those items are listed on a seizure receipt. They are 18 in number. The fourth of those items is described in the seizure receipt as "letter". The letter in question was written from Andrew Wright whilst imprisoned in France. It was sent to the claimant. It appears to have been smuggled out of the French prison by a fellow prisoner and then posted to the claimant. I will not read the letter out. It is, however, a document which on its face appears to lend support to the prosecution case against the claimant in France, relating to his alleged involvement in the smuggling of cannabis.

After the conclusion of the search, the Dorset police completed a premises searched record. This shows that the search was carried out pursuant to section 32 of the Police and Criminal Evidence Act 1984. It also records the time at which the search began and finished, and it records that the purpose of the search was to seek out drugs and documentation relating to activities in France.

On 12 March 2003, the Bayonne public prosecutor made a formal request for the claimant's extradition to France. On 15 April the claimant's solicitors, Messrs Sharman & Co, wrote to the Dorset Police at Poole, protesting at the seizure of the claimant's property. In that letter, Mr Sharman, of Sharman & Co, required that the police either give a satisfactory explanation of the seizure or, alternatively, return the claimant's property.

On 24 April 2003, the Secretary of State issued an authority to proceed with the extradition proceedings under part 3 of the Extradition Act. Correspondence ensued between Sharman & Co and the Dorset Police concerning the property seized on 3 March. By a letter dated 30 April, the police justified their seizure on the basis of common law powers. The police said that they would return some items but keep others. The items which the police proposed to retain were listed in that letter as items 1 to 7. Item 4 in that list is the letter sent by Andrew Wright to the claimant.

The claimant and his advisers took the view that the seizure was unlawful. Accordingly, in order to seek redress, the claimant launched the present proceedings.

By a claim form issued on 3 June 2003, the claimant challenged the legality of the seizure of his property on 3 March. He named the chief constable of Dorset Police as first defendant, and Police Sergeant Hodge (who carried out the search) as second defendant. The claimant sought an order for the return of his property and damages. The evidence in support of this claim comprised a witness statement of the claimant and a witness statement of his solicitor, Mr Sharman, together with numerous documentary exhibits.

On 27 June 2003, the defendants lodged a somewhat uninformative acknowledgment of service. On 7 July, Sullivan J granted permission to the claimant to proceed with his claim for judicial review. Sullivan J, in granting permission on paper, indicated that the defendants should set out their full grounds of defence. The defendants duly did so. On 24 July they filed and served detailed grounds of defence, together with witness statements made by the police officers involved, namely Detective Inspector Smith, Police Sergeant Hodge, and Police Constable Hubbard.

The claimant's claim comes on for substantive hearing and determination today. Before addressing the issues in the case, I must first set out the relevant law.

In Ghani v Jones [1970] 1 QB 693, the Court of Appeal was concerned with a case in which there was no arrest warrant. Nevertheless, Lord Denning MR, in a judgment with which all the members of the court concurred, discussed the powers of the police to search and seize after executing a warrant of arrest. At page 706, Lord Denning MR said this:

Where someone is arrested for an offence committed in this country, the powers of the police to search and seize are now set out in the Police and Criminal Evidence Act 1984, in particular, sections 17, 18 and 32. Those provisions have in effect supplanted the common law in respect of domestic offences. Those provisions do not apply, however, in respect of persons who are arrested for the purpose of extradition proceedings relating to offences allegedly committed overseas. In that situation, police officers retain the common law powers of search and seizure referred to in Ghani v Jones: see R v Governor of Pentonville Prison Ex.p Osman [1990] 1 WLR 277.

The correctness of those two authorities was confirmed by the House of Lords in R (Rottman) v Metropolitan Police Commissioner [2002] UKHL 20; [2002] 2 AC 692. In that case, the claimant, a German businessman suspected of committing frauds in Germany, was arrested on the strength of a provisional arrest warrant issued pursuant to section 8(1) of the Extradition Act 1989. The claimant was arrested in the drive of a house where he had been living. Police officers then searched the house and removed items of evidence potentially relevant to the alleged frauds in Germany. The claimant challenged that search and seizure in proceedings for judicial review. The claimant succeeded in the Divisional Court, but failed in the House of Lords. The two principal speeches were given by Lord Hutton and Lord Rodger. Lord Nichols and Lord Hoffmann both agreed with each of those two speeches. Lord Hope dissented in part.

At paragraph 63 of his speech, Lord Hutton said:

Lord Hutton went on to hold that the common law power survived in respect of extradition offences after the enactment of the Police and Criminal Evidence Act 1984.

Lord Rodger said this at paragraphs 99 to 100:

At paragraph 103, Lord Rodger said this:

The House of Lords' decision in Rottman provides the most recent and authoritative statement of the common law powers of search and seizure which police officers possess in extradition cases. This then is the law which we must apply in the present case.

The fact that on 3 March 2003 the police wrongly believed that they had, and that they asserted, powers to search and seize under section 32 of the Police and Criminal Evidence Act 1984 is not a decisive factor. The police did not have any statutory powers to search and seize. The crucial question which I have to consider is whether the common law powers of the police (upon which the police now rely) did in fact cover what Police Sergeant Hodge did.

In submitting that the common law powers cannot avail the police officers in the present case, Mr Jones, on behalf of the claimant, places reliance upon three factors. They are:

As to the first factor, Mr Jones pointed out with some force in his argument today, that both Lord Hutton and Lord Rodger in Rottman specifically limited the common law power of search to cases where the defendant was arrested within the curtilage of the relevant premises. Indeed, that is apparent from the extracts of Rottman which I read out during part 4 of this judgment. Mr Jones submits that in the present case, by contrast, the claimant was some distance away from the premises.

Mr Ross, for the defendants, accepts that. He submits, however, that the formulation of principle in the earlier cases, and in particular in Rottman, is a consequence of the facts of those cases. In Rottman's case, if Mr Rottman had been 100 metres or 300 metres away from the premises, then the decision of the House of Lords would have been the same, although the principle would have been formulated more widely. That is the argument of Mr Ross.

In relation to the second factor, Mr Jones argues that two hours and 10 minutes constitutes a substantial period of delay. He argued today with some force that the police during that period could have gone through the proper channels and obtained a search warrant. He drew our attention to the statement of Inspector Smith from which it can be seen that Inspector Smith considered that the police had sufficient evidence and grounds to demonstrate an offence linked to the United Kingdom, and therefore, a basis for applying for and obtaining a search warrant.

Mr Ross, on the other hand, submitted that two hours and 10 minutes was not an unreasonable period of delay. He submitted that it might have taken longer than that if the police had proceeded to apply for and obtain a search warrant, and he pointed out that the police inspector took the view, as can be seen from his statement, that applying for a search warrant would cause unwarranted delay.

For my part, even if there had been a delay until 9 o'clock rather than 8 o'clock, I do not think it likely that that would have made any difference to the recovery of items if and when the police had made a search of 123B Commercial Road that evening.

In relation to the third factor, 123B Commercial Road was not the claimant's home. The evidence is that this was the home of Miss Jane Passierb, who rented that property. The claimant sometimes stayed there overnight and he kept certain items of property there. Thus, the claimant had clear links with the property at 123B Commercial Road, but he did not live there permanently.

In the light of these three factors, Mr Ross was constrained to accept, and he did accept, that the common law principles as stated in the authorities are not wide enough to cover the circumstances of this case. Mr Ross argued, however, that the common law should be extended by this court so as to cover those circumstances. Mr Ross relied in particular upon the speech of Lord Rodger in Rottman at paragraph 103. It will be recalled that in that paragraph, Lord Rodger referred to the development of the common law in order to promote the objective of assisting the forces of justice, law and order in certain foreign countries.

Mr Ross is of course quite correct in saying that the common law rules in this area have expanded over the years. He is also right in saying that the driving force behind such expansion appears to have been a concern to preserve evidence following a lawful arrest. Indeed, one can see in the authorities a process of incremental development. On the other hand, the obtaining and preservation of evidence is not the only objective of the common law. It is also a common law principle that a person's private property should not be subject to arbitrary invasion or intrusion. That principle is now reinforced by Article 8 of the European Convention on Human Rights, which was incorporated into our domestic law on 2 October 2000 by the Human Rights Act 1998.

In my view, the three factors mentioned at the start of this part of the judgment distinguish the present case by a wide margin from the earlier authorities. It would be a substantial leap, rather than an incremental development of the common law, to hold that the police were entitled to search the flat of Miss Jane Passierb merely because some two hours previously they had arrested the claimant in a nearby road. Nothing in the House of Lords decision in Rottman justifies such a conclusion.

For my part, I do not think it would be right for this court to enlarge the common law powers of search and seizure in the manner which Mr Ross proposes. Accordingly, I would hold that the police had no statutory or common law power to carry out the search of 123B Commercial Road which they in fact undertook on the evening of 3 March 2003.

For the reasons set out in part 5, in my view the search of 123B Commercial Road and seizure of items of property belonging to the claimant at that address was unlawful. The appropriate remedy is twofold. One, a mandatory order for the return of property; and two, an award of damages.

So far as the first remedy is concerned, the items of property which the police took and have not yet returned are listed in paragraphs 1 to 7 of Detective Inspector Smith's letter to the claimant's solicitors dated 30 April 2003. I understand from Mr Jones that this summary is not disputed. Accordingly, there should be a mandatory order for the return of these seven items of property. Mr Jones tells us that a sum of money, I think £10,000, was seized by the police officers from 123B Commercial Road and that that sum of money is now in the hands of the Asset Recovery Unit. In those circumstances, it would not be appropriate for this court to order the return of that sum of money, since it is now held by the Asset Recovery Unit. There will no doubt have to be separate proceedings, if the matter remains in dispute, to determine whether or not that Unit is entitled to hold those funds. The sum of money in question, is not referred to in items 1 to 7 of the 30 April letter. I would therefore propose, subject to any detailed observations of counsel, that the mandatory order should be limited to those seven items.

I turn secondly to the question of damages. The purpose of an award of damages in this case is not to compensate the claimant for any identifiable financial loss. Mr Jones fairly accepted in argument that he could not point to any such loss. The purpose of an award of damages is to mark the illegality of the police's conduct. In the course of argument, Mr Jones accepted that £100 would be a reasonable level of damages in all the circumstances of this case. I agree. For my part, I would assess general damages for the wrongful seizure and detention of the claimant's property in the sum of £100.

In the result, therefore, if my Lord agrees, this court will make a mandatory order for the return of the items of property and an award of £100 damages.

LORD JUSTICE ROSE: I agree. The limits of the common law power of search are identified by the courts by balancing the interests of the public, on the one hand, in having evidence which may support criminal charges retained and preserved, and on the other, that there should not be excessive intrusion into the homes of members of the public.

Accordingly, for the reasons given by my Lord, I agree with him that the scope of the common law as propounded by Mr Ross in relation to powers of search, is very significantly wider than the common law actually provides. Accordingly, the order proposed by my Lord will follow.

MR JONES: My Lord, could I just deal with two matters. I did ask also for the return of all copies and I did not understand that that was an objection by my learned friend.

LORD JUSTICE ROSE: That must be right, yes.

MR JONES: My Lord, could I also ask for costs against the Chief Constable?

LORD JUSTICE ROSE: Can you resist that, Mr Ross?

MR ROSS: My Lord, there is nothing I can say.

LORD JUSTICE ROSE: Yes, Mr Jones, you may have your costs against the Chief Constable. Thank you.