Catherine Gedman v Chief Constable of Cheshire Constabulary & Carlisle Magistrates Court
| Jurisdiction | England & Wales |
| Judge | Adam Vaitilingam |
| Judgment Date | 30 March 2023 |
| Neutral Citation | [2023] EWHC 723 (KB) |
| Docket Number | Case No: KB 2023-000075 |
| Court | King's Bench Division |
[2023] EWHC 723 (KB)
Adam Vaitilingam KC
(Sitting as a Deputy Judge of the High Court)
Case No: KB 2023-000075
IN THE HIGH COURT OF JUSTICE
KING'S BENCH DIVISION
Royal Courts of Justice
Strand, London, WC2A 2LL
The Claimant appeared in person
Peter Laverack (instructed by the Chief Constable of Cheshire (Cheshire Constabulary)) for the Respondent
Carlisle Magistrates Court was not represented
Hearing dates: 24 March 2023
Approved Judgment
This judgment was handed down remotely by circulation to the parties' representatives by email and release to the National Archives. The date for hand-down is deemed to be on 30 March 2023.
Adam Vaitilingam KC:
There are two applications by the Claimant Catherine Gedman. They arise out of the execution of a warrant at an address in Chester on December 12 th 2022. Mrs Gedman was arrested and some of her property was seized. She has not been charged with any offence but remains on police bail.
No civil proceedings have yet been issued by her against either of the current Respondents. However, by an application dated January 12 th 2023 she sought injunctions against the First Respondent Chief Constable to return her property, to preserve body worn camera footage of her arrest and to remove her bail conditions. A further application made on March 20 th 2023 against both Respondents – the Chief Constable and Carlisle Magistrates Court – seeks disclosure of the warrant and of the evidence that led to it being issued.
Although it has little direct relevance to these applications, I note that the Claimant issued almost identical proceedings in the Bristol District Registry. They were struck out as an abuse of process given the existence of these proceedings.
Law and procedure
I set out below the law as it applies to the respective applications, under the following headings: A Interim injunctions; B Presumed legality of warrants; C Seizure and retention of property by the police; D Disclosure pre-action; and E Request for information from Magistrates Court.
A. Interim injunctions
The power to grant an injunction is given by s.37(1) of the Senior Courts Act 1981: “ The High Court may by order (whether interlocutory or final) grant an injunction or appoint a receiver in all cases in which it appears to the court to be just and convenient to do so”.
The Court has the power to grant interim injunctions: see CPR 25(1).
“ Interim remedies are of two broad varieties (but some are a mixture). First there are those which are temporary versions of final remedies. In the interests of fairness and justice they are granted pending trial; e.g. a claimant issues a claim for an injunction and is granted a temporary injunction to the same or similar effect. Secondly, there are those which are purely interlocutory; e.g. an order permitting one party to inspect relevant property in the possession of another party. …” (see note 25.1.8 of the White Book)
An order for an interim injunction may be made before proceedings have started: “ (2)(b) the court may grant an interim remedy before a claim has been made only if (i) the matter is urgent; or (ii) it is otherwise desirable to do so in the interests of justice” (see CPR 25).
The four stage legal test for granting an interim injunction was set out in American Cyanamid v Ethicon [1975] 1 All E.R. 504:
a) Is there a serious question to be tried?
“… The court no doubt must be satisfied that the claim is not frivolous or vexatious, in other words, that there is a serious question to be tried.
It is no part of the court's function at this stage of the litigation to try to resolve conflicts of evidence on affidavit as to facts on which the claims of either party may ultimately depend nor to decide difficult questions of law which call for detailed argument and mature considerations. These are matters to be dealt with at the trial. …” Lord Diplock, p.407H
b) Are damages an adequate remedy for the Claimant?
“… If damages in the measure recoverable at common law would be adequate remedy and the defendant would be in a financial position to pay them, no interlocutory injunction should normally be granted, however strong the plaintiff's claim appeared to be at that stage. …” Lord Diplock, p.408C
c) In the alternative, would damages be an adequate remedy for Defendant?
“… If, on the other hand, damages would not provide an adequate remedy for the plaintiff in the event of his succeeding at the trial, the court should then consider whether, on the contrary hypothesis that the defendant were to succeed at the trial in establishing his right to do that which was sought to be enjoined, he would be adequately compensated under the plaintiff's undertaking as to damages for the loss he would have sustained by being prevented from doing so between the time of the application and the time of the trial. If damages in the measure recoverable under such an undertaking would be an adequate remedy and the plaintiff would be in a financial position to pay them, there would be no reason upon this ground to refuse an interlocutory injunction.” Lord Diplock, p.408C-E
d) Should an injunction be granted on the balance of convenience?
“ It is where there is doubt as to the adequacy of the respective remedies in damages available to either party or to both, that the question of balance of convenience rises. It would be unwise to attempt even to list all the various matters which may need to be taken into consideration in deciding where the balance lies, let alone to suggest the relative weight to be attached to them. These will vary from case to case.
Where other factors appear to be evenly balanced it is a counsel of prudence to take such measures as are calculated to preserve the status quo.” Lord Diplock, p.408E-F
B. Presumed legality of warrant
On behalf of the Chief Constable it is submitted that where – as here – civil proceedings are brought on the basis that a warrant was unlawful, the quashing of that warrant in a judicial review is a pre-condition.
The Constables Protection Act 1750 provides that:
“ 6. Action not to be brought against constable till demand made of copy of warrant, &c. No action shall be brought against any constable… or other officer, or against any person or persons acting by his order and in his aid, for any thing done in obedience to any warrant under the hand or seal of any justice of the peace, …, [and] that on producing and proving such warrant at the trial of such action the jury shall give their verdict for the defendant or defendants, notwithstanding any defect of jurisdiction in such justice or justices…”.
This was considered in Moucher v the Chief Constable of South Wales Police [2016] EWHC 1367:
“ 452. Mr Johnson QC accepts that the searches of the homes of Mrs Coliandris and Mr Morgan constituted interference with the right to respect for the private and family rights. He contends, however, that the infringement was justified in accordance with Article 8.2. Further, he submits that there is an additional bar to a claim under the Human Rights Act 1988. The search warrants in question were issued by a magistrate. Mr Johnson accepts that such a decision is susceptible to a challenge by way of judicial review. He submits, however, that no civil action can lie against the defendant in respect of the searches because the warrants issued by the magistrate in respect of the homes of Mrs Coliandris and Mr Morgan have never been quashed. The quashing of the warrant, in the submission of Mr Johnson QC is a necessary pre- requisite to the bringing of a civil action by virtue of Section 6 Constables' Protection Act 1750. That Section is in arcane language and I do not propose to set it out in this judgment.
453. In the absence of any oral or written submissions to suggest that the analysis of Mr Johnson QC is incorrect I am disposed to accept it. Accordingly the Human Rights claim made by Mrs Coliandris in respect of the search of her home must fail.”
In R (Chaudhary) v Bristol Crown Court [2014] EWHC 4096 (Admin), it was said at paragraph 61:
“ In my view the jurisprudence on this issue is clear: the only route to challenge whether a warrant is lawful is by way of judicial review. In particular, in Goode at [51] Pitchford LJ, having highlighted that it is a judicial act to issue a warrant, disavowed the notion that a court of equal jurisdiction has the power to invalidate the judicial act of another and he expressly approved the obiter dicta observation by Stanley Burnton LJ in Dulai that the Crown Court did not have jurisdiction to examine the circumstances of the issue of a warrant by a magistrates' court (“… in cases in which there is a challenge to a relevant warrant, the claimant must bring proceedings for judicial review in the Administrative Court to quash the warrant …” at [37]). In unequivocal terms, Pitchford LJ determined that a challenge to seizure under s.59(3)(a) “does not enable the applicant to challenge the validity of the warrant in the Crown Court”.
C. Seizure and retention of property by the police
A police officer's principal powers of general seizure are set out at s.19 and s.32 of the Police and Criminal Evidence Act 1984:
19.—General power of seizure etc. (1) The powers conferred by subsections (2), (3) and (4) below are exercisable by a constable who is lawfully on any premises. (2) The constable may seize anything which is on the premises if he has reasonable grounds for believing—
(a) that it has been obtained in consequence of the commission of an offence; and
(b) that it is necessary to seize it in order to prevent it being concealed, lost, damaged, altered or destroyed.
(3) The constable may seize anything which is on the premises if he has...
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