Chief Constable of Kent v v
| Jurisdiction | England & Wales |
| Judge | THE MASTER OF THE ROLLS,LORD JUSTICE DONALDSON,LORD JUSTICE SLADE |
| Judgment Date | 06 May 1982 |
| Judgment citation (vLex) | [1982] EWCA Civ J0506-3 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | 82/0194 |
| Date | 06 May 1982 |
and
[1982] EWCA Civ J0506-3
The Master of The Rolls
(Lord Denning)
Lord Justice Donaldson and
Lord Justice Slade
82/0194
1982 K. No. 103
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
(MR. JUSTICE BELDAM)
Royal Courts of Justice.
MR. D. PITMAN (instructed by Messrs. Sharpe Pritchard & Co., London agents for R.A. Crabb, Esq. of Maidstone) appeared on behalf of the Appellant.
THE RESPONDENTS were neither present nor represented
MR. SIMON BROWN appeared as amicus curiae.
There was an old lady living in Tunbridge Wells. She had a good deal of money to her credit in Grindlays Bank, 13 St. James Square, London, S.W.I. A man called Paul Verdon-Roe is charged with wrongfully extracting money from her account. He has not yet been tried, so you must not take anything against him yet. I would ask the reporters not to give his name if they report this case. This is what is alleged against him: It is said that in October 1981 this man got hold of two or three of the old lady's cheque books. He forged her signature on cheque after cheque. From October 1981 to January 1982 he drew cheques every few days for sums of £800 or £900. He drew 21 cheques amounting in all to £16,001. He paid them into his own bank account with the Bank of Credit and Commerce International, sometimes at their branch in Leadenhall Street and the others at their branch in the Cromwell Road. He also paid in other moneys which he had got from other people: and he had drawn upon them from time to time. So you could not tell which was which.
Soon afterwards he was found out. He was arrested in London on the 28th January, 1982. He was charged with forgery and obtaining money by deception on forged instruments. The Chief Constable of Kent thought that he might draw out the moneys in the bank so that they would be lost beyond recovery. So on the 2nd February, 1982 he issued a writ and applied ex parte for an injunction to restrain him from withdrawing any moneys from the bank account. Mr. Justice Skinner granted an injunction. He relied on a decision of Mr. Justice Forbes in West Mercia Constabulary v. Wagener (1982) 1 Weekly Law Reports 127. Later on the summons was heard by Mr. Justice Beldam. He held that the court had no jurisdiction to grant such an injunction but he continued it temporarily pending the appeal. This was because the man was allowed out on bail and the judge did not want him to be able to draw cheques on the account until after the appeal was heard.
At the hearing before us he was not represented but, as the point was of much importance, we asked for the assistance of an amicus curiae. Now we have had the benefit of Mr. Simon Brown and are grateful for it. I would first tell of the West Mercia case.
Wagener put advertisements in local newspapers advertising video cassettes for sale at low prices: and asking for cheques to be sent in advance. A lot of customers sent cheques. Wagener paid them into his bank account. But he never sent any cassettes to the customers. The whole thing was suspected of being a fraud. But the police did not know the names of the customers. So the Chief Constable himself applied for an injunction to "freeze" the bank account. Mr. Justice Forbes granted an injunction.
THE LAW
Seizure of goods
Our books have much in them about the powers of the police to make an arrest of the person of a suspected wrongdoer. There is something in the books of their power to seize and detain stolen goods. But there is nothing at all of their power to seize or detain money in a bank account.
I need say nothing today of the power of the police to arrest a person. I speak first of their power to seize or detain goods. This was considered by this court in Chic Fashions (West Wales) Ltd. v. Jones (1968) 2 Queen's Bench 299. That case showed that on entering a house with a search warrant or by the occupier's consent the police have power to seize goods which they reasonably believe to have been stolen or obtained fraudulently by deception. They can thereafter detain the goods for such time as is reasonably necessary to complete their investigations into the theft or fraudulent obtaining. If their investigations indicate that the goods have been stolen or fraudulently obtained by deception, the police can detain them further so that they can in due course be restored to their rightful owner and, where necessary, be produced as material evidence at the trial of an accused person. But once it appears that the goods were not stolen or fraudulently obtained and are not needed as evidence, then the police should restore them to the person from whom they were taken, see Ghani v. Jones (1970) 1 Queen's Bench 693; Malone v. Metropolitan Police Commissioner (1980) 1 Queen's Bench 49; and Reg. v. Uxbridge Justices, ex parte Metropolitan Police Commissioner (1981) 1 Queen's Bench 829, unless in special circumstances the court directs them to be held until after the trial.
Money in a bank account
Apply those principles to currency notes. Mr. Justice Forbes put this case: Suppose a bank robber steals a million pounds in easily negotiable notes. He puts them into a suitcase and deposits them in a luggage office or in a bank. If the police reasonably believe that they have been stolen or fraudulently obtained, they could, on getting a search warrant or by consent, seize the suitcase and the notes in it. The police could hold them just as any other goods that are believed to have been stolen or fraudulently obtained.
Next, suppose that, instead of the thief putting them into a suitcase, he pays them into his own bank account. His account may already be in credit, so that the stolen notes go to swell his credit balance. It may be in overdraft, so that they serve to pay off the overdraft and put him in credit. In either case, in so far as the notes can be traced into his bank account—and are still available to his credit—I am of opinion that the court, at the instance of the police, can and should "freeze" his bank account. If this be so when currency notes are stolen, so also it is when money is abstracted by forgery from the account of the true owner and put by the forger into his own bank account. This "freezing" is done so as to ensure that the moneys can in due course be restored to the rightful owner. I cannot believe that a thief can get away with his stolen hoard by the simple device of paying it into his own bank account. So long as it can be traced, it can be frozen. It may be that 150 years ago the common law halted outside the banker's door, but for the last 100 years, since the fusion of law and equity, it has had the courage to lift the latch, walk in and examine the books, see Banque Belge v. Hambrouck (1921) 1 King's Bench at page 335 by Lord Justice Atkin; Re Diplock (1949) 1 Chancery at page 520 by Lord Greene, M.R.
Timorous souls
Some timorous souls are fearful of this extension. They say that the police have no cause of action known to the law so as to come under order 29, rule 2, and that is where Mr. Justice Forbes went wrong in the West Mercia case (1982) 1 Weekly Law Reports at page 131G: and that the police have no legal or equitable right such as to warrant an injunction under order 29, rule 1. They pray in aid the classic case of North London Railway Co. v. Great Northern Railway Co. (1889) 11 Queen's Bench Division 30 applied by the House of Lords in Gouriet v. Union of Post Office Workers (1978) Appeal Cases 435 at page 501 by Lord Diplock and at page 516 by Lord Edmund-Davies, and The Siskina (1979) Appeal Cases 210 at page 256 by Lord Diplock.
But I am glad to say that the reasoning of those cases has now been circumvented by statute. They were based on the wording of section 25(8) of the Judicature Act 1873 which said that:
"An injunction may be granted by an interlocutory order of the court in all cases in which it shall appear to the court to be just or convenient that such order should be made", which was re-enacted in section 45(1) of the Judicature Act 1925 in these words:
"The High Court may grant a mandamus or an injunction or appoint a receiver by an interlocutory order in all cases in which it appears to the court to be just or convenient so to do".
I have underlined the word "interlocutory" because it was the basis of the decision in the North London Railway Co. case and following cases. That was pointed out by Lord Diplock in The Siskina (1979) Appeal Cases at page 254 when he said:
"That subsection, speaking as it does of interlocutory orders, presupposes the existence of an action, actual or potential, claiming substantive relief which the High Court has jurisdiction to grant and to which the interlocutory orders referred to are but ancillary".
Section 37 of the 1981 Act
Now that reasoning has been circumvented by section 37(1) of the Supreme Court Act 1981 which came into force on the 1st January, 1982. It says that:
"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".
Those words in brackets show that Parliament did not like the limitation to "interlocutory". It is no longer necessary that the injunction should be ancillary to an action claiming a legal or equitable right. It can stand on its own. The section as it now stands plainly confers a new and extensive...
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