Costello v Chief Constable of Derbyshire Constabulary

JurisdictionEngland & Wales
JudgeMR JUSTICE LIGHTMAN,LORD JUSTICE KEENE,LORD JUSTICE ROBERT WALKER
Judgment Date22 March 2001
Neutral Citation[2001] EWCA Civ 381
Docket NumberCase No: B2/2000/0415 &B2/2000/0416
CourtCourt of Appeal (Civil Division)
Date22 March 2001
Jason Paul Costello
Appellant
and
Chief Constable Of Derbyshire Constabulary
Respondent

[2001] EWCA Civ 381

Before:

The Right Honourable Lord Justice Robert Walker

The Right Honourable Lord Justice Keene and

The Honourable Mr Justice Lightman

Case No: B2/2000/0415 &B2/2000/0416

IN THE SUPREME COURT OF JUDICATURE

THE COURT OF APPEAL (CIVIL DIVISION)

ON APPEAL FROM DERBY COUNTY COURT

Royal Courts of Justice

Strand, London, WC2A 2LL

Mr Godfrey Jarand (instructed by Messrs Bemrose & Ling, 30 St Peter's Churchyard, Derby DE1 1NR for the Appellant)

Miss Fiona Barton (instructed by Messrs Weightmans, 60 Charles Street, Leicester LE1 1FB for the Respondent)

MR JUSTICE LIGHTMAN

INTRODUCTION

1

This is an appeal from two judgments of His Honour Judge Styler sitting in the Derby County Court. The action relates to a Ford Escort car ("the Car") seized by a member of the Derbyshire Constabulary pursuant to section 19 of the Police and Criminal Evidence Act 1984 ("the 1984 Act") in the belief that it was stolen. In the action against the defendant the Chief Constable of the Derbyshire Constabulary ("the Police") the claimant Mr Costello claims the return of the Car and damages for wrong detention. The Car was seized on the 12th July 1996 when in the possession of the claimant and it is common ground that the police were entitled under section 22 of the 1984 Act to retain the car for the statutory purposes there stated until the 5th January 1997 when those purposes were exhausted. The question raised is whether they continued to be entitled to retain it thereafter. The Police contend that the Car was to the knowledge of the claimant stolen and that, though the true owner is unknown (and accordingly the Car cannot be returned to him), on this ground they are entitled to refuse to return the Car to the claimant. There are two parts to this question, namely one of fact whether the Car was to the knowledge of the claimant stolen; and (if that issue of fact is resolved in favour of the Police) one of law whether the claimant is entitled to recover the Car from the Police notwithstanding the fact that it was stolen.

2

The learned judge in his first judgment dated the 23rd November 1999 held that the Car was to the knowledge of the claimant stolen and that this fact in law precluded the claimant from maintaining his claim to the Car. Some three days later the Court of Appeal gave judgment in the case of Webb v. Chief Constable of Merseyside Police [2000] 2 WLR 546 ("Webb"). The claimant thereupon made an application for a rehearing on the ground that the decision in Webb required the court to uphold his claim to the return of the car. In a second judgment dated the 14th December 1999 the learned judge refused this application. He also refused permission to appeal, but the Court of Appeal granted permission on the 13th April 2000.

THE ISSUE OF FACT

3

The facts of this case can be stated shortly. On the 12th July 1996 the Police received a report of a stolen Volkswagen Corrado ("the Corrado"). It was sighted in Vernon Street, Derby and on arrival there the Police found the claimant together with two other persons in the Car. The Car had the registration number C66 FOV. On the arrival of the Police, the claimant tried to drive away: a short chase followed; and when the Car came to a halt one of the occupants (an unknown youth) made off and the other (a Mr Gareth Scott) was arrested and charged (and later convicted) of the theft of the Corrado and a radio cassette found in the Car. The police seized the Car pursuant to section 19 of the 1984 Act, interviewed the claimant and released him on bail. No criminal proceedings were subsequently commenced against him.

4

On the 22nd July 1996 the Car was examined by the Police vehicle examiner, DC Potts. He found that the vehicle identification number ("VIN") had been welded in (the original having been obliterated) and the engine number had been ground off. Under the back seat of the Car he found what has aptly been called a car ringing kit. The Car windows were all etched C66 FOV. It is not known when that etching took place.

5

Enquiries revealed that a Mr Dennis Mortimer had been registered on the 20th August 1985 as keeper of C66 FOV and that in 1987 the Car was converted to a turbo. On the 23rd February 1995 a Mr Darren Duckley was registered as keeper of the Car and on the same day the registration number was changed to DAZ 8273. On the 19th April 1995 a Ms Claire Leach was registered as keeper of DAZ 8273, and on the 14th November 1995 the claimant's then girl friend was registered as keeper. On the 13th December 1995 the registration number was changed back to C66 FOV and on the 13th February 1996 the claimant was registered as keeper (according to his evidence) on the break-up of his relationship with his girl friend and his purchase of the Car from her.

6

In forming the view which he did that the Car was stolen, the judge placed great weight on the facts that the VIN had been welded in and the obliteration of the original and that the engine number had been ground off. The claimant on this appeal maintains that he should not have done so because there might be an honest and innocent explanation for both. The obliteration of the VIN could have been attributable to a change of bodyshell and the original engine could have been replaced (though this scarcely explains the grinding off). Notwithstanding the theoretical possibility of an honest and innocent explanation, the judge was entitled to place on these facts in the context of the full circumstances of this case the weight which he did. The judge also placed weight on the expert evidence of a Mr Haigh, a consulting engineer called by the Police. The thrust of his evidence was that the Car bore the tell-tale signs of a stolen ringed vehicle to anyone with any expertise in vehicles. The claimant complains that the judge accepted this evidence notwithstanding the fact that Mr Haigh also said elsewhere in his evidence that he was not saying that the Car was stolen. The two passages in the expert's evidence are consistent. The question whether the Car bore the tell-tale signs was a question for the expert in stolen cars; the question whether in fact the Car was stolen was a question, not for the expert, but for the judge. In answering that question the judge was entitled to accept the evidence of the expert and give it the appropriate weight. I see no substance in this complaint. The claimant further complained that neither the Police evidence nor the judge paid any attention to the etching on the Car windows, but in particular having regard to the fact that there was no evidence as to when the etching took place this fact in the circumstances of this case can have had little (if any) significance.

7

The claimant questioned whether the judge can have properly reached the conclusion which he did on the burden of proof appropriate to substantiating the serious allegations of theft and knowledge of theft on the part of the claimant. In my judgment the judge was entitled to reach the conclusion he did that the burden of proof was discharged on the evidence to which I have already referred. But that evidence did not stand alone. The claimant in his evidence at the trial gave his account of the purchase of the Car by his girl friend. He said that at the home of a friend of his whom he saw regularly called David Spencer she agreed to buy the Car from certain (unnamed) friends of Mr Spencer. Mr Spencer had 7 convictions for handling stolen cars and shortly thereafter (in May 1996) was sent to prison for two years for car-ringing. The claimant himself knew a great deal about motor vehicles and made something of a living buying, doing up and selling motor vehicles, and before his girl friend bought the Car he inspected it. His behaviour on the 12th July 1996 was (to put it at its lowest) highly suspicious and he gave unsatisfactory (and indeed false) evidence at the trial.

8

Against this background it is hardly surprising that the learned judge held without hesitation that the Car was stolen and that the claimant at all times knew this. Looking at the evidence as a whole it seems to me that the judge was fully entitled to reach this conclusion and his decision is not open to question on this appeal.

ISSUE OF LAW

9

Counsel for the claimant stated that at the commencement of the hearing before him, the judge said words to the effect that the Car was obviously stolen, and he complained that the conduct of the judge in saying this precluded (at any rate the appearance of) a fair trial. But counsel adduced no evidence that the judge made this statement or that any complaint about it was made at the hearing, and the judge was not invited (as he should have been) prior to the hearing of this appeal to comment on this attribution to him. In these circumstances it is not open to the claimant to raise this matter on this appeal. But even if it was open to him and the judge indeed did make some such statement, it is to be borne in mind that, having pre-read the skeletons and papers, it was perfectly proper (if not inevitable) that the judge had formed a provisional view before coming into court and, if it was proper for him to have formed this view, it must equally have been proper for the judge to inform the parties of his view so long as he did not give the impression that he had a closed mind on this issue. For this disclosure enabled the parties to know the way he was currently thinking and accordingly where attention needed to be focused (most particularly by the claimant) at the trial to change his mind.

10

I now turn to the question of law whether the claimant, who was in possession...

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