David Thomas James Howarth v Commissioner of Police of the Metropolis

JurisdictionEngland & Wales
CourtQueen's Bench Division
JudgeMr Justice McCombe,Lady Justice Hallett
Judgment Date03 Nov 2011
Neutral Citation[2011] EWHC 2818 (QB)
Docket NumberCase No: CO/406/2011

[2011] EWHC 2818 (QB)

IN THE HIGH COURT OF JUSTICE

QUEEN'S BENCH DIVISION

DIVISIONAL COURT

Royal Courts of Justice

Strand, London, WC2A 2LL

Before:

Lady Justice Hallett

and

Mr Justice McCombe

Case No: CO/406/2011

Between:
David Thomas James Howarth
Claimant
and
Commissioner of Police of the Metropolis
Defendant

Helen Mountfield QC (instructed by Mr James Welch of Liberty) for the Claimant

Dijen Basu (instructed by Directorate of Legal Services, New Scotland Yard) for the Defendant

Hearing date: 7 October 2011

Mr Justice McCombe

(A) Introduction

1

This is a claim for judicial review brought by Mr David Howarth ("Mr Howarth") against the Commissioner of Police of the Metropolis ("the Commissioner") challenging the lawfulness of a personal search of Mr Howarth carried out by a Metropolitan Police officer on 16 October 2010. The search was carried out on a railway train on which Mr Howarth was travelling in order to reach a site of intended public protest. The claim is brought with permission granted by Mr Justice Wilkie on 11 March 2011.

(B) The Facts

2

The facts of the matter are not disputed in any material respect.

3

On the day in question Mr Howarth travelled with four friends from his home in the West Midlands to London to attend a demonstration organised by a body of persons calling themselves "Crude Awakening", whose principal object is to campaign against the activities of those involved in the oil industry. Mr Howarth and his companions had been alerted to the proposed demonstration by a website operated by Crude Awakening. The site did not identify the location of the intended demonstration but readers were invited to join one of three "blocs" of intending demonstrators meeting at three different mainline railway stations in London. It seems that by late September 2010 at the latest the police were also aware of the website and of the proposed demonstration there advertised.

4

Included in the invitation to demonstrate appearing on the website was the following passage:

"Ready yourself for a day at the office, trading floor, well or refinery. Come dressed as a banker, oil worker/prospector, or just in a boiler suit etc. With the tools of your trade…brief cases, office furniture, drilling equipment, hard hats, oil (molasses/treacle), symbolic (!) chains, bags or wads of money etc…"

5

The Commissioner's evidence indicates that the police were aware that at previous demonstrations of this type molasses had been used to simulate slicks of oil. On some occasions molasses had been sprayed to a height of 15 feet up the walls of buildings and balls of molasses had been propelled by makeshift catapults. Chalk had also been used to make protest marks at previous demonstration sites. It is not disputed by Mr Howarth that the use of such materials in such a manner is capable of causing criminal damage in law, albeit of a non-permanent nature. It is not disputed by the Commissioner that neither Mr Howarth nor any of his companions was carrying any such items with them on 16 October 2010.

6

Prior to the date of the demonstration the police had considered applying for search warrants of premises suspected as being used to store such items. However, this course was ruled out as being potentially unjustifiably discouraging of lawful protest and also as being impracticable in all the circumstances. It was left open that searches might be carried out as demonstrators left the relevant premises but no such searches were in fact carried out. The power of search to be invoked would have been section 1 of the Police and Criminal Evidence Act 1984 ("PACE"). I return below to the relevant provisions of that section because it was the power conferred by that section upon which the officer relied in conducting the search of Mr Howarth as he travelled to the demonstration by train.

7

Mr Howarth and his friends proposed to join a group of protestors who were to assemble at Euston station in London. They arrived late at that station and the main group had already left. They found out from the "Twitter" website, however, that the protestors intended to travel to Stanford le Hope in Essex from Fenchurch Street station. Mr Howarth and his friends went to that station but again arrived too late to join the main group that had gone on there from Euston. They boarded the next train destined for Stanford le Hope, which was due to depart at about 12 noon. While awaiting the train's departure another "bloc" of intending protestors arrived and also boarded the train.

8

It seems from the public order log opened for the case by the "Silver Commander", Superintendent Julia Pendry, that she first noted at 1120 hours that morning that the demonstrators might be heading to Stanford le Hope, in the vicinity of an oil refinery at Coryton in Essex. At 1135 she noted that protestors had gathered on the relevant platform at Fenchurch Street station.

9

At 1155 1 Supt. Pendry directed the Bronze Commander (3), Chief Inspector Dave McGinley of the City of London Police, that police officers were to go on the train with protestors. She noted the following:

"Protestors are in possession of large amounts of chalk being carried in suitcases. Particularly large amount, not known the impact of intended target. It can reasonably be having articles with intent to destroy and damage property at the oil refinery." [sic]

Supt. Pendry states that she cannot recall the precise nature of the intelligence which identified protestors as being in possession of chalk but she believes that she may have received a telephone call imparting that information. She goes on to say in her witness statement,

"As a result of this intelligence I directed CI McGinley to search the protestors on the train. In giving him this direction I made him fully aware of the nature of the intelligence so that he could satisfy himself that there were reasonable grounds to carry out the searches. The nature of the intelligence was that it related to the group of protestors and not identifiable individuals…[I]t was only at 1155 am once I had been aware

that the protestors were in possession of chalk, that I gave the direction that they should be searched. "
10

In his evidence CI McGinley recites his own knowledge of the use of molasses and chalk by protestors at earlier demonstrations. He states that at 1151 2 his "runner" recorded that intelligence had been received from Supt. Pendry that protestors were believed to have items designed to cause criminal damage and that,

"Superintendent Pendry informed me that she had grounds to support any search and would justify these."

In his own log, CI McGinley noted as follows:

"Train held in station for short time info from SX [Silver Commander] that the group have articles to be used in connection with criminal damage. SX will be able to justify the supporting grounds. Officers are to be mindful that police are not looking for items such as D locks or lock-on equipment that might be used for non-violent direct action. We are looking for items such as molasses, details provided at intel briefing earlier. Confirmed couple of minutes after with silver runner that the intel relates to group not identified individuals and there is supporting grounds to do this lawfully."

DC McGinley states that at 1157 the relevant officers were briefed at the station. He goes on to say specifically that he did not give a direction to search all people on the train. The officers were informed that protestors were equipped with articles to be used in the commission of criminal damage, such as molasses. He does not recall mentioning chalk, although two of his officers state that they were aware that chalk was to be looked for. He informed the team that the intelligence related to the protestors as a group and not to identifiable individuals. Inspector Bethel of the Metropolitan Police was in direct charge of the relevant officers who boarded the train and he noted from his briefing by CI McGinley the following:

"Stop and search protestors on train. Info from SX. Persons likely to be in possession of molasses and other articles for use in crim dam. Search for articles for use in causing criminal damage…".

11

Insp. Bethel says that he told his officers that information had been received from the Silver Commander that protestors on the train were equipped with articles, particularly molasses, likely to be used in criminal damage and that it was only obvious protestors that were to be searched. While the Inspector did not note this, he states that he recalled CI McGinley mentioning chalk as a relevant item and that he mentioned this in turn to his officers. He states that he did not give any directions as to the extent of the search to be carried out, leaving this to the discretion of the searching officers.

12

The officer who searched Mr Howarth was Police Constable Dennis Babin. PC Babin speaks about the briefing from Insp. Bethel and says that he and his colleagues were told that information had been received by the Silver Commander that protestors on the train were equipped with articles likely to be used in criminal damage and that chalk was mentioned. He says that they were told that the intelligence related to protestors on the train "and not ordinary members of the public". Again his information was that the intelligence was not specific to an individual but related to the group as a whole. He states that he carried out a number of searches on the train but that he cannot recall the search on either Mr Howarth or one of his friends whom it seems he also searched. He says that before carrying out any search he asked questions to ascertain...

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