Gibbs, Commissioner of Police v Attorney-General et Al
| Jurisdiction | UK Non-devolved |
| Judge | Gault, J.,Lord Goff |
| Judgment Date | 29 January 1998 |
| Court | Privy Council |
| Date | 29 January 1998 |
Privy Council
Lord Goff of Chieveley, Lord Steyn, Lord Hope Of Craighead, Lord Hutton, Gault, J.
Treasury Solicitor for the appellants
Goldsmiths for the respondent
Criminal law - Investigation into drug trafficking — Issue of search warrants by judge of Grand Court raises rebuttable presumption of regularity in his consideration of evidence — Burden on plaintiff to prove that search warrant was obtained without reasonable or probable cause — Slight evidence needed to require answer to allegation — Burden may be discharged by circumstantial evidence if no defence evidence.
Tort - Malicious abuse of process — Procurement of search warrant — Whether malice operated — Evidence of malice is absence of reasonable cause
delivering the judgment of the majority: From a complex set of facts there have emerged for determination in this appeal two issues. The first is whether there exists a tort of maliciously procuring the issue and execution of a search warrant. There was no dispute between the parties that there is such a tort though there is a lack of high authority on the point. The second issue, which is at the heart of the case, is whether there was sufficient evidence to support a finding that the elements of the tort were established. On this issue Harre, C.J. in the Grand Court of the Cayman Islands considered that there was not, whereas the Court of Appeal took the contrary view.
The respondent, Mr. Rea, was an experienced banker who in 1985 had been appointed as Managing Director of Pierson, Heldring & Pierson (Cayman) Ltd., part of a banking group with headquarters in Amsterdam. At the time, as required by his terms of employment, he disclosed a private business interest he had in the Cayman Islands and was informed that there was no objection to it from his employers. In September 1991 an internal bank audit disclosed that the business in which Mr. Rea had an interest had grown considerably and that the companies involved conducted transactions through the bank. An external audit was arranged of the financial statements of the companies concerned. The report of the external auditors, made on October 24th, 1991, disclosed no irregularities.
On October 28th, when in Amsterdam, Mr. Rea resigned from the bank on the ground of “conflict of interest” in circumstances that are accepted to have amounted to constructive dismissal. When he returned to the Cayman Islands, Mr. Rea learned of the execution by the police of search warrants at his home, at the bank, at the offices of one of the companies in which he had an interest and upon two safety deposit boxes held by another bank. A comment made to him while he was in Amsterdam indicated to Mr. Rea that the bank knew of the proposed searches, and the Chief Justice so held. There was no evidence of anything incriminating being found in the course of the searches. On his return to the Cayman Islands, Mr. Rea was neither interviewed by the police nor arrested upon any charge and eventually the police agreed to return his personal documents.
With the assistance of his solicitors, Mr. Rea ascertained that the first three warrants were applied for on October 25th by the first appellant, Det. Insp. Gibbs, the officer in charge of the Drug Profit Confiscation Unit of the Royal Cayman Islands Police Force, under s. 16M of the Misuse of Drugs Law (Second Revision). The fourth warrant (in respect of the safety deposit boxes) was applied for under the same Law on November 1st. In the case of each warrant, the documents in evidence comprise an “information in support of application for search warrant” and the form of warrant. These documents were produced by consent and constitute the whole of the evidence given on behalf of the police. The informations commence: “The information of Brian Gibbs, Detective Inspector of the Drug Squad Royal Cayman Islands Police who upon oath (affirmation) states ….” The informations then merely state affirmatively that each of the relevant conditions exists for the grant of a warrant without giving any factual basis. Their Lordships were told that although the document is signed, it is not formally sworn to and the practice is for the informant to be sworn before the Judge of the Grand Court and to support the application orally. This would seem to explain the discrepancies between what is stated in the informations and the scope of the warrants issued.
Each of the first three warrants, which are the material ones for present purposes, is expressed to be appropriately issued by reason of 20 s.16M (2) (c). Section 16M and the provisions to which it relates read:
“(1) A constable may for the purpose of an investigation into drug trafficking, apply to the Grand Court for a warrant under this section in relation to specified premises.
(2) On such application the court may issue a warrant authorizing a constable to enter and search the premises if he is satisfied that –
…
(b) the conditions in subsection (4) are fulfilled
…
(4) The conditions referred to in paragraph (c) of subsection (2) are that —
(a) there are reasonable grounds for suspecting that a specific person has carried on or has benefited from drug trafficking;
(b) there are reasonable grounds for suspecting that there is on the premises material relating to the specified person or to drug trafficking which is likely to be of substantial value (whether by itself or together with other material) to the investigation for the purpose of which the application is made, but that the material cannot … at the time of the application be particularised; and
(c) (i) it is not practicable to communicate with any person entitled to grant entry to the premises;
(ii) entry to the premises will not be granted unless a warrant is produced; or
(iii) the investigation for the purpose of which the application is made might be seriously prejudiced unless a constable arriving at the premises could secure immediately entry to them.”
In summary for present purposes, the Grand Court may issue a warrant if satisfied that there are reasonable grounds for suspecting that a specific person, in this case Mr. Rea, has carried on or has benefited from drug trafficking; that there are reasonable grounds for suspecting that material of likely value will be found; and that the investigation might be prejudiced unless immediate entry can be secured.
Mr. Rea asked for the material, which had been advanced to satisfy the judge who issued the warrants that there were reasonable grounds for believing he had carried on or benefited from drug trafficking. His attorneys' letter went on to state:
“We would respectfully submit that it is normal procedure and appropriate for the subject of an ex parte order to be given the material which grounded the ex parte application so as to allow him to be able to answer the allegations therein and to afford him the opportunity to present his side of the story.”
The request was not complied with and in response it was stated by the Solicitor General:
“If you require access to the material upon which the application was grounded you will be required to obtain it by application to the court, but you should be aware that any application for information which is still regarded as sensitive and confidential to the investigation will be opposed.”
Mr. Rea did not then make an application to set aside the warrants, even though executed, which course would have brought out for curial review any claim to withhold information on the ground of public interest immunity. Instead Mr. Rea chose to wait for the investigation to be concluded, having been told that this should occur “in a matter of weeks rather than months.” In the light of the Solicitor General's response such a course was consistent with what was said by Lord Wilberforce in ( Inland Rev. Commrs. v. Rossminster Ltd. [1980] A.C. at 1000–1001) as to the lapse of immunity.
The present proceedings were commenced on April 29th, 1992, though the police still maintained that the investigation was not complete. That was said by the appellants through their counsel still to be the position at the time of the hearing before their Lordships. Detective Insp. Gibbs was named as first defendant, the Commissioner as second defendant and the Attorney General as third defendant. The re-amended statement of claim alleged that the first defendant, acting as servant and agent of the second and third defendants and of the Government, “wrongfully, falsely and maliciously invoked the process of the court and procured the grant” of the warrants. It was further alleged that the first defendant had no reasonable or probable cause for suspecting that the plaintiff had carried on or benefited from drug trafficking or that material of value would be found. Loss and damage were alleged by reason of embarrassment, anguish, loss of professional reputation and loss of income and benefits. It was also alleged that the warrants were wrongfully procured and were invalid so that the entry and search amounted to trespass.
The re-amended defence denied the allegations, relied on the warrants as authorizing the searches and averred that the first defendant had carried out certain investigations prior to and after October 25th, 1991 concerning the plaintiff, in the discharge of his duties as a police officer. An earlier pleading that the first defendant's belief was based on information from an authoritative and normally reliable source upon which he was entitled to rely was deleted.
There was nothing on the pleadings on which the case went to trial indicating that the detective inspector's grounds for suspicion rested on information, which needed to be maintained as confidential. Nor did discovery by the defendants and further discovery ordered by the court...
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