Keegan v Chief Constable of Merseyside Police
| Jurisdiction | England & Wales |
| Judge | Lord Justice Ward,Lord Justice Kennedy |
| Judgment Date | 03 July 2003 |
| Neutral Citation | [2003] EWCA Civ 936 |
| Docket Number | Case No: B3/2002/2391 |
| Court | Court of Appeal (Civil Division) |
| Date | 03 July 2003 |
[2003] EWCA Civ 936
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM H.H. JUDGE TRIGGER
Birkenhead County Court
Lord Philips of Worth Matravers, Mr Lord Justice Kennedy and
Lord Justice Ward
Case No: B3/2002/2391
Stephen Simblet (instructed by Jackson & Canter, South John Street, Liverpool) for the appellant
Graham Wells (instructed by Weightman Vizards, Water Street, Liverpool) for the respondent
This is a claimant's appeal from a decision of Judge Trigger sitting in the County Court at Birkenhead who on 31 st October 2002 gave judgment for the defendant Chief Constable. Permission to appeal was granted by Lord Justice Buxton.
Background.
On 29 th January 1997 three armed men attempted to rob a post office at St Helen's.
On 30 th April 1999 three men armed with a sawn off shotgun intercepted and robbed Securicor employees who were delivering cash at Tesco, Birkenhead. They got away with £39,000, and a scarf was recovered from the car they used to escape.
On 13 th August 1999 there was another armed robbery at a post office on the Wirral when £20,000 was stolen.
From late August 1999 onwards those offences were being investigated by DC Pugh and DC Ross under the control of Detective Inspector Matthews. The investigation was given the code name "Operation Trotter". A man named Heffey had been arrested on 14 th August 1999, but clearly he had not been acting alone, and no money had been recovered. There was reason to suspect that Dean Metcalfe (otherwise known as Dean De La Cruz) was one of the other criminals involved because he could be linked to the scarf found in the car after the second offence. He was then about 17 1/2 years of age, and may not have had a fixed address. On occasions when stopped by the police he had given as his address 19 New Henderson Street, Liverpool 8. That property belonged to Liverpool City Council, and Anita De La Cruz, Dean Metcalfe's mother, had lived there, but by August 1999 she had long gone, and on 8 th April 1999 the tenancy had been allocated to the claimants, Mr and Mrs Keegan and their four young children. That was not something of which the police officers involved in Operation Trotter seemed to have been aware, but they did make some enquiries as to the link between Dean Metcalfe and 19 New Henderson Street.
The making of such enquiries was the responsibility of DC Ross who was the Field Intelligence Officer within the Force Major Incident Team. He checked the electoral roll on which the names of Anita and Joseph De La Cruz appeared in respect of that property, and in a statement which he made on 2 nd August 2002 he asserts that he made other enquiries. Such enquiries would normally have involved the Benefit Agency, various utilities, possibly the local authority as landlord, and existing force intelligence, but he was unable to say precisely what was the result of those enquires, and such notes and records as he made at the time were no longer available to him.
What did emerge was that Anita De La Cruz was also linked to another address, 27 South Hill Road, Southport and Dean Metcalfe had given that address when stopped on 23 rd September 1999. The conclusion reached by DC Ross was that Dean Metcalfe was therefore linked to two addresses.
It seems that at meetings held between DC Pugh, DC Ross and Detective Inspector Matthews on 4 th October 1999 and 18 th October 1999 it was agreed that there were reasonable grounds to arrest Dean Metcalfe on suspicion of involvement in the armed robbery at Tesco on 30 th April 1999, and to search premises connected with him. The officers knew from experience that a surveillance operation in relation to 19 New Henderson Street would be a waste of time, and that conclusion is not really in dispute in these proceedings.
Obtaining the Warrant.
The next step was to obtain a warrant, and on 18 th October 1999 DC Wilson, who was one of the officers assigned to Operation Trotter, applied to a magistrate for warrants to search 19 New Henderson Street and 27 South Hill Road. The applications were made under section 26 of the Theft Act 1968, with a view to their being executed early on 21 st October 199DC Wilson only knew what DC Ross had told him, and that was what he relayed to the magistrate. He asserted that he had reasonable cause to believe that stolen cash was in the possession of the occupier, and warrants to search were granted. No application was made for a warrant to arrest Dean Metcalfe.
Briefing.
Eight or nine searches were planned to take place simultaneously at 7 a.m. on 21 st October 1999, so a large number of police officers assembled at police headquarters at 6 a.m. to be briefed. The officers assigned to visit 19 New Henderson Street were Police Sergeant Gamble with constables Riding, Slater, Baker and Watts. Detective Inspector Matthews was present at the briefing, and the officers who attended were given an overview of Operation Trotter in general terms. In particular they were aware that the targets had access to firearms. Sergeant Gamble was given Dean Metcalfe as a target, to be arrested in connection with the armed robbery at Tesco on 30 th April 1999, and his package included the search warrant in respect of 19 New Henderson Street, a photograph of Dean Metcalfe, and information in relation to him. He was to be arrested if found on the premises, and the premises were to be searched for the property identified in the warrant.
Execution of the warrant.
Sergeant Gamble and his team arrived at 19 New Henderson Street at 7 a.m. as planned. They were totally unaware of the fact that the Keegan family were the only occupiers of the premises, and began to use a metal ram to force open the reinforced door. The family awoke and were frightened. Mr Keegan went down to the door. He was then told through the broken door that those attacking his home were police officers, and at the request of Sergeant Gamble he opened the door. Sergeant Gamble could see that Mr Keegan was not Dean Metcalfe, and realised that there had probably been a mistake, for which he apologised. Police Constable Watts quickly searched the premises to ensure that only the family was there, Sergeant Gamble said that the police would make good the damage to the door, and by 7.15 a.m. all the officers had left. In the circumstances Sergeant Gamble did not consider it appropriate to search for cash, but he did explain his interest in Dean Metcalfe, and Mr Keegan recognised the name because mail had arrived addressed to Dean Metcalfe, and others had been looking for him.
These Proceedings.
The appellants consulted solicitors, and a letter of claim was sent to the Chief Constable on 5 th November 1999, pointing out that the Keegan family had been in the premises since April 1999, prior to which the premises had been vacant whilst work was carried out. The letter sought damages for trespass. Initially liability was admitted, but not causation or damages, and in June 2001, after the break-down of negotiations, the appellants served their particulars of claim. It alleged trespass and false imprisonment. In amended particulars of claim dated December 2001 the appellants alleged that the entry was not for the purpose identified in the warrant, and that the warrant had been maliciously procured. By then the respondent had withdrawn the admission of liability, and in his amended defence placed reliance on section 6 of the Protection of Constables Act 1750, in relation to actions taken pursuant to the warrant, and on section 17(1)(b) of the Police and Criminal Evidence Act 1984 in relation to the search for Dean Metcalfe. Thus there were three issues in relation to liability to be considered by the trial judge, namely malicious procurement of the search warrant, trespass and false imprisonment. All three issues were resolved in favour of the respondent, and from the decision in relation to the third issue, namely false imprisonment, there is no appeal, so I need say no more about that aspect of the case.
In the County Court.
The judge heard evidence from all of the police officers to whom I have referred other than police constables Slater and Baker (two members of Sergeant Gamble's team). He found that –
(1) Covert surveillance of 19 New Henderson Street was considered and rejected for good reasons:
(2) During the 6 to 8 weeks prior to 21 st October 1999 the police did check with utility companies, and probably with Liverpool City Housing Department:
(3) The rough notes and summaries relating to those enquiries were still in existence in 1999 when the letter before action was sent and received. Those documents have never been produced, and because of their absence the judge inferred –
(4) That the checks revealed not only that Anita De La Cruz was no longer recorded as living at 19 New Henderson Street but that the adult claimants were recorded as living there.
(5) Before gaining entry to 19 New Henderson Street Sergeant Gamble knew of his powers under the search warrant and under section 17 of the Police and Criminal Evidence Act and, as a result of the information he had received at the briefing, he had reasonable grounds for believing that Dean Metcalfe was on the premises. Sergeant Gamble and his team knew nothing of the Keegans living there.
As to the allegation that the search warrant had been maliciously obtained the judge cited from Gibbs v Rea [1998] AC 786 the four ingredients of the tort, namely –
(1) A successful application for a search warrant,
(2)...
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