Khan v Commissioner of Police of the Metropolis
| Jurisdiction | England & Wales |
| Judge | Lord Justice Pill,Lord Justice May,Lord Justice Moses |
| Judgment Date | 04 June 2008 |
| Neutral Citation | [2008] EWCA Civ 723 |
| Docket Number | Case No: B2/2007/2812 |
| Court | Court of Appeal (Civil Division) |
| Date | 04 June 2008 |
[2008] EWCA Civ 723
IN THE SUPREME COURT OF JUDICATURE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE CENTRAL LONDON COUNTY COURT
(HIS HONOUR JUDGE FABER)
Royal Courts of Justice
Strand, London, WC2A 2LL
lord Justice Pill
Lord Justice May and
Lord Justice Moses
Case No: B2/2007/2812
B2/2007/2812(Y)
Mr R Shetty (instructed by Bircham Dyson LLP) appeared on behalf of the Appellant
THE RESPONDENT DID NOT APPEAR AND WAS NOT REPRESENTED
This is an appeal against the judgment of HHJ Faber sitting at the Central London County Court on 21 November 2007. The issue was whether the Commissioner of Police of the Metropolis (“the appellant”) by his police officers was entitled to search the home of Mr Riaz Khan (“the respondent”) at 49 Tindall Road, Leyton, E10 6QJ. The respondent was not represented at the hearing and has appeared in person in court today. The judge held that the appellant was not so entitled and awarded the respondent £1,250 damages for trespass to property. The judge granted permission to appeal.
On behalf of the appellant. Mr Shetty submits that the search of the premises was lawfully conducted under Section 18(1) of the Police and Criminal Evidence Act 1984 (“the 1984 Act”), as amended. Parts II and III of the 1984 Act provide a comprehensive code setting out powers of entry, search and seizure (Part II) and arrest (Part III). The relevant sections have been amended by the Serious Organised Crime and Police Act 2005, section 111, Schedule 7, Part 3 so as to define powers consistently by reference to “indictable” offences. The relevant amendments took effect on 1 January 2006. Previously, different expressions had been used in different sections.
Section 18 (as amended) provides:
“Entry and search after arrest.
1) Subject to the following provisions of this section a constable may enter and search any premises occupied or controlled by a person who is under arrest for an indictable offence, if he has reasonable grounds for suspecting that there is on the premises evidence, other than items subject to legal privilege, that relates —
a) to that offence; or
b) to some other indictable offence which is connected with or similar to that offence.
2) A constable may seize and retain anything for which he may search under subsection (1) above.
3) The powers of search conferred by subsection (1) above is only a power of search to the extent that it is reasonably required for the purpose of discovering such evidence.
4) Subject to subsection (5) below the powers conferred by this section may not be exercised unless an officer of the rank of inspector or above has authorised them in writing.
5) A constable may conduct a search under subsection (1) —
(a) before the person is taken to a police station or released on bail under section 30A, and
(b) without obtaining an authorisation under subsection (4),
if the condition in subsection 5(A) is satisfied.
(5A) The condition is that the presence of the person at a place (other than a police station) is necessary for the effective investigation of the offence.
6) If a constable conducts a search by virtue of subsection (5) above he shall inform an officer of the rank of inspector or above that he has made the search as soon as practicable after he has made it. 7) An officer who —
(a) authorises a search or
(b) is informed of a search under subsection (6) above shall make a record in writing —
(i) of the grounds for the search; and
(ii) the nature of the evidence that was sought.
8) If the person who was in occupation or control of the premises at the time of the search is in police detention at the time the record is to be made, the officer shall make the record as part of his custody record.”
Thus Section 18 imposes requirements and provides safeguards. The present case turns on whether the premises were “occupied or controlled” by the person under arrest, Mr Mohammed Khaff Khan (“MKK”), within the meaning of Section 18(1).
The judge rejected the appellant's submission “that the requirement that the premises should be occupied or controlled by the person who is under arrest is qualified by reference to the belief or knowledge of the author authorising the search or of the officer actually entering or making the search of the premises” (paragraph 25). The judge added at paragraph 26:
“I can see no ground, as a matter of law, for implying any qualification to that absolute requirement into this provision of the statute despite the practical difficulties to which it is said to give rise on the part of the police.”
The search was conducted between 3am and 3.30 am on the morning of 17 April 200As the judge put it, it was “the search of a family home in the presence of children in the early hours of the morning”. The respondent was present, as was his wife, who was upset, and two children whose bedrooms were searched. Nothing of relevance was found. The respondent objected to the search.
The suspect, MKK, had given a false name and address to the police when he was taken into custody. One of the addresses given to the police was 49 Tindall Road. He had given that address to the police on previous occasions.
MKK and another man had been arrested on the evening of 16 April at an ATM machine on Oxford Street. When searched, he was found to have cloned or skimmed cards in his possession and a large quantity of cash. Nothing was found at 49 Tindall Road that connected MKK in any way with those premises. He had also given another false address. The police had doubts about the truthfulness of his statements. It was claimed by the police that there had been similar cashpoint crimes involving a BMW car that was connected to the respondent's address.
The judge considered evidence available to the police about MKK, and the other man arrested at the same time, and their use of motor vehicles. We assume, without deciding the point, that the police had, under section 18(1), reasonable grounds for suspecting that there was on the premises evidence relating to the offence or an offence connected with it. The judge concluded, at paragraph 41:
“There is no evidence that MKK ever lived or stayed at these premises. There is no evidence that he ever kept any property there. There is no evidence, in those circumstances, that he either owned or occupied any part of those premises and no evidence, therefore, to be left to the jury as to that issue.”
The judge did not, and did not need to, make a finding as to whether the police's belief that MKK was in occupation or control of the premises was a reasonable belief. We do not make a finding either.
On behalf of the appellant, it is submitted that section 18 of the 1984 Act provides the procedure by which police can search an address that is connected with the arrested person. Subject to compliance with the other requirements, the existence of evidence suggesting that the person under arrest occupied or controlled the premises empowered a search under Section 18. A literal construction of the expression “premises occupied or controlled by a person” makes Section 18 unworkable, it is submitted. The police could rarely be sure that the arrested person was in occupation or control of the premises when the decision whether to search needed to be made. The power to search premises when the police have reasonable grounds to believe that they are connected with an arrested person is, it is submitted, important to them in their task of detecting crime and bringing offenders to justice. The section should be construed to make a search lawful when a police officer has a reasonable belief that the arrested person controls or occupies the premises sought to be searched.
In support of the submission that a literal construction of Section 18 would make it unworkable, reliance is placed on the lack of clarity and certainty in the expression “occupation or control”. A police officer can rarely be certain that a person arrested other than on the premises is in occupation or control of particular premises. Reasonable belief should be sufficient.
No authority directly on the point has been brought to our attention. In Krohn v DPP [1997] EWHC Admin 286 (1997 COD 345) the lawfulness of a search under section 18 turned on the failure by a senior police officer to make a record in writing under section 18(7) of the grounds for searching the defendant's flat and the nature of the evidence sought. Brooke LJ stated, at paragraph 25:
“…in my judgment this court would be doing the...
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Making an arrest in order to activate PACE entry and search powers: The Law Commission and a missed opportunity for clarification
...is made in the Commission’s final report: see ‘Search warrants’ (n 1) at para 5.156.75. In Khan v Metropolitan Police Commissioner [2008] EWCA Civ 723, the Court of Appeal rejected the argument that thephrase ought to be subject to an implied qualification; that the power of entry and searc......
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