Marcel and Others v Commissioner of Police of the Metropolis and Others

JurisdictionEngland & Wales
Judgment Date23 July 1991
Judgment citation (vLex)[1991] EWCA Civ J0723-6
Docket Number91/0771
CourtCourt of Appeal (Civil Division)
Date23 July 1991
(1) David Jan Marcel
(2) Steven Michael Laugharne Morgan
(3) Paul Michael Gunning
(1) Commissioner Of Police For the Metropolis
(2) Warwick Merrilees Jaggard
(3) Proctor Gillette (A Firm)

[1991] EWCA Civ J0723-6


Lord Justice Dillon

Lord Justice Nolan

Sir Christopher Slade







Royal Courts of Justice

MR DANIEL SEROTA Q.C. and MR JOHN DAVIES, instructed by Messrs Proctor Gillette, appeared for the Appellant (Second Defendant).

MR ALAN NEWMAN Q.C. and MR PAUL EPSTEIN, instructed by Messrs Simons Muirhead & Burton, appeared for the First Respondents (First and Third Plaintiffs).

MR DUNCAN MACLEOD, instructed by C.S. Porteous, Solicitor for the Commissioner of Police, appeared for the Second Respondent (First Defendant).


This appeal, from a decision of the Vice-chancellor Sir Nicolas Browne-Wilkinson of 3 0th November 1990, raises issues as to whether documents seized by the police in exercise of their powers under the Police and Criminal Evidence Act 1984 ("the Act") can be produced by the police for use in civil legal proceedings without the consents of the persons from whom the documents were seized. The judgment of the Vice-chancellor is reported at [1991] 2 W.L.R. 1118.


The civil legal proceedings in question are two actions pending in the Chancery Division ("the main actions") the trial of which began before the Vice-chancellor on 5th November 1990, but now stands adjourned pending the outcome of this appeal.


The main actions, which were started in 1989, are brought by a company called Anchor Brewhouse Developments Ltd ("the Company") against a Mr Jaggard who is the present appellant. Mr Jaggard entered into contracts with the Company in April 1987 to buy from the Company certain flats in a Dockland development carried out by the Company and known as the Anchor Brewhouse development. The Company's claim in the main actions is that Mr Jaggard has defaulted under those contracts, and so the deposits he paid are forfeit to the Company and he is liable for damages for breach of contract. Mr Jaggard seeks to establish by his defences and counterclaims in the main actions that he was induced to enter into the contracts by misrepresentations made to him orally by a Mr Morgan, a Mr Marcel and a Mr Gunning as servants or agents of the Company. He accordingly claims that he is entitled as against the Company to the return of his deposits under the contracts and to damages for misrepresentation. Mr Morgan, Mr Marcel and Mr Gunning, who are the respondents to the present appeal, are not parties to the main actions. I refer to them collectively hereafter as "the respondents". It is said that Mr Morgan, who is an estate agent, was, either directly or through a company controlled by him, the selling agent of the Anchor Brewhouse development, Mr Gunning, also an estate agent, was an employee of Mr Morgan or of his company, and Mr Marcel was held out to Mr Jaggard and other purchasers of flats as being the developer and was the project manager of the Anchor Brewhouse development.


At the end of September 1990 Mr Marcel was arrested and documents were seized by the police from his home and his office. In early October Mr Morgan and Mr Gunning were also arrested and documents were seized. Documents were also seized from Mr Morgan's solicitors who were also arrested. On 31st October 1990 two charges of conspiracy to defraud were laid against Mr Morgan. On 1st November 1990 two similar charges were laid against Mr Marcel, and on 6th November 1990 one charge was laid against Mr Gunning.


The charge against Mr Gunning and one of the charges against Mr Morgan and Mr Marcel was of conspiracy to defraud Mr Jaggard and other purchasers of flats in the Anchor Brewhouse development. Those charges, though outstanding at the time of the decision of the Vice-chancellor, have since been withdrawn (although in theory they could be resurrected). There is thus no charge currently outstanding alleging fraud on Mr Jaggard and no charge at all currently outstanding against Mr Gunning.


The other charges against Mr Morgan and Mr Marcel, which are also brought against four solicitors, are of conspiracy to defraud a certain bank to raise money on the security of the development. At the conclusion of the argument on this appeal these charges remained outstanding and committal proceedings were due to take place in September 1991, which would of course be before there could be any possibility of the adjourned trial of the main actions being resumed. We have since been told by the solicitor for Mr Gunning that these charges have been withdrawn.


On 24th October 1990, after the seizure of documents by the police but before any charges had been brought, a subpoena duces tecum was issued by Mr Jaggard's solicitor, Mr Barker, in the main actions against Inspector Bick, the officer in charge of the investigations. This is in very wide terms and requires the production in court at the trial of the main actions of "all documents, letters, notes, memoranda and other papers concerning your investigation into the affairs of Anchor Brewhouse Developments Ltd, Stephen Morgan, David Marcel, Christopher Williams and the Anchor Brewhouse."


There may be cases in which, even if the police are entitled or bound to produce documents in civil proceedings, they would wish to take an objection that in the particular circumstances the production in evidence of documents held by the police or some classes of such documents would be likely to impede police investigations into crime. The present is not, however, such a case and no such issue arises. The police have large numbers of documents seized from the respondents which they have no objection to producing in the main actions, if, despite the objections of the respondents, the court holds that they should be produced.


We were told that the normal practice of the police is not to make documents in their possession available to a party to civil proceedings until after a subpoena duces tecum has been served on the relevant police officer. But, after a subpoena has been served, they may be willing to make their documents available to the parties in advance of the opening of the trial, so that they can be sifted and administrative arrangements can be made to facilitate the conduct of the civil proceedings. I can see the practical sense of having some such practice, but it is necessary to remember that the documents seized by the police under the Act are not the property of the police; they are—stolen property apart—the property of the persons from whom they have been seized.


In the present case, the officer concerned, Inspector Bick, anticipated the service of the subpoena. The solicitor, Mr Barker, had made an appointment to meet Inspector Bick on 26th October 1990 to serve him with the subpoena, but by an oversight he forgot to take the subpoena with him to the appointment. The subpoena was not actually served until 29th October. But on 26th October the Inspector allowed Mr Barker to inspect and copy some of the documents seized by the police.


On the first day of the trial, Monday 5th November, Inspector Bick attended the court with all the documents which he was prepared to produce. By consent of everyone then present, the documents were placed in the custody of the court without the Inspector formally going into the witness box to say that he produced them in response to the subpoena. I cannot think that the absence of that formality has any effect on the control of the court over the documents or on the outcome of this appeal.


Also on the first day of the trial, certain of the copies of documents which Mr Barker had obtained on 26th October were read in open court. These had been exhibited to an affidavit of Mr Barker sworn, as I understand it, in support of an application on behalf of Mr Jaggard to reamend his pleadings in the main actions to make specific allegations of fraud. This application to reamend at present stands adjourned and has not been the subject of any ruling. In addition, Mr Serota Q.C., leading for Mr Jaggard, discovered that certain of the copies supplied to Mr Barker on 26th October were copies of documents which were prima facie subject to legal professional privilege in favour of Mr Morgan or Mr Marcel. He accordingly rightly took steps to ensure that such documents were excluded from anything put before the court.


On 6th November ex parte application was made to the Vice-chancellor on behalf of Mr Morgan and Mr Marcel for leave to serve short notice of motion for injunctive relief to be heard on Thursday 8th November. The Vice-chancellor gave such leave and the application, in which Mr Gunning had by then been joined, was heard on 8th and 9th November. The Vice-chancellor then reserved judgment, and the trial was adjourned. On 30th November he delivered his reserved judgment and made the order against which Mr Jaggard now appeals.


As a matter of procedure, the application for injunctive relief in respect of the documents was made by way of interlocutory application in a fresh action ("the documents action"), in which the writ was issued on 6th November and in which the plaintiffs are now the three respondents, and the defendants are the Commissioner of Police for the Metropolis, Mr Jaggard and Mr Jaggard's solicitors.


We have had some discussion in argument whether the procedure followed was a proper procedure or whether the respondents should have proceeded by motion in the main actions (as opposed to a separate action) to set aside the subpoena duces tecum served on...

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