McGrath v Chief Constable of the Royal Ulster Constabulary
| Jurisdiction | England & Wales |
| Judge | LORD STEYN,LORD BROWNE-WILKINSON,LORD COOKE OF THORNDON,LORD CLYDE,LORD HUTTON |
| Judgment Date | 12 July 2001 |
| Neutral Citation | [2001] UKHL 39 |
| Court | House of Lords |
| Date | 12 July 2001 |
[2001] UKHL 39
HOUSE OF LORDS
Lord Steyn
Lord Browne-Wilkinson
Lord Cooke of Thorndon
Lord Clyde
Lord Hutton
An Another
My Lords,
I have had the advantage of reading in draft the speeches of my noble and learned friends, Lord Clyde and Lord Hutton. For the reasons they have given I would allow the appeal.
My Lords,
I have had the advantage of reading in draft the speech prepared by my noble and learned friend, Lord Clyde. For the reasons he gives I too, would allow the appeal.
My Lords,
I have had the advantage of reading in draft the speeches of my noble and learned friends, Lord Clyde and Lord Hutton. For the reasons they have given I would allow the appeal.
My Lords,
Various provisions exist for the enforcement in one part of the United Kingdom of warrants granted in another part and the statutory provisions enabling such enforcement have sometimes given rise to problems. One recent example is R v Manchester Stipendiary Magistrate, Ex p Granada Television Ltd [2001] 1 AC 300. Another example is O'Hara v Chief Constable of the Royal Ulster Constabulary [1997] AC 286. The present case is, however, somewhat exceptional on its facts. The plaintiff, the respondent in the present appeal, was arrested in Northern Ireland by virtue of a warrant granted by a sheriff in Scotland. He has raised proceedings in Northern Ireland against the appellant defendants claiming damages for wrongful arrest. The defendants are the Chief Constables respectively of the Royal Ulster Constabulary and of the Dumfries and Galloway Constabulary. The case came before MacDermott LJ and after hearing the evidence he gave judgment for the defendants. The plaintiff then appealed to the Court of Appeal in Northern Ireland [2000] NI 56 who allowed the appeal and awarded a sum of damages against both the defendants. They have now appealed to this House. It is necessary at the outset to narrate the facts.
On 24 January 1991 Dominic Mackin and William John Joseph Barker stole a car in Stranraer. The following day, after Barker had been seen driving the car in a reckless manner, they were both arrested by officers of the Dumfries and Galloway Constabulary. Mackin told the police that he was Terence Joseph McGrath of 29 Distillery Street, Belfast and that his date of birth was 15 July 1970. He had given those details to the harbour police at Stranraer when he came ashore from the Larne ferry two days earlier. That name, address and date of birth related not to Mackin but to the plaintiff. Mackin knew the plaintiff because they had been at school together. Mackin persisted in this deception throughout the subsequent proceedings in the Sheriff Court at Stranraer. He appeared, along with Barker, at the sheriff court in Stranraer on 25 January 1991 and was then remanded in custody to Dumfries prison. He was charged, along with Barker, with the theft. So far as Mackin was concerned the charge ran in the name of Terence Joseph McGrath and a schedule of previous convictions of Terence Joseph McGrath was prepared in connection with the charge against him. On 11 February 1991 he pled guilty to the charge of theft. Barker also pleaded guilty to the theft and to a number of offences under the Road Traffic Act 1988. In accordance with practice Mackin was asked to sign his plea of guilt and he did so using the name Terence McGrath. The case was then adjourned for reports and sentence. On 13 February 1991 Mackin, under the name of McGrath, and Barker were granted bail.
On 25 February 1991 they both failed to appear at court for sentencing. The sheriff accordingly on that day, on the application of the procurator fiscal, granted a warrant for the arrest of both men. The sheriff's direction was issued orally and he signed a manuscript record of it made by the sheriff clerk. That record read:
"The court on the motion of the prosecutor granted warrant to apprehend and commit the accused Terence Joseph McGrath and William John Joseph Barker to any lawful prison until liberated in due course of law."
An "extract of warrant" was then prepared by the sheriff clerk and signed by the sheriff. That was sent to the procurator fiscal so that the police might enforce it. It was confirmed by a Scottish advocate who gave evidence before the court in Northern Ireland that the warrant which was issued was a proper and valid warrant under the law of Scotland and that its effect was to authorise police officers to search for and arrest the persons named therein.
On 25 September 1991 a constable of the Royal Ulster Constabulary, who was aware that a warrant had been issued for the arrest of Terence Joseph McGrath, date of birth 1970, of 29 Distillery Street, Belfast, saw the plaintiff standing on a footpath in Belfast. He asked the plaintiff for his personal details. These precisely fitted the details which had been passed to him relating to the warrant. He accordingly checked with his base by radio and then arrested the plaintiff. Later on that day the plaintiff was transferred into the custody of two officers of the Dumfries and Galloway Constabulary and was taken to Stranraer. It was then discovered that he was not the person who had been detained in January 1991. He was released and given some money for his fare to travel back to Belfast.
The plaintiff claims that he was arrested wrongfully, unlawfully and without reasonable cause. The defendants contend that the arrest was lawful. The authority on which the defendants rely for making the arrest is to be found in section 38(3) of the Criminal Law Act 1977. Section 38 of that Act was repealed by section 168(3) of and Schedule 11 to the Criminal Justice and Public Order Act 1994 and replaced by section 136. But it was section 38(3) which was in force at the period with which we are concerned and it ran as follows:
"A warrant issued in England, Wales or Scotland for the arrest of a person charged with an offence may be executed in Northern Ireland by any member of the Royal Ulster Constabulary or the Royal Ulster Constabulary Reserve and subsections (4) and (5) of section 159 of the Magistrates' Courts Act (Northern Ireland) 1964 (execution without possession of the warrant and execution on Sunday) shall apply to the execution in Northern Ireland of any such warrant."
The intention of the sheriff in granting the warrant to arrest Terence McGrath was no doubt to have the man who had appeared before him in court to be arrested and brought back for sentence. That that was his intention was recognised both by the trial judge and the Court of Appeal. The Court of Appeal however considered the terms of section 38(3) and took the view that the subsection did not avail the defendants because the plaintiff was not "a person charged with an offence" for the purposes of the subsection. The person charged with an offence was Mackin. The warrant "was for the arrest of Mackin, the person who had been before the sheriff and whom the latter intended to have brought back to his court." [2000] NI 56, 60. The court did not think it possible:
"to construe the phrase 'person charged' as meaning the person whose name is set out in the warrant if he was not the person who had been before the court and whom the sheriff intended to have arrested."
The court continued, at p 61:
"We recognise that this penalises a police officer who has acted in good faith and who has been misled by the deception perpetrated by the accused, but we think that it would be less than just if a third person who has been arrested and detained, although innocent of any wrongdoing, were left without a remedy."
The question in the case comes eventually to be one of the construction of section 38(3). Before I turn to that question, however, it is convenient to mention certain other lines of argument which were raised during the course of the hearing and to make some more general observations about the granting and execution of warrants.
Some attempt at the hearing before us was made to resurrect an argument that a defence was open to the appellants under section 50 of the Constabulary (Ireland) Act 1836 (6 & 7 Will 4, c 13). According to MacDermott LJ counsel had conceded that they were not entitled to rely on that section, and counsel did not rely on it before the Court of Appeal. On the view which I am taking of the case it is not necessary to consider this argument. However, it is not immediately evident that the section extends not only to warrants granted by a magistrate within the jurisdiction of the Northern Irish courts but also to a warrant granted by a sheriff in Scotland. We were not addressed in detail on the point and I remain doubtful whether such a construction would be possible.
Section 50 of the 1836 Act provides a protection to the constable in respect of an irregularity in the issuing of a warrant or for any want of jurisdiction in the magistrate who has issued it. A protection comparable with that provided in section 50 of the 1836 Act was afforded to a constable in England under section 6 of the Constables Protection Act 1750 ( 24 Geo 2, c 44). As is pointed out in Clerk and Lindsell on Torts, 18th ed (2000), p 912, para 17-128, at one time a constable was exposed to a double danger, namely that the warrant might have been issued without jurisdiction and so was a nullity; or that it was issued with jurisdiction but the constable did something not covered by its authority. The Act of 1750 provided protection against the former danger. As Macnaghten J observed in Horsfield v Brown [1932] 1 KB 355,369:
"If the constable acts in obedience to the warrant, then, though the warrant be an unlawful...
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