R and Others
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE LATHAM,MR JUSTICE POTTS |
| Judgment Date | 19 February 2001 |
| Neutral Citation | [2001] EWHC 123 (Admin) |
| Date | 19 February 2001 |
| Docket Number | CO/2094/2000 |
| Court | Queen's Bench Division (Administrative Court) |
[2001] EWHC 123 (Admin)
IN THE HIGH COURT OF JUSTICE
DIVISIONAL COURT
QUEEN'S BENCH DIVISION
Lord Justice Latham
Mr Justice Potts
CO/2094/2000
MR S STAFFORD-MICHAEL & MR S JARMAN (instructed by Pini Bingham & Partners, 30 St John's Lane, London, EC1M 4NB) appeared on behalf of the applicants
MR R TRAVERS & MR P SINCLAIR (instructed by Force Solicitor's Department, Kent County Constabulary, Force Headquarters, Sutton Road, Maidstone, Kent, ME15 9BZ) appeared on behalf of the respondent
Friday, 19th February 2001
This hearing has been concerned with determining a preliminary issue that arises in this application. This court ordered at an earlier hearing that three issues should be determined at this stage: firstly, the interpretation and construction of sections 24 and 26 of the Theft Act 1968; secondly, the interpretation and construction of sections 15 to 19 of the Police and Criminal Evidence Act 1984; and, thirdly, the effect of the Human Rights Act 1998. The argument has been restricted to consideration of the provisions of the Theft Act and the Police and Criminal Evidence Act alone.
The facts which give rise to the preliminary issue are, in one sense, because of the nature of the questions that we have to answer, not strictly relevant; nonetheless they are of some materiality and provide a framework within which the nature of the questions that we have to answer can be better understood.
The police believed that a substantial number of stolen vehicles were being imported into this country and that premises owned by the applicants were being used for the purposes of storage and disposal of those vehicles. The vehicles themselves were said to have been stolen in Japan. From the material that we have, it appears that they may well have come into this country via Dubai, but I say no more about the background facts than that for the reason that I have already given.
In view of the information that the police had, a written application was made for a warrant under section 26 of the Theft Act 1968 to the Dover Magistrates' Court. That application identified the address of the premises to be searched and identified the "persons or materials sought" as "stolen vehicles and documents in relation to stolen vehicles". The enactment under which the warrant was sought was identified as the Theft Act of 1968, and the grounds of the application were stated to be:
"Premises is a base for a company engaged in the importation of stolen vehicles from Japan. It is unlikely that director will allow access to the premises and documents voluntarily."
The magistrate, having considered the matter, granted authority in the following terms:
"Authority is hereby given for any constable to enter the said premises on one occasion only within one month from the date of issue of this warrant and to search for the persons or articles described."
It should be said, so that there is no misunderstanding about the matter, that the applicants in this case strenuously deny that they had been involved in any dishonest dealings with any of the vehicles in question, and they have put material before the court, which is not material we have to consider strictly today, in which they indicate that certainly some of the vehicles were bought entirely bona fide from a trader or traders in Dubai without any knowledge of those vehicles having been stolen or in any other way dealt with dishonestly prior to the date of purchase. It may or may not be that those will be issues which will have to be considered at a later stage either by this or some other court.
The questions which we have to answer arise because, on the applicants' submissions, the warrant was defective. Whether or not it was defective depends upon the proper construction in particular of section 26 of the Theft Act 1968, which provides as follows:
"26. Search for stolen goods
(1) If it is made to appear by information on oath before a justice of the peace that there is reasonable cause to believe that any person has in his custody or possession or on his premises any stolen goods, the justice of the peace may grant a warrant to search for and seize the same; but no warrant to search for stolen goods shall be addressed to a person other then a constable except under the authority of an enactment expressly so providing."
Sub-section (2) was repealed by the Police and Criminal Evidence Act 1984. Sub-section (3):
"Where under this section a person is authorised to search any premises for stolen goods, he may enter and search the premises accordingly and may seize any goods he believes to be stolen goods…"
Sub-section (4) was also repealed but by the Criminal Justice Act 1972. Sub-section (5):
"This section shall be construed in accordance with section 24 of the Act…"
The main thrust of the submissions on behalf of the applicants is that the purpose of this section is, in truth, to obtain possession of the stolen goods in order that they might be returned to their rightful owner or owners, and that the section is not a general authority to search for stolen goods in the pursuit of investigations in relation to criminal activities generally. That, it is said, would entitle the police to use section 26 for purposes which are more properly the province of section 8 of the Police and Criminal Evidence Act 1984, which has, it is submitted, considerably greater safeguards in relation to the obtaining and execution of a search warrant for the purposes of investigations than are contained in section 26. This court should therefore be astute not to permit the misuse of section 26; and it is said that the only proper construction of section 26 is as submitted; namely, to enable the police or other authorities to recover stolen property and not for any other purpose.
It is to be noted that section 26 of the Theft Act is subject to the provisions of section 15 of the Police and Criminal Evidence Act 1986, which is headed "Search Warrant Safeguards". Sub-section (1) makes the section applicable to the issue to constables under any enactment of any warrant to enter and search premises. Sub-section (2) sets out the nature of the application and the duty of a constable in making such an application. It provides as follows:
"Where a constable applies for any such warrant, it shall be his duty -
(a) to state -
(i) the ground on which he makes the application; and
(ii) the enactment under which the warrant would be issued
(b) to specify the premises which it is desired to enter and search, and;
(c) to identify, so far as is practicable, the articles or persons to be sought."
Further, by sub-section (4), the constable is required to:
"… answer on oath any question that the justice of the peace or the judge hearing the application asks him."
Sub-section (6) provides the particulars that a warrant itself should contain:
"A warrant -
(a) shall specify -
(i) the name of the person who applies for it;
(ii) the date on which it is issued;
(iii) the enactment under which it is issued;
(iv) the premises to be searched; and
(b) shall identify, so far as is practicable, the articles or persons to be sought."
Returning to section 26, it seems to me to be abundantly clear that section 26 is not to be construed in the restricted way which is submitted on behalf of the applicants. It will be noted that it pre-dates the Police and Criminal Evidence Act and has to be construed in that light. It seems to me to provide a general power, in sub-section (1), in a justice to grant a warrant which in turn empowers the person who has been granted the warrant to exercise the power in turn, under sub-section (3) of that section. The wording is, in my judgment, clear, and simply has to be read as in the first instance providing that the justice has to be persuaded by whoever is applying for the warrant that there is reasonable cause to believe that any person has in his custody or possession or on his premises any stolen goods; that if he is so persuaded, he may grant a warrant to search for and seize such property; that by sub-section (3) the person so authorised can enter the premises and not only seize such property as may have been identified, whether generally or otherwise in the warrant, but also may seize any other property which he, that is the person entering the premises, believes to be stolen goods.
The question which is raised in relation to the particular warrant with which we are concerned is whether or not a warrant under section 26 must expressly provide for both search and seizure. But that seems to me to be answered, firstly, by the heading to the section; secondly, by reference to the second part of sub-section (1); and, to the words and their natural meaning in sub-section (3). What the warrant is concerned with is primarily search, and as far as seizure is concerned, that is permitted under sub-section (3). The fact that the warrant itself does not expressly state that property can be seized does not in any way invalidate the warrant. The warrant is effective as authority under sub-section (1) to enter, and sub-section (3) gives the power to seize thereafter.
As far as the grant of the warrant is concerned, it is submitted on behalf of the applicants that the police officer or other person making application for the warrant is under an obligation of full disclosure because the application is made ex parte. It seems to me that that confuses two separate issues. The obligation is to provide the...
To continue reading
Request your trial
-
R v Ebanks, ex p Henderson
...285; [2006] A.C.D. 8; [2005] EWHC 1626 (Admin), dicta of Kennedy, L.J. applied. (19) R. (R. Cruickshank Ltd.) v. Kent Chief Const., [2001] EWHC 123 (Admin); [2001] Crim. L.R. 990, referred to. (20) R. (Redknapp) v. City of London Police Commr., [2009] 1 W.L.R. 2091; [2008] 1 All E.R. 229; [......