R Pearce and Another v Commissioner of Police of the Metropolis and Another
| Jurisdiction | England & Wales |
| Judge | Lord Justice Maurice Kay,Lord Justice Patten,Lord Justice Fulford |
| Judgment Date | 18 July 2013 |
| Neutral Citation | [2013] EWCA Civ 866 |
| Court | Court of Appeal (Civil Division) |
| Date | 18 July 2013 |
| Docket Number | Case No: C1/2012/2376 |
[2013] EWCA Civ 866
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION, DIVISIONAL COURT
REF: CO7183/2011
Royal Courts of Justice
Strand, London, WC2A 2LL
Lord Justice Maurice Kay, Vice President Of The Court Of Appeal, Civil Division
Lord Justice Patten
and
Lord Justice Fulford
Case No: C1/2012/2376
Mr Alex Bailin QC and Ms Ruth Brander (instructed by Bindmans LLP) for the Appellants
Mr Sam Grodzinski QC and Mr Mark Summers (instructed by Commissioner of Police of the Metropolis, Director of Legal Services) for the Respondents
Hearing date: 10 June 2013
Approved Judgment
This appeal is concerned with the question whether the execution of certain search warrants at premises described as squats in Camberwell Road on 28 April 2011 was a lawful exercise of police powers pursuant to those warrants (which authorised the police to enter the premises to search for stolen bicycles, bicycle equipment, electrical goods and computer equipment), or an unlawful misuse of such powers on the ground that the dominant purpose of the search and entry was not to search for stolen goods but was to facilitate pre-emptive action in the form of detention of persons who were suspected of being likely participants in disorder on the occasion of the Royal Wedding which was to take place on 29 April 201On 18 July 2012, the Divisional Court (Richards LJ and Openshaw J) held that the execution of the search warrants was lawful: 2012 [EWHC] 1947 (Admin). The appellants appeal to this Court, permission having been granted by Lloyd-Jones LJ. The judgment of the Divisional Court was a composite judgment which dealt with four cases concerning the policing activity at about that time. This appeal is concerned only with the execution of the search warrants at the premises in Camberwell Road. Another appeal, heard by a different constitution of this Court, relates to one of the other cases decided by the Divisional Court, which concerned allegations of unlawful arrest at various locations in central London on the day of the Royal Wedding.
The present appeal is essentially a challenge to the factual finding that the dominant purpose of the police in executing the search warrants was that for which the power of search had been conferred (stolen goods) rather than to take pre-emptive action in order to prevent disruption of the Royal Wedding. Accordingly, it is necessary to set out the facts at some length. The following account is taken from paragraphs 86 to 102 of the judgment of the Divisional Court.
The facts
Part of the background to the policing of the Royal Wedding was the violent aftermath of earlier student demonstrations and TUC Day of Action. The police investigation into the criminal events arising out of the former was named Operation Malone, and the police investigation into the criminal events arising out of the latter was named Operation Brontide. The two investigations were linked.
Ongoing review of CCTV and intelligence in Operation Brontide had revealed approximately 200 outstanding criminal suspects. There was concern, but no direct evidence, within Operation Brontide that anarchist groups intent on creating disorder of the type recently experienced would attempt to disrupt central London on the day of the Royal Wedding with acts of criminality and serious disorder. As a result there was a perceived need to accelerate the identification and arrest of the outstanding Operation Brontide (and Operation Malone) suspects. Operation Brontide was asked to work with the Royal Wedding Intelligence Co-ordinating Committee, chaired by Commander Johnson (Bronze 14), to consider what preventative action and enquiries could be taken and made prior to the Royal Wedding.
During the previous disorders, squats had been used as convergence centres for organised disorder. One of the people arrested at the TUC Day of Action was associated with one of four known squats in Camberwell Road (at nos. 274, 300, 302 and 304), and through that link there was intelligence suggesting that outstanding Operation Brontide suspects might be living at the Camberwell squats. There was, moreover, a concern that individuals in the squats might be gathering to disrupt the Royal Wedding. Accordingly, authorisation was obtained on 14 April for a covert surveillance operation on the four known squats, which was carried out by the Territorial Support Group (TSG) under the command of Chief Inspector (now Superintendent) Woolford. The operation, conducted over a number of days between 22 and 27 April, revealed no direct evidence of Operation Brontide suspects. It did, however, reveal a pattern of behaviour indicating that the squats were being used as an exchange or dealing point for stolen goods, in particular computer equipment but also bicycles and bike parts.
By 27 April the decision had been taken to seek search warrants in respect of the four known squats. The essential rationale behind the decision can be seen from this passage in the witness statement of Commander Broadhurst (Gold):
"By now, the intelligence cell had identified a number of premises being used as squats, and I was genuinely concerned that one or more of these squats could be housing individuals with intent to commit criminal acts against the Royal Wedding. However, I was not minded to take action against them without a sound legal basis and Bronze Crime, Detective Chief Superintendent Matthew Horne, was able to satisfy me that substantive criminal offences had been identified at each of the squats and that warrants could legitimately by applied for to enter those premises. The intention was not to stop any individuals or groups from engaging in protest, but to prevent any criminal activity or unlawful disruption of the Royal Wedding."
In similar vein, when commenting on an entry in his log for the previous day, 26 April, Commander Broadhurst stressed (at para 44 of his statement) that "I made it quite clear that I did not want speculative action, but would only endorse police activity where there was a good chance of a Brontide subject being present or where we had a clear legal basis for entering such as at Camberwell …".
The application for the four warrants was made on 27 April at Bromley Magistrates' Court because of a concern that the proximity of Camberwell Green Magistrates' Court to the squats could potentially compromise the operation. The informations were sworn by Police Constable Anderson in materially identical form, referring to the surveillance operation and the matters giving rise to suspicion as to the handling of stolen goods on the premises. In his witness statement, PC Anderson says that at the hearing, in response to a request by the magistrate to be told more about the background, he spent about four or five minutes giving a verbal account of how the request for search warrants had arisen out of the surveillance operation.
The magistrate then issued the warrants, which authorised the police to enter the premises to search for bicycles, bicycle equipment, electrical goods and computer equipment pursuant to s.26 of the Theft Act 1968.
At the time when the warrants were applied for, no decision had been taken as to whether or when they would be executed. Commenting on a log entry at 8.30 a.m. on 27 April, Commander Broadhurst said in his witness statement:
"… I had a genuine fear that there were people in the premises we had identified who would attempt to disrupt the wedding if they could. However, I know that it is extremely difficult to prove a person's intent and that we would not necessarily find material evidence in any of the premises that would give us sufficient to charge them immediately. The likelihood was that most individuals would have to be bailed which, if we entered the premises too early, would mean many of them being released to be free to cause problems on the day of the wedding if that was indeed their intention. It was important, therefore, to time any entries or arrests on these premises so that, as far as possible, individuals could be lawfully detained during the time of the wedding ceremony."
Commenting on a log entry at 3.00 p.m. on the same day which recorded his agreement that the Camberwell warrants, among others, could be executed, he stated:
"… Bronze Crime had fully briefed me on all the squats and informed me that Magistrates had issued warrants for all those premises. From his observations and the research that had been done, there was no evidence linking them to disruption of the wedding, but the only way to find out would be to enter the premises and speak to the individuals inside. Given that criminal offences had been identified at all premises and that we had a lawful basis supported by warrants to enter, I gave authority for the warrants to be executed."
Commander Johnson then decided that the warrants should be executed on the morning of 28 April. In relation to a log entry recording this decision, he said in his witness statement:
"… I made the decision to instigate the action against the various premises. This was based on the facts presented to me by the investigating officers, i.e. that they suspected criminal activity at the various premises, and the fact that the premises were being used by people who were likely to be planning or involved in criminal activity on the day of the royal wedding. I made the decision to take the action before the royal...
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