Reynolds v Commissioner of Police of the Metropolis
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE WALLER,LORD JUSTICE SLADE,LORD JUSTICE PURCHAS |
| Judgment Date | 31 July 1984 |
| Judgment citation (vLex) | [1984] EWCA Civ J0731-7 |
| Docket Number | 84/0343 |
| Court | Court of Appeal (Civil Division) |
| Date | 31 July 1984 |
[1984] EWCA Civ J0731-7
Lord Justice Waller
Lord Justice Slade
Lord Justice Purchas
84/0343
1978 R. No. 2188
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL
ON APPEAL FROM THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
(MR JUSTICE CROOM-JOHNSON)
Royal Courts of Justice,
MR KENNETH ZUCKER, Q.C., and MISS J. DAVIES (instructed by Messrs. Vizards) appeared on behalf of the Appellant.
MR ALAN RAWLEY, Q.C., MR L. MARSHALL, MR J. GOMPERTZ and MR G. NORRIS (instructed by R.E.T. Birch, Esq., Solicitor, Metropolitan Police) appeared on behalf of the Respondents.
This is an appeal from a judgment of Croom-Johnson J. given on 1st February 1983, in favour of the respondent Commissioner of Police of the Metropolis. The learned Judge had withdrawn from the consideration of the Jury the appellant's claim that the respondent had procured the issue of a Search Warrant maliciously and without reasonable or probable cause on the ground that the appellant had failed to show the absence of reasonable or probable cause. The Jury had found, having heard the summing-up of the learned Judge, that the police did not remove from the appellant's house documents and papers which they were not entitled to take. At the hearing before the learned Judge the plaintiff, Anderson, also took part, but there is no appeal against that part of the Judge's judgment.
The background to the case was this: There had been a number of fires in East Anglia which were suspected by the police of being deliberately caused. Ultimately some arrests were made, and in due course a number of people were committed for trial. The committal proceedings took place towards the end of 1975.
In 1970 a building called "The Maltings" at Stonham Parva was acquired by the appellant at a cost of some £16,000, and in 1973 it was insured by the appellant for £550,000. On the night of 9th November 1973, the building was destroyed by fire, and there was a claim made by the appellant. At a meeting between three of the respondent's officers and Mr Grant-Whyte of the Director of Public Prosecution's Office held on 25th January 1976, on the advice of Mr Grant-Whyte it was decided to apply for a Search Warrant under the Forgery Act, 1913, and subsequently a decision was made by one of the senior police officers and Mr Grant-Whyte to arrest the appellant. This Warrant was issued by a Metropolitan Magistrate on 18th February 1976. On 23rd February 1976, at 6 a.m. police officers arrived at Bardwell Hall, Bardwell, where the appellant was living. Their purpose was to execute the Search Warrant and to arrest the appellant. One officer, Mr Rogers, said that he had gone to search for evidence and forged documents, and D.C. Gibson said that their instructions were to take possession of all documents that they found connected with "The Maltings".
The officers proceeded to search through the papers and put them in a number of sacks. The appellant was not told at first that he was being arrested, but he was told about half an hour before they left the house. The appellant in one vehicle and the papers in another vehicle ware both taken in the morning to Limehouse Police Station. The appellant was released late the next day, and the papers were returned the day after, i.e. two days after they were removed from the house. No papers were in fact retained by police, and in the event no prosecution was brought against the appellant.
There are two main grounds of appeal. The first is that the Judge was wrong to rule that there was reasonable and probable cause to believe that there were forged documents in the appellant's house. The second main ground of appeal was that the police had no right to seize any documents other than documents they believed to be forged, and had no right to take the large quantity of documents to the Police Station to check them there. In particular they had no right to take certain privileged documents.
On the first of those matters Mr Zucker submitted, on behalf of the appellant, that there was no reasonable and probable cause for the issue of the Warrant, and that the Warrant was just an excuse to search the house for evidence. I came to the conclusion that there was no substance in this latter point because it was the intention at all times of the police to arrest the appellant, and if they arrested the appellant they had the right at common law to search for evidence. The substantial question, therefore, is: Can it nevertheless be said that there was no reasonable and probable cause for the issue of the Warrant?
There is no dispute that to procure the issue of a Search Warrant without reasonable or probable cause and maliciously is an actionable wrong. (See Clerk and Lindsell, 15th Edition, paragraph 18–08 and Everett v. Ribbands (1952) 2 Q.B. 198, per Denning L.J. at 205). And the burden of proof is upon the plaintiff who is asserting that there was no reasonable or probable cause (See Abrath v. N.E. Railway 11 A.C. 247). When the facts on which the application was based are established, it is then for the Judge to decide whether it has been proved that there was no reasonable and probable cause for the issue of a Search Warrant. (See Herniman v. Smith (1938) A.C. 305, at 316, where Lord Atkin says: "It is well settled that the question of the absence of reasonable and probable cause is for the Judge. Later, at page 317, having dealt with the principles, Lord Atkin asked himself the question: "Was there any evidence of the want of reasonable and probable cause?"
It was argued on behalf of the appellant that there was no mention of forgery in the police reports disclosed, that the Judge had misunderstood the part played by a man called Elmer, and that the Judge had wrongly attached too much importance to the advice of Mr Grant-Whyte from the Director of Public Prosecution's Office. There was evidence from Gibson that he believed there would be forged builders' estimates and documents of that type showing that work had been carried out, when in fact no work had been done. And Mr Rogers, who was a Detective Sergeant at the time, gave evidence that he believed there would be forged documents relating to plant installed in "The Maltings", and documents relating to business activities there.
The Judge's ruling shows that he relied on the evidence of these police officers about their belief that there would be builders' estimates and other documents forged to justify the high claim. It is true that he mentioned Elmer, but his final conclusion was this: "The evidence which has been given has satisfied me that there was reasonable and probable cause for obtaining the Search Warrant and that it was so regarded in good faith by the police officers concerned".
In this Court the burden of proof was on the appellant to show that there was no evidence on which the Judge could come to that conclusion, and in my judgment the appellant has failed to do so.
With regard to the question of reliance on the advice of Mr Grant-Whyte from the Director of Pulic Prosecution's Office, the Judge was in error in saying that he issued instructions, when all that he gave was advice. When the Judge's ruling is examined, however, it is clear that he was considering the Director's advice as an additional factor, and not as one which was the basis of his decision. While the Director's advice could not convert the absence of reasonable and probable cause into the presence of reasonable and probable cause, it is entirely proper that the fact of the advice should be before the Court. If the police had not obtained the Director's advice before applying for a Search Warrant, there could be very serious comment about their action. It follows, therefore, that in my judgment the appellant has failed to show that there was no reasonable and probable cause for the belief, and therefore this ground of appeal fails.
I now come to deal with the second main ground of appeal, namely that the Judge's direction to the Jury on the question of search and seizure was wrong, and in particular that he was in error in directing the Jury that it was for them to decide whether the removal of documents was reasonable or not. The police power to search and take possession of documents came from the Search Warrant which had been issued, and from the extension to take away any articles or documents which are found and which may be relevant in evidence. The Warrant authorised the police to: "Search and to seize and carry forth………any forged material documents or instruments" which may be found, and there was no dispute that this included a power to take other goods which might be used in evidence.
In Ghani v. Jones (1970) 1 Q.B. 693, at page 706 Lord Denning said: "I take it to be settled law, without citing cases, that the officers are entitled to take any goods which they find in his possession or in his house which they reasonably believe to be material evidence in relation to the crime for which he is arrested or for which they enter. If in the course of their search they come upon any other goods which show him to be implicated in some other crime, they may take them provided they act reasonably and detain them no longer than is necessary. Such appears from the speech of Lord Chelmsford L.C. in Pringle v. Bremner and Stirling (1867) 5 Macph., H.L. 55, 60 and Chic Fashions (West Wales) Ltd. v. Jones (1968) 2 Q.B. 299."
And in Chic Fashions (West Wales) Ltd. v. Jones (1968) 2 Q.B. 299, at page 313, Lord Denning said this:
"In these present times, with the ever-increasing wickedness there is about, honest citizens must help the police and...
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