LORD HANNINGFIELD V ESSEX CONSTABULARY [2013] EWHC 243 (QB)
FACTS:-
The Claimant claimed damages from the police for his allegedly unlawful arrest by five police officers at his home in September 2011 and in respect of what was said to have been an unlawful search of those premises on that occasion. In July 2011 Lord Hanningfield had been sentenced to nine months imprisonment in respect of offences of false accounting over expenses claimed in connection with his duties in the House of Lords. Five officers arrived early in the morning, arrested him and searched his bungalow. They had no search warrant, and he was not informed that they lacked a search warrant. The police had effected a policy, which had the effect of by-passing any need for a search warrant. No one had suggested that this was done otherwise than in good faith: the only question was whether it was lawful.
JUDGMENT:-
Justice Eady said that the police were relying on section 32 of the Police and Criminal Evidence Act 1984 ("PACE"). It had been determined by the Senior Investigating Officer that the statutory regime most appropriate to the circumstances was that set out in section 32, which stated:-
"(1) A constable may search an arrested person, in any case where the person to be searched has been arrested at a place other than a police station, if the constable has reasonable grounds for believing that the arrested person may present a danger to himself or others.
(2) Subject to subsections (3) to (5) below, a constable shall also have a power in any such case –
(a) to search the arrested person for anything –
(i) which he might use to assist him to escape from lawful custody; or
(ii) which might be evidence relating to an offence; and
(b) if the offence for which he has been arrested is an indictable offence, to enter and search any premises in which he was when arrested or immediately before he was arrested for evidence relating to the offence.
(3) The power to search conferred by subsection (2) above is only a power to search to the extent that is reasonably required for the purpose of discovering any such thing or any such evidence.
…
(6) A constable may not search premises in the exercise of the power conferred by subsection (2)(b) above unless he has reasonable grounds for believing that there is evidence for which a search is permitted under that paragraph on the premises.
… "
Eady J said that the principal issue that had arisen on construction was whether the words "any such case" were to be defined by reference only to those cases in which there were grounds for believing that the person concerned presented a danger. In purely grammatical terms, there was no reason why this should be so, since the words "in any case" in s.32(1), to which s.32(2) referred back, occurred within the parenthesis that was concerned solely to specify a "case where the person to be searched has been arrested at a place other than a police station". Furthermore, when addressing the public policy considerations underlying the various search powers provided for in s.32(2), it was difficult to see why a power to search the person or the premises should only be triggered if he was thought to present a danger. Eady J would, therefore, determine the construction argument in the Defendant's favour. The search of Lord Hanningfield's bungalow, purportedly carried out under s.32(2)(b), could not be characterised as unlawful merely because Lord Hanningfield was not perceived to be dangerous.
Eady J then turned to the issue of whether the arrest was necessary. He had to ask himself whether the officer in question had reasonable grounds for believing that it was necessary to arrest Lord Hanningfield in order to allow the prompt and effective investigation of the offence(s) or of the conduct of Lord Hanningfield himself. There was no dispute between the parties as to the appropriate test to apply in this context. Reference was made to the convenient summary of the law by Hughes LJ in Hayes v Chief Constable of Merseyside Police [2012] 1 WLR 517 at [42], where he indicated that the Court of Appeal preferred a "two stage test". This had been summarised, earlier, at [21] in these terms:
"(i) that the constable actually believed that arrest was necessary, and for a [s.24(5)] reason; and
(ii) that objectively that belief was reasonable."
Eady J said that one could see that it was in some ways convenient for the officers to take this course, without having to obtain a warrant, but that was clearly not a sufficient justification. He bore in mind that he should not adopt a public law approach and had to allow room for the individual judgment of the officer(s) concerned according to the exigencies of the occasion. On the other hand, an objective assessment still had to be made, albeit having regard to the factors which actually informed any decision made at the relevant time. Having rehearsed and reconsidered those factors, Eady J had come to the conclusion that the requirement of "necessity" as laid down by Parliament had not, on any realistic interpretation of the word, been met. It was not for a judge to second guess the operational decisions of experienced police officers, but in the circumstances of this case Eady J could not accept that there was any rational basis for rejecting alternative procedures, such as those adopted successfully by the Metropolitan Police. There were simply no solid grounds to suppose that he would suddenly start to hide or destroy evidence, or that he would make inappropriate contacts. There was only the theoretical possibility that he might do so.
The final question was whether the continued detention of Lord Hanningfield, following his arrival at Braintree Police Station was lawful or otherwise. Eady J said that the lawfulness of the custody officer's acts had to be judged in the light of his knowledge at the material time. He may or may not know the same facts as his colleague(s) who carried out the earlier arrest. It was acknowledged by the Defendant that, if the original arrest had been unlawful, the subsequent detention could not be regarded in itself as lawful simply because the custody officer did not have the same information laid before him. Reference was made to the words of Slade J in Richardson v Chief Constable of the West Midlands [2011] 2 Cr App R 1 at [57], where she rejected the submission that the custody officer's reasons for detention could "cure" any defect in the original arrest.
Eady J said that in the light of his rulings on the issues raised, it became necessary to fix an award of compensation, in accordance with the conventional scale, to cover the arrest, search and period of detention. He did not apprehend that there would be any problems in agreeing the amount.
FACTS:-
The Claimant claimed damages from the police for his allegedly unlawful arrest by five police officers at his home in September 2011 and in respect of what was said to have been an unlawful search of those premises on that occasion. In July 2011 Lord Hanningfield had been sentenced to nine months imprisonment in respect of offences of false accounting over expenses claimed in connection with his duties in the House of Lords. Five officers arrived early in the morning, arrested him and searched his bungalow. They had no search warrant, and he was not informed that they lacked a search warrant. The police had effected a policy, which had the effect of by-passing any need for a search warrant. No one had suggested that this was done otherwise than in good faith: the only question was whether it was lawful.
JUDGMENT:-
Justice Eady said that the police were relying on section 32 of the Police and Criminal Evidence Act 1984 ("PACE"). It had been determined by the Senior Investigating Officer that the statutory regime most appropriate to the circumstances was that set out in section 32, which stated:-
"(1) A constable may search an arrested person, in any case where the person to be searched has been arrested at a place other than a police station, if the constable has reasonable grounds for believing that the arrested person may present a danger to himself or others.
(2) Subject to subsections (3) to (5) below, a constable shall also have a power in any such case –
(a) to search the arrested person for anything –
(i) which he might use to assist him to escape from lawful custody; or
(ii) which might be evidence relating to an offence; and
(b) if the offence for which he has been arrested is an indictable offence, to enter and search any premises in which he was when arrested or immediately before he was arrested for evidence relating to the offence.
(3) The power to search conferred by subsection (2) above is only a power to search to the extent that is reasonably required for the purpose of discovering any such thing or any such evidence.
…
(6) A constable may not search premises in the exercise of the power conferred by subsection (2)(b) above unless he has reasonable grounds for believing that there is evidence for which a search is permitted under that paragraph on the premises.
… "
Eady J said that the principal issue that had arisen on construction was whether the words "any such case" were to be defined by reference only to those cases in which there were grounds for believing that the person concerned presented a danger. In purely grammatical terms, there was no reason why this should be so, since the words "in any case" in s.32(1), to which s.32(2) referred back, occurred within the parenthesis that was concerned solely to specify a "case where the person to be searched has been arrested at a place other than a police station". Furthermore, when addressing the public policy considerations underlying the various search powers provided for in s.32(2), it was difficult to see why a power to search the person or the premises should only be triggered if he was thought to present a danger. Eady J would, therefore, determine the construction argument in the Defendant's favour. The search of Lord Hanningfield's bungalow, purportedly carried out under s.32(2)(b), could not be characterised as unlawful merely because Lord Hanningfield was not perceived to be dangerous.
Eady J then turned to the issue of whether the arrest was necessary. He had to ask himself whether the officer in question had reasonable grounds for believing that it was necessary to arrest Lord Hanningfield in order to allow the prompt and effective investigation of the offence(s) or of the conduct of Lord Hanningfield himself. There was no dispute between the parties as to the appropriate test to apply in this context. Reference was made to the convenient summary of the law by Hughes LJ in Hayes v Chief Constable of Merseyside Police [2012] 1 WLR 517 at [42], where he indicated that the Court of Appeal preferred a "two stage test". This had been summarised, earlier, at [21] in these terms:
"(i) that the constable actually believed that arrest was necessary, and for a [s.24(5)] reason; and
(ii) that objectively that belief was reasonable."
Eady J said that one could see that it was in some ways convenient for the officers to take this course, without having to obtain a warrant, but that was clearly not a sufficient justification. He bore in mind that he should not adopt a public law approach and had to allow room for the individual judgment of the officer(s) concerned according to the exigencies of the occasion. On the other hand, an objective assessment still had to be made, albeit having regard to the factors which actually informed any decision made at the relevant time. Having rehearsed and reconsidered those factors, Eady J had come to the conclusion that the requirement of "necessity" as laid down by Parliament had not, on any realistic interpretation of the word, been met. It was not for a judge to second guess the operational decisions of experienced police officers, but in the circumstances of this case Eady J could not accept that there was any rational basis for rejecting alternative procedures, such as those adopted successfully by the Metropolitan Police. There were simply no solid grounds to suppose that he would suddenly start to hide or destroy evidence, or that he would make inappropriate contacts. There was only the theoretical possibility that he might do so.
The final question was whether the continued detention of Lord Hanningfield, following his arrival at Braintree Police Station was lawful or otherwise. Eady J said that the lawfulness of the custody officer's acts had to be judged in the light of his knowledge at the material time. He may or may not know the same facts as his colleague(s) who carried out the earlier arrest. It was acknowledged by the Defendant that, if the original arrest had been unlawful, the subsequent detention could not be regarded in itself as lawful simply because the custody officer did not have the same information laid before him. Reference was made to the words of Slade J in Richardson v Chief Constable of the West Midlands [2011] 2 Cr App R 1 at [57], where she rejected the submission that the custody officer's reasons for detention could "cure" any defect in the original arrest.
Eady J said that in the light of his rulings on the issues raised, it became necessary to fix an award of compensation, in accordance with the conventional scale, to cover the arrest, search and period of detention. He did not apprehend that there would be any problems in agreeing the amount.