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	England and Wales Court of Appeal (Civil Division) Decisions
You are here: BAILII >> Databases >> England and Wales Court of Appeal (Civil Division) Decisions >> Fisher & Anoe v The Cumbria Constabulary [1997] EWCA Civ 2232 (29 July 1997) URL: http://www.bailii.org/ew/cases/EWCA/Civ/1997/2232.html Cite as: [1997] EWCA Civ 2232

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IN THE SUPREME COURT OF JUDICATURE
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE CARLISLE COUNTY COURT
(HIS HONOUR JUDGE BELL)
Royal Courts of Justice

		Strand London WC2
		29 July 1997

LORD JUSTICE ROCH: On the 19th April 1996 the defendant, pursuant to leave granted by HHJ Bell, appealed against an order of that judge sitting with a jury made at the Carlisle County Court on the 2nd April 1996 awarding the plaintiffs a sum of £750 damages in respect of the failure by a police officer, DC Kelly, to leave a copy of a search warrant at the plaintiff's premises when carrying out a search of those premises and the sum of £15,000 in respect of the failure of officers in the Cumbria Constabulary to act with due expedition in giving a copy of the warrant to the plaintiffs' father after the plaintiffs' father had made it known to the police that a copy had not been left at the premises. There is a cross-appeal by the plaintiffs pursuant to leave granted by the judge on the 2nd April last year that the judge had wrongly concluded that an officer in the Cumbria Constabulary, DC Little, had had reasonable and probable cause when procuring from a magistrate a warrant to search the plaintiffs' premises.

The plaintiffs are two brothers. They run a Fish and Chip shop at 18, Queens Street, Aspartia. Those premises were bought for them by their father Mr Raymond Fisher senior, who is a successful businessman. The plaintiffs at the relevant time still lived at their parent's home Tall Pines, Wigton. There was no living accommodation at 18, Queens Street.

In 1992 a man called John Pullinger came to live at 73, King Street, Aspartia, a short distance from the plaintiffs' shop. The Workington Drug Squad of the Cumbrian Police Force, which consisted of two officers, a DC Little and a DC Robson, received information from another police force that Pullinger, who had lived in their area, had been suspected of supplying drugs in their area and might well continue to supply drugs in the area to which he had moved. It was DC Little's evidence that local sources supplied information that Pullinger was dealing in drugs in and around Aspartia. Observations were commenced on Pullinger and his associates, a man called Sikling and a man called Humphries. These observations lasted some time and involved the use of cameras. DC Little obtained four search warrants with the authority of an inspector. One for Pullinger's house, one each for the homes of Sikling and Humphries and one for a fourth premises.

Whilst those observations were being kept DC Little received information from a person who was a magistrate, who was not identified, but whom DC Little described, when he gave his evidence, as being totally reliable, that drugs supplied by Pullinger were being sold at the plaintiffs' Fish and Chip shop. DC Little was impressed by this information because he had received reliable information as regards Pullinger's activities from the magistrate on previous occasions. DC Little told the jury and the judge during his evidence that he decided that he should carry out some observations on the plaintiffs' premises. He did that on the 29th July 1992. Those observations consisted of two periods lasting less than ½ an hour. They were superficial compared with the observations kept on the house where Pullinger lived and two other premises which were suspected as being used by Pullinger for the distribution of drugs and which belonged to associates of Pullinger, because the execution of the four warrants already obtained was scheduled for the morning of 31st July. DC Little described seeing youths congregating outside the plaintiffs' premises which, he said, had aroused his suspicions that drug dealing was taking place at those premises. In particular he described a group of 10 youths outside the shop on the pavement; seeing one of them go into the shop and then come out again not apparently carrying any parcel of fish and chips and being surrounded immediately by some of the other youngsters in the group. The officer did not claim to have seen anything changing hands, but he regarded what he had seen as some degree of confirmation of the information he had received from the unnamed magistrate. That observation and the proven record of the magistrate in giving genuine information about the activities of Pullinger persuaded DC Little, so he told the jury, that there were reasonable grounds for suspecting the presence of controlled drugs at the plaintiffs' shop.

DC Little obtained a warrant to search the plaintiffs' fish and chip shop at 18, Queens Street. First, he obtained the authority of a Chief Inspector Taylor to do so. Then he typed out the warrant. Using carbon paper he produced two copies. Then he spoke to the Magistrates' Clerk on the telephone to confirm the application was in proper form and to arrange a time to go before a magistrate. The magistrate who authorised the search warrant in respect of the plaintiffs' premises was a Mrs Neal. There was a suggestion that the magistrate had signed a search warrant leaving the details blank. That was denied by the magistrate, by the magistrates' clerk who was present at the obtaining of the warrant and by DC Little who had obtained the warrant. The warrant and the required two copies were issued on the afternoon of the 30th July.

The five warrants were executed simultaneously. Because the Drug Squad for that area of the Cumbria Police Force consisted of only two officers, it was necessary for officers who were not members of the Drug Squad to take part in the execution of the search warrants. The day chosen was the 31st July 1992 and the time was 7 in the morning. Briefing took place at 6 a.m. at Police Headquarters and some 20 officers were involved.

The search warrants executed at the premises other than the plaintiffs' fish and chip shop resulted in the recovery of evidence of drug dealing. In particular drugs and cash were found at the home of the man Pullinger, and a little later when permission was obtained from the owner of an adjoining unoccupied house to enter those premises 7½ kilos of cannabis and ¾ of a kilogram of amphetamine were found. Pullinger was successfully prosecuted for possession of controlled drugs with intent to supply and sentenced to a substantial term of imprisonment.

The search warrant at the plaintiffs' premises was executed by DC Kelly assisted by PC Thompson and PS Jackson. It was DC Kelly who had the search warrant and the copy of the search warrant which should have been left at the premises. The officers did not gain access through the front door of the premises. They gained access by forcing the rear door, that involving the removal of certain beading from the door frame. The cost of repair of the door was £490.56 which the defendant offered to pay. No one was present at the premises and the search revealed no trace of any drug or drug dealing. Whilst that search was in progress, the substantial quantities of drugs were found in the unoccupied house adjoining Pullinger's house. DC Kelly who had an unmarked police car was summoned to Pullinger's house to assist in the arrest of Pullinger and his conveyance to Workington Police Station. DC Kelly left the plaintiffs' premises without leaving the copy of the search warrant at those premises as he should have done. Of the 9 questions for the jury at the trial of this action in the Carlisle County Court, the 7th question was:

"In failing to leave a copy of the warrant on the shop premises, did DC Kelly act

(a) intentionally, or

(b) negligently? or

(c) merely forgetfully?

The burden is on the defendant to prove that he acted merely forgetfully."

The jury's answer to that question was that DC Kelly had acted merely forgetfully.

The plaintiffs arrived at their premises after the search had been completed and after the police officers had left the premises. The premises were in some disorder. Further there were signs of dogs having been in the premises, namely dog hairs. The plaintiffs' immediate reaction was that their shop had been burgled. They contacted the police and contacted their parents.

The plaintiffs' father telephone police headquarters to protest at what had happened and subsequently went to Maryport Police Station, where he hoped to find an inspector from a different area who would accompany him to Workington Police Station "to see fair play". No inspector was available. Mr Fisher senior and his wife then went to Workington Police Station and persuaded two ordinary citizens to witness the making of their complaint to the police about the police's behaviour in searching the plaintiffs' premises.

There was considerable dispute as to precisely what had then occurred between Mr and Mrs Fisher on one side, and police officers on the other. What seems to be clear is that it took some 1½ hours before a copy of the search warrant was produced to Mr Fisher, senior. The police case was that the delay arose because having conveyed Pullinger to the Workington Police Station DC Kelly had had to change and then attend a court to give evidence in another matter. He had left the copy of the search warrant in the pocket of the jacket he had taken off and it had taken some time for the Station Sergeant to trace him and for him to identify where the copy search warrant was.

Mr Fisher senior's account was that the copy of the summons when it was produced had fresh typing on it which had smudged when he had touched it and it was clear that the time had been taken in finding and filling in a blank search warrant form. It seems to have been common ground that the names of the three officers who had executed the search warrant at the plaintiffs' premises were inserted on the warrant in the presence of Mr Fisher senior at Workington Police Station.

The 8th question to the jury was:

"Did the police act with due expedition in giving a copy of the warrant to the plaintiff's father after he had made known that it was not on the premises of the shop? It is for the defendant to prove that they did act with due expedition."

The jury answered that question "No".

The 9th question was:

"Was the copy of the warrant so given to the plaintiff's father a genuine copy which had been part of the papers signed by the magistrate, save for the addition of the three officers' names? The burden is on the defendant to prove that it was a genuine copy."

The answer the jury gave to that question was "Yes".

The judge summed-up the issues on liability to the jury, and no criticism is made of the judge's summing-up. The judge left to the jury nine questions which the judge said had been agreed between counsel and the judge. There is some doubt whether the questions were agreed by counsel for the plaintiffs as opposed to being the object of discussion between counsel and the judge. In my view, the outcome of these appeals is not affected by this doubt.

The first four questions and answers were:

"1. Did DC Little have information before applying for the warrant which, on a reasonable view, appeared reliable that illegal drugs were in the shop premises? The burden is on the plaintiff to show that he did not.

ANSWER: Yes

2. Did DC Little have knowledge based on observations before applying for a warrant, which on a reasonable view, tended to support the information as to illegal drugs being on the premises? The burden is on the plaintiffs to show that he did not.

ANSWER: No

3. Did DC Little immediately before applying for the warrant believe that illegal drugs were in the shop premises to the knowledge of one at least of the plaintiffs? The burden is on the plaintiff to show that he did not.

ANSWER: Yes

4. Was the search conducted with reasonable care so as to reveal drugs but not to cause unnecessary damage in so doing? The burden is on the plaintiff to show that reasonable care was not used.

ANSWER: Yes"

The amended Particulars of Claim claim damages, compensatory, aggravated and exemplary from the defendant for trespass and malicious process in obtaining the search warrant. The main thrust of the claim against the defendant was that there was no search warrant, The warrant which was produced to the plaintiffs' father and the copy of that warrant having been signed in blank by the magistrate and filled in by the police after the plaintiffs' premises had been searched whilst the plaintiffs' father was at the Workington Police Station. The amended Particulars of Claim also contained allegations that DC Little had not taken reasonable steps to satisfy himself that the information which he was laying before the magistrate was proper, cogent and reliable; that no search warrant was in the police officers' possession when making the search and that no copy of the search warrant was left at the property after the search.

For the plaintiffs in their appeal, it was accepted that to succeed in establishing malicious process, they had to show that the officer obtaining the search warrant did not have reasonable and probable cause for doing so and that he was acting maliciously. If the plaintiffs failed to establish malicious process, they could still succeed in trespass because the failure to satisfy Section 16(7) of the Police and Criminal Evidence Act, 1984 by leaving a copy of the search warrant in a prominent place at the premises during or at the end of the search meant that the correct procedure had not been followed and consequently the entry of the premises had been unlawful. In R -v- Chief Constable of Lancashire ex parte Parker and another [1993] 2 All ER 56 the Divisional Court consisting of Nolan LJ, as he then was, and Jowitt J was relied upon. In that case the Chief Constable of Lancashire had, in a letter to the applicants' solicitor accepted that a failure to supply a copy of a search warrant to the applicants at the time of the search meant that:

"It thus inevitably follows that the searches in the applicants' premises were thereby unlawful...."

The court then proceeded to consider the question whether the Chief Constable was entitled to retain goods seized during the search:

"even though the entry and search were unlawful."

I shall return to this authority later in this judgment.

The first ground of the plaintiffs' appeal is that the judge was wrong to hold that DC Little had reasonable and probable cause to procure a search warrant notwithstanding the jury's clear answer to question 2. Counsel accepted that it could not be said that the Justice of the Peace had acted unreasonably in issuing a search warrant or that the issue of the search warrant did not satisfy the statutory test. The statutory test is contained in s. 23 of the Misuse of Drugs Act, 1971 which deals with powers to search persons and premises to obtain evidence. Section 23 (3) provides:

"If a Justice of the Peace .... is satisfied by information on oath that there is reasonable ground for suspecting

(a) That any controlled drugs are, in contravention of this Act or of any regulations made thereunder in the possession of a person on any premises; ...... he may grant a warrant authorising any constable acting for the police area in which the premises are situated at any time or times within one month from the date of the warrant, to enter, if need be by force, the premises named in the warrant, and to search the premises and any person found therein and, if there is reasonable ground for suspecting that an offence under this Act has been committed in relation to any controlled drugs found on the premises or in the possession of any such persons .... seize and detain those drugs...."

The Police and Criminal Evidence Act, 1984 in sections 15 and 16 contains safeguards in respect of search warrants and the execution of search warrants. In this appeal the safeguards contained in Section 15 are of no relevance. Of the safeguards relating to the execution of warrants the material provision is Section 16(7) which reads:

"If there is no person present who appears to the constable to be in charge of the premises, he shall leave a copy of the warrant in a prominent place on the premises."

It is accepted that that provision was not observed in this case, albeit that the jury found that that failure was due to "mere forgetfulness".

A Code of Practice for the searching of premises by police officers has been produced under Section 66 of the Police and Criminal Evidence Act. It is Code B. The provisions of the code relevant to search warrants are contained in Section B:2. The relevant provisions are these:

"B:2.1 Where information is received which appears to justify an application, the officer concerned must take reasonable steps to check that the information is accurate, recent and has not been provided maliciously or irresponsibly. An application may not be made on the basis of information from an anonymous source where corroboration has not been sought.

B:2.2 The officer shall ascertain as specifically as is possible in the circumstances the nature of the articles concerned and their location.

B:2.3 The officer shall also make reasonable inquiries to establish what, if anything, is known about the likely occupier of the premises and the nature of the premises themselves; and whether they have been previously searched and if so how recently; and to obtain any other information relevant to the application."

The principal submission on behalf of the plaintiffs was that DC Little accepted that the information he received from his informant needed to be confirmed by observations before he could apply for a warrant. The jury decided that DC Little did not have knowledge based on the observations he kept which on a reasonable view tended to support the information as to illegal drugs being on the plaintiffs' premises. That had the effect of diluting or undermining the information DC Little had received from his informant. In any event the word of an informant on its own is never enough to give a police officer reasonable and probable cause for seeking a search warrant.

When counsel was challenged on the last submission, he accepted that it could not be said that corroboration or confirmation was required in every case.

The judge reached his decision that DC Little had reasonable and probable cause in this way:

"I understand that it is a matter for me to determine and on that footing I determine, having listened to the officer, that he had reasonable and probable cause, notwithstanding the negative answer to Question 2, and my reason for so finding is that I believe that it was a legitimate and may have been a compelling system of reasoning that the officer, having found the informant who was an upstanding citizen, to have given apparently reliable information as to other persons and premises, in the sense that it tended to be information in parallel with other police researches, he therefore, in my view, had reasonable and probable cause for the action of seeking out a search warrant and thereafter proceeding to its execution. I am fortified in that by the answer to Question No 3."

It is accepted that the question of whether DC Little had reasonable and probable cause was one for the judge. In answering it the judge must rely on the jury's answers to questions left to the jury which represent the factual issues between the parties remaining at the end of the evidence. The first question left to the jury in this case arose in this way: counsel for the plaintiffs could not challenge directly DC Little's evidence concerning the information he had been given by his informant. The tenor of the cross-examination was such that the judge had to take the jury's view on whether DC Little was an honest and credible witness and whether he had been given the information by his informant which he claimed he had been given. The question was framed so that the jury could express their view on whether, assuming the information had been given to DC Little as he claimed, it appeared reliable and indicated that illegal drugs were in the shop premises. The jury by their answer to the first question indicated that they accepted DC Little as an honest and credible witness; that he had received the information that he said from the source he described and that that information had appeared to him to be reliable. In other words the jury accepted that DC Little's informant was a magistrate and that he had given information to DC Little on earlier occasions which had proved to be reliable. In my judgment the first question and the answer to it provided a sufficient factual foundation for the judge to answer the question of law that he had to answer in the way that he did.

Nevertheless the submission that the answer to Question 2 diluted the information given to DC Little has to be considered. The reason for the answer to Question 2 is to be found in the evidence of DC Little itself. During his evidence DC Little compared the observations on the plaintiffs' premises with the observations kept on the houses of Pullinger and his associates. The observations on the plaintiffs' premises were of necessity brief and superficial if the warrant was to be obtained and executed with the other search warrants on the 31st July.

The answer to Question 2 did not, in my opinion, dilute the information on which the answer to question 1 must have been based. The answer to Question 2 did not prevent the jury answering "Yes" to Question 3. It follows that the jury were satisfied on the balance of probabilities that DC Little honestly believed that there were drugs on the plaintiffs' premises. The Answer to Question 2 could not have detracted from DC Little's evidence which was the basis of the positive answer to Question 1, because had it done so, the jury would have answered Question 1 "No". That being so full weight has to be given to the positive answer to Question 1, namely that before he applied for a warrant, DC Little had the information he said he had had, from the source he had said it had come, which on a reasonable view appeared to be reliable information that illegal drugs were at the plaintiffs' shop. On these answers, in my judgment, the judge's answer to the question which was for him was not merely a reasonable answer on the evidence and the jury's view of the evidence as disclosed by their answers to Questions 1 to 3, it was the proper answer for him to have given.

I would accordingly dismiss the plaintiffs' appeal.

Before leaving this part of this appeal, I think it right to say something about the effect of the procedural irregularity which occurred. I accept the consequences of that procedural irregularity for the purposes of this appeal because the Chief Constable has not taken this point on this appeal. It must, however, be doubtful that the execution of a lawfully obtained warrant which will itself be lawful provided that the officer carrying out the search at the end of the search and before leaving the premises leaves a copy of the warrant in a prominent place on the premises is rendered unlawful "ab initio" by an inadvertent failure to comply with this procedural requirement and that evidence of serious crime obtained by such a search warrant is rendered inadmissible. These may be the results, but I would wish to hear the matter fully argued before reaching such conclusions. As I read the decision of the Divisional Court in R -v- Chief Constable of Lancashire ex p Parker and another (supra) the point was not argued, the Chief Constable of Lancashire conceding that the failure by the police to provide the owners of the premises being searched with an authentic copy of the search warrant rendered the search illegal "ab initio". In that case, unlike the present, there were never in existence valid copies of the search warrant. Consequently in that case the procedural error preceded the start of the search rather than coming at the end of it. As I have already indicated I would wish to reserve the effect of the procedural irregularity which actually occurred in this case to a future case and would not wish it to be thought that in the light of the outcome of this appeal the point is no longer open.

The Chief Constable's appeal relates to the awards of damages. The awards that the jury made were related to the answers given by the jury to the evidential questions put to them. The jury were asked what damages they awarded under paragraph 7 (c), that is to say the damages for the "merely forgetful failure" to leave a copy of the warrant on the shop premises. The jury awarded £750. The jury were then asked what damages they were awarding for the failure of the police to act with due expedition in giving a copy of the warrant to the plaintiffs' father after he had made known that it was not on the premises. The jury awarded £15,000.

The only cause of action established by the plaintiffs was that in trespass. The entry and search of their premises was, by concession, unlawful. That was a single act of trespass. The act of trespass arose because the police did not leave a copy of the search warrant on the premises. That omission was due to mere forgetfulness. But for that inadvertent omission there would have been no trespass.

If a plaintiff proves a trespass to his land, he is entitled to recover nominal damages, even if he has not suffered any actual loss. If the trespass has caused the plaintiff actual damage, he is entitled to receive such an amount as will compensate him for his loss. Where the defendant has made use of the plaintiff's land the plaintiff is entitled to receive by way of damages such a sum as should reasonably be paid for that use. Where the trespass has been oppressive, arbitrary or unconstitutional or where the landowner's rights have been cynically disregarded by the trespasser, the landowner may be entitled to an award of exemplary damages. If the trespass is accompanied by aggravating circumstances which do not allow an award of exemplary damages, the general damages may be increased, c.f. Halsbury's Laws of England, 4th Edition, Vol 45 para 1403.

Here the trespass occurred because of mere forgetfulness by DC Kelly. That was a mitigating feature. The jury indicated by their answer to Question 4 that the search was conducted with reasonable care so as to reveal drugs but not to cause unnecessary damage. That was another mitigating feature. The defendant had offered to pay for the cost of repairing the door into the premises. That was a further mitigating feature. The trespass lasted approximately two hours and had been concluded by the time the plaintiffs arrived at their shop that morning.

The plaintiffs had to be compensated for this intrusion into their property, carrying with it, as it did the suggestion that they or one of them was somehow linked with illegal dealing in controlled drugs. There was in addition the physical disturbance of their property and the disruption and inconvenience of having to restore the contents of their property to their former order and the need to see that the use of dogs in the search had not compromised the hygiene of their premises.

The failure of the police to produce a copy of the warrant to the plaintiffs' father was an aggravating circumstance which would not allow an award of exemplary damages but did allow for some increase in the basic damages. The Chief Constable has not taken the point that the failure to supply a copy of the warrant to the plaintiffs' father was not a wrong in respect of which the plaintiffs were entitled to recover damages.

The barrier against intervention by this court in awards of damages made by juries has been lowered. This court is now prepared to intervene where in its view a reasonable jury could not have thought the award actually given necessary to compensate the plaintiff for the wrong done to him, so as to provide guidance in other cases. Indeed this court has done so recently in the case of Thompson -v- Commissioner of Police of the Metropolis [1997] 2 All ER 762, the judgment of the court being delivered by Lord Woolf MR. In that case the court gave indications of the levels of damages to be awarded in cases of wrongful arrest and imprisonment and malicious prosecution, both in respect of compensatory damages, aggravated damages and exemplary damages. The figures there given do not need to be set out in this judgment because they can be seen in the report of that appeal.

Taking those guidelines into account and all factors present in this case the total of the awards made was, in my judgment greatly in excess of any award necessary to compensate the plaintiffs for the wrong they had suffered. In my judgment a proper bracket for general damages for the trespass to the plaintiffs' premises was one starting at £500 with a ceiling of £1,500. I would reduce the jury's award to a total figure of £1,250 by leaving the award for the search of the premises at £750 and adding to it for the aggravating feature of the failure to produce a copy of the warrant to the plaintiffs' father with due expedition, a further £500. This figure is less than the likely lowest figure for aggravated damages suggested in the appeal of Thompson (supra), but the overriding principle is that the total figure for basic and aggravated damages should not exceed what is fair compensation for the injury the plaintiffs have suffered. Given that the jury's overall figure was clearly wrong, I would substitute for it the figure I consider to be correct in all the circumstances, namely £1,250.

LORD JUSTICE OTTON: I agree.

LORD WOOLF, MR: I agree.

Order: Appeal allowed. Counsel to supply Minute of Order as to costs. Legal Aid Taxation of Respondents' costs.