CHIEF CONSTABLE OF THAMES VALLEY POLICE v EARL GIDEON FOSTER HEPBURN [2002] EWCA Civ 1841

IN THE SUPREME COURT OF JUDICATURE

COURT OF APPEAL (CIVIL DIVISION)

ON APPEAL FROM READING COUNTY COURT

HH Judge Caitlin

[2002] EWCA Civ 1841

Case No Case No: B2/2001/1382; B3/2001/1399 & B2/2002/0846 CCRTF

Venue Royal Courts of Justice, Strand, London, WC2A 2LL

Between

CHIEF CONSTABLE OF THAMES VALLEY POLICEAppellant/ Defendant

EARL GIDEON FOSTER HEPBURNRespondent/ Claimant

Before

Lord Justice Brooke

Lord Justice Tuckey

Lord Justice Sedley

William McCormick (instructed by Barlow Lyde & Gilbert) for the Appellant

Angus Macpherson (instructed by Martin Murray & Associates) for the Respondent

Hearing date : 8th November 2002

Date 13 December 2002

Lord Justice Sedley :

The

[1]appeals These cross-appeals follow a nine-day trial before HH Judge Caitlin and a jury at Reading County Court. The trial ended on 11 June 2001 with a verdict for the claimant for £600 damages for false imprisonment, to which the judge added £20 interest. With the permission of the judge the Chief Constable appeals against the judge's ruling that the warrant as drawn did not allow the police to stop and search persons found in the public house named in it. By permission of this court Mr Hepburn cross-appeals against the judge's further ruling that, even so, no assault had been committed by the police officer who barred his exit or by the police officer who struck him when he sought to force his way out. He also renews his application for permission to challenge the jury's award of damages for false imprisonment as too low. By permission of this court, the Chief Constable further appeals against the judge's ruling that there were no reasonable grounds for the eventual arrest of Mr Hepburn on suspicion of possessing cannabis, and against the award of interest on the damages. The events

[2]The Saracen's Head public house in High Wycombe was raided on 16 August 1996 on a warrant sworn out two days earlier. It authorised constables to enter and search the public house, the living area above it and its outbuildings "for the following articles or persons: DRUGS AND RELATED PARAPHERNALIA".

[3]Mr Hepburn was eating his supper in the function room when, towards 8 p.m., officers entered the pub. PC Hargreaves shouted "Police – warrant - get down", but Mr Hepburn made to leave. PC Hargreaves barred his way with a long baton held out at waist level. Mr Hepburn took hold of the baton and swung PC Hargreaves round with it. PC Maisey came into the room and, seeing the struggle, first told Mr Hepburn to stop and then, when he did not, struck him twice with his baton, once on the arm and once (accidentally) on the head. The two officers forced Mr Hepburn to the floor, handcuffed him, made a superficial search of his clothing and then sat him on a bench in the yard before taking him back indoors to be strip-searched. He had not been arrested.

[4]These facts, established principally by the jury's special verdicts, stand in contrast to Mr Hepburn's case that the police had run in and attacked him with batons, feet and fists.

[5]About 40 minutes later a small packet of herbal cannabis was found by APS Mooney within 6 to 8 feet of where the struggle had ended. Suspecting that it had come from Mr Hepburn, PC Maisey arrested him for possession of it. He was held at the police station for 5½ hours, but on the basis of what he was told by the arresting officer the custody officer declined to lay a charge. Mr Hepburn was released, however, on station bail and had to return two days later, when he was kept for a further two hours and interviewed before being released, again without charge. The hearing

[6]Mr Hepburn sued the police for general, aggravated and exemplary damages for assault and false imprisonment. At the end of the hearing the judge put to the jury a series of questions. The answers to the first two and the seventh are incorporated in the facts set out above. The eighth, relating to a polaroid photograph and a document, no longer matters. With their answers, the remaining questions were: 3. Has the defendant proved that when PC Maisey struck the claimant with his baton, PC Maisey suspected that the claimant was carrying drugs? YES. 4. Has the defendant proved that it was necessary or reasonable for PC Maisey to strike the claimant with his baton? YES. 5. Has the claimant proved that any police officers struck him or stood on his head when he was on the ground in the function room? NO 6. Has the claimant proved that APS Mooney put the bag of cannabis on the floor of the function room? NO. The issues (1) The warrant.

The judge gave the Chief Constable permission to appeal on the following ground:

"During the trial I ruled that a search warrant issued to the TVP did not include the power to stop and search persons who happened to be on the premises (a public house) so as to prevent such persons from leaving the premises. I am told that this is a warrant issued in common form in drug search cases and the defendants wish to have established their powers under such a warrant."

[8]Section 23(3) of the Misuse of Drugs Act 1971 provides in its material parts:

"If a justice of the peace … is satisfied by information on oath that there is reasonable ground for suspecting … that any controlled drugs are … in the possession of a person on any premises … he may grant a warrant authorising any constable … to enter, if need be by force, the premises named in the warrant, and to search the premises and any persons found therein …"

[9]The judge's ruling (with a little tidying up of the transcriber's punctuation and spelling) was in these terms:

"In my view, the section with which we are dealing also contemplates a warrant for one or two purposes: either the searching of premises, or the searching of premises and any persons found on the premises; and there is nothing as far as I can see which persuades me that a warrant could not simply be issued to enter and search the premises for the items that are being sought. It does not necessarily have to authorise, as the Act does, the searching of any persons found thereon. It seems to me … that a magistrate might well say to himself, "

These are premises which I am going to authorise to be searched for the purpose of seeing if there are any drugs there and drug paraphernalia to assist the police with their inquiries, but it is quite possible that there are people on these premises entirely unconnected with drug dealing ..." "So, in my judgment, there is good reason for the Act to give the discretion as to whether to include in it any person found on the premises as well as the premises themselves" "In my view, and I do not think anyone would disagree with this, … to stop and search someone against their will, with no suspicion of any criminal activity on their part, is a serious interference with their freedom of movement, with their liberty and it can only be justified if it is lawfully authorised. I am satisfied … that this warrant did not authorise the searching and stopping of the complainant in this case, and that is my ruling in relation to that matter."

[10]As has been seen (paragraph 2 above), the warrant which was sought and obtained in this case was completed so as to invoke only the statutory power to search premises, not of the power to search persons found there. On its face the warrant gave no authority to search anyone, and anybody to whom it was shown would have been fully entitled to resist being searched on the basis of it. The judge's ruling was plainly right.

[11]No point of principle arises from this. The simple answer for the Thames Valley police is to obtain a warrant, where reliable information justifies it, which includes persons as well as premises. In some cases, as Judge Caitlin correctly observed, the available information may justify a search of premises but not of persons: but in those cases anyone on the premises can still be arrested if a reasonable suspicion arises in the course of the raid that they are unlawfully in possession of drugs. It is regrettable that the judge let himself be persuaded that because it was the custom of the Thames Valley police always to prepare warrants in this truncated form, he should allow the Chief Constable to seek by way of appeal to give it an effect which it manifestly lacks rather than to reiterate that it should have been correctly drawn up in the first place.

[12]Counsel for the Chief Constable now accepts that an implicit power to search persons when executing a warrant to search premises is a non-starter. He seeks instead to argue – as he did in the alternative before the judge – that there is an implicit power in executing such a warrant to stop persons rather than to search them. The police, it is submitted, were "entitled to take reasonable steps to take control of the premises, including restricting the movement about those premises of any person for so long as was reasonably necessary". In the absence of any statutory authority for this proposition, counsel justifies it by "a corresponding need on the part of society for the efficient and just maintenance of law and order".

[13]On this alternative submission

the judge ruled:

"… in my judgment, if the defence are right, then it really makes a nonsense of my earlier finding, because there is no point in them having power to detain a person so they can control the premises because that is not going to help them, because they have no power in my judgement to search that person, so I cannot see how it is going to help them or assist them in the carrying out of their responsibilities and duties under the warrant to be able to detain a person who is in this claimant's position or, indeed, any person who happens to be on the premises."

[14]It is a bedrock of our liberties that a citizen's freedom of person and of movement is inviolable except where the law unequivocally gives the state power to restrict it. If a person obstructs a police officer in the execution of his or her duty an offence is committed and a power of arrest arises. That, and not an implied power to detain or manhandle people who are doing nothing wrong, is how the law protects officers executing a search warrant from interference.

[15]Nor is there any foundation in law for the purpose which PC Hargreaves deposed that he had in stopping Mr Hepburn from leaving:

"To get him under control, make sure he wouldn't pose a threat; and it would have been my ultimate aim to make sure that he didn't have any drugs in his possession."

Nobody is required in this country to satisfy a police officer that he or she is not committing an offence. The power to detain and search arises only where conditions prescribed by law, typically a reasonably founded suspicion, can be shown to exist; and it is conceded here that PC Hargreaves at the initial stage entertained no such suspicion as would have allowed him to hold and search Mr Hepburn under s.23(2)(a) of the Misuse of Drugs Act 1971.

[16]The decision of the House of Lords in Murray v Ministry of Defence

[1988] 2 All ER 521

does not assist this aspect of the argument. It is one thing, as had happened there, to ask people to assemble in one room for safety during an army raid in search of suspects, or even to direct them to do so. It is another to claim a lawful power physically to detain someone in the course of a search of premises when no authority is given by statute or by warrant to do so. The English police's powers of arrest have the statutory back-up of s.3 of the Criminal Law Act 1967, which allows them to use such force as is reasonable; but this part of the present appeal does not concern an arrest.

[17]In the absence at the initial stage of any grounds for detention or arrest, it follows that PC Hargreaves had no right to stop Mr Hepburn leaving when the raid started. His attempt to do so resulted in a fracas. Since, as the judge held, the struggle amounted at least momentarily to a false imprisonment, it does not matter greatly whether it also amounted in itself to an assault. But it clearly did. While it is not an assault simply to get in someone's way, it is a technical assault to obstruct them in circumstances which make it clear that if they go on they will be stopped forcibly. PC Hargreaves stance, holding out his baton to stop Mr Hepburn leaving, was a textbook example of the latter.

[18]The law in this regard is perhaps less well stated by Denman CJ in Innes v Wylie (1844) 1 Car. & K. 257 than by Salmond in the passage from the eighth edition of his work on Torts (p. 373) cited with approval by Ferguson J in Bruce v Dyer (1966) 58 DLR (2d) 211, 216:

"There need be no actual intention or power to use violence, for it is enough if the plaintiff on reasonable grounds believes that he is in danger of it."

[19]There is no basis in law for the submission made on behalf of the Chief Constable that the police, though lacking express power, have what Mr McCormick chooses to call a margin of appreciation which enables them, albeit briefly and reasonably, to stop people going their own way when premises are being raided. He was constrained to accept that if a police officer has such a margin of appreciation, so must the citizen; but he contended, undaunted, that where trouble arose from a conflict of perceptions as to where the margin lay, a court would have little trouble in deciding who was acting the more reasonably. One could not ask for a better recipe for legal uncertainty and unnecessary strife between police and citizens.

[20]It follows that, unless the force used in response by Mr Hepburn was excessive, it was he who was assaulted and falsely imprisoned as he tried to leave. The submission is made for the Chief Constable that Mr Hepburn's case was that he had been attacked with truncheons, feet and fists as the police officers rushed in; so that he cannot now cross-appeal on a different basis of fact. But the wrong done to Mr Hepburn at this point is established by the police officers' own account, accepted as it was by the jury. It can without injustice be formally adopted by amendment (as it should have been following the special verdicts, on which submissions were then based) and I would accordingly grant permission to amend. While in some cases, as Brooke LJ points out, such an amendment may come too late, here the competing accounts of fact and of law were all debated without objection at trial.

[21]The version of events established by the jury's verdicts discloses no excess of force on Mr Hepburn's part in trying to leave; rather the contrary. But the struggle which then occurred was brief and, on the jury's findings, involved no harm to Mr Hepburn until PC Maisey's intervention. (2) PC Maisey's intervention

[22]The jury found that PC Maisey's use of force when he came to PC Hargreaves' aid had been "necessary or reasonable". But the verdict begs the question, for it cannot be necessary or reasonable to join in an unlawful act. Section 3(1) of the Criminal Law Act 1967 replaces the common law rules with this provision: A person may use such force as is reasonable in the circumstances in the prevention of crime, or in effecting or assisting in the lawful arrest of offenders or suspected offenders or of persons unlawfully at large. PC Maisey was doing none of these things when he struck Mr Hepburn with his baton. He was helping a fellow officer who, though PC Maisey did not know it, was acting unlawfully. If Mr Hepburn had been using excessive force to get free of PC Hargreaves, PC Maisey's intervention would have been justified; but he was not.

[23]What then of the jury's finding that when he struck Mr Hepburn, PC Maisey believed that he was carrying drugs? PC Maisey's evidence, which the jury must have accepted, was that he had inferred from Mr Hepburn's violent behaviour that he was trying to escape and that he might well therefore have drugs on him. But the corollary of such a suspicion is a power of search under s.23(2)(a) of the 1971 Act, not a right to strike the suspect. Any legitimate use of force by PC Maisey had accordingly to be in aid of a lawful search of the person, a lawful arrest or lawful self-defence. PC Hargreaves was neither effecting any such search or arrest nor defending himself from any unlawful attack. To the extent that PC Maisey was himself trying to effect an arrest (and it is to be noted that when Mr Hepburn was subdued he was not arrested by either officer), or to carry out a search of Mr Hepburn's person under the statutory power rather than the warrant, he was doing so on the false premise that Mr Hepburn was unlawfully trying to escape.

[24]Whatever defence might have been afforded by these facts if PC Maisey had faced a criminal charge of assault, none is afforded by them in tort. In particular, honest belief in a non-existent state of affairs does not excuse a trespass to the person.

[25]That PC Maisey became involved in PC Hargreaves' assault on Mr Hepburn is no criticism of him: he had no way of knowing why the struggle was going on, and every reason to assume that his fellow officer was doing his duty and needed help.

[26]The legal consequences of this situation can be analysed in either of two ways. One is to ask whether the legal character of PC Hargreaves' contact with Mr Hepburn necessarily tainted that of PC Maisey's contact with him. The other – which is how Mr Macpherson preferred to put Mr Hepburn's case – is to ask whether PC Maisey's intervention was a natural and probable consequence of PC Hargreaves' act. In R v Fennell

[1971] 1 QB 428

the criminal division of this court held that a father's honest and reasonable belief that his son was being unlawfully detained by police officers did not afford him a defence to an assault charge. It was conceded in argument, though not decided by the court, that if the arrest of the son had been unlawful the father would have been entitled to use reasonable force to secure his release. If so, it must follow that a person intervening in support of a purported arrest which is unlawful does not have the protection of the law, but that the person seeking to regain his liberty does have it. The court went on to hold that if the father had honestly and reasonably apprehended imminent danger to his son, "it would be unjust if he were deprived of the right to use reasonable force by way of defence merely because he had made some genuine mistake of fact". The honest belief in such a case would be as to the imminence of injury, not the legality of the arrest; but there was no such situation here.

[27]The alternative approach yields a similar outcome: the natural and probable consequence of PC Hargreaves' attempt to stop Mr Hepburn leaving when he wanted to was that a fellow officer would come to his aid and compound the wrong. That is what happened.

[28]Applying these principles to the situation that confronted PC Maisey, they cannot afford the Chief Constable a defence. PC Maisey did not come upon a situation in which his colleague required rescue from violence on the part of Mr Hepburn which, whatever its cause, was excessive. He came upon a struggle in which PC Hargreaves was trying to detain Mr Hepburn, who was trying to get PC Hargreaves out of his way. He went to PC Hargreaves' aid, not to his rescue, and in doing so he lent himself, unknowingly, to an unlawful act.

[29]It follows that in law the Chief Constable is liable for the continuation and aggravation by PC Maisey of what had till then been little more than a technical assault by PC Hargreaves on Mr Hepburn. (3) The arrest

[30]Was the judge entitled to rule that PC Maisey's suspicion that Mr Hepburn was in possession of controlled drugs was not a reasonable suspicion? He put it in these terms:

"I have to be satisfied by the Defendant on the evidence that more probably than not there was a reasonable cause for the suspicion which P.C. Maisey said he had …, namely that Mr. Hepburn was shortly before or at around the time of his arrest in possession of prohibited drugs. This has to be looked at in an objective sense, as I understand it, but it seems reasonable to me to look at what the officer says was in his mind when he formed the decision to arrest. He told us about it and it has been referred to by counsel on behalf of the Defendant. He said, "

I formed the opinion that it had been discarded by Mr. Hepburn as it was close to the area where we were all on the floor." That is the first part. The jury's finding in relation to that is that they found that the bag of herbal matter was found by P.C. Maisey [sic] on the floor in the function room somewhere within a radius of 6 to 8 feet of where P.C. Maisey and Mr Hepburn had ended up on the floor inside the doors. I accept the submissions made on behalf of the Claimant that that is a very wide area when you take it in the context of the sort of size this room was. I say sort of size because there is no precise evidence about it, and that which was given was challenged. We are not talking about the Albert Hall; we are talking more like the local village hall – that sort of relatively small function room area. So in the context of 6 to 8 feet, that is a large part of the area under consideration. The officer said that that was one of the reasons why he decided to arrest – the finding was close to the area where they were all on the floor. It is close in the sense that it was not in the other bar, it was not in the yard. It was certainly in the same room, but it is within a significant area, 6 to 8 feet, of where they were all on the floor. He said that he knew of no other people who had been in that area since his arrival, and he could not imagine that is was on the floor before he arrived…. He was aware of strip-searches, but he ruled that out as contributing to the presence of the cannabis because the people coming in and going out were handcuffed and accompanied, and he said that it was not realistic that someone in those circumstances could have deposited the cannabis. Those are the reasons that he gave. What he did not speak about and certainly he did not say he took into account was the significant time-lapse between the action on the floor and the time of the discovery relating to the activities of other persons going in and out of the room, albeit he ruled those other persons out. But he made no mention of even having considered the time interval. In the circumstances which existed in this room involving struggle with prisoners, searching of prisoners and the recording of exhibits – people bringing, one assumes, drugs into the room and possibly cannabis – he appears not to have taken account of the fact that innocently a package of cannabis could have been dropped by an officer coming into the room to see the exhibits officer with a package of cannabis. It does not seem to have been considered. My view is that someone taking a reasonable objective view of all these circumstances all together would not have considered that they would have had reasonable cause to suspect that these drugs that were found related to Mr. Hepburn. In those circumstances I find that, looked at objectively and taking into account all those circumstances, … he did not have reasonable cause for the suspicion that he said he had."

[31]This was in essence a question of fact, albeit confided by law to the judge rather than the jury. It has to be borne in mind, too, that PC Maisey had formed his initial suspicion about Mr Hepburn on what is now known to be the false premise that he was trying to escape from lawful detention. If one first subtracts that and then adds the only new factor – the finding of a packet of cannabis in the vicinity of the struggle some 40 minutes later – one can both understand the jury's conclusion that PC Maisey suspected that the claimant was in possession of drugs and endorse the judge's ruling that it was nevertheless not a reasonable suspicion.

[32]It is not entirely easy to understand the criticism made by Mr McCormick of the judge for basing himself in part on PC Maisey's failure to take into account the fact that it was 40 minutes after Mr Hepburn had been in the room that the cannabis was found there. This was plainly something that affected the reasonableness of his suspicion. The submission that what matters to reasonableness is only what a police officer takes into account in forming his suspicion, not what he leaves out, however relevant it may be, has only to be stated to be rejected. The judge asked himself the questions proposed by Woolf LJ in Castorina v Chief Constable of Surrey

(1996) 160 LGR 241

and answered them unexceptionably.

[33]The arrest and consequent detention of Mr Hepburn, not being founded on a reasonable suspicion that he had been in possession of drugs, was therefore unlawful. Conclusions

[34]It follows that more should have been left to the jury for their assessment of damages than the momentary initial detention and the total of 7½ hours' subsequent loss of liberty. Damages should have been awarded for the entire episode starting with the barring of Mr Hepburn's exit, the use on him of PC Maisey's baton, his handcuffing, detention and strip-searching at the public house and his two periods of detention.

[35]In these circumstances it becomes unnecessary to determine the claimant's renewed application for permission to cross-appeal on damages. The damages must be reassessed as a whole, and the parties have agreed that in this event this court should reassess them.

[36]Without deciding whether in all cases of this kind an award of interest is appropriate (cf Holtham v Metropolitan Police Commissioner, The Times, 25 Nov. 1987; Saunders v Edwards

[1987] 1 WLR 1116

, 1129), we recognise that there is an element of personal injury (which ordinarily does carry interest) in the general damages which we are giving the claimant, but will not make a separate award of interest. Damages

[37]On examination at the accident and emergency department of the local hospital next morning, Mr Hepburn was found to have an abrasion and swelling on the side of his head where PC Maisey, aiming for his arm, had struck him, and bruising and tenderness on the right flank and the outer side of the right thigh, with minor cuts and tenderness on the left lower leg.

[38]This is not, and is not suggested to be, a case for exemplary damages. These were errors of law and of judgment on the part of police officers, not high-handed abuses of power. But the general damages to which Mr Hepburn is entitled are not simply damages for personal injury. Mr Hepburn was not only deprived of his liberty for a total of some 8½ hours; he was both physically injured (PC Maisey himself said of the blow which connected with Mr Hepburn's head: "It was hit as hard as I could", and PC Hargreaves described it as "a serious, full-force blow") and subjected to real indignity, being first forcibly restrained and forced to the floor, then handcuffed, then made to strip naked and be searched. These things may be routine aspects of a lawfully conducted raid, but to do them to a citizen without lawful authority is to invade both his personal integrity and his constitutional freedom from arbitrary detention, search and arrest. These are serious aggravating factors, and the damages should reflect them.

[39]It is not possible to be sure what sequelae there were. It is evident from the jury's decision to make an award of about half the figure indicated by the judge as the lower end of the appropriate bracket that they did not accept the account given by Mr Hepburn of all his consequent suffering. But it has to be remembered that they had had to put aside the most serious element of the claim, the use of PC Maisey's baton and the humiliation of being handcuffed and strip-searched by police officers in a not entirely private place. While it would not be right to award damages in respect of complaints of ongoing pain which may have been exaggerated, it is entirely credible that for a time Mr Hepburn was not only in pain but was humiliated and distressed by his experience, finding himself weeping in front of his children. For a man in early middle age who had been doing nothing wrong, it would be surprising if the effects of such a sudden, violent and traumatic experience did not take some time to pass.

[40]In these circumstances I would set the proper award of general damages at £4,000. To it I would add £100 special damages as an estimate (it cannot be more) of the damage done to Mr Hepburn's clothing. Conclusion

[41]I would dismiss the appeal of the Chief Constable, allow the cross-appeal of Mr Hepburn and enter judgment in his favour for £4,100 in substitution for the jury's award.

Lord Justice Tuckey :

[42]I agree.

Lord Justice Brooke :

[43]The claim in this action was based on a version of the facts which the jury rejected. Mr Hepburn asserted that while he was quietly eating his supper four or five police constables rushed into the dining area. Some or all of them then struck him violently with their truncheons, pushed him to the floor, and kicked and punched him on the floor. The assaults continued even after he had been handcuffed. This was the course of events which had led to him being made to sit on a bench in the yard. Not surprisingly, he asserted that the actions of the police constables were oppressive, arbitrary and unconstitutional. This remained his case, and his only case, until after the jury returned their verdicts.

[44]The defence was based on a version of the facts which, broadly speaking, the jury accepted. The defence also asserted, as a proposition of law, that PC Hargreaves was entitled to prevent Mr Hepburn leaving the premises in order to ensure that the search warrant was properly executed, and that when Mr Hepburn struggled with him, PCs Hargreaves and Maisey gave him lawful orders and used lawful force to restrain him. Although the jury accepted the defendant's version of the facts, the central proposition of law on which this part of the defence was based was wrong, as Sedley LJ has shown.

[45]When the defence was served in this form, Mr Hepburn's advisers did not amend their statement of case and assert, in the alternative, that even if the police's version of the events was correct, they were nevertheless acting unlawfully, and that Mr Hepburn was entitled to recover damages on this alternative basis. Two recent cases in which the courts have had to consider proposed amendments which introduce an alternative plea of this kind are Goode v Martin

[2001] EWCA Civ 1899

;

[2002] 1 All ER 620

and Clarke v Marlborough Fine Arts (London) Ltd

[2002] 1 WLR 1731

. Once such an alternative plea is included in the claimant's statement of case, the defendant has the opportunity not only of considering the grounds of defence, if any, to a claim which is based on his own version of events, but also of making an appropriate payment into court. If it is not included, the defendant is left in the unenviable position of having to guess that an amendment to this effect might be sought and granted at the trial, and of deciding whether to make a payment into court in advance of the trial the anticipation that this might happen.

[46]In the event, both sides maintained their entrenched positions, so far as their statements of case were concerned, and at the trial the police won on the facts and lost on the law. The trial then continued without any application being made to amend the particulars of claim in order that it might include the alternative case Mr Macpherson now seeks to advance on this appeal.

[47]Instinctively I would be very reluctant to grant such a late amendment, because it makes a nonsense of the CPR philosophy that cases should be prepared carefully and properly for trial. In the end, and with great hesitation, I am willing to agree the order proposed by Sedley LJ. I do so only because there has been no suggestion that the police would have conducted their defence any differently, or, so far as I am at present aware, would have made any particular payment into court if only the amendment had been sought at the proper time. In other words, subject to any argument about costs, the police cannot show that they have been prejudiced by the late amendment, which reflects the justice of the case on the facts found by the jury.

[48]In reaching this conclusion, I have had regard to the recent decision of this court in Kelly v Chief Constable of South Yorkshire Police

[2001] EWCA Civ 1632

. That case gave rise to similar problems except that on that occasion the requisite amendment had been sought and refused in the court below. May LJ, with whom Sedley and Rix LJJ agreed, decided to overrule the judge's refusal to allow the necessary amendment. The matter which gave him greatest pause was the submission on behalf of the defendant that if the case for which the amendment was sought had been brought at the outset, both the evidence and the way in which the case would have been prepared would have been different. On the particular facts of that case May LJ rejected that submission "not without hesitation".

[49]Difficulties may arise, when late amendments are sought, not only because the case might have been prepared for trial, and the trial conducted, differently, but also because they put out of kilter the whole purpose of the pre-trial process whereby a case, or alternative cases, are set out clearly in a way which will enable the other side to evaluate their strength at leisure and make an appropriate payment into court or Part 36 offer well in advance of the time when heavy costs may be incurred just before the trial starts.

[50]These two decisions of this court must not be read as giving any kind of encouragement for the type of very late amendments which have been sought and granted in each. The two appeals have been decided as they have because in the last resort the balance of justice came down on each occasion in favour of allowing the claimant to advance an alternative case based on the defendant's own evidence. The balance will not always necessarily come down on this side.

[51]Subject to these observations I agree with the judgment of Sedley LJ and have nothing to add. This case might profitably be used in police training schools as an illustration of the care the police should take to seek search warrants in appropriate terms, so that when they execute them they do not act in a way that has not been sanctioned by the court which granted the warrant. This is what the rule of law is all about.

[52]The appeal of the Chief Constable will therefore be dismissed. Mr Hepburn's cross-appeal will be allowed, and judgment will be entered for £4,100 damages instead of the jury's award.

[53]Finally, we are very grateful to Mr Macpherson for appearing pro bono for Mr Hepburn on this appeal, after his client's public funding was withdrawn.