Krohn v Director Of Public Prosecutions [1997] EWHC 286 (Admin)

EWHC-Admin
Krohn v Director Of Public Prosecutions
[1997] EWHC 286 (Admin) · 1997-03-18

LORD JUSTICE BROOKE:

This

[1]is an appeal by the defendant Anthony Krohn by way of case stated from a decision of the Newcastle upon Tyne Crown Court on 28th February 1996 upholding his conviction at the Newcastle upon Tyne Magistrates' Court on 30th December 1995 on a charge of assaulting a police officer in the execution of his duty. The central question which arises for decision on this appeal is whether the failure by a senior police officer to make a record in writing of the grounds for searching the defendant's flat and the nature of the evidence that was sought rendered unlawful the subsequent entry by police officers into his flat.[2]The case stated shows that the Crown Court found facts proved along the following lines.[3]At the material time the defendant was 42. He lived in a flat at 57 Moor Court, Gosforth. He had a 20-year old son called Andrew, who was living in April 1995 with another young man or men in a flat at 20 Moor Court. Prior to 28th April 1995 he had not been to his father's flat for about 2 months, and he did not get on particularly well with his father, although he used his father's flat from time to time.[4]On the morning of 28th April 1995 two plain- clothed police officers, PC Hall and PC Maloney, saw Andrew Krohn and another young man working on a motor car in front of the flats. The officers noticed a CS gas canister and what looked like a home-made cosh in the well of the motor car, and asked whose car it was. Andrew Krohn appeared to be in possession of the car, and he said that it belonged to a lady, although he could not give her name. A check with the Police National Computer showed that the car was registered in the name of a man. The officers opened the car boot and found it to contain about 40 designer T-shirts of an estimated value of £400. Andrew Krohn said he did not know anything about them. He was arrested on suspicion of handling stolen property. The justices were satisfied that there were ample grounds for the officers' suspicion.[5]Uniformed officers were then called to the scene. PC Knight arrived. He knew Andrew. He had dealt with him in the past on a motoring matter and was aware he had lived at flat 57. When Andrew was asked for his address, he mentioned both flat no. 20 and no. 57.[6]The police officers decided that the addresses should be searched. They decided to go to no. 57 first. They took Andrew with them. The janitor in the main lobby refused them access unless the defendant was present, and a Miss Hirst, who lived at no. 57, also refused them access without the permission of the defendant. She telephoned him, and he arrived soon afterwards and refused to allow the officers to enter the flat.[7]They then decided to obtain authority to enter, and PC Hall went back to Gosforth Police Station to acquire the necessary authority under Section 18(1) of the Police and Criminal Evidence Act 1984. She told Acting Inspector Curry what had happened, and he gave her written authorisation under the section. He used the Northumberland Police pro forma "Information to the Occupier". This states the address of the premises to be searched, and the time and date of the authorisation. The Acting Inspector then signed the form. He did not make any further record in writing of the grounds of the search and the nature of the evidence sought.[8]PC Hall returned to no. 57, and Sgt Clyde showed the written authorisation to the defendant outside the flat. He refused to read it. He maintained that his son did not live at the premises and that the officers were not entitled to enter.[9]At this point the defendant became angry and retreated through the outer and inner doors into his flat. Sgt Clyde followed him, and the defendant then kicked out at the sergeant and hit his thigh with his foot, causing a slight injury. The defendant was arrested and taken to the police station where he was charged with assaulting a police constable in the execution of his duty.[10]Nothing of any evidential value was found at no. 57 in relation to the offence on which Andrew Krohn was suspected of handling stolen property. The car's owner was eventually contacted and Andrew Krohn was released without charge.[11]The Recorder and Justices sitting at the Crown Court were satisfied that Sgt Clyde was acting in the execution of his duties. They were not satisfied that there was any breach of Section 30 of PACE. They found that the failure to make a record under Section 18(7) of the Act had not prejudiced the defendant or put him under any disadvantage. They duly convicted him of assaulting a police officer in the execution of his duty.[12]The question for the opinion of this court was whether a breach of Section 18(7) of PACE by reason of the officer authorising the search failing to make a record in writing of the grounds for the search and the nature of the evidence that was sought rendered the entry of police officers to no. 57 Moor Court, Gosforth, Newcastle invalid.[13]Powers of entry, search and seizure are conferred on police officers by Part II of PACE. In the ordinary way a constable requires a warrant granted by a Justice of the Peace under Section 8 of the Act to search premises, and to obtain such a warrant he or she needs to be able to persuade the Justice of the matter set out in Section 8(1). These powers may only be exercised if the magistrate is satisfied that there are reasonable grounds for believing that a serious arrestable offence has been committed. Sections 17 and 18 of the Act give a constable power to enter and search without a search warrant. Section 17 is irrelevant in this case and Section 18 confers a limited power to enter and search in cases where a person is already under an arrest for an arrestable offence. The power is limited if the premises are occupied or controlled by that person, and the constable must have reasonable grounds for suspecting the matters set out in Section 18(1) of PACE.[14]When this hearing started the court enquired how it was that it was being contended that Andrew Krohn controlled or occupied the premises which were occupied and owned by his father, particularly as he had not visited them for two months. This however was not a point of law taken in the Crown Court. It was not a point to which the Recorder and Justices were asked to address their minds, and Mr Lewis for the Director submitted that if the point had been taken, then it may well have been that evidence would have been adduced which would have satisfied the Recorder and Justices that Andrew did indeed control or occupy no. 57 within the meaning of the Act. It appears to us that in those circumstances it would be wrong for us to re-open that issue or indeed to open it for the first time as our opinion is sought on a quite different matter, but I mention this in order to lay stress on the requirement of section 18(1) that the premises in question must as a matter of fact or perhaps mixed fact and law be occupied or controlled by the person under arrest if a search of them is to be lawful. A senior officer cannot make lawful that which is unlawful simply by granting his authority.[15]Section 18 of PACE, as I have said, sets out the powers of search conferred on a constable where a person is under arrest for an arrestable offence. Section 18(1) confers a power to enter and search any premises occupied or controlled by such person if the constable has reasonable ground for suspecting that there is on the premises evidence that relates to that offence, or to some other arrestable offence, which is connected with or similar to that offence. Section 18(4) however makes it clear that save in circumstances which did not arise in the present case the powers conferred by the section may not be exercised unless an officer of the rank of Inspector or above has authorised them in writing. Section 18(7) provides that:
"An officer who (a) authorises a search... shall make a record in writing (1) of the grounds for the search; and (2) of the nature of the evidence that was sought."
[16]In this case Acting Inspector Curry failed to comply with this requirement of an Act of Parliament. What difference does this make, so far as the legality of the search is concerned?[17]The Crown Court held that it did not make any difference because the failure to make a record did not prejudice the defendant or put him under a disadvantage, and this approach is supported by Mr Lewis. He points out that nothing in the Act specifies the nature of the duty imposed by section 18(7), and that there is no indication of the consequences of any breach of that subsection. He has very helpfully taken us to the relevant Code of Practice, and clause B3.3 of Code B sets out the requirements set out in that Code for a search after arrest of premises other than those in which the arrest takes place. In particular the Code requires that the authority shall, unless it is wholly impracticable, be given on what is called the Notice of Powers and Rights (see paragraph 5.7(1) of that Code), and then the requirements of section 18(8) of the Act are set out in Clause B3.3 in those words:
" The record of the search required by section 18(7) of the Act shall be made in the custody record, where there is one."
[18]Mr Lewis accepts that the normal rule of construction which applies to procedural requirements which impose duties is that such requirements are, prima facie, mandatory. In London and Clydesdale Estates Ltd v. Aberdeen District Council [1980] 1 WLR 182 Lord Hailsham of St Marylebone, Lord Chancellor, said at p. 189:
"When Parliament lays down a statutory requirement for the exercise of a legal authority it expects its authority to be obeyed down to the minutest detail."
[19]However, there is the well-known older line of authority which is evidenced by the dictum of Lord Penzance in Howard v. Boddington (1877) 2PD 203 at p. 211:
"You must look at the subject matter, consider the importance of the provision that has been disregarded, and the relation of that provision to the general object intended to be secured by the Act, and upon a review of the case in that aspect decide whether the enactment is what is called imperative or only directory."
[20]Mr Lewis has also helpfully shown us a passage in the latest edition of Sir William Wade's book on Administrative Law, 7th Edition, 1994, at pages 253 to 255, where this passage occurs:
"Acts of Parliament conferring power on public authorities very commonly impose conditions about procedure, for example by requiring that a notice shall be served or that action shall be taken within a specified time or that the decision shall state reasons. If the authority fails to observe such a condition, is its action ultra vires? The answer depends upon whether the condition is held to be mandatory or directory. Non-observance of a mandatory condition is fatal to the validity of the action. But if the condition is held to be merely directory, its non-observance will not matter for this purpose. In other words, it is not every omission or defect which entails the drastic penalty of invalidity. The distinction is not quite so clear-cut as this suggests, since the same condition may be both mandatory and directory: mandatory as to substantial compliance, but directory as to precise compliance. Where, for example, a local authority were empowered to assess coast protection charges on landowners within six months but did so after twenty-three months, the delay was so excessive that there was total non-compliance with the condition, and the assessments were void; but had the excess been a few days only, they would probably have been valid. The court may readily find reasons for overlooking trivial or unimportant irregularities. Sometimes the legislation makes it plain what the effect of non-observance is to be. But more often it does not, and then the court must determine the question. This the court does by weighing the inconvenience of holding the condition ineffective against the inconvenience of insisting upon it rigidly. It is a question of construction, to be settled by looking at the whole scheme and purpose of the Act and by weighing the importance of the condition, the prejudice to private rights, and the claims of the public interest."
[21]Mr Lewis has invited us to look at this statutory scheme with those principles in mind, and he submits that the language of section 18(4) makes it clear that the requirement for written authority is mandatory. The subsection says the powers conferred by this section may not be exercised unless an officer of the rank of Inspector or above has authorised them in writing, and he showed us how in the relevant Code of Practice the fact of the officer's authorisation, which has to be set out on the Notice of Powers and Rights, has to be given to the person whose premises is being searched unless this is wholly impracticable.[22]Mr Lewis submits that Parliament's approach by putting subsection 18(7) in a different part of the section from subsection 18(4) makes it clear that it is the requirements of subsection 18(4) which must be observed. The Englishman is not obliged to let an officer in to search his castle without warrant unless the officer effecting the search can show him a signed authority by an Inspector or above authorising the search, and Mr Lewis submits that the requirement of subsection (7) could have been made mandatory if it had been tacked on at the end of subsection (4). Then everybody would have known where they stood.[23]As it is, it is a requirement that a record is made so that if there is any query about a reason for the search, a reason why the authority was given, or the nature of the evidence that was sought, then there will be a ready record available and if the officer who authorised the search has not made a record, he is very much less likely to be believed if there is an issue about the validity of the authority given. Subsection (8) shows that if the person who is in occupation or control of the premises at the time is in police detention at the time that the record is to be made, as may very often happen, the officer shall make a record as part of his custody record, but in my judgment that provision casts no very clear light as to whether the requirement of subsection (7) in a case like the present can be regarded as mandatory so that the search would be unlawful if the record was not made.[24]Of course, if the constable has conducted a search without first getting authority under the powers granted to him under section 18(5), and he then informs an officer of the rank of Inspector or above as he is bound to do under subsection (6) and the officer then fails to make a record in writing of the grounds concerned with the nature of the evidence sought in accordance with subsection (7), it could not possibly be said that the failure to make that record rendered the search invalid from the beginning.[25]In my judgement this is very much a matter of impression and I would not wish anything we said in this case to be regarded as binding authority that in all circumstances the requirements of the section are directory only. In this case, however, I am satisfied for the reasons given by the Recorder and Justices that the wording of the section should be regarded as directory and it should not, as a result of the failure of Acting Inspector Curry to make a record in writing of these matters set out in subsection (7), invalidate the search. So far as Mr Krohn was concerned he was shown the written authority by the officer. The written authority had unquestionably been given. The document which he chose not to read set out very clearly what his rights were in relation to the matter, and in my judgment this court would be doing the investigation of crime no service if it were to hold that the failure of the acting inspector back at the police station to make a record of the matters set out in subsection (7) rendered the actions of the officers at the scene unlawful. For these reasons in my judgment the answer to the question asked by the Justices is "No" and I would dismiss the appeal.[26]MR JUSTICE BLOFELD: I agree. I simply add that the powers that relate to the entry on to private property by police officers or others similar, whether deriving from common law or by statute, have to be exercised with the greatest care where the provisions are clear, as they are in section 18 of the Police and Criminal Evidence Act 1984. It is important that they are fully complied with. As my Lord has said this present case largely turns on its own facts. It should not be taken as a precedent that can be used in other cases if there should again be a breach of section 18(7).[27]MR CARTMELL: I apply for legal aid taxation.

Cited in 1 later judgment