Haly, R (on the application of) v West Midlands Police [2016] EWHC 2932 (Admin)

Case No CO/1047/2016[2016] EWHC 2932 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT
Venue Birmingham Civil and Family Justice Hearing Centre
Priory Courts
33 Bull Street
Venue BirminghamDate Friday, 1st July 2016
West Midlands
B4 6DS
B e f o r e:
MR JUSTICE PHILLIPS
Between
THE QUEEN ON THE APPLICATION OF HALYClaimantv
Between
CHIEF CONSTABLE OF WEST MIDLANDS POLICEDefendant
Digital Audio Transcript ofWordWave International Limited Trading as DTI165 Fleet Street London EC4A 2DYTel No: 020 7404 1400 Fax No: 020 7831 8838(Official Shorthand Writers to the Court)
The Claimant appeared in Person assisted by Mr Ward (McKenzie Friend) for in personMr Holdcroft appeared for Defendant
J U D G M E N T
[1]MR JUSTICE PHILLIPS: On 19th February 2016 the defendant, the Chief Constable of West Midlands Police, executed search warrants at the first floor flat at 16 Wolverhampton Road, Northampton WD11 1DJ, a property occupied by the claimant as a tenant.[2]The claimant was not present so the defendant’s officers forced entry, damaging the front door. The officers found four cannabis plants, large quantities of cannabis buds, cash and various items described as "drug dealing paraphernalia". These items were endorsed on the court copy of the warrant.[3]A copy of the warrant was left at the premises not so endorsed. The defendant failed to leave a notice of rights in breach of paragraphs 6.7 and 6.8 of Code B of the Code of Practice to the Police and Criminal Evidence Act 1984.[4]The claimant applies for judicial review contending that the failure to endorse the copy warrant renders the search, entry and seizure unlawful and claims a declaration to that effect and damages of £200 in respect of the damage to the front door.[5]Coulson J granted permission to proceed. The matter was listed for substantive hearing before him on 29th April 2016 but was adjourned due to failures of the defendant. The matter was relisted before me today.[6]The claimant appears in person today with the assistance of Mr Ward, his McKenzie Friend. He sought to raise a large number of new grounds. I have already given judgment setting out my reasons for refusing permission to add those grounds today and therefore I turn to consider solely the original grounds.[7]The claimant refers to sections 15 and 16 of the Police and Criminal Evidence Act 1984, which provide as follows: "15 Search warrants—safeguards (1)This section and section 16 below have effect in relation to the issue to constables under any enactment, including an enactment contained in an Act passed after this Act, of warrants to enter and search premises; and an entry on or search of premises under a warrant is unlawful unless it complies with this section and section 16 below. 16 Execution of warrants. (1)A warrant to enter and search premises may be executed by any constable. (2)Such a warrant may authorise persons to accompany any constable who is executing it." [INSERT REMAINDER OF SECTION 16][8]The claimant's assertion is that the defendant was in breach of section 16(9) because the copy of the warrant left at the premises was not endorsed with the matters required by that sub-section and contends that, therefore, by virtue of section 15(1), the entry and search is unlawful because the defendant had not complied with section 16.[9]The first question which therefore arises is whether the requirement to endorse a warrant under section 16(9) applies not only to the court copy of the warrant but also to copies which are left at the searched premises. In my judgment, it plainly does not so apply for the following reasons.[10]First, there is clear distinction to be observed in the sections between "a warrant", referring to the court copy, and to "copies" of the warrant. Section 16(9) and 16(10) both refer to "a warrant" not copies. It is obvious, and I think Mr Ward and Mr Haly did not dispute, that the reference to a warrant in section 16(10) can only be a reference to the official court warrant. By definition, it is only that warrant which could be “returned” as the copy warrants will have been left with the occupiers. As section 16(9) uses the same terminology of "a warrant" as is used in section 16(10,) on ordinary principles of construction it is likely that the phrase has the same meaning, that is to say, it is referring to "the warrant" and not copies.[11]Second, it would not make sense to require the endorsement of copies. They are required to be given to occupiers if they are present when the police enter the premises. It would be unworkable if the lawfulness of the search was dependent upon the occupiers handing back the copy supplied to them for endorsement. It would leave it in the power of the occupiers to frustrate the legality of the search by their own refusal to co-operate with a process of endorsement. There is no need for such an endorsement of a copy even if the occupier is not present because the occupier has the right to inspect the original pursuant to section 16(12).[12]Third, where the warrant relates to several properties, a copy left at the first property searched could not be endorsed with items taken from the second property. Again, a requirement to endorse all items seized on a copy left at the first premises to be searched would not be workable.[13]I am therefore entirely satisfied that there is no requirement to endorse copies of the warrant pursuant to section 16(9) of the Police and Criminal Evidence Act.[14]Even if there was such a requirement, the further question would arise as to whether breach of that requirement rendered the entry and search unlawful. Section 15(1) is, on its face, quite clear that the lawfulness of the search is dependent on the requirement of section 16. In Bhatti v Croydon Magistrates' Court [2010] EWHC 522 (Admin) Elias LJ expressed the view that the wording of section 15(1):
"... is plain and non-compliance renders entry, search and seizure unlawful. Whether or not the property can be admitted in a criminal trial raises quite separate issues."
However, in a subsequent case in the Divisional Court, H v Commissioner of the Metropolis [2012] EWHC 1947 (Admin) at paragraph 247, the following was stated in relation to failure to comply with section 16(10):
"Whilst return of the executed warrant to the issuing court is important, especially because of the potential materiality of the warrant for litigation...it would be surprising if a search that met all the statutory conditions applicable at the time it was carried out were to be invalidated retrospectively by a later failure to return the executed warrant to the court. On the face of it, s.15(1) requires the entry and search to comply with s.15 and s.16 in order to be lawful, and does not apply to events that occur after the entry and search have been completed. But even if that is an unduly restrictive reading of the provision, a breach of s.16 will not lead necessarily to the grant of relief ..."
[15]Applying that approach, the question is whether section 16(9) relates to matters subsequent to the search or during the search.[16]Mr Ward argued with skill and force that the reference in section 16(9) to executing the warrant must indicate that it takes place during the search. Whilst I see the force of that argument, the words which follow indicate that what must be recorded is what was found during the search and therefore, logically, must be endorsed after the search has been concluded. Indeed, if the defendant was searching numerous properties the endorsement would have to be done at the end of all searches and that could not be said to be outside s15(1). Further, it would be bizarre if the fact that a warrant was endorsed with items after the search of the subsequent property, which could not be endorsed on a copy left at the first premises searched, entailed that the first search was retrospectively rendered unlawful.[17]I am therefore satisfied that section 15(1) relates to the conduct of the entry and search and does not encompass the process of endorsement under 16(9). That process necessarily, in my judgment, relates to activities after the search is concluded. I therefore am satisfied not only that the defendant did not breach the section 16(9) but that, in any event, any such breach would not render the search unlawful.[18]The claim for damages does not therefore strictly arise but, in any event, the claim for trespass to property should have been brought by action in the County Court with evidence of loss how that arises. Even if it had been, there would have been doubt as to whether the claimant, as a tenant with rights to require the landlord to repair the structure of the property, has suffered any financial loss.[19]The claim is therefore dismissed.