| POLICE — Right of search — Premises — Police entering and searching claimant’s premises — Police wrongly believing premises “occupied or controlled” by person under arrest — Premises having no connection with suspect — Whether reasonable belief of police that premises occupied or controlled by suspect sufficient — Whether entry and search unlawful — Police and Criminal Evidence Act 1984, s 18 (as amended by Serious Organised Crime and Police Act 2005, s 111, Sch 7, Pt 3
Khan v Commissioner of Police of the Metropolis; [2008] WLR (D) 182
CA (Pill, May and Moses LJJ): 4 June 2008
S 18 of the Police and Criminal Evidence Act 1984 (as amended by s 111, Sch 7, Pt 3 of the Serious Organised Crime and Police Act 2005), which gave the police the power to enter and search a premises occupied or controlled by a person under arrest without a warrant, should be construed literally so that the power could only be used where the premises were, in fact, occupied or controlled by a person who was under arrest.
The Court of Appeal so held when dismissing the appeal of the Commissioner of Police of the Metropolis from Judge Faber who, in the Central London County Court on 21 November 2007, gave judgment for Riaz Khan on the ground that the entry and search of his home by police officers acting for the commissioner was unlawful and awarded him £1250 damages for trespass to property.
On arrest, a suspect gave the police the claimant’s address, falsely, as his own address. Entry and search of that address under s 18 of the 1984 Act was authorised and took place on the ground that the police believed, wrongly, that the suspect occupied or controlled the premises. The trial judge, finding that the law was absolute and applying a literal interpretation, rejected the submission by the police that s 18 would be satisfied merely if they had a reasonable belief that the suspect occupied or controlled the premises; she concluded that since it could not be proved that the suspect either occupied or controlled the claimant’s premises, the entry and search had been unlawful.
PILL LJ said that there was no justification in reading s 18 other than in accordance with its plain words. The concept of “reasonable belief” had been applied in different contexts within the 1984 Act, in particular s 8 (power to enter and search under a warrant) and s 32 (power to enter and search on arrest), and its omission in s 18 was not accidental. Moreover, Parliament had reviewed the operation of police powers to enter and search when amending the 1984 Act by the 2005 Act and had decided not to qualify the concept of occupation and control. There was nothing absurd in the trial judge’s construction of the section since the power provided by it was still exercisable where the occupation or control by the suspect was known. In other cases the police could apply for a warrant under s 8. Moreover, the judge’s interpretation of the section was compatible with the right to respect for private and family life protected by art 8 of the Convention for the Protection of Human Rights and Fundamental Freedoms and the right to justify interference with that right did not permit words to be inserted into s 18.
MAY and MOSES LJJ delivered concurring judgments. |
