McLeod v Metropolitan Police Commissioner

Section 17(6) of the Police and Criminal Evidence Act 1984 preserves the common-law power of a constable to enter premises to deal with or prevent a breach of the peace. The power extends to a private house and is not confined to public meetings. Entry requires a genuine and reasonable apprehension of a breach in the near future, amounting to a real and imminent risk. Officers must act with great care and discretion, particularly where entry is against the occupier’s wishes. On the facts, the officers had a lawful excuse for entering and remaining at the house.

Mrs Sally McLeod appealed from Mr Justice Tuckey’s order of 11 November 1992 dismissing claims against the Commissioner for trespass to land, trespass to goods and breach of duty. The claims arose when police officers attended her home while her former husband and others collected property pursuant to county court orders. The officers entered and remained on the premises and later prevented the van being unloaded when Mrs McLeod returned. In related proceedings, the other entrants were found to have trespassed, but Tuckey J held that the police had a lawful power to prevent an apprehended breach of the peace. The central issue was whether that power extended to a private house and whether the circumstances justified its exercise.

1. Disposition. The appeal was dismissed unanimously. Lord Justice Neill delivered the judgment, with Lord Justices Hoffmann and Waite agreeing.
2. Statutory framework. Section 17 of the Police and Criminal Evidence Act 1984 sets out powers of warrantless entry and search. Section 17(5) abolishes common-law powers of entry, subject to section 17(6). Section 17(6) preserves the common-law power to deal with or prevent a breach of the peace. Parliament had therefore recognised entry to prevent a breach as a form of preventive justice.
3. Scope of the power. The power is not confined to premises where public meetings are held. Police may enter private premises where they genuinely and reasonably apprehend that a breach of the peace is likely in the near future. The principle in Thomas v Sawkins [1935] 2 KB 249 supported that conclusion. The court rejected criticism that the authority should be confined to public meetings. McGowan v Chief Constable of Kingston Upon Hull, reported in The Times, 21 October 1967, was also referred to as illustrating that an invitation was unnecessary where police genuinely suspected a danger of disorder.
4. Application. The officers had been sent to the house after information from a solicitor that trouble might occur. The history of the dispute provided reasonable grounds for apprehending a breach. Their entitlement to remain was not defeated because Mrs McLeod was initially absent, since they could not know when she would return. Their intervention when she did return was directed to avoiding a breach. They therefore had a lawful excuse for entering. They had not participated in removing or disturbing the goods, so the claim for trespass to goods also failed.
5. Caution and orders. Neill LJ added that officers must exercise great care and discretion, especially when entering private premises against the occupier’s wishes. The officer must be satisfied that there is a real and imminent risk, and a court may scrutinise both the belief and its grounds. The period in advance during which entry may be justified was left fact-dependent, having regard to the nature and scale of the apprehended breach. Leave to appeal to the House of Lords was refused by the Court of Appeal, without preventing an application to that House. Costs were not to be enforced until Mrs McLeod had had an opportunity to launch and have her petition heard.

1. Court of Appeal (Civil Division). On 3 February 1994, the appeal was dismissed: [1994] EWCA Civ 2.
2. High Court, Queen’s Bench Division. Mr Justice Tuckey dismissed the claims on 11 November 1992, holding that the police had a lawful power to enter and remain on the premises to prevent an apprehended breach of the peace.