Fisher & Anoe v The Cumbria Constabulary

A reliable report from a credible informant can provide reasonable and probable cause for a search warrant. A lack of supporting observation does not necessarily undermine that conclusion where the officer honestly believed drugs were present. For trespass caused by failure to leave a warrant copy under section 16(7) of the Police and Criminal Evidence Act 1984, damages must be fair compensation. Inadvertence and reasonable care may mitigate, while aggravating circumstances may justify an increase. The total award must remain compensatory. An appellate court may intervene in a jury award where no reasonable jury could regard it as necessary compensation. The broader effect of an inadvertent post-search omission on ab initio lawfulness and evidence was left open.

The plaintiffs, two brothers who operated a fish and chip shop, claimed damages after police officers searched their premises under a drug-search warrant. The warrant copy was not left at the premises, and a further delay occurred before a copy was supplied to their father.

Following a jury trial in the Carlisle County Court, the plaintiffs received £750 for the failure to leave the warrant copy and £15,000 for the delay. The Chief Constable appealed the damages assessment. The plaintiffs cross-appealed the finding that the officer who obtained the warrant had reasonable and probable cause. The central issues were whether the warrant was properly obtained and the appropriate compensation for the resulting trespass.

Lord Justice Roch gave the substantive judgment. Lord Woolf MR and Lord Justice Otton agreed.

1. Reasonable and probable cause. The plaintiffs’ cross-appeal was dismissed. The question whether the officer had reasonable and probable cause to obtain the warrant was for the judge, who had to rely on the jury’s factual answers. Under section 23(3) of the Misuse of Drugs Act 1971, the accepted reliable information from the informant provided a sufficient foundation. The jury’s finding that the officer lacked observations tending to support the information did not dilute that finding, since the jury also accepted the information as reliable and accepted that the officer honestly believed drugs were present.
2. Procedural omission. For the purposes of the appeal, the failure to leave a copy of the warrant under section 16(7) of the Police and Criminal Evidence Act 1984 was accepted as making the entry and search unlawful. It constituted a single act of trespass. The court distinguished R v Chief Constable of Lancashire ex parte Parker and another [1993] 2 All ER 56, where the defect preceded the search and no valid copies of the warrant had existed. The broader legal effect of an inadvertent failure after a lawful search, including whether it invalidated the search ab initio or affected admissibility of evidence, was expressly reserved.
3. Damages. A trespass claimant may recover nominal damages, compensation for actual loss, or a reasonable sum for use of land. Exemplary damages require oppressive, arbitrary, unconstitutional or cynically disregarding conduct. Aggravating circumstances may increase general damages where exemplary damages are unavailable. Here, the officer’s forgetfulness, the reasonable care used in the search and the offer to repair the door were mitigating features. The delay in producing the warrant copy was aggravating, but did not justify a separate award.
4. Appellate review and final award. Following Thompson v Commissioner of Police of the Metropolis [1997] 2 All ER 762, the court could intervene where no reasonable jury could regard the award as necessary compensation. The total award of £15,750 was excessive. The £750 award for the search was retained and £500 was added for the aggravating delay, producing a total of £1,250. The appeal was allowed. Counsel were directed to supply a minute of order as to costs, with legal aid taxation of the respondents’ costs.

• Court of Appeal (Civil Division), [1997] EWCA Civ 2232, 29 July 1997: allowed the Chief Constable’s appeal, dismissed the plaintiffs’ cross-appeal and substituted total damages of £1,250.
• Carlisle County Court, HHJ Bell, 2 April 1996: following a jury trial, awarded the plaintiffs £750 for failure to leave a warrant copy and £15,000 for delay in supplying a copy to their father.