Keegan & Ors v Chief Constable of Merseyside

This appeal concerned claims for damages arising from an early-morning forcible entry carried out pursuant to a search warrant. The court considered the tort of malicious procurement of a search warrant, the lawfulness of forcible entry and the relevance of section 17 of the Police and Criminal Evidence Act 1984.

The Court of Appeal restated the four ingredients of malicious procurement of a search warrant derived from Gibbs v Rea: (1) a successful application for a warrant, (2) lack of reasonable and probable cause for the application, (3) malice, and (4) resultant damage. The appellate court concluded that although inadequate enquiries meant there was no reasonable and probable cause to apply for the warrant in respect of 19 New Henderson Street, the claim failed because the appellants could not prove the necessary malice or improper motive. The warrant on its face was for recovery of stolen cash and that remained a proper purpose.

The court also held that entry pursuant to the facially valid warrant defeated the trespass claim. The judge's findings that covert surveillance was properly rejected, that routine checks had been made and that the arrest/search team genuinely believed the suspect might be at the address supported the conclusion that officers executing the warrant were protected. The appeal was therefore dismissed.

Background and facts:

• On 29 January, 30 April and 13 August 1999 there were serious armed robberies being investigated as "Operation Trotter." Investigating officers suspected that a youth, Dean Metcalfe (also known as Dean De La Cruz), was involved and had been linked to a scarf recovered after one offence.
• Metcalfe on occasions had given 19 New Henderson Street as an address; that property had been the former home of his mother. By April 1999 the Keegan family had lawfully taken the tenancy and occupied 19 New Henderson Street, but the police officers involved appear not to have appreciated that fact.
• On 18 October 1999 an application under section 26 of the Theft Act 1968 for warrants to search 19 New Henderson Street and another address was made; warrants were granted and, on 21 October 1999, police executed the warrant at 19 New Henderson Street by forcible entry. The Keegan family were frightened but only minor damage occurred and no cash was searched for at that time.

Procedural posture and relief sought:

• The Keegans sued for trespass, false imprisonment and malicious procurement of the search warrant and sought damages. At first instance Judge Trigger in Birkenhead County Court found for the defendant (judgment for the Chief Constable). Permission to appeal to the Court of Appeal was granted by Buxton LJ.

Issues framed by the court:

1. Whether the warrant had been maliciously procured (whether there was reasonable and probable cause and whether there was malice/improper motive).
2. Whether the forcible entry amounted to trespass or was justified by the warrant or, alternatively, by section 17 of the Police and Criminal Evidence Act 1984.
3. False imprisonment (no appeal from County Court decision on that issue).

Court's reasoning and disposition:

• The Court of Appeal reviewed the judge's findings of fact: surveillance had been rejected for good reasons; routine checks with utilities and the housing department were said by the judge to have been made but the underlying notes were not produced; the arrest/search team had been briefed and believed Metcalfe might be at one of two addresses.
• Kennedy LJ concluded that, had proper enquiries been made and reported, there would have been no reasonable and probable cause in mid-October 1999 to seek a warrant for 19 New Henderson Street. That second ingredient of the Gibbs v Rea test was therefore made out. However, Kennedy LJ held that the claim still failed because the appellants did not prove malice (an improper motive) on the part of the officers who sought the warrant; mere incompetence or negligence was not sufficient to establish the tort. The warrant had been sought for the legitimate purpose of recovering stolen cash and arresting suspects.
• The court further concluded that the execution of a facially valid warrant defeated the trespass claim. Even absent the warrant, the factual briefings and perceived risk (suspect with access to firearms) meant that the officers executing the entry fell within the protection afforded by the law (including relevant provisions of PACE).
• Ward LJ and the Master of the Rolls agreed. Ward LJ would have found lack of reasonable and probable cause but concluded malice could not be established on the facts; he therefore agreed the appeal should be dismissed. The court dismissed the appeal.

Contextual note:

The court commented that, had the events occurred after the Human Rights Act 1998 took effect, Article 8 proportionality considerations might have had greater relevance, but the court proceeded to apply the law as it stood in October 1999.

Appeal dismissed. Although the court concluded that, in hindsight, proper enquiries would have shown there was no reasonable and probable cause to apply for the warrant in respect of 19 New Henderson Street, the appellants failed to prove the necessary element of malice or improper motive required for the tort of malicious procurement. The warrant on its face was for the proper purpose of recovering stolen cash and its execution defeated the trespass claim.

Appeal from a judgment of HHJ Trigger, Birkenhead County Court (judgment for the defendant dated 31 October 2002). Permission to appeal was granted by Lord Justice Buxton. This Court (Court of Appeal) delivered judgment on 3 July 2003, [2003] EWCA Civ 936, dismissing the appeal.