Keegan & Ors v Chief Constable of Merseyside

The tort of malicious procurement of a search warrant requires a successful application, absence of reasonable and probable cause, malice, and resulting damage. Lack of reasonable cause does not itself establish malice. Malice requires an improper motive; incompetence, negligence or inadequate investigation alone is insufficient. A warrant is not a mere pretence where searching for stolen property is a genuine purpose, even if officers also intend to arrest a suspect. Entry pursuant to a facially lawful warrant is therefore not trespass. On the facts, the police lacked reasonable and probable cause but acted for a proper purpose without improper motive, so the tort failed.

Three armed robberies were investigated as Operation Trotter. Police obtained warrants to search two addresses linked to Dean Metcalfe, whom they suspected of involvement. One address was occupied by the claimant family, who were mistakenly confronted during an early-morning forced entry.

The County Court at Birkenhead, in a judgment dated 31 October 2002, gave judgment for the Chief Constable. It rejected claims for malicious procurement of a search warrant, trespass and false imprisonment. The false imprisonment issue was not appealed. The appeal concerned whether the warrant had been maliciously procured and whether the entry was unlawful or constituted trespass.

1. Disposition. The appeal was dismissed unanimously. The false imprisonment claim was not before the court.
2. Malicious procurement. Following Gibbs v Rea [1998] AC 786, the tort required proof of four ingredients: a successful application for the warrant; absence of reasonable and probable cause; malice; and resulting damage. The trial judge should have made a finding on reasonable and probable cause. On the evidence, the Court of Appeal held that the police lacked such cause. Proper enquiries would have shown that the claimant family had occupied the property since before the relevant robbery and that there was no sufficient link between the property and Metcalfe.
3. Malice. Malice required an improper motive. Absence of reasonable and probable cause could in some cases support an inference of malice, but it did not remove the need to establish that ingredient. The court declined to extend the approach in Three Rivers District Council v Bank of England (No. 3) [2000] 2 WLR 1220 concerning misfeasance in public office to this tort. Darker v Chief Constable of West Midlands Police [2001] AC 435 and Kuddus v Chief Constable of Leicestershire [2002] 2 AC 122 did not justify dissolving the boundaries between distinct torts. The warrant was sought to recover stolen cash, a proper purpose, and no improper motive was proved.
4. Trespass. The warrant was facially lawful and searching for cash was a genuine purpose of the operation. The additional purpose of arresting Metcalfe did not make the warrant a smoke screen. Entry pursuant to the warrant was therefore lawful and was not trespass.
5. Alternative statutory reasoning. Kennedy LJ considered that, even without the warrant, section 17 of the Police and Criminal Evidence Act 1984 could have justified entry where the officer had reasonable grounds for believing that a suspect might be at one of two known addresses. O'Hara v Chief Constable of Royal Ulster Constabulary [1997] AC 286 was distinguishable because the officer had received more than a bare instruction from a superior. Johnson v Whitehouse [1984] RTR supported the distinction between suspecting and believing. This reasoning was alternative. Lord Phillips MR expressly left the construction of section 17(2)(a) open.

• Court of Appeal (Civil Division): In [2003] EWCA Civ 936, the appeal was dismissed.
• Birkenhead County Court: Judge Trigger gave judgment for the Chief Constable on 31 October 2002, rejecting the claims for malicious procurement of a search warrant, trespass and false imprisonment.