Ward v Commissioner of Police for the Metropolis and others

The House of Lords considered whether a magistrate issuing a warrant under section 135 of the Mental Health Act 1983 may impose additional conditions naming particular professionals (an approved social worker and/or a medical practitioner) to accompany the constable executing the warrant. The court concluded that the statutory scheme, its history and principle do not permit implying a power to require or specify named professionals; the names on the warrant were therefore surplusage and did not invalidate the warrant or its execution. The court allowed the appeal and dismissed the claim for false imprisonment against the defendants. The reasoning emphasised that incidental powers can be implied only where necessary for the statutory power to operate, and that naming individuals was not necessary and could frustrate the statute's protective purpose.

This appeal arose from Mrs Ward's claim for false imprisonment after she was removed under a warrant granted under section 135 of the Mental Health Act 1983. The warrant as completed named particular medical practitioners and an approved social worker, but when the police executed it one of the named doctors did not attend. Mrs Ward sued the Metropolitan Police Commissioner and the NHS Trust. At first instance the recorder held the warrant and its execution lawful. The Court of Appeal ([2003] EWCA Civ 1152) allowed Mrs Ward's appeal on the ground that a magistrate could impose conditions which related sensibly to execution of the warrant to protect the interests of the person being removed and that the specified conditions had not been complied with.

The House of Lords granted the defendants' appeal. The principal issues framed were (i) whether the magistrate has power to impose additional conditions in a section 135 warrant, in particular to name the professionals who must accompany the constable, and (ii) if not, whether the names on the warrant rendered the execution unlawful. The court examined the statutory text of section 135 (including subsections (1) and (4)), its legislative history (tracing the relaxation of the requirement to 'name names'), the limits on implying incidental powers and the protective purpose of the provision. The Lords held that an implication of power to name individuals would not be necessary for the effective operation of section 135 and might frustrate its object by delaying or obstructing execution. The names were therefore surplusage and severable; the warrant validly authorised execution with any approved social worker and a registered medical practitioner. The court also observed that sections 15 and 16 of the Police and Criminal Evidence Act 1984 may apply to such warrants but did not decide that point finally because the warrant in question was executed within the one-month period referred to in PACE. The appeal was allowed and the claim dismissed; no order for costs was made against the appellant.

Appeal allowed. The House of Lords held that magistrates issuing warrants under section 135 of the Mental Health Act 1983 do not have an implied power to impose conditions naming particular approved social workers or medical practitioners to accompany the constable. Such a power is not necessary for the statutory scheme and the naming of individuals on the warrant was surplusage; severance left a valid warrant and its execution lawful. The claim for false imprisonment was therefore dismissed.

Trial before Mr Recorder Layton QC: warrant and execution held lawful. Court of Appeal allowed the claimant's appeal ([2003] EWCA Civ 1152), holding that a magistrate could imply conditions to protect the interests of the person to be removed. The defendants appealed to the House of Lords, which allowed the appeal ([2005] UKHL 32) and dismissed the claim.