Ward (Respondent) v. Commissioner of Police for the Metropolis and others (Appellants)

A statutory power carries incidental powers only where they are necessary to make the express power effective for its legislative purpose. It is insufficient that an additional power would be sensible or desirable.

A magistrate issuing a warrant under section 135(1) of the Mental Health Act 1983 cannot require named doctors or social workers to accompany the executing constable. Section 135(4) specifies the professional classes required, while naming individuals may delay intervention and impede the protective purpose of the warrant. Names inserted without authority are surplusage and do not invalidate an otherwise valid warrant or its execution.

An approved social worker obtained a warrant under section 135(1) of the Mental Health Act 1983 concerning Mrs Ward. The warrant named an approved social worker and two doctors. When it was executed, the constable was accompanied by an approved social worker and a different doctor. Mrs Ward was removed to hospital and released the following day.

Mrs Ward claimed damages for false imprisonment against the Metropolitan Police Commissioner and an NHS trust. The recorder held that the warrant and its execution were lawful. The Court of Appeal, [2003] EWCA Civ 1152, held that the magistrate had an implied power to name the professionals, found the condition unfulfilled and remitted the damages claim.

The central issue was whether section 135 empowered the magistrate to require particular named professionals to accompany the constable.

1. Appeal allowed unanimously. Baroness Hale delivered the leading opinion, with which Lord Steyn, Lord Hutton and Lord Carswell agreed. The claim against both defendants was dismissed. Lord Rodger agreed in the result by a different route.

2. Per Baroness Hale, a statutory power may carry incidental powers necessary for its effective exercise. It is insufficient that an additional power is sensible or desirable. Section 135(1) necessarily permits a search of the identified premises, although search is not expressly mentioned, because entry would otherwise be ineffective. Bodden v Commissioner of Police of the Metropolis [1990] 2 QB 397 illustrated this necessity principle.

3. The statutory history and language showed that Parliament progressively removed requirements to name the constable and doctor. Section 135(4) requires the executing constable to be accompanied by an approved social worker and a registered medical practitioner, but neither section 135 nor another provision authorises the magistrate to select those individuals.

4. Naming particular professionals was unnecessary to achieve the statutory purpose. It could impede the protection of a vulnerable person by delaying execution until the named individuals became available. Civil liberties are protected by the statutory requirement for professional attendance and by the professionals' duty to exercise reasonable care and skill. The inserted names were therefore surplusage. Their absence at execution did not make the warrant, removal or detention unlawful.

5. Baroness Hale inclined, without deciding, to the view that sections 15 and 16 of the Police and Criminal Evidence Act 1984 apply to section 135 warrants. Those provisions may supply safeguards including a one-month limit and a restriction to one execution attempt. The point was unnecessary because this warrant was executed within the stated month.

6. Lord Rodger considered that a condition could exceptionally be incidental to the warrant power where justified in the patient's interests, applying Attorney-General v Great Eastern Railway Co (1880) 5 App Cas 473. He nevertheless concluded that the magistrate had not legitimately exercised such a power. The names, including an unauthorised second doctor, could be severed, leaving a valid warrant.

7. The Court of Appeal's order was displaced. The claim against both defendants was dismissed, with no order for costs against Mrs Ward in the House or below.

1. House of Lords: Allowed the NHS trust's appeal unanimously, displaced the Court of Appeal's decision and dismissed the claim against both defendants.
2. Court of Appeal: In [2003] EWCA Civ 1152, allowed Mrs Ward's appeal, held that the magistrate could impose conditions identifying the accompanying professionals, and remitted the damages claim.
3. Trial before Mr Recorder Layton QC: Held that the warrant sufficiently identified the premises and was lawfully executed. The recorder dismissed the false imprisonment claim and set aside the default judgment against the NHS trust.