Khan v Commissioner of Police for the Metropolis

Under section 18(1) of the Police and Criminal Evidence Act 1984, the arrested person must in fact occupy or control the premises to be searched. The statute does not permit a search merely because an officer reasonably believes that condition is satisfied.

The requirement is central to the statutory power. Its absence is not a minor irregularity. The wording, the statutory scheme and the availability of a warrant under section 8 mean that this construction is neither absurd nor unworkable. It also respects the right to home and private life protected by article 8 of the European Convention on Human Rights.

Police officers searched Mr Khan’s family home during the night after arresting Mohammed Khaff Khan for suspected cashpoint-card offences. The arrested man had given the address to police, but there was no evidence that he had lived, stayed, kept property, occupied, or controlled any part of it. Nothing relevant was found.

HHJ Faber in the Central London County Court held that the search was unlawful and awarded £1,250 damages for trespass to property. The Commissioner appealed. The central issue was whether section 18(1) of the Police and Criminal Evidence Act 1984 authorises a search where an officer reasonably believes, but cannot establish, that the arrested person occupies or controls the premises.

1. Appeal dismissed. Pill LJ gave the principal reasons, with which May and Moses LJJ agreed. Section 18(1) permits entry and search only of premises actually occupied or controlled by the person under arrest. The condition concerns the status of the premises, not merely the searching officer’s state of mind.

2. The phrase “reasonable grounds for suspecting” expressly qualifies the separate requirement that evidence may be on the premises. Parliament did not use equivalent language for occupation or control. The court would not add a reasonable-belief qualification which the text does not contain.

3. The requirement of actual occupation or control was central and fundamental. Its absence could not be treated as a trivial or unimportant irregularity of the kind discussed in Krohn v DPP [1997] EWHC Admin 286. The precise scope of occupation or control was left open, although the court did not expect it to be construed restrictively.

4. The construction was not absurd or unworkable. Section 8 of the Police and Criminal Evidence Act 1984 provided an alternative route through a justice of the peace where the statutory conditions were met. The distinction between a warrant and an inspector’s authority under section 18 was a deliberate part of the statutory scheme.

5. Giving section 18 its ordinary meaning also respected article 8 of the European Convention on Human Rights. Section 3(1) of the Human Rights Act 1998 did not permit the court to insert a reasonable-belief condition into the statutory power. The County Court’s finding of trespass and award of damages therefore stood.

• Court of Appeal (Civil Division) — dismissed the Commissioner’s appeal and upheld the conclusion that the search was unlawful: [2008] EWCA Civ 723.
• Central London County Court (HHJ Faber) — on 21 November 2007 held that the search was unauthorised and awarded £1,250 damages for trespass to property; permission to appeal was granted.