Michaels v Highbury Corner Magistrates Court & Anor

A search under statutory stop-and-search powers is unlawful where the constable fails to comply with the statutory duty to identify himself and his police station before the search begins. The requirement applies even where the suspect already knows the officer. A breach is not cured by the officer’s familiarity with the suspect. A person cannot commit an offence of obstructing the exercise of the search power where the officers are not acting lawfully in the execution of that duty. The court may determine the case on that ground without resolving whether the suspect had failed to co-operate.

The claimant sought judicial review of his conviction by Highbury Corner Magistrates Court on 6 November 2007 for obstructing police officers under section 23(4) of the Misuse of Drugs Act 1971. The officers had searched him under section 23 after seeing him place a suspected wrap of drugs in his mouth. Before the search, the principal officer did not give the claimant his name or the name of his police station, although the officer knew him from previous encounters.

The central issues were whether that omission rendered the search unlawful and whether the claimant had resisted or failed to co-operate with a lawful search.

1. Application upheld; conviction set aside. The statutory identification requirements had not been complied with, rendering the subsequent search unlawful.
2. Section 2 of the Police and Criminal Evidence Act 1984 required the constable, before commencing the search, to take reasonable steps to give the suspect the specified information, including the constable’s name and the name of the police station to which he was attached. The requirement applied despite the officer’s familiarity with the suspect.
3. The court applied R v Bristol [2007] EWCA Crim 3214 and relied on Osmond v Southwark Crown Court. Breach of the statutory requirement rendered the search unlawful.
4. Because the officers were not acting in the execution of their duty, the claimant’s resistance could not amount to an offence under section 23(4) of the Misuse of Drugs Act 1971. The court did not decide whether placing the suspected drugs in the claimant’s mouth established non-co-operation.
5. Costs were awarded out of central funds.

The judgment records the claimant’s conviction by the magistrates’ court. The Administrative Court upheld the application and set aside the conviction.