Practice and Procedure


PUBLISHED July 3, 2003

Claims for malicious procurement of a search warrant and trespass failed where no malice could be proven on the part of the police officers and there were reasonable grounds to believe that a suspect was on the premises.Appeal by the claimants from a county court decision on 31 October 2002 giving judgment for the defendant. The claimants sought damages for malicious procurement of a search warrant, trespass and false imprisonment. The Merseyside police were investigating armed robberies in the area. They had reason to suspect that a man ('DM') was one of the criminals involved in three armed robberies from 1997-1999. Investigations revealed that he was linked to two addresses, one of which was 19 New Henderson Street, an address DM had previously given to police. DM had given a different address when stopped by police on 23 September 1999. It was agreed by the police that there were reasonable grounds to arrest DM and search premises connected with him. Officers obtained a warrant from the magistrates on 18 October 1999 to search both addresses. A briefing took place on the day of the search with the team members who were made aware of the operation and that DM had access to firearms. At 7am the team used a metal ram to force open the door to the New Henderson Street premises. The claimants' family were living at those premises and had been since 8 April 1999. They had no involvement with DM whose family had moved on some time before. The police apologised and left. The claimants started proceedings against the defendant in respect of this entry. At trial judgment was given for the defendant. The claimants appealed the decision with regard to trespass and malicious procurement but not false imprisonment.HELD: (1) The trial judge followed the four ingredients of the tort of malicious procurement of a search warrant from Gibbs v Rea (1998) AC 786. It was obvious that if, the proper enquiries had been made and the results of those enquiries properly reported, the conclusion would have been reached that there was no reasonable and probable cause to apply for a search warrant in respect of New Henderson Street. The judge should have found that the second ingredient of the tort was made out. The judge made no finding on the second ingredient and was in error not to have done so. There should never have been an application for a search warrant. (2) There remained the question of malice. Where it was alleged that a warrant had been maliciously procured the claimant could only succeed if he showed that the application for the warrant was made for an improper motive. Incompetence or negligence would not suffice. There was no evidence of improper motive on the part of the officers involved in the decision to seek a warrant. The warrant was sought for a proper purpose. The judge was therefore right to hold that the tort of malicious procurement of the search warrant was not established because malice had not been proved. (3) With regard to the allegation of trespass, this claim could only succeed if it could be proved that the warrant was used as a smoke screen to arrest DM. The team were not simply told to arrest DM they were told of the background to the operation. This was capable of giving them reasonable grounds for believing that DM might well be at New Henderson St. Those sending the team there were mistaken but that did not deprive the team of legal protection. The claim for trespass had no prospects of success.Appeal dismissed.

[2003] EWCA Civ 936