Court of Appeal

Published June 16, 2008

Khan v Commissioner of Police of the Metropolis

Before Lord Justice Pill, Lord Justice May and Lord Justice Moses

Judgment June 4, 2008

Police powers to enter and search a premises without a warrant, could be used only where those premises were, in fact, occupied or controlled by a person under arrest, and not where the police had merely a reasonable belief that the suspect occupied or controlled the premises.

The Court of Appeal so held when dismissing the appeal of the defendant, the Commissioner of Police of the Metropolis, from Judge Faber who, in Central London County Court on November 21, 2007, gave judgment for the claimant, Mr Riaz Khan on the ground that the entry and search of his home by police officers acting for the commissioner was unlawful and awarded him damages for trespass to property.

On arrest, a suspect gave the police Mr Khan’s address, falsely, as his own. Entry and search of that address was authorised and undertaken under section 18 of the Police and Evidence Act 1984 on the ground that the police believed, wrongly, that the suspect occupied or controlled the premises.

No evidence linking the suspect with the address was found. Mr Khan, accordingly, brought proceedings for unlawful entry and search.

Judge Faber rejected the submission of the police that the requirements of section 18 were qualified by issues of belief on their part and decided that it was not enough for the police to have a reasonable belief that the suspect occupied or controlled the premises. The judge, finding in Mr Khan’s favour on the ground that the law was absolute and required a literal interpretation, decided that it could not be proved that the suspect occupied or controlled the premises.

Mr Rajeer Shetty for the commissioner; Mr Khan in person.

LORD JUSTICE PILL said that the submission by the police that a literal construction of section 18 of the 1984 Act would make the provision unworkable and irrational was without merit.

Although the section provided an important power which was used for many police searches, a literal interpretation did not deflect from that importance.

The provision could still be used in cases where there was knowledge of a suspect’s occupation or control and different provisions were available to other cases, such as section 8 (power to enter and search under a warrant) and section 32 (power to enter and search on arrest).

Moreover, the concept of “reasonable belief” was applied elsewhere in the 1984 Act, for example in sections 8 and 32, so that its omission in section 18 could not have been accidental.

Parliament had plainly reviewed the operation of the powers to search premises when it enacted the Serious Organised Crime and Police Act 2005 and it had not decided to qualify the concept of occupation and control.

Furthermore, by giving the words their ordinary meaning, the court was reading the section in a way compatible with article 8 of the European Convention on Human Rights. The right to justify interference with privacy and family life did not permit “reasonable belief” to be inserted into section 18.

Lord Justice May and Lord Justice Moses agreed.

Solicitors: Bircham Dyson Bell LLP.

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