Khan v Commissioner of Police for the Metropolis

Factual and Procedural Background

This is an appeal against the judgment of Judge Faber at the Central London County Court on 21 November 2007 concerning whether the Commissioner of Police of the Metropolis ("the appellant") was entitled to search the home of the Respondent at 49 Tindall Road, Leyton. The Respondent was unrepresented and appeared in person. The trial judge held that the appellant was not entitled to conduct the search and awarded the Respondent £1,250 damages for trespass to property. Permission to appeal was granted.

The search took place between 3:00 am and 3:30 am on 17 April 2006. The premises were searched in the presence of the Respondent, his wife, and two children. Nothing relevant was found. The suspect, who was under arrest and gave false addresses including the Respondent's address, was suspected of offences involving cloned or skimmed cards and cashpoint crimes. The police claimed a connection between the suspect and the Respondent's address but no evidence was found linking the suspect to the premises.

The central factual dispute concerned whether the premises were "occupied or controlled" by the person under arrest within the meaning of Section 18(1) of the Police and Criminal Evidence Act 1984, as amended.

Legal Issues Presented

1. Whether the police were entitled under Section 18(1) of the Police and Criminal Evidence Act 1984 (as amended) to search premises that were not demonstrably "occupied or controlled" by the person under arrest.
2. Whether the requirement that the premises be "occupied or controlled" by the arrested person can be qualified by the reasonable belief or knowledge of the authorising officer or the searching officer.
3. The proper construction of the phrase "premises occupied or controlled by a person" within Section 18(1) and whether a literal or qualified interpretation should apply.
4. The compatibility of Section 18(1) with Article 8 of the European Convention on Human Rights concerning the right to respect for private and family life and home.

Arguments of the Parties

Appellant's Arguments

• The search was lawfully conducted under Section 18(1) of the Police and Criminal Evidence Act 1984 as amended by the Serious Organised Crime and Police Act 2005.
• The police should be able to conduct a search if they have reasonable grounds or belief that the arrested person occupies or controls the premises, even if this is not absolutely certain.
• A literal construction of "occupied or controlled" would make Section 18 unworkable in practice, as police rarely can be sure of occupation or control at the time of the search decision.
• The power to search premises connected with an arrested person is important for effective crime detection and justice administration.
• Other powers of entry and search exist but may involve delay, making Section 18 an important and frequently used provision.

Respondent's Position

• The premises were not occupied or controlled by the person under arrest according to the unqualified meaning of Section 18(1).
• The search was unlawful as the statutory requirement for occupation or control was not met.
• The judge rejected any qualification of the requirement by reference to the reasonable belief of the officers involved.
• The absence of occupation or control is a fundamental defect that cannot be treated as a trivial irregularity.
• The construction of Section 18 must respect Article 8 of the European Convention on Human Rights and should not permit arbitrary or excessive intrusion into private homes.

Table of Precedents Cited

Court's Reasoning and Analysis

The court focused on the statutory language of Section 18(1) of the Police and Criminal Evidence Act 1984 as amended, which permits a constable to enter and search premises only if they are "occupied or controlled" by the person under arrest. The court emphasized that this requirement is absolute and cannot be qualified by the reasonable belief or knowledge of the police officers or authorizing officers. The court rejected the appellant's argument that a reasonable belief standard should apply, noting that the statutory scheme uses the expressions "reasonable grounds" and "reasonable belief" in other contexts but deliberately omits it in this part of Section 18(1).

The court considered the legislative amendments made by the Serious Organised Crime and Police Act 2005 and concluded that Parliament deliberately maintained the strict requirement for actual occupation or control, reflecting a balance between effective policing and respect for privacy rights under Article 8 of the European Convention on Human Rights.

The court acknowledged the practical difficulties faced by the police but held that these did not justify departing from the clear statutory language. The court also distinguished other powers of entry and search, such as those under Sections 8 and 32 of the 1984 Act and common law powers, which have different conditions and safeguards.

Reliance on precedent confirmed that procedural irregularities could be overlooked only if trivial, but the absence of occupation or control is a fundamental defect that invalidates the search. The court noted that the scope of "occupation or control" is a matter for future determination but should not be construed restrictively.

Holding and Implications

The court DISMISSED the appeal.

The ruling affirms that under Section 18(1) of the Police and Criminal Evidence Act 1984 (as amended), police powers to search premises connected to an arrested person are strictly limited to premises actually occupied or controlled by that person. The requirement is absolute and cannot be satisfied merely by a reasonable belief. This decision underscores the importance of protecting individuals' rights to privacy and home under Article 8 of the European Convention on Human Rights and confirms that statutory powers of search must be exercised within clearly defined limits. No new precedent was set beyond reinforcing the strict statutory interpretation and the balance between police powers and human rights protections.