Fisher & Anoe v The Cumbria Constabulary

Factual and Procedural Background

The Plaintiffs, two brothers running a Fish and Chip shop at 18, Queens Street, Aspartia, brought an action against the Defendant, the Chief Constable of the Cumbria Constabulary, following a search of their premises. The search was conducted pursuant to a warrant obtained by a police officer, DC Little, based on information from a reliable magistrate informant and brief observations. The search was executed on 31st July 1992 by DC Kelly and other officers, who entered the premises by forcing the rear door, causing damage. No drugs were found at the Plaintiffs' premises, although substantial drugs were recovered from other premises associated with the suspected drug dealer, Pullinger.

The Plaintiffs alleged trespass and malicious process, claiming the warrant was improperly obtained, and that no copy of the warrant was left at their premises as required by law. The jury found that DC Kelly had merely forgetfully failed to leave a copy of the warrant, and that the police did not act with due expedition in providing a copy of the warrant to the Plaintiffs' father after the search. The Plaintiffs cross-appealed against the finding that DC Little had reasonable and probable cause to obtain the warrant.

The case was heard in the Court of Appeal on 29 July 1997, following an earlier trial at Carlisle County Court before HHJ Bell. The Defendant appealed against the damages awarded, while the Plaintiffs cross-appealed on the issue of reasonable and probable cause for the warrant.

Legal Issues Presented

1. Whether DC Little had reasonable and probable cause to procure the search warrant for the Plaintiffs' premises.
2. Whether the failure to leave a copy of the search warrant at the premises rendered the search unlawful and gave rise to a claim for trespass.
3. Whether the police acted with due expedition in providing a copy of the warrant to the Plaintiffs' father after the search.
4. The appropriate measure of damages for the trespass and procedural failures by the police.

Arguments of the Parties

Appellants' Arguments

• The Defendant contended that DC Little had reasonable and probable cause to obtain the warrant based on reliable information from a magistrate informant and supporting observations, despite the jury's negative answer to whether observations supported the information.
• The Defendant argued that the failure to leave a copy of the warrant was due to mere forgetfulness and that the search was otherwise conducted with reasonable care.
• The Defendant challenged the quantum of damages awarded as excessive in light of the circumstances and recent case law guidance.

Respondents' Arguments

• The Plaintiffs argued that the warrant was improperly obtained because DC Little lacked reasonable and probable cause, relying on the jury's finding that observations did not corroborate the informant's information.
• They asserted that the failure to leave a copy of the warrant at the premises and the delay in providing a copy to the Plaintiffs' father rendered the search unlawful and justified damages for trespass and aggravated injury.
• The Plaintiffs sought compensatory, aggravated, and exemplary damages for trespass and malicious process.

Table of Precedents Cited

Court's Reasoning and Analysis

The court analyzed the issue of reasonable and probable cause by reviewing the jury's answers to factual questions. The jury accepted DC Little as a credible witness and found that he had received reliable information from a magistrate informant that drugs were present at the Plaintiffs' shop. Although the jury found that observations did not corroborate the informant’s information, the court held that this did not undermine the reliability of the informant’s information nor DC Little’s honest belief in the presence of drugs.

The judge’s determination that DC Little had reasonable and probable cause was upheld as the proper legal conclusion based on the jury’s findings and the evidence.

Regarding the procedural failure to leave a copy of the warrant on the premises, the court accepted that this was a breach of Section 16(7) of the Police and Criminal Evidence Act 1984, but the failure was due to mere forgetfulness. The court noted that the trespass arose solely from this procedural failure, which was a mitigating factor.

The court recognized that the failure to provide the Plaintiffs' father with a copy of the warrant with due expedition was an aggravating factor, though not sufficient to justify exemplary damages. The court also noted the mitigating circumstances of reasonable care during the search, the offer to pay for door repairs, and the limited duration of the trespass.

In assessing damages, the court referred to recent case law and concluded that the jury’s award of £15,750 was excessive. It substituted a reduced total award of £1,250, comprising £750 for the trespass and £500 for the aggravating delay in providing the warrant copy to the Plaintiffs' father, as fair compensation.

The court reserved full consideration of the legal consequences of the procedural irregularity for future cases, noting that the present case involved a lawfully obtained warrant and an inadvertent procedural failure at the end of the search.

Holding and Implications

The Court of Appeal ALLOWED THE APPEAL of the Defendant and DISMISSED THE PLAINTIFFS' CROSS-APPEAL on the issue of reasonable and probable cause.

The court held that the police officer had reasonable and probable cause to obtain the search warrant and that the search was lawful notwithstanding the procedural failure to leave a copy of the warrant at the premises.

The damages awarded by the jury were reduced to a total of £1,250, reflecting fair compensation for the trespass and the aggravating delay in producing the warrant copy to the Plaintiffs' father. No exemplary damages were awarded.

The decision clarifies that an inadvertent failure to comply with procedural requirements under the Police and Criminal Evidence Act 1984 does not necessarily render a lawfully obtained search warrant unlawful ab initio, but the court reserved full consideration of this issue for future cases.

The ruling does not establish new precedent beyond the facts and issues presented but provides guidance on the application of reasonable and probable cause and assessment of damages for procedural breaches in search warrant execution.