Keegan & Ors v Chief Constable of Merseyside

Factual and Procedural Background

On 29th January 1997, three armed men attempted to rob a post office at The City. On 30th April 1999, three men armed with a sawn-off shotgun robbed cash delivery employees at a commercial location in The City, escaping with £39,000 and leaving behind a scarf. On 13th August 1999, another armed robbery occurred at a post office in the region, with £20,000 stolen. From late August 1999, these offences were investigated by police officers under the codename "Operation Trotter". A suspect, referred to as Dean Metcalfe, was linked to the scarf found after the second robbery. Metcalfe had previously given an address at 19 New Henderson Street, Liverpool 8, a property that had been allocated to the Plaintiff family (referred to as the Claimants) in April 1999, although police officers were unaware of this change of occupancy.

Police inquiries were made regarding Metcalfe's connection to the address, including checks of the electoral roll and other routine enquiries, but records of these enquiries were incomplete or unavailable. It was established that Metcalfe was linked to two addresses: 19 New Henderson Street and 27 South Hill Road, Southport.

On 18th October 1999, a police officer applied to a magistrate for warrants to search both addresses under section 26 of the Theft Act 1968, believing stolen cash was at the premises. Warrants were granted without an application for an arrest warrant for Metcalfe.

On 21st October 1999, police executed the warrant at 19 New Henderson Street, forcibly entering the home of the Claimants, who were unaware of any connection to Metcalfe. The police quickly realised the mistake, apologized, and left shortly thereafter. The Claimants subsequently sought damages for trespass and false imprisonment.

The trial judge heard evidence and found that covert surveillance was considered and rejected, routine enquiries were made, and the police had reasonable grounds to believe Metcalfe was at the premises. The judge resolved issues of malicious procurement of the warrant, trespass, and false imprisonment in favour of the Defendant Chief Constable. Permission to appeal was granted by a higher court judge.

Legal Issues Presented

1. Whether the search warrant for 19 New Henderson Street was maliciously procured, specifically if the police had reasonable and probable cause to apply for the warrant.
2. Whether the police officers acted with malice in obtaining the warrant.
3. Whether the forced entry constituted trespass given the existence and execution of the warrant.
4. The applicability and scope of police powers under section 17 of the Police and Criminal Evidence Act 1984 in relation to arrest and search.

Arguments of the Parties

Appellant's Arguments

• The warrant was maliciously obtained due to lack of reasonable and probable cause, as proper enquiries would have shown the Claimants were lawful occupants and Metcalfe had no connection to the premises.
• The police failed to make adequate enquiries with relevant agencies (housing department, utilities, Benefits Agency) to confirm occupancy before applying for the warrant.
• The forced entry caused distress and harm to the Claimants and was unjustified.
• The judge erred in not finding malice and in failing to properly address the second ingredient of the tort of malicious procurement of a warrant.

Respondent's Arguments

• The police had a bona fide belief and reasonable cause to apply for the warrant based on intelligence linking Metcalfe to the address.
• Any failure in enquiries was not malicious but due to police operational constraints and routine investigative practices.
• The warrant was sought for a proper purpose—recovery of stolen cash—and not as a pretext to arrest Metcalfe.
• There was no evidence of improper motive or malice by the officers involved.
• The existence of the warrant justified the forced entry, negating any claim of trespass.

Table of Precedents Cited

Court's Reasoning and Analysis

The court carefully examined the four elements of the tort of malicious procurement of a search warrant as established in Gibbs v Rea. It found that while the application for the warrant was successful and damage resulted from its execution, the question of reasonable and probable cause was contentious. The police's investigative efforts, particularly those of the officer responsible for intelligence gathering, were deemed insufficient. Proper enquiries with the landlord and utilities would have revealed that the Claimants occupied the premises prior to the robberies, negating reasonable cause to suspect stolen cash was present.

Despite this, the court found no evidence of malice or improper motive by the officers involved. The absence of malice was critical because negligence or incompetence alone does not satisfy the tort's requirements. The court distinguished between lack of reasonable cause and malice, emphasizing that the latter requires an improper motive or reckless indifference to illegality, which was not established here.

Regarding trespass, the court held that the existence of a valid warrant for searching the premises for stolen cash rendered the entry lawful. The police had reasonable grounds, based on intelligence, to believe the suspect might be at the address and acted within their powers under section 17 of the Police and Criminal Evidence Act 1984. Even if the warrant had not existed, the police would likely have been protected given the circumstances.

The court acknowledged the distress caused to the Claimants but balanced this against the public interest in crime detection. It noted that the law at the time did not afford a remedy absent proof of malice, and the Human Rights Act 1998, which might have altered this balance, was not yet in force.

Holding and Implications

The court DISMISSED THE APPEAL, upholding the decision in favour of the Defendant Chief Constable.

The ruling confirms that for the tort of malicious procurement of a search warrant, proof of malice or improper motive is essential and cannot be inferred solely from lack of reasonable cause. Negligence or investigative shortcomings, without malice, do not suffice to establish liability. Furthermore, a valid search warrant protects police officers from trespass claims arising from forced entry executed pursuant to that warrant. The decision does not establish new precedent but clarifies the application of existing legal principles as they stood prior to the Human Rights Act 1998.