FOURTH SECTION

DECISION

AS TO THE ADMISSIBILITY OF

Application no. 28867/03 by Gerard KEEGAN and Others against the United Kingdom

The European Court of Human Rights (Fourth Section), sitting on 11 October 2005 as a Chamber composed of:

Mr J. C asadevall , President , Sir Nicolas Bratza , Mr M. Pellonpää , Mr R. Maruste , Mr K. Traja , Ms L. Mijović , Mr J. Šikuta , judges , and Mr M. O ’ Boyle , Section Registrar ,

Having regard to the above application lodged on 4 September 2003 ,

Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicant,

Having deliberated, decides as follows:

THE FACTS

The applicants, are Gerard Keegan, an Irish citizen born in 1955 and Moira Keegan, a United Kingdom national, born in 1963, husband and wife, and their children Carl, Michael, Katie and Sophie, British citizens born in 1985, 1996, 1997 and 1997 respectively. They are all resident in Liverpool and are represented before the Court by Mr C. Topping, a solicitor, practising in Liverpool .

A. The circumstances of the case

The facts of the case, as submitted by the parties, may be summarised as follows.

In April 1999, the applicants became tenants of a house owned by Liverpool City Council at 19 New Henderson Street . The property had been vacant for six months previously and the previous tenant before that had been Anita or Joseph De La Cruz.

Meanwhile a series of armed robberies was carried out by a number of armed males: on 29 January 1997 , 30 April and 13 August 1999 . On 14 August 1999 , the police arrested Heffy , later convicted for the robbery. They also arrested a man who arrived during the arrest. He gave his name as Dean Metcalf but subsequent investigation revealed that he was Dean De La Cruz, son of Anita De La Cruz. He was not charged and released. The police were tasked with investigating, and arresting, any further members of the robbery gang and recovering the money from the robberies. The information in their possession indicated that Dean De La Cruz had often given 19 New Henderson Street as his address, that saliva taken from a scarf in a car abandoned after a robbery matched Dean De La Cruz and that Anita De La Cruz was still on the voter ’ s register as residing at that address.

On 18 October 1999 , DC Wilson went before a Justice of the Peace and applied on oath for a warrant to search 19 New Henderson Street for cash stolen during the robberies. He swore on oath that he had reasonable cause to believe that such stolen cash was in the possession of the occupier of the property. A search warrant was issued permitting a search of the premises for the cash.

On 21 October 1999 , at 6 a.m. , the police officers gathered at police headquarters. It was intended to search eight properties. Sergeant Gamble and four other officers were detailed to go to 19 New Henderson Street . They were briefed that Dean De La Cruz was linked to the robberies and given a photograph of him. They knew that the robberies had involved the use of firearms. They were instructed to obtain forcible entry at 7 a.m. to coincide with the other entries.

The police team used a metal ram to make a hole in the door. They experienced some difficulty as a previous tenant had reinforced the door.

The noise of the battering ram awoke and frightened the applicants. The first applicant came down the stairs and was told by the police who they were and to open the door. The first applicant complied and the sergeant entered and showed his warrant card and explained that he was looking for Dean Metcalfe. A cursory examination of the house took place to verify that no-one save the applicants were present. The sergeant apologised to the first and second applicants and arranged for repairs to be made to the front door. The police left at about 7.15 a.m.

The applicants brought proceedings against the Chief Constable of Merseyside Police for the tort of maliciously procuring a search warrant, unlawful entry and false imprisonment. They alleged that they had been caused terror, distress and psychiatric harm. Medical reports indicated that the applicants were suffering from varying degrees of post traumatic stress disorder.

On 31 October 2002 , the County Court judge rejected the applicants ’ claims. He made a number of findings of fact or inferences:

- that the police made enquiries prior to the search with utility companies and Liverpool County Council Housing Department about 19 New Henderson Street and that the rough police notes of these enquiries had been destroyed or mislaid from which he drew the adverse inference that such checks revealed that Anita De La Cruz was no longer living there but that the applicants were;

- that the police considered covert surveillance of the property but decided that this was not advisable as there were sophisticated criminals living in the area who were skilled at spotting covert police operations;

- that Sergeant Gamble had reasonable grounds, following his briefing, for believing that a person wanted for robbery was to be found on the premises and that he had not been informed that the applicants were now living there.

The judge concluded on the facts that the police, who were investigating serious and violent offences, had not acted with reckless indifference to the lawfulness of their acts, which element was necessary for the tort of maliciously procuring a search warrant. He held that the entry was made subject to a lawful search warrant and also under the powers of section 17 of the Police and Criminal Evidence Act 1984, which allowed entry without warrant where intending to arrest a person for an arrestable offence. He found that the method of forcible entry was justified as the police had foremost in their minds the potential danger from the use of firearms by the suspect robber and in particular that the sergeant had no cause to suspect that innocent people were the only ones on the premises. He found that once on the premises there was no indication that the police physically detained the applicants or ordered them to remain in one place. He noted that the sergeant speedily realised the mistake, apologised and showed compassion for the applicants ’ plight, in particular by not lengthening the ordeal.

He concluded:

“.. It will be difficult for the claimants to accept that their innocent occupation of their property was devastated by the events, albeit of only 15 minutes, which occurred on 21 October 1999 . Any system of justice must balance competing interests and this is a classic case of competing interests being balanced. On the one hand the need to bring to justice violent criminals, on the other the need to try and preserve the sanctity and integrity of a law-abiding family ’ s home... but in every case of competing interests, the scales will have to come down on one side or the other. In my judgment the scales come down in favour of the Defendants and all claims are dismissed.”

The applicants ’ appealed, alleging inter alia that the judge had failed properly to consider whether the police had reasonable and probable cause to apply for a warrant to search for stolen cash at 19 New Henderson Street.

On 3 July 2003 , the Court of Appeal rejected the applicants ’ appeal. While Lord Justice Kennedy found that if proper enquiries had been made and the results properly reported, there would have been no reasonable or probable cause to apply for a search warrant, he held that the requirement of malice was not made out as there was no evidence of any improper motive (incompetence or negligence did not suffice). He further held that the entry, being made under a warrant which was on the face of it lawful, was itself lawful and that, while those responsible for sending Sergeant Gamble and his team to the address had been mistaken, that did not deprive them of legal protection. Lord Justice Ward commented that the shoddy detective work did not justify a finding in the police ’ s favour and that the case caused him concern. However notwithstanding his anxious consideration and sympathy for the family, he stated:

“That an Englishman ’ s home is said to be his castle reveals an important public interest, but there is another public interest in the detection of crime and the bringing to justice of those who commit it. These interests are in conflict in a case like this and on the law as it stood when these events occurred, which is before the coming into force of the Human Rights Act 1998, which may be said to have elevated the right to respect for one ’ s home, a finding of malice on the part of the police is the proper balancing safeguard.

Upon careful reflection, I agree with my Lords that it is inevitable that malice will not be proved in this case.”

Counsel advised as follows on the prospects of obtaining leave to appeal to the House of Lords:

“4. Essentially, on the issue of malicious procurement of a search warrant and in trespass, the court has thought that prior to the introduction of the Human Rights Act 1998, that proof of malice is a necessary component of such a challenge and that the evidence was not there to prove it. It seems to me that this conclusion will not be displaced by the House of Lords. I also think, on the authorities relating to the Human Rights Act 1998 that there is no question of the House of Lords suggesting that the courts below should have done anything differently in their approach to the case.

5. In my view therefore, the prospects of seeking leave to appeal from the House of Lords are poor and I do not advise that such leave be sought.”

B. Relevant domestic law and practice

Section 17 of the Police and Criminal Evidence Act 1984 provides for entry and search without a search warrant:

“(1) Subject to the following provisions of this section..., a constable may enter and search any premises for the purpose-

...

(b) of arresting a person for an arrestable offence; ...”

Police can also apply to the magistrates ’ court for a warrant. The grant of a warrant is subject to the safeguards in the Police and Criminal Evidence Act 1984. Section 15 provides inter alia that the constable must state the ground on which he makes the application, the enactment under which the warrant would be issued; specify the premises to be entered and searched and identify so far as practicable the articles or persons sought. Applications are made ex parte and supported by an information in writing. The constable must answer on oath any question put to him by the justice of the peace or judge. There is no statutory requirement for the court issuing the warrant to make findings or give reasons for issuing the warrant.

COMPLAINTS

The applicants complained under Article 8 of the Convention that the police obtained and executed a search warrant when they knew or ought to have known that there was no reasonable cause for obtaining a warrant. It was clear or should have been clear that the objects of the search would not be found in the applicants ’ home since the applicants, who were not suspected of any criminal conduct, had been living there for some considerable time. They also invoked Article 13 claiming that the domestic courts did not provide a remedy.

THE LAW

The applicants complain that the forcible entry to search their property was in breach of Article 8 of the Convention which provides:

“1. Everyone has the right to respect for his private ... life [and] his home ...

2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.”

They also invoke Article 13 of the Convention which provides:

“Everyone whose rights and freedoms as set forth in this Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity.”

A. Exhaustion of domestic remedies

The Government submitted that the applicants had failed to exhaust domestic remedies as required by Article 35 § 1 of the Convention as they did not pursue an appeal to the House of Lords. The applicants had the benefit of legal aid and it would have been possible for them to pursue their argument in the House of Lords that the requirement of malice in the applicable tort was satisfied by a state of mind of reckless indifference to the illegality of the act. The fact that counsel found no convincing reasons for pursing an appeal did not exempt the applicants from the requirement to put the substance of their case before the appropriate appellate bodies.

The applicants pointed out that the grant of legal aid was not automatic but dependent on the prospects of success, lawyers being under a professional obligation to assess carefully the merits and value of any proceedings. There was also the risk, if a further appeal was unsuccessful that the applicants be subject to an award of costs or their lawyers held liable for costs if they had pursued the case unreasonably, improperly or negligently. In this case the applicants sought and obtained reasoned advice on the merits, already having pursued one appeal. The advice was that the prospects of bringing their case within the test of malice were not sufficient to justify pursuing a further appeal.

The Court reiterates that the rule of exhaustion of domestic remedies referred to in Article 35 § 1 of the Convention obliges applicants to use first the remedies that are normally available and sufficient in the domestic legal system to enable them to obtain redress for the breaches alleged. The existence of the remedies must be sufficiently certain, in practice as well as in theory, failing which they will lack the requisite accessibility and effectiveness. Article 35 § 1 also requires that the complaints intended to be brought subsequently before the Court should have been made to the appropriate domestic body, at least in substance and in compliance with the formal requirements laid down in domestic law, but not that recourse should be had to remedies which are inadequate or ineffective ( e.g. Akdivar and Others v. Turkey, no. 21893/93, §§ 65-67, ECHR 1996-IV; Aksoy v. Turkey , no. 21987/93, §§ 51-52, ECHR 1996-VI).

The Court notes that this case concerned facts which occurred before the entry into force of the Human Rights Act 1998 and thus was outside its scope. The applicants were therefore unable to rely on, or the courts to examine issues under, Article 8 of the Convention. The case before the domestic courts turned on specific provisions of law, which effectively provided the police with a defence for any claims based on an entry or search conducted under a warrant in the absence of any malice or improper motive on their part. Although the Government pointed out that the applicants sought to bring the facts of their case within this exception in the domestic proceedings, the Court notes that the County Court and Court of Appeal rejected their counsel ’ s arguments, finding no basis in evidence for a claim of malice as opposed to negligence or carelessness. There is no indication, in the circumstances of the case and in light of counsel ’ s advice, that an application to the House of Lords seeking to adjust the legal definition of malice to the incident in issue would have had any realistic prospects of success ( e.g. application no. 24196/94, (Dec.) 11.1.96, D.R. 84-A p. 72). Since in particular the applicants could not raise the arguments under the Convention which are in issue in this application, the Court considers that they were not required by Article 35 § 1 to apply further to the House of Lords.

It follows that the preliminary objection of the Government is rejected.

B. The substance of the case

The parties ’ submissions

The Government submitted that the principles to be found in domestic law struck the right balance between the public interest in the investigation of crime and the rights of those individuals who sought to pursue a private remedy against the police. They argued that the arrest and gathering of evidence against suspects was often difficult, even dangerous, and the courts had to be careful not to impede investigators in pursuit of their legitimate duties. The absence of a requirement of malice would impose liability for negligence and potentially expose chief constables to the possibility of civil actions on almost every occasion when warrants were obtained. The fact that a search proved to be unsuccessful did not in itself give rise to a cause of action. Primary protection was given to a person ’ s rights in regard to invasion of property by the requirement that a search be on warrant granted by a judicial officer who must be satisfied that there is reasonable cause. They relied on judicial dicta that this judicial supervision was not a mere rubber stamp, it not being sufficient for the judge to be satisfied by the officer ’ s oath that he believes the grounds for the warrant but the cause for belief must also appear reasonable to him. Further, the grant of warrants was subject to procedural conditions set out in domestic law, warrants could be quashed in proceedings for judicial review and where police acted maliciously they would be liable in damages.

Accordingly, while the Government accepted that the entry and search fell within the scope of protection afforded by Article 8, the measure was justified in the circumstances of the case and as there were adequate and effective safeguards against abuse. They emphasised that the police were engaged in an investigation into serious criminal offences, there were reasonable grounds to arrest Dean Metcalfe, it was known that he had access to firearms and it was at the very least undesirable to give any warning of entry, the police officer who applied for the warrant genuinely and reasonably believed that stolen cash was on the premises and the justice of the peace was so satisfied on information given on oath. They submitted that it was inherent in any investigation process that circumstances changed and errors could arise; however, it was not every change of circumstance that should give rise to liability.

As concerned Article 13 of the Convention, the Government submitted that the applicant did have an effective remedy for their complaints about the search, as they were able to take proceedings in the County Court to seek a remedy in damages for the tort of malicious procurement of a warrant, their claims were heard over several days and evidence taken at first instance and the findings of the County Court judge reviewed on appeal by the Court of Appeal.

The applicants asserted that there was no means in domestic law whereby they could obtain compensation for the trauma that they had suffered without showing malice on the part of the police. They pointed out that the judge issuing the warrant need not give reasons or record its finding, depriving subsequent judicial supervision of material relevant to the decision-making process. They drew attention to the significant gap of time between the alleged offences and the date on which the warrant was obtained and then executed and submitted that it was clear, as the judge found, that there was considerable information which showed that Dean Metcalfe did not live at the applicant ’ s address and that they did. Furthermore, they asserted that the link between the cash proceeds of the robbery and premises possibly linked to Dean Metcalf was slight, nor was there any urgency preventing recourse to other methods of investigation.

The applicants submitted that the condition of malice was too restrictive a safeguard in relation to rights as important as the security of the home. It was not their case that every unsuccessful search disclosed a breach of Article 8 but they urged that the proper balancing safeguard was the consideration of whether there was reasonable and probable cause for the warrant, which did not exist in their case. They argued that it was irrelevant that the police involved in the warrant acted in good faith as the warrant was sought without adequate investigation.

As regarded Article 13, the applicants submitted that they did not have an effective remedy as their civil claim could only succeed if they could prove malice which was too onerous a hurdle. They pointed out that the courts had identified the difficulties for the applicants on the law as it then stood and expressed concern that they did not have a remedy at that time.

The Court ’ s assessment

Having regard to the applicant ’ s complaints and the parties ’ submissions, the Court finds that serious questions of fact and law arise, the determination of which should depend on an examination of the merits. The application cannot be regarded as manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. No other grounds for declaring it inadmissible have been established.

For these reasons, the Court unanimously

Declares the application admissible, without prejudging the merits of the case.

Michael O ’ Boyle Josep C asadevall Registrar President