Execution of Warrant Was Rendered Unlawful: BARTLETT v WEIR and OTHERS TG7 of 1992 FEDERAL COURT OF AUSTRALIA TASMANIAN DISTRICT REGISTRY GENERAL DIVISION
1. That the execution on 19 March 1992 by the second respondents of the warrants issued by the first respondent on 18 March 1992 at the premises known as “Croftside”, RSD 530 Powranna Road, Cressy, and at the premises at 103 Wellington Street, Launceston was unlawful.
(c) 1998 Reed International Books Australia Pty Limited trading as Butterworths
FEDERAL COURT UNREPORTED JUDGMENTS
BARTLETT v WEIR and OTHERS
TG7 of 1992
FEDERAL COURT OF AUSTRALIA
TASMANIAN DISTRICT REGISTRY
1994 AUST FEDCT LEXIS 1016; BC9405688
19 August 1993, heard
3 June 1994, delivered
CATCHWORDS: [*1] WARRANTS – whether warrants to seize computer hardware and software and other records were executed lawfully – obligations upon person entrusted with execution of a warrant – requirement that person executing the warrant have reasonable belief at time of execution of warrant that goods seized might afford evidence of commission of a crime – meaning of “reasonable belief” – requirement that reasonable grounds exist for belief – whether goods seized detained for an excessive period of time.
STANDING – whether applicant has standing to bring proceedings to challenge the execution of the warrant at premises not owned by him and where warrant authorises seizure of goods of third party – finding of sufficient interest.
REMEDIES – whether court should make declaration – whether court should exercise its discretion not to make a declaration when no evidence that investigation which gave rise to issue of warrants is continuing.
Crimes Act 1914 (Cth)
Administrative Decisions (Judicial Review) Act 1977
Trade Practices Act 1974
Baker v Campbell (1983) 153 CLR 52
George v Rockett (1990) 170 CLR 104
Crowley v Murphy (1981) 34 ALR 496
Ghani v Jones  1 QB 693
Coghill v McDermott (1982) 48 ALR 351
Australian Conservation Foundation Inc v The Commonwealth (1980) 146 CLR 493
Onus v Alcoa of Australia Ltd (1981) 149 CLR 27
Ogle v Strickland (1987) 13 FCR 306
Ainsworth v Criminal Justice Commission (1992) 175 CLR 564
The Church of Scientology v Woodward (1982) 57 ALJR 42
Johns v Australian Securities Commission & Ors (unreported, High Court, 25 October 1994)
The principal relief which the applicant seeks in this matter is a declaration that the execution by the second respondents of certain search warrants on 19 March 1992, was unlawful. The search warrants were issued on 18 March 1992 by the first respondent, who is a magistrate, to the second respondents, who are officers of the Australian Federal Police, authorising the seizure of certain computer hardware and software and other records at three separate premises, namely, at the property known as “Croftside”, RSD 530 Powranna Road, Cressy, at premises at 103 Wellington Street, Launceston and at premises at 54 Frederick Street, Launceston. “Croftside” [*3] is the applicant’s residence. 103 Wellington Street Launceston is the address of premises occupied by the Unemployed Workers’ Union to which I shall refer in more detail later. Nothing was seized from the 54 Frederick Street premises and there is no issue in these proceedings in relation to the execution of the search warrant at those premises.
The search warrants authorised the seizure of:
3 1/2″ and 5 1/4” computer disks containing information in relation to the payment or receipt of monies involving the Unemployed Workers Union, including the Community Resource Centre; A-Z Desktop Publishing Bureau and Wholefoods store, computers of any brandname including, Visual Display Units, keyboards, control units, printers, modems, diaries, receipt books, receipts, telex’s, cash books, journals, ledgers, cheque books, cheques and cheque book butts, bank statements, keycards, passbooks, deposit slips, withdrawal slips, deposit books, for account number 7600 0094 6440 and any other accounts in the name of the Northern Tasmanian Unemployed Workers Union, Unemployed Workers Union, Community Resource Centre, A-Z Desktop Publishing Bureau, Unemployed Workers Union Wholefood [*4] Store, William Thomas BARTLETT, Laura Jean HEINER, Donald MITCHELL and Sue RIVERS, which there are reasonable grounds for believing that the same will afford evidence as to the commission of an offence against s29B Crimes Act 1914, or s24(2) Cash Transaction Reports Act 1988, both laws of the Commonwealth, namely Imposition and Operate a Bank Account in a false name.”
Background to Present Proceedings
The applicant commenced these proceedings on 8 April 1992, whereby he challenged the validity of so much of the search warrants as related to computer disks and computers of any brand name including visual display units, keyboards, control units, printers and modems (hereinafter collectively called the computer hardware). The applicant sought the return of the computer hardware or alternatively an order that the computer hardware only be held for a period of 14 days from the date of seizure. He also sought damages for the detention of the computer hardware.
On 15 May 1992, the applicant filed an amended application, in which he sought the following relief: an order of review of the decision of the first respondent, made on 18 March 1992, to issue the warrants pursuant to s10 of [*5] the Crimes Act 1914 (Cth); an order of review of the decisions of the second to fifth respondents to not promptly examine the things seized, and to not promptly return things which were found not to be relevant to the commission of any offence; an order of review of the conduct of the second to fifth respondents in carrying out the searches of the relevant premises, of selecting the things to be seized, of refusing to promptly return the things seized and in claiming an entitlement to continue to hold possession of the things seized because of an unreasonably held suspicion that other offences than those named in the search warrants may have been committed; a declaration that the search warrants were invalid; a direction that the second to fifth respondents deliver up all the property seized on 19 March 1992; and damages for trespass and wrongful detention.
The claim as to the invalidity of the warrants was heard as a separate issue by Northrop J, who determined that the warrants were valid. The applicant sought leave to appeal from that decision. Leave was refused by order of Heerey J on 6 April 1993. On that occasion, his Honour directed the applicant to file and serve on the [*6] respondents’ solicitors particulars of the claims in respect of:
“1. The allegation that the warrant was executed improperly;
2. The allegation that goods taken in execution of the warrant were detained for an excessive period of time; 3. The applicant’s claim under the Administrative Decisions (Judicial Review) Act 1977;
4. Damages suffered as a result of the matters referred to in 1, 2 and 3.”
In compliance with this order, the applicant filed particulars of claim. Those particulars reveal that the primary relief sought by the applicant was “… an order that the execution of the warrants were unlawful in respect of the things seized and unreasonably withheld by the respondents which were not authorised by the warrant”. The claim for damages was maintained. The bases upon which the applicant submitted he was entitled to these orders may be summarised as follows:
1. (a) S10 of the Crimes Act 1914 (Cth) (the Crimes Act) permits only the seizure of things “which will provide evidence of an offence”
(b) In this case, the second to fifth respondents seized computer hardware, not to provide evidence of an offence, but to use as a tool in the examination of files contained in [*7] computer storage disks.
(c) There was no basis to justify the continued detention of the computer hardware.
2. In so far as the floppy disks were concerned, the second to fifth respondents seized all floppy disks upon the premises whereas the warrants specifically authorised seizure only of:
“3 1/2 and 5 1/4 inch computer disks containing information in relation to the payment or receipt of monies involving the Unemployed Workers Union including the Community Resource Centre; A-Z Desktop Publishing Bureau and Wholefoods Store”.
3. (a) All hard disks were seized in contravention of s10 of the Crimes Act which only permits seizure of material which “… will afford evidence as to the commission of an offence”.
(b) The warrant did not specify the files on the hard disks which were authorised to be seized.
(c) Even if the warrants authorised the seizure of the same kinds of records as those authorised to be seized in relation to floppy disks, that is financial records, the execution of the warrants went much further than was reasonable or necessary to seize such information.
4. It is not lawful to seize material for later inspection without attempting at the time of seizure [*8] to determine whether material falls within the ambit of the warrant. If the officers seizing the material decline to inspect it before doing so, they have not lawfully executed the warrant.
5. Notwithstanding the decision of Northrop J that the warrants were valid, the validity of a warrant does not necessarily permit the seizure of items which may literally fall within its terms. For there to be a valid seizure, it is necessary for the officers executing the warrant to investigate, where reasonably possible, whether the things seized meet the criteria of “affording evidence”. That is, s10 requires that the officer executing the warrant must believe that the specific things they seize will afford such evidence and that that statutory requirement must be met at the time of the search as well as at the time of the issue of the warrant.
The second respondents deny that the warrants were unlawfully executed. They challenge the standing of the applicant to bring the proceedings in so far as they relate to the execution of the warrant at the UWU premises. They also submit that as a matter of discretion I should not grant the relief sought. The challenge as to standing had the effect [*9] of the applicant abandoning his claim for damages. The issues which thus remain to be determined are the validity of the execution of the warrants at Croftside and at the UWU premises; whether the second respondents unlawfully retained the goods seized; the question of standing; and, whether the court, as a matter of discretion, should make the orders sought.
The applicant is a member of an association known as the Unemployed Workers’ Union (UWU), which is an unincorporated, non-profit association. The UWU runs a wholefood food shop for its members and the public, and a community resource centre, including a desktop publishing service, consisting of publications for the use of members, other community groups and interested members of the public. According to the applicant, the constitution of the UWU provided that the aims of the UWU were:
“1. To provide assistance and support to the unemployed and the under-employed in the following ways:-
(a) providing a structure where the unemployed can work together to alleviate their common problems.
(b) the provision of information about entitlements.
The applicant describes himself as the manager of the UWU and information was available to the second respondents prior to the issue of the search warrants that the applicant was the person who “controlled the UWU”. The applicant gave evidence that as part of his duties as the manager, he has the management of the accounting and business activities of the UWU. The administration of the operations of the UWU is carried out by volunteer staff under the applicant’s supervision. The UWU owns computer equipment, namely, an Apple Macintosh Classic II, an Apple Macintosh SE30, and an Apple Macintosh Quadra 700 CPU and associated equipment. The accounting records of the UWU, including a cash book, were kept on computer. The cash book was protected by a password, as were backup copies of it. The applicant’s recollection is that the original accounts which were protected by the password were kept on the Quadra and that there were backup copies on one of the other hard disks as well as on floppy disk.
The second respondents executed the Croftside warrant first and seized about 100 floppy disks, some of which, [*11] as was subsequently ascertained, included computer games belonging to the applicant’s son. The second respondents then proceeded to the premises of the UWU at 103 Wellington Street to which the applicant had given them a key. The premises comprised a shop front office with shelves along both walls, a photocopier just inside the door, an L shaped desk in the middle of the room and a couple of smaller desks and filing cabinets against the back wall. Two of the computers were on the L shaped desk and one was on the smaller desk at the back wall. At the time the second respondents arrived at the premises, the computers were turned off. One of the computers was operated briefly during the search, probably to examine a floppy disk belonging to a Mr Wright who lived at the premises. The floppy disks were contained in a black briefcase and in various plastic boxes on shelves. Some were scattered around the office. They were not all clearly labelled and indexed. Some disks had labels on them but the majority had writing on them which had been crossed Out or written over. The hard disks on the computers were all to nearly full capacity. The contents of the disks varied, and were described by [*12] the applicant as containing “… application programs, files of the UWU, files of other organisations, personal files of people and clients of the resource centre”. In addition, on the files on hard disk, there was personal correspondence of the applicant’s, as well as material relating to certain social security appeals in which the applicant had been involved, and there may have been “a few [of the applicant’s] housekeeping – type files”.
At the time that the second respondents arrived at the UWU premises, representatives of the media were present and remained throughout the search. The applicant was present and stated that he considered that he was co-operative during the search, although he was “abusive” of the second respondents. Mr Wright, who lived at the UWU premises at the time and was a member of the UWU, was also present during the search. The second respondents searched Mr Wright’s room and seized a box of floppy disks, notwithstanding that he informed them that they contained personal material and had nothing to do with the UWU. After some further discussion in relation to one particular disk, which Mr Wright insisted was important for him to retain and after having [*13] examined that disk on one of the computers, the second respondents returned that disk to him but took other disks. They also took personal banking records from his room.
In addition to Mr Wright’s goods, the second respondents seized goods including the following computer hardware:
1 Apple Macintosh Classic II,
1 Apple Macintosh SE30,
1 Apple Macintosh Quadra 700 CPU,
1 Apple Colour Hi Resolution RGB monitor,
as well as 3 keyboards, 3 mouses, 1 Rodime 45 Plus external hard disk, 1 Rodime 60 Plus external hard disk, and several hundred 3.5 inch floppy disks. In all, in excess of 400 floppy disks were seized, which the applicant estimated contained several thousand files.
Prior to the execution of the warrants, the second respondents had information that all of the UWU’s business and banking records were computerised and that some were protected by password. At the time of execution, the second respondents were accompanied by an officer of the Australian Taxation Office who was skilled in computers. Detective Constable Aikman, the second named second respondent, gave evidence that the second respondents seized the computer hardware because he believed that if any matter [*14] relating to the applicant was to proceed to a hearing, it was necessary to present the best evidence to the court, and that the computer hardware, which contained the hard disk drives, constituted original evidence. In particular, he stated he believed it would be original evidence of the holding of banking records of the UWU. Detective Aikman stated in his affidavit evidence that there was no way of identifying which disks or computers related to which activity of the UWU. He agreed in cross-examination that by that he meant that there was no way of identifying which disks or computers related to which activities without turning on the computers and inspecting the material contained on the hard and floppy disks.
He also said that, at the time of execution of the warrants, he believed that the office of the UWU was not an appropriate venue to examine the material on the computers. He gave two reasons for this. First, he had been advised that the information on the computers could be erased instantly and he understood that the computers in the office were interlinked. Secondly, he considered the presence in the office of the applicant, Mr Wright and the media made it inappropriate [*15] to carry out any examination at the premises. Detective Aikman said “… I believed that we could take it back to an area where we actually had better control over what was actually happening and that something couldn’t interfere with what we were carrying out”, and that the best way to ensure that the material was not wiped out by the press of a button was to remove the equipment and investigate it in some other situation. He said that the decision to remove the computers in their entirety, rather than to examine the files at the office, was “probably” made prior to the execution of the warrant. He said, however, that the presence of the media probably reinforced the decision which had been made. Detective Aikman also gave evidence that he believed that the files would be password protected, so that he would not be able to access them on the premises but would need expert assistance to do so, as the applicant refused to provide the password. Detective Aikman did not explain, however, why the computer expert who accompanied the second respondents could not have assisted in this regard. It is unclear from the evidence whether the second respondents, and Detective Aikman in particular, [*16] made a specific request of Mr Bartlett for the provision of the password. However, the applicant said that he had offered, during the course of the search, to provide the password to the accounting records, which he assumed was part of what the second respondents were after, conditional upon their leaving both the hardware and software intact at the premises and taking copies of the material. This evidence was not disputed. It is not necessary to determine whether the second respondents requested the provision of the password, as I am satisfied that the applicant did offer the password, but only on the condition which I have stated. I am also satisfied that the second respondents had decided to remove the equipment including the hardware, and that they had made that decision prior to their attendance at the premises.
The applicant stated that it would take thousands of hours to examine in detail the computer files which were seized. However, there was the following undisputed expert evidence before the court. All files on all the hard disks could be easily copied across on to other hard or floppy disks within one working day, and in fact, that it would take less than two hours, [*17] after setting up, to do so. It appears that in all, there were about twenty files which were encrypted by use of a password. The password would not prevent those files being copied and the skilled use of a powerful computer could circumvent the use of the password altogether. Finally, the hard disk within the Macintosh Quadra and Classic II could be removed by a competent person within approximately 30 minutes.
However, the second respondents did not, at least initially, copy the two computer files. Rather, they engaged the services of an officer of the Australian Taxation Office working part-time to examine all the files on the hard and floppy disks. During the course of that officer’s investigation, it was considered that there may have been some copyright offences committed. Such allegation however was never pursued by the second respondents. Eventually, the computer hardware and software was returned pursuant to an order of the court made on 15 May 1992.
The warrants were issued pursuant to s10 of the Crimes Act 1914 (Cth), which provides:
(b) anything as to which there are reasonable grounds for believing that it will afford evidence as to the commission of any offence [against any law of the Commonwealth]; …
…the…Justice of the Peace may grant a search warrant authorising any constable named in the warrant, with such assistance, and by such force, as is necessary and reasonable, to enter at any time the premises…or place named or described in the warrant, and to seize any such thing which he or she might find there.”
Lawfulness of Execution of the Search Warrants
In Baker v Campbell (1983) 153 CLR 52 at 82, Mason J described “… the important characteristics of the search warrant procedure” as being:
“… that its foundation is the making of an order by a judicial officer and that the warrant which issues by virtue of the order authorises the search and seizure of documents in the possession of another for use in the investigation and in any subsequent trial arising out of the investigation.”
This statement was adopted by the Full Court of the High Court in George v Rockett (1990) 170 CLR 104, where the Court stated at 110: [*19] “A search warrant thus authorises an invasion of premises without the consent of persons in lawful possession or occupation thereof”. In Crowley v Murphy (1981) 34 ALR 496, Lockhart J stated at 523, that the fundamental obligation of a person entrusted with the execution of a warrant was to “…adhere strictly to the terms of the warrant and…seize only those documents…authorised to seize”. His Honour expanded upon this statement at 525, in these terms:
“…[t]he overriding obligation of the searcher is to do no more than is reasonably necessary to satisfy himself by search that in all the circumstances of a particular case he has whatever documents are necessary to answer the terms of the warrant. Plainly this must vary from case to case. What is permissible on one occasion is impermissible on another. Much must be left to the sense of responsibility of the police officer and the person whose premises are to be searched.”
The fundamental obligation of a person executing a search warrant according to its terms is also emphasised in Carter, The Law Relating to Search Warrants, where the author states at p69:
“The officer executing the Search Warrant must strictly follow the [*20] directions contained therein, and must be careful not to exceed the limits of his authority or he will not be justified in his acts … If he is directed to seize only stolen sugar, and he seizes tea, or other property, he will be a trespasser.
Carter gives as another example, a search warrant to search for and seize opium, stating the terms of such a warrant would not justify the seizure of opium pipes, lamps and the like. However, if opium was found within such articles it could be removed and taken possession of within the terms of the warrant.
Not only must a search warrant be executed according to its terms, the execution must be reasonably carried out. This includes a requirement that the seizing officer have reasonable cause to believe at the time of the seizure that the items seized might be connected with some crime committed by the applicant: Reynolds v Commissioner of Police of the Metropolis  3 All ER 649. Reynolds involved a claim made on a fire insurance policy. The police suspected that the fire had been deliberately caused and that the claim was made fraudulently. Acting pursuant to a search warrant, the police entered the plaintiff’s house, arrested him, [*21] searched through his papers and took a large quantity of them to the police station, leaving behind a number of documents which were clearly irrelevant. However, the number of documents removed ran into thousands and required 7 to 8 sacks, 2 1/4 feet high and 18 inches wide, to carry them. The Court of Appeal held that, notwithstanding that the sorting process at the police station had been carried out promptly – in 2 days in that case – a jury properly directed as to the obligations imposed upon persons executing a warrant, might find that the conduct in taking the documents was not reasonable, as the police officers had not formed the necessary requisite belief that the documents taken were likely to be of evidential value. Waller LJ found that the jury, properly directed, would probably have found that the police took some documents without considering whether or not they might be relevant. Slade LJ was of the same opinion. His Lordship said at 660:
“…it was not correct in law to direct the jury that the reasonableness (or otherwise) of the police in executing the search warrant was the only relevant criterion. The jury should have been asked whether in regard to each file, [*22] book, bundle or separate document, the officer in question, at the time of removal, had reasonable cause to believe that it might contain either forged material or evidence showing that the appellant was guilty of some other crime. Only if this question was answered in the affirmative would the reasonableness or otherwise of the removal itself fall to be considered in relation to the various items.”
Purchas LJ said at 664-5:
“…I do not think that the wording of the warrant can extend to a wholesale removal of documents to be searched at some other place, however inconvenient it might be to execute the warrant in its strict terms…
This is an area in which the balance between the importance of assisting the police in the detection of crime, and preserving the rights of the individual, must be scrupulously observed. Provided the police had reasonable grounds in relation to any particular document or file of documents, or other property, for thinking that it might be connected with any crime committed by the appellant, then it would be open to the jury to find that the removal of it was a justified and reasonable action to take in order to make a further and more detailed examination [*23] elsewhere. But if the jury were not satisfied that the documents involved in the seizure did command the reasonable suspicion of the police then, in my view, the jury ought to have found in favour of the appellant in respect of trespass to those particular documents. In effect the judge at no place in his directions left that central question for consideration by the jury, but concentrated their attention on whether or not the police acted “reasonably” or “sensibly” in bundling up the documents and taking them to the police station, and then returning them … The test of reasonableness only arises once it is established that the documents concerned fell within, or might reasonably be expected to fall within the second criterion in Ghani v Jones  1 QB 693.”
Ghani v Jones  1 QB 693 involved the search of premises and the seizure of items without a warrant. Before dealing with the principles which govern the conduct of police officers in that situation, Denning MR considered the principles which apply to a search and seizure pursuant to a warrant, stating at 706:
“…the officers are entitled to take any goods which they find in his possession or in his house which they [*24] reasonably believe to be material evidence in relation to the crime for which he is arrested or for which they enter. If in the course of their search they come upon any other goods which show him to be implicated in some other crime, they may take them provided they act reasonably and detain them no longer than is necessary. Such appears from the speech of Lord Chelmsford LC, in Pringle v Bremner and (1867) 5 Macph HL 55, 60 and Chic Fashions (West Wales) Ltd v Jones  2 QB 299.”
His Lordship then enumerated five principles which govern the conduct of officers acting without a warrant. As Purchas LJ noted in Reynolds v Commissioner of Police of the Metropolis, the second of those principles also applies where law enforcement agencies are acting pursuant to a warrant. In my opinion, the fourth and fifth of the principles enunciated in Ghani v Jones also apply. The second, fourth and fifth principles are:
“Second: The police officers must have reasonable grounds for believing that the article is either the fruit of crime (as in the case of stolen goods) or is the instrument by which the crime was committed (as in the case of the axe used by the murderer) or is material evidence [*25] to prove the commission of the crime (as in the case of the car used by a bank raider or the saucer used by a train robber).
Fourth: The police must not keep the article, nor prevent its removal, for any longer than is reasonably necessary to complete their investigations or preserve it for evidence. If a copy will suffice, it should be made and the original returned. As soon as the case is over, or it is decided not to go on with it, the article should be returned.
Finally: The lawfulness of the conduct of the police must be judged at the time, and not by what happens afterwards.”
In Coghill v McDermott (1982) 48 ALR 351, Marks J also applied the test of reasonableness to the validity of the execution of the warrant. His Honour said at 359 “[i]n some cases it has been possible to show that the method of search and seizure was so random that excess of authority was demonstrated”. See also R v Inland Revenue Commissioners: Ex parte Rossminster  AC 952.
Execution of the warrant at 103 Wellington Street, Launceston
It is convenient in the first instance to determine whether the execution of the warrant at the UWU premises at 103 Wellington Street, Launceston was [*26] lawful. The warrant did not permit the seizure of floppy disks found at the premises. It only permitted the seizure of “3 1/2″ and 5 1/4″ computer disks containing information in relation to the payment or receipt of monies involving the Unemployed Workers Union, including the Community Resource Centre; A-Z Desktop Publishing Bureau and Wholefoods store.” It is not clear on the evidence whether the second respondents seized all the floppy disks which they located at the premises, other than the one that they returned to Mr Wright. It is clear, however, that not only did they seize a great quantity of disks, they did not know, at the time of the seizure, what was contained on any floppy disk of which they took possession. Notwithstanding that they were accompanied by a computer expert at the time of execution of the warrant, the officers made no attempt, with the exception of examining the one disk belonging to Mr Wright, to ascertain what information was stored on any of the disks. There is no evidence that, at the time of execution of the warrant, the second respondents turned their minds to the question of whether any of the material which they seized fell within the terms of the [*27] warrant. Such evidence as there is, is to the contrary. Detective Aikman’s evidence is that on the basis of information provided to him, he “formed the belief that the records of the UWU would afford evidence as to the commission of the offences being investigated which were specified on the warrants”. He further stated that he believed that the records were computerised and that the computers containing the hard disks and the floppy disks on the UWU premises would afford evidence of the commission of the offences referred to in the warrant. This evidence is stated not only in the most general terms, but is in terms much wider than the terms of the warrant. As I have said, the warrant did not authorise the seizure of the records of the UWU. Further, this evidence refers to Detective Aikman’s belief as to what he expected to find on the premises. It is not a statement of belief that he had at the time of the execution of the warrant. Whilst that evidence may have been sufficient to support the issue of the warrant, it is not sufficient for the purposes of the lawful execution of the warrant and points up the two fold problem there is with the manner in which the warrant was executed. [*28] The first problem is that the second respondents did not know, at the time of execution of the warrant, whether the goods they seized fell within the terms of the warrant. The second problem is that they did not have, at the time of the execution of the warrant, a reasonable belief that the actual goods seized might afford evidence of the commission of a crime, as in my opinion, if they did not know what they were seizing, and did not examine the goods, they could not have had such a belief. As Detective Aikman said: “there was no way of identifying which disks or computers related to which activity of the UWU, if there was such a distinction”. The second respondents considered that their actions in the wholesale removal of items including floppy disks from the premises was justified conduct under the terms of the warrant. Their belief in that regard was wrong, and in so acting, the second respondents failed to comply with the fundamental obligation imposed upon persons executing search warrants. Their conduct was thereby unlawful.
In so far as the hard disks are concerned, the warrant does not expressly specify that hard disks may be seized, unless the hard disks are included within [*29] in the terms “computer” or “control units” in the warrant. However, both parties argued the matter on the basis that the hard disks were included within the terms of the warrant, and I will proceed on that basis. The applicant contended that the authorisation to seize hard disks should impliedly be limited in the same way as was the authority to seize floppy disks. It is not necessary for me to determine that question as, even if there was no such limitation as to the hard disks which may be seized, it was still necessary for the second respondents, at the time of seizure, to reasonably believe that the material on each of the hard disks seized afforded evidence of an offence. The respondents did not turn their mind to that question at the time of seizure. It follows that the seizure of the hard disks was unlawful.
All computer hardware on the premises was seized. Detective Aikman’s reason for removing the hardware was that he thought that it would afford original evidence of the holding of banking records of the UWU. It might be argued that this is evidence from which it could be concluded that the seizing officers had turned their mind to the question of whether the computer hardware [*30] afforded evidence of an offence and that they held a reasonable belief to that effect. A belief to be “reasonable” for the purposes of the execution of a warrant, must be one which is honestly held and for which there are reasonable grounds or cause for that belief: R v Inland Revenue Commissioners: Ex parte Rossminster (supra); Boucaut Bay Co (in liq) Commonwealth (1920) 40 CLR 98; WA Pines Pty Ltd v Bannerman (1980) 30 ALR 559. In this case, assuming that the evidence of Detective Aikman is evidence that he turned his mind to the question of whether the computer hardware would afford evidence of the commission of an offence, I do not consider that it constitutes evidence of a reasonable belief. In the first place, the belief, if held, fails to take into account both the nature of computer hardware as opposed to software, and the provisions of the relevant evidence legislation relating to the production of computer records. It is not necessary for me to determine whether those matters would be sufficient to deprive the belief of a reasonable basis, as I consider that there is a more fundamental problem with the seizure of the computer hardware, namely, the fact that the second respondents [*31] had not turned their mind at all to the question of whether the files on floppy disks which had to be used via the medium of the hardware or the files on the hard disks contained within the hardware, afforded evidence of the commission of an offence. In those circumstances, I am of the opinion that the seizure of equipment, namely the computer hardware, to enable the production of evidence which might, when examined at some time after the seizure, afford evidence of the commission of an offence and which was thereby unlawfully seized, is also unlawful.
Conclusion as to Lawfulness of the Execution of the Warrants
No submissions were directed to the seizure of other records at the premises, including the banking records of Mr Wright. However, I consider that the execution of the warrant in its entirety was fundamentally flawed for the reasons which I have stated, namely, that the second respondents seized items without knowing whether they fell within the terms of the warrant, intending to examine them later, and without having held, at the time of seizure, the requisite reasonable belief that the goods seized might afford evidence of the commission of a crime. Accordingly, I am [*32] of the opinion that the execution of the warrant at 103 Wellington Street was unlawful.
I am of the same opinion in relation to the seizure of items from the applicant’s home, “Croftside”. There was no consideration of the content of the computer files which were seized at those premises at the time of execution of the warrant. In those circumstances, there could have been no reasonable basis for the second respondents to reasonably believe, in respect of each item seized, that it would afford evidence of the commission of the offences specified in the warrant or of any other offence.
Unconscionable Period of Retention
The applicant next contends that quite apart from the issue of the lawfulness of the execution of the warrants, the second respondents retained the items seized for an unreasonable period. My finding that the execution of the warrants was unlawful means that the taking and retention of the goods for any period of time was unlawful. However, if I am wrong in that finding, the question arises whether the retention of the goods was for an unreasonable period of time so as to become unlawful.
The goods were seized on 19 March 1992 and were not returned until after [*33] the court ordered their return on 15 May 1992. It appears that part of the reason, if not the reason, for this delay was that the second respondents were using the services of an officer of the Tax Office who was only working on a part time basis. I do not consider that this excuses the retention for in excess of two months. It must be remembered that seizure of goods constitutes an interference with an individual’s proprietary and possessory rights. If the seizure is pursuant to a validly issued and executed warrant it is a lawful interference with those rights, but nonetheless an interference. If it is not intended that the seized goods be retained for evidence, they should be returned as soon as is reasonably practicable to the person who has been deprived of their possession. It is no answer to say that the goods had not been examined or a decision not made as to whether they should be retained because of a lack of resources, because of the employment conditions of the person undertaking the examination or because the seizing officers have given priority to other matters. This is more particularly so in the case of computer software which could have been copied under appropriately [*34] controlled conditions in a very short period of time, assuming of course that the seizure had been valid. In my opinion, therefore the goods were detained for an unreasonable period of time.
Standing of Applicant to bring Proceedings
Counsel for the respondents submitted that the applicant did not have standing to bring proceedings to challenge the execution of the warrant at the UWU premises as he had no relevant interest in the execution of the warrant. In particular, it was submitted that the applicant was not the owner or occupier of those premises, and “… with the possible exception of some floppy disks, the computer hardware seized was the property of the Unemployed Workers Union.” It was submitted that the applicant had, in effect, admitted his lack of standing when he stated that the reason he wanted to proceed with the action, given that he had abandoned the claim for damages, was: “well, its an interesting question”. Counsel for the respondent submitted that this indicated that the applicant’s interest, at the most, was only “an academic or emotional interest”, which was not a sufficient interest to give him standing to bring the proceedings.
The question of standing [*35] was considered by the High Court in Australian Conservation Foundation Inc v The Commonwealth (1980) 146 CLR 493 and in Onus v Alcoa of Australia Ltd (1981) 149 CLR 27. In Australian Conservation Foundation Inc, Gibbs J stated at 530-531
“I would not deny that a person might have a special interest in the preservation of a particular environment. However, an interest, for present purposes, does not mean a mere intellectual or emotional concern. A person is not interested within the meaning of the rule, unless he is likely to gain some advantage, other than the satisfaction of righting a wrong, upholding a principle or winning a contest, if his action succeeds or to suffer some disadvantage, other than a sense of grievance or a debt for costs, if his action fails. A belief, however strongly felt, that the law generally, or a particular law, should be observed, or that conduct of a particular kind should be prevented, does not suffice to give its possessor locus standi. If that were not so, the rule requiring special interest would be meaningless. Any plaintiff who felt strongly enough to bring an action could maintain it.” Mason J said at 547:
“Depending on the nature of the relief [*36] which he seeks, a plaintiff will in general have a locus standi when he can show actual or apprehended injury or damage to his property or proprietary rights, to his business or economic interests … and perhaps to his social or political interests. Beyond making this general observation, I consider that there is nothing to be gained from discussing in the abstract the broad range of interests which may serve to support a locus standi, for, as I said in Robinson v Western Australian Museum (1977) 138 CLR 283 at 327 “the cases are infinitely various and so much depends in a given case on the nature of the relief which is sought, for what is a sufficient interest in one case may be less than sufficient in another”.
In this difficult field there is one proposition which may be stated with certainty. It is that a mere belief or concern, however genuine, does not in itself constitute a sufficient locus standi in a case of the kind now under consideration. I entirely agree with Gibbs J when he says that “a belief, however strongly felt, that the law generally, or a particular law, should be observed, or that conduct of a particular kind should be prevented, does not suffice to give its [*37] possessor locus standi.””
In Onus, Gibbs CJ at 35-6 stated:
“A plaintiff has no standing to bring an action to prevent the violation of a public right if he has no interest in the subject matter beyond that of any other member of the public; if no private right of his is interfered with he has standing to sue only if he has a special interest in the subject matter of the action. [Australian Conservation Foundation Inc v The Commonwealth] (1980) 146 CLR 493 at 530-1, 537, 547-8. The rule is obviously a flexible one since, as was pointed out in that case, the question what is a sufficient interest will vary according to the nature of the subject matter of the litigation.
In my opinion, the applicant has standing to bring these proceedings. His interest is more than an academic or emotional interest in the validity of the execution of the warrant. He was the person subject of investigation by the Federal Police and in respect of whom the warrants were directed. He was named in the warrants which authorised the seizure of his personal banking records. Those matters of themselves, would have been sufficient to give him standing. He was also a member of the body whose premises were [*38] searched. There was evidence that he “was the UWU”, and that he played a major part in its control and management. Some of his goods were seized from the UWU premises. These matters merely reinforce my finding that the applicant has standing to bring these proceedings.
Utility of making a Declaration
Counsel for the second respondents finally contended that, as a matter of discretion, I should not make a declaration that the execution of the warrants was unlawful, or that the goods had been unlawfully detained, as there was no material before me as to whether the investigation was still continuing. When this submission was made, I requested that I be advised as to what the position was as to the continuation of the investigation. I have not been provided with an answer. Accordingly, I do not know whether or not the investigation is continuing. The question is therefore, whether, in the state of knowledge which I have, I should make a declaration.
In Ainsworth v Criminal Justice Commission (1992) 175 CLR 564, Mason CJ, Dawson, Toohey and Gaudron JJ stated, at 582, that declaratory relief should not be granted “if the court’s declaration will produce no foreseeable consequences [*39] for the parties”. See also Gardner v Dairy Industry Authority (NSW) (1977) 52 ALJR 180 at 188 per Mason J, and at 189 per Aickin J. However, the courts have long recognised the importance of declaratory relief where government departments and officers do not act in accordance with their statutory powers: see Dyson v Attorney-General  1 KB 410 at 423; Burghes v Attorney-General  1 Ch 173; Crouch v The Commonwealth (1948) 77 CLR 339 at 359. In The Church of Scientology Woodward (1982) 57 ALJR 42 at 55, Brennan J stated that “… [t]he remedy of declaration is available to define the limit of executive powers of functions in a particular case.” His Honour further stated at 55, that declaratory relief is appropriate where the complaint is that a governmental body has engaged in acts or conduct not in conformity with its statutory powers because:
“the binding of … [the governmental body] … would require … [those in charge] … in giving general directions to the organisation to act in conformity with the declaration.”
In Johns v Australian Securities Commission & Ors (unreported, Full High Court, 25 October 1994), the High Court, save for Toohey J, considered it appropriate [*40] to make a declaration that decisions to permit the use of confidential ASC transcripts for the purpose of the Royal Commission into the affairs of the Tricontinental Group of Companies were invalidly taken, notwithstanding that the decision had already been acted upon. The Court did not state why it was considered appropriate to make the declaration. However, it seems to me that the reasoning of Brennan J in The Church of Scientology v Woodward would be applicable.
In my opinion, notwithstanding that there is no evidence before me that the investigation is continuing, it is an important matter of public interest that public authorities, and in particular police authorities carry out their functions and duties in accordance with law. In this case, there was a fundamental failure by the second respondents to comply with and, apparently, understand the nature of, the obligations imposed by law upon persons executing search warrants. I consider therefore, that it is appropriate in this case that I make a declaration as to the unlawful execution of the warrants at the premises known as “Croftside”, RSD 530 Powranna Road, Cressy, and at premises at 103 Wellington Street, Launceston. As [*41] the execution was unlawful, it followed that the detention of the goods seized was unlawful and on that basis I will make a declaration to that effect. I have not considered the question whether it would have been appropriate to make a declaration that the detention was unlawful on the basis that the goods were detained for an unreasonably long period of time, if in fact the warrants had been lawfully executed.
Accordingly, I declare:
1. That the execution on 19 March 1992, by the second respondents of the warrants issued by the first respondent on 18 March 1992, at the premises known as “Croftside”, RSD 530 Powranna Road, Cressy, and the premises at 103 Wellington Street, Launceston was unlawful.
2. That the second respondents’ retention of the goods seized at the time of the execution of the warrants was thereby unlawful.
I will hear the parties as to costs upon a date to be fixed.
1. That the execution on 19 March 1992 by the second respondents of the warrants issued by the first respondent on 18 March 1992 at the premises known as “Croftside”, RSD 530 Powranna Road, Cressy, and at the premises at 103 Wellington Street, Launceston was unlawful.
Note: Settlement and entry of orders is dealt with in O36 of the Federal Court Rules.
The applicant appeared in person
Counsel for the respondent: Mr Wilson
Solicitors for the respondent: Australian Government Solicitor
Ghani and Others v Jones
Court of Appeal
29 October 1969
29 October 1969
[1969 G. No. 2947]
 1 Q.B. 693
Lord Denning M.R., Edmund Davies L J. and Sir Gordon Willmer
1969 Oct. 14, 15, 16; 29
1969 Aug. 25; 28
Police—Powers—Retention of documents—Passports—Refusal to return documents and passports handed to police—Police suspicion of murder and belief in evidential value of documents—No evidence of reasonable grounds of belief or that owners concerned in murder—Whether police entitled to retain documents and passports—Owners’ right to relief.
Injunction—Mandatory—Interlocutory—Retention of documents and passports by police claim by owners—Relief sought substantially same as claimed in action—No reason to delay enforcement of right—Whether order should be granted.
Police officers inquiring into a woman’s disappearance searched, without a warrant, the house of her father-in-law. At their request he handed to them documents including the passports of himself, his wife and daughter, the plaintiffs living in the house. The plaintiffs, who were Pakistanis, later asked for the return of the passports and documents as they wished to visit Pakistan. The police refused to return them. The plaintiffs brought an action against the defendant, a senior police officer, for a mandatory order for the delivery up of the passports and documents, an injunction restraining their detention and damages for detinue.
On the plaintiffs’ interlocutory application, the police gave affidavit evidence of their belief that the woman had been murdered and that they would apprehend those concerned. They said that in the event of charges being preferred some of the documents would be of evidential value and others of potential evidential value. The defendant said that the plaintiffs could help the police inquiries and that if they left the United Kingdom they might not return. No one had been arrested or charged with the murder. Talbot J. ordered the return of the documents and passports.
On the defendant’s appeal:
Held, dismissing the appeal, that the police had not shown reasonable grounds for believing that the documents were material evidence to prove the commission of a murder, nor for believing that the plaintiffs were in any way implicated in or accessory to a crime, and since their affidavits did not justify their retention of the documents, they should be ordered to return them forthwith.
Chic Fashions (West Wales) Ltd. v. Jones  2 Q.B. 299;  2 W.L.R. 201;  1 All E.R. 229, C.A. distinguished.
Entick v. Carrington (1765)19 State Tr. 1029; 2 Wils. 275 and Reg. v. Waterfield  1 Q.B. 164;  3 W.L.R. 946;  3 All E.R. 659, C.C.A. considered.
Dicta of Horridge J. in Elias v. Pasmore  2 K.B. 164, 173 disapproved.
Per curiam. There is no power to issue a search warrant for murder (post, p. 705D).
The common law does not permit the police to ransack anyone’s house, or to search for papers or articles therein, or to search his person, simply to see if he may have committed some crime (post, p. 706G-H).
Where police officers enter a man’s house by virtue of a warrant, or arrest a man lawfully for a serious offence, they are entitled to take any goods which they find in his possession or in his house which they reasonably believe to be material evidence in relation to the crime for which he is arrested or for which they enter. If during their search they come upon any other goods which show him to be implicated in some other crime they may retain them, provided they act reasonably and detain them no longer than is necessary (post, p. 706A-B).
The wish to prevent the plaintiffs leaving the country pending police inquiries is not a legitimate ground for the retention of the passports by the police (post, p. 709F).
Observations on requisites to be satisfied in order to justify the taking of an article when no one has been arrested or charged (post, pp. 708G-709C).
Decision of Talbot J., post, p. 695;  3 W.L.R. 1158;  3 All E.R. 720 affirmed.
The following cases are referred to in the judgment of Lord Denning M.R.:
- Chic Fashions (West Wales) Ltd. v. Jones  2 Q.B. 299;  2 W.L.R. 201;  1 All E.R. 229, C.A..
- Elias v. Pasmore  2 K.B. 164.
- Entick v. Carrington (1765)19 State Tr. 1029; 2 Wils. 275.
- King v. The Queen  1 A.C. 304;  3 W.L.R. 391;  2 All E.R. 610, P.C..
- Pringle v. Bremner and Stirling (1867) 5 Macph., H.L., 55.
- Reg. v. Waterfield  1 Q.B. 164;  3 W.L.R. 946;  3 All E.R. 659, C.CA.
The following additional cases were cited in argument in the Court of Appeal:
- Boyd v. United States (1886) 116 U.S. 616.
- Chimel v. State of California (1969) U.S. (23L. Ed. 2d 685).
- Christie v. Leachinsky  A.C. 573;  1 All E.R. 567, H.L.(E.).
- Crozier v. Cundey (1827) 6 B. & C. 232.
- Dillon v. O’Brien and Davis (1887) 16 Cox C.C. 245, Ir.
- Gordon v. Metropolitan Police Chief Comr.  2 K.B. 1080, C.A..
- King v. The Queen  1 A.C. 304;  3 W.L.R. 391;  2 All E.R. 610, P.C..
- Lawrie v. Muir, 1950 S.C.(J.) 19.
- Levine v. O’Keefe  V.L.R. 70.
- Reg. v. Barnett (1829) 3 C. & P. 600.
- Reg. v. Lushington, Ex parte Otto  1 Q.B. 420.
- Warden of Maryland Penitentiary v. Hayden (1967) 387 U.S. 294.
- Weeks v. United States (1914) 232 U.S. 383.
The following cases are referred to in the judgment of Talbot J.:
- Chic Fashions (West Wales) Ltd. v. Jones  2 Q.B. 299;  2 W.L.R. 201;  1 All E.R. 229, C.A..
- Crozier v. Cundey (1827) 613. & C. 232.
- Dillon v. O’Brien and Davis (1887)16 Cox C.C. 245, Ir.
- Elias v. Pasmore 2K.B. 164.
- Entick v. Carrington (1765) 19 State Tr. 1029; 2 Wils. 275.
- Price v. Messenger (1800) 2 Bos. & P. 158.
- Reg. v. Lushington, Ex parte Otto  1 Q.B. 420.
- Reg. v. Waterfield  1 Q.B. 164;  3 W.L.R. 946;  3 All E.R. 659, C.C.A..
- Reg. v. Waterfield
- Canadian Pacific Railway v. Gaud  2 K.B. 239, CA.
- Gordon v. Chief Commissioner of Metropolitan Police  2 K.B. 1080, C.A..
APPEAL from Talbot J., infra.
A summons, taken out by Abdul Ghani, the first plaintiff, Razia Begum, his wife, the second plaintiff, and Kaniz Radhma, a spinster and daughter of the first and second plaintiffs, the third plaintiff, in an action against Alan Jones, a detective chief superintendent of the Metropolitan police, the defendant, was heard in chambers and judgment was delivered in open court.
The facts are fully stated in the judgments of Talbot J. and Lord Denning M.R.
Anthony Lester for the plaintiffs.
Anthony Lewisohn for the defendant.
Cur. adv. vult.
August 28. TALBOT J.
read the following judgment. In this summons I have been asked to give my judgment in open court. In it the plaintiffs are asking for a mandatory order that the defendant, a detective chief superintendent of the Metropolitan police, do deliver up certain documents belonging to them and their passports, which they allege are wrongfully detained by him. The first and second plaintiffs are husband and wife, and the third plaintiff is their daughter. Proceedings were commenced by a writ issued on August 13, 1969, in which is made this claim for the mandatory order and also a claim for damages.
The matter arises in this way: the police are investigating the disappearance of one Mastoora Begum, the wife of Mohammed Sharif, a son of the first and second plaintiffs. This lady arrived in the United Kingdom on June 22, 1967, and has since disappeared. Inquiries lead the police to believe that she has been murdered and that the crime is believed to have been committed in 1968. No one has been arrested or detained, though the police believe they will apprehend those concerned.
On June 13, 1969, the defendant and other police officers visited the first plaintiff’s house and questioned him about the disappearance of Mastoora Begum. They searched the house, though, as I understand, they did not have a search warrant. They asked for the passports of the first plaintiff and of his wife, the second plaintiff, and he (the first plaintiff)*696 handed them to the police officers. The police officers took away the passports, and also five letters and a notebook.
On June 19, 1969, the police again visited the first plaintiff’s house and asked him for the passport of his daughter, the third plaintiff. This also was handed over to them.
Then the time came when the plaintiffs wanted their documents back, and in particular their passports. They asked for them and did not get them back. They then instructed solicitors and the solicitors wrote letters, four in all, the last being on August 14, asking for the return of these documents, but received no reply.
The plaintiffs want their passports back for a holiday in Pakistan. The police – that is the defendant and detective sergeant Laing – in their affidavits say they believe that in the event of charges being preferred, some of the documents will be of evidential value and others certainly of potential evidential value. That is set out in the affidavit of detective sergeant Laing. In the affidavit of the defendant he says he believes the documents referred to to be important documents in themselves; and he went on to add that in so far as the passports were concerned, he believed that all three plaintiffs could be of considerable assistance to his inquiries, and that if they left the United Kingdom they might not return.
Pausing there, that final reason given by the defendant, that the passports are required to prevent the plaintiffs leaving the country, is no longer relied upon as a valid reason for retaining these documents.
The letters and notebook belong to the first plaintiff, or to the first and second plaintiffs. The passports belong to the governments issuing them. The plaintiffs, however, as possessors of these passports, have a right to them.
The first point which is clear is that the defendant detains these documents and passports from the plaintiffs, and the burden is upon him to show that he lawfully detains them. The second point is this: has the defendant shown that he has a right to retain these documents? The third point is: if he has not any such lawful power, ought the court, in the exercise of its equitable jurisdiction, to order their return at this stage of the proceedings.
The first question involves a consideration of police powers to seize papers which they believe may be of material evidential value in possible criminal proceedings. It is an important consideration that police authorities should not be hindered in their investigations of a crime. It is certainly of equal importance that individual rights and liberties should not be infringed and taken away unless there is lawful reason for so doing.
Powers of the police to seize goods and documents were fully examined by the Court of Appeal in Chic Fashion:s (West Wales) Ltd. v. Jones  2 Q.B. 299. As long ago as 1765, in Entick v. Carrington (1765) 19 State Tr. 1029, it was decided that a general warrant authorising a search for seditious papers was illegal. The powers of the police in such cases must be derived either from a statute or from the common law. There is no statutory power which would authorise the defendant in this case to do what he is doing, and therefore I must determine whether the common law authorises his action.
In 1800, in Price v. Messenger (1800) 2 Bos. & P. 158, seizure of goods not referred to in a search warrant was held lawful because the officer reasonably, though mistakenly, believed that they were included in the warrant.
In 1827, in Crozier v. Cundey (1827) 6 B. & C. 232, seizure of goods not mentioned in the warrant but which were likely to provide evidence of identity of those goods which were mentioned was held lawful.
In Dillon v. O’Brien and Davis (1887) 16 Cox C.C. 245, it was decided that where a man was arrested on warrant, a constable was entitled to take property found in his possession which was likely to form material evidence in his prosecution for a crime. Similarly, in Elias v. Pasmore  2 K.B. 164, it was decided that a constable arresting a man called Harrington for sedition was entitled to seize documents which were in his possession and which would form material evidence against the plaintiff in that action, Elias, on a charge of inciting Harrington to commit the crime of sedition.
In stating the principle to be derived from these cases, Lord Denning M.R. in the Chic Fashions case  2 Q.R. 299, 313 said:
“… when a constable enters a house by virtue of a search warrant for stolen goods, he may seize not only the goods which he reasonably believes to be covered by the warrant, but also any other goods which he believes on reasonable grounds to have been stolen and to be material evidence on a charge of stealing or receiving against the person in possession of them or anyone associated with him.”
That there are limitations on police powers in respect of property which they believe to be connected with a crime is shown by Reg. v. Waterfield  1 Q.B. 164, decided by the then Court of Criminal Appeal in 1963. Two police constables had information about a car being involved in a serious offence and tried to detain the car, though not charging or arresting the two men in it, and it was held that though there was a duty on the constables to preserve for use in court evidence of a crime, that duty did not authorise them to prevent the removal of the car in the circumstances.
It was in Reg. v. Lushington, Ex parte Otto  1 Q.B. 420 that it was laid down that constables have a power and duty to retain for use in court things which may be evidence of crime and which have come into their possession without wrong on their part. In that case there were proceedings for extradition and the articles had been produced by the owner under a subpoena duces tecum.
How then do these decided cases assist in this case? Let us take the main points of the evidence. There is suspected the serious crime of murder; the plaintiffs’ documents came into the hands of the police because they were handed to them by the first plaintiff; no one has been arrested or detained for the crime, and the plaintiffs are not shown by any evidence before me to be concerned in that crime; the police believe that the documents will be of evidential or potential evidential value, though no grounds are shown to support this belief; the plaintiffs particularly want their passports and their detention amounts to a restriction on their free movement from this country, a restriction which is laid upon persons who are not charged with any offence or shown to be implicated in the suspected*698 offence. These are the relevant circumstances, and I hope I have not omitted anything.
The question, narrowed down, therefore, is this: have the police common law powers to detain documents, which they believe will be useful evidentially in a suspected crime, from the owners, who have not been charged or arrested or shown to be implicated in the suspected crime?
The cases I have been referred to relating to search warrants limit the powers to keep the goods or papers found on the search to those connected evidentially with stolen property and which are believed, on reasonable grounds, to be so connected in order to support a charge against the owners or those associated with them. The other cases relate to the right to retain documents in proceedings which have been begun and which may form part of the evidence in those proceedings.
Taking all these matters into account, I am persuaded that there is no right vested in the police at common law to retain documents and passports belonging to persons not shown to be concerned in the suspected crime and where no reasonable grounds of belief that these documents will be useful evidentially in some crime are shown. To decide otherwise would be to accord to the police powers to take charge of property which they believe might be of evidential value irrespective of any connection the owners might have with the crime.
The final point concerns the equitable jurisdiction which I have to exercise. It is exceptional to grant, before trial of the action, an interlocutory injunction which gives substantially the relief claimed in the action, and in particular to make a mandatory order. Furthermore, before doing so, the court must be quite clear that the right exists. In this case, my opinion being that the defendant has no right to keep these documents from the plaintiffs, and as the legality of his actions has to be tested at the time of his refusal to deliver up – that appears in the Chic Fashions case – I can see no reason to delay enforcement of what I believe to be the plaintiffs’ rights. The order will therefore go.
Order accordingly. (L. N. W. )
Solicitors: Lawford & Co.; Solicitor, Metropolitan Police.
The defendant appealed.
The grounds of appeal were: (1) that the judge was wrong in law in holding that police officers had no common law powers to detain documents which they believed would be useful evidentially in a suspected crime, unless the owners of the documents had either been charged or arrested, or had been shown to be implicated in the suspected crime; (2) that the judge was wrong in law in holding that it was incumbent on the police officers to disclose in their affidavits, sworn for the purpose of interlocutory proceedings, the grounds for their belief that the documents were of evidential value in connection with the suspected crime; (3) that the judge was wrong in the exercise of his equitable jurisdiction in granting to the plaintiffs the relief claimed upon an interlocutory application.
John Leonard Q.C. and Anthony Lewisohn for the appellant defendant. This is a murder investigation by the police. The original point of taking the plaintiffs’ passports was to prevent them getting out of the country. It is conceded that this is no justification. The passports were handed to the police voluntarily. Their retention is justified by their potential evidential value. The best evidence rule requires the production of the originals.
1. Police officers who lawfully acquire possession of articles which they have reasonable grounds to believe may be of evidential value in a criminal investigation can retain them until the articles are used in evidence or for a reasonable time. 2. A bare statement that a defendant has reasonable grounds for belief is a sufficient answer to an interlocutory application for the return of articles so acquired. 3. If the police are wrong and they have no reasonable grounds for retaining the articles they are liable in damages.
Suppose A borrows a knife from B, stabs someone with that knife and having so committed murder disappears and cannot be found. The knife is traced by the police who take it away before A is discovered. B demands the return of the knife. It would be absurd if the police were bound to return the knife to B, who may be implicated as an accessory. It is sufficient if it is reasonably needed as evidence.
Articles can be taken as an incident to a search warrant although not included in it: Chic Fashions (West Wales) Ltd. v. Jones  2 Q.B. 299. Cases reviewed in that case establish the power of the police to retain articles which may be used in evidence, e.g., Dillon v. O’Brien and Davis (1887)16 Cox C.C. 245. In Elias v. Pasmore  2 K.B. 164 the documents were on the premises but not in the possession of Hannington.
The statutory power of search is contained in section 26 (1) and (3) of the Theft Act, 1968. Impeding police inquiries in the case of murder could amount to an offence under section 4 of the Criminal Law Act, 1967. The right to retain articles cannot depend on whether a charge is ultimately made against anyone, or upon whether a conviction is obtained: see per Lord Denning M.R. in Chic Fashions (West Wales) Ltd. v. Jones  2 Q.B. 299, 312. The “best evidence” rule must be complied with; the original document must be produced if possible.
The restrictions on the powers of the police are: (1) the retention must be for a reasonable time; (2) one has to balance the interests of the individual who owns the article and the seriousness of the case. The current situation with regard to crime and the police must be regarded. The interlocutory order made means that the police have not had time to complete their investigations. Pringle v. Bremner and Sterling (1867) 5 Macph. H.L. 55 illustrates the principle of the interests of the state in prosecuting criminals.
The principle contended for does not depend on the fact that she documents were voluntarily handed over; the police obtained them lawfully. It is conceded that there must be a limit on what can be done without a search warrant. One cannot get a search warrant in a murder case.
The limitation on the powers of the police in Reg. v. Waterfield l Q.B. 164 went too far. The question there was whether the police were acting in the course of their duty. Reg. v. Lushington, Ex parte Otto  1 Q.B. 420 lays down the principle of the power of the police to*700 retain articles lawfully in their possession which may be evidence of a crime.
[Edmund Davies L.J. referred to articles by Professor P. J. Fitzgerald, “The Arrest of a Motor Car” (1965) Criminal Law Review, p. 23, and by Professor E. C. S. Wade, “Police Search” (1934) 50 Law Quarterly Review, p. 354.]
Levine v. O’Keefe  V.L.R. 70 which was cited in Chic Fashions (West Wales) Ltd. v. Jones  2 Q.B. 299 was decided before Elias v. Pasmore  2 K.B. 164.
In summary, any discussion as to the right of the police to seize goods is irrelevant. The police could not have got a search warrant in this case. The only common law right to a search warrant was in the case of larceny. There are two functions of search warrants for stolen goods. One is to provide evidence; the other is to recover goods. The right of the police is independent of the outcome of the investigation. The right to retain possession must have a point of termination. If there is no charge or prosecution that must be at the point, which had not been reached here, when a reasonable time has elapsed.
Anthony Lester for the plaintiffs. It is conceded that the burden is on the defendant to show that he lawfully detained the plaintiffs’ goods. The detention must be justified at the time of the taking or at the time of the request for the return. The defendant here took as a bailee but lie committed a trespass when he refused to return the goods. Halsbury’s Laws of England, 3rd ed., Vol. 38 (1962), para. 1283 defines detinue. If the detention is to be justified, the taking must also be justified. It must be the same justification in each case.
There are eight elements in this case which make it unusual: (1) there has been no prosecution; (2) no arrest; (3) no application for a search warrant; (4) no suggestion by the defendant that the documents were the fruits or instruments of any crime; (5) no allegation that they were evidence of any crime committed by the plaintiffs; (6) no suggestion that they were necessary and material evidence against anyone; (7) the passports have unique characteristics in that they affect liberty of movement and, like driving licences, they speak as to very few facts; (8) it is admitted that, in the circumstances of this case, the police would have no right to search for or seize documents. There are competing interests here: of the community through the police and of the individual citizen. It is necessary to have a clear standard at common law, especially since there are no safeguards in any written constitution.
Entick v. Carrington (1765)19 State Tr. 1029 is the basic case. At p. 1073 Lord Camden lays down the law. It is precisely this case.
As to the illustration of the knife given for the appellant, as the law now stands the police would have to return the knife. One can only search or seize by virtue of a warrant, a search warrant or warrant of arrest. A warrant of arrest would allow the taking of articles as evidence if they were in the possession of the person arrested. Warrants of search and arrest give safeguards; there must be reasonable grounds for suspicion.
The stolen goods cases. In Price v. Messenger (1802) 2 Bos. & P. 158 a search warrant protected goods specified in the warrant and also goods reasonably believed to have been specified. Crozier v. Cundey (1827) 6B. & C. 232 shows that though the terms of the warrant can be extended this must not be unreasonable. The cases are reviewed in Chic Fashions (West Wales) Ltd. v. Jones  2 Q.B. 299. The Theft Act, 1968, goes beyond that case.
There are three special features at common law in the case of stolen goods: (1) ex hypothesi they may not belong to the person from whom they are taken; (2) they are stolen; (3) there is an interest in their being returned to their true owner.
The need for a search warrant provides four safeguards: (1) a sworn statement made to a magistrate; (2) a deposition of reasonable belief that the goods were stolen and were in possession of a particular person at a particular place; (3) if the warrant was improperly granted, the citizen can be protected; (4) the warrant limits the extent of search and seizure.
In warrantless searches the police must have reasonable grounds for belief that the items seized are either the fruits of a crime committed by a person from whom they are taken or instruments of such a crime or necessary or material evidence of such a crime. The principle of reasonableness is inherent in the search warrant situation.
Other search warrant cases. In Pringle v. Bremner and Stirling (1867) 5 Macph. H.L. 55, the search went beyond the warrant. Lord Chelmsford indicated that the legality of the seizure would depend upon the outcome of the proceedings. Reliance is put on Gordon v. Chief Commissioner of Metropolitan Police  2 K.B. 1080, 1094, where the coins were not shown to be material evidence. One can only search or seize by virtue of a warrant, a search warrant or warrant of arrest. These warrants give safeguards; there must be reasonable grounds for suspicion. The irony of the plaintiffs’ present position if the police contention is right is that they have less protection than if there were a warrant. There have been cases where the property has been returned pending the trial.
King v. The Queen  1 A.C. 304 reinforces the importance of complying with a search warrant. It shows that if the warrant is exceeded there is an illegality. It also illustrates how different is the stricter American view as to the admissibility of illegally obtained evidence. As we have looser rules as to admissibility, we should have stricter safeguards as to obtaining evidence. Reg. v. Barnett (1829) 3 C. & P. 600 is one of the many cases showing that money or goods taken which are not material to the charge must be returned. The test is: is it material to the charge?
Arrest warrant cases. One can hardly imagine a clearer case than Dillon v. O’Brien and Davis (1887) 16 Cox C.C. 245 where the doctrine of hot pursuit arises. This was the only case relied upon in Elias v. Pas more  2 K.B. 164 for a much wider proposition. It is essential that the person concerned from whom the property is taken is the suspected criminal. Parliament, as late as 1967, has addressed its mind to these problems and has set out the limits: see sections 4 (1) and 2 of the Criminal Law Act, 1967, and also section 26 of the Theft Act, 1968. This is the answer to the knife point. It is very significant that Parliament has gone no further. One must not extend the law beyond the safeguards applied to accused persons. To allow the police the wide powers which they claim, where there is no arrest or charge, is highly dangerous. Reliance*702 is put on Entick v. Carrington, 19 State Tr. 1029, where similar issues were raised.
Elias v. Pasmore  2 K.B. 164, 173, is expressed very widely and is inconsistent with Dillon v. O’Brien, 16 Cox C.C. 245. If pressed it would be contended that Elias v. Pasmore was wrongly decided. It was a case involving sedition and the documents were conceded to be relevant. If Elias v. Pasmore  2 K.B. 164 was based on the width of the principle of Horridge J., at p. 173, it was wrongly decided. Professor Wade’s article, “Police Search” in 50 L.Q.R. 354, is a valuable criticism of that case. The present case goes beyond Elias v. Pasmore in that there has been no arrest. Although Reg. v. Waterfield  1 Q.B. 164 is in the plaintiffs’ favour in that it is the only case in English law in which the police have taken property without a warrant and had to give it back, the reasons of the court were not fully given and it should be limited to its own circumstances. It is very far from the present case, although it is the one case where there was no warrant. The doctrine of “hot pursuit” may sometimes apply. The police would not get a search warrant here.
The American authorities. Boyd v. United States (1886) 116 U.S. 616 showed that constitutional provisions for the security of person and property, such as the Fourth Amendment dealing with the “right of the people to be secure in their persons, houses, papers, and effects against unreasonable searches and seizures” should be liberally construed. We have the same standard as the American Fourth Amendment, although we do not go so far. If there is any doubt as to the law it should be resolved in favour of the citizen. The importance of the fundamental right secured by the Fourth Amendment was emphasised in Weeks v. United States (1914) 232 U.S. 383, 392, 393. No English case has been found which is inconsistent with Weeks v. United States. In The Warden of Maryland Penitentiary v. Hayden (1967) 387 U.S. 294 the seizure was allowed; previously the instruments of a crime could be seized, but not the evidence. Chimel v. State of California (1969) U.S. (23L.Ed 2d 685) shows how far American law goes in protecting the accused.
All the American cases concerned the accused person. It would never have occurred to them that the same safeguards should not apply to a person not even accused, [Reference was made to Christie v. Leachinsky  A.C. 573, per Viscount Simon at p. 584.]
In seizing goods, either one must have a warrant, or, if there is no warrant, there must be the same safeguards as if there was a warrant. The plaintiffs must be given reasonable grounds for the retention of the property at the time of the taking or the request. Retention cannot be justified without reasons being given.
In summary, the two issues of search and seizure should be kept separate. The question of the legality of searches depends upon the entry onto property. If there is no warrant, the same safeguards must be observed as are contained in actual search warrants.
As to seizure, on the cases the citizen or the police can only seize property pursuant to a search warrant or warrant of arrest or a Christie v. Leachinsky  A.C. 573 arrest. It is essential that the legality of what has been done can be tested. The burden is on the police authority to justify. In Elias v. Pasmore  2 K.B. 164 there was a warrant. It is conceded*703 that in search and arrest cases, searches and seizures have been allowed beyond the warrant, but subject to the necessary conditions which the warrant contains. These are cases where there are reasonable grounds for believing that the articles seized may be material evidence for the trial in respect of a crime for which the warrant was issued or some similar crime was committed by a person from whom the article was taken. So far as third parties are concerned outside those implicated, they would be liable to produce evidence on subpoena and if they destroyed the evidence they would be liable under the Criminal Law Act, 1967. To extend the power of search and seizure to innocent third parties would be to deprive persons not accused of any crime to a greater restraint than if there were a warrant. If they cannot be seized without consent, they cannot be retained against the owner’s will. The American Fourth Amendment sets out the principle of the Entick v. Carrington position, 19 State Tr. 1029. That case has stood for two centuries. It should still stand.
The documents here relate to personal liberty. It is not suggested that they are material evidence. The police cannot unlawfully retain property on the basis of the best evidence rule. If ever there was a case which did not require an extension of police powers it is this. The documents were handed over voluntarily.
Leonard Q.C. in reply. It is fundamental to this case that the documents were handed over voluntarily. Entick v. Carrington, 19 State Tr. 1029 is very far from the present case. It is conceded that if the police had entered the house without permission, it would have been unlawful. It is a very different matter where they were given permission. The mischief that the common law has been guarding against is the entry into a man’s house and turning over his papers. As there was no trespass, provided the police have some need to retain the documents, they can keep them. Prima facie the police are committing a tort, but the documents are being kept for their evidentiary value. The police might be embarrassed by having to disclose reasons for their value as evidence.
Chic Fashions (West Wales) Ltd. v. Jones  2 Q.B. 299 makes it clear that provided the police have the right to go on the premises, they have the right to go beyond the warrant and seize other goods: see per Lord Denning, at p. 313. The element of criminal association is not necessary. The limitations are a reasonable belief that a felony has been committed and that it is material evidence. The interests of the citizen must be set against the seriousness of the offence.
[Lord Denning M.R. Have the police got to say why the goods or documents are reasonably required?]
No. Common sense must be relied upon. The fact that the retention of the passports immobilise the holders is an advantage to the police. It is inherent in the judgments in Chic Fashions (West Wales) Ltd. v. Jones  2 Q.B. 299 that the police may sometimes be justified in seizing property where there is no prosecution. A subpoena duces tecum is no help to the police where proceedings have not yet begun.
Reg. v. Waterfield  1 Q.B. 164 unreasonably hampers the activities of the police. It was either wrongly decided or depends on its own particular facts. In King v. The Queen  1 A.C. 304, Lord Hodson,*704 at p. 315, cited the opinion of Lord Cooper in Lawrie v. Muir, 1950 S.C. (J.) 19, 26, 27. The American cases are based on their constitution. They do not provide much help in this case.
The common law is a developing organism. Reasonable grounds for believing that a criminal offence has been committed and that the goods or documents are of reasonable evidentiary value is the test.
Cur. adv. vult.
October 29. The following judgments were read. LORD DENNING M.R.
On June 22, 1967, a woman named Mastoora Begum came from Pakistan to England to join her husband here. His name was Mohammed Sharif. They lived together in a house in Oxford with the husband’s father and mother, whose names are Abdul Ghani and Razia Begum. In November, 1968, the wife disappeared. No one has seen her since. In April, 1969, the husband left England and went back, presumably to Pakistan. The husband’s sister then came to England and stayed with her father and mother at the same house in Oxford.
The police made inquiries about the disappearance of the wife which led them to the belief that she had been murdered. On June 13, 1969, two detective officers from Scotland Yard – Chief Superintendent Jones and Detective Sergeant Laing – went to the house in Oxford where the husband’s father and mother and their daughter were living. The father asked the officers in. One of them questioned him about the disappearance of his son’s wife. The other searched the house. The police asked the father for their passports. He handed them his own and his wife’s passports. They took them away. They also took some letters received from other members of the family. On June 19, the police returned to the house and asked for the daughter’s passport. Her father gave it to them.
In July, 1969, the father instructed solicitors to ask for the return of the passports and other articles. The police refused to return them. On August 13, 1969, the father and mother and the daughter issued a writ against the chief superintendent, the defendant, and served with it a statement of claim asking for a mandatory order that the defendant do forthwith deliver up the passports and letters. Detective Sergeant Laing made an affidavit, saying:
“The information I have obtained as a result of my inquiries into the circumstances surrounding the disappearance of the said Mastoora Begum leads me to believe that she has been murdered and that the crime was committed in 1968 and I am of opinion that the inquiries now being undertaken will lead to the apprehension of those concerned in her murder.
In the course of the inquiries Chief Superintendent Jones and myself acquired possession (inter alia) of the passports of the three plaintiffs, two letters from Mr. Ghani’s daughter, Nassim Akhtar, and three letters from his nephew, Subba Saddique. I believe that in the event of charges being preferred some of the documents will be of evidential value and others certainly of potential evidential value.”
*705 As to the husband’s sister, the affidavit said that she “was not in the United Kingdom at the time of the disappearance of the said Mastoora Begum, but there has been conduct on her part which was designed to impede police inquiries.”
Detective Chief Superintendent Jones concurred in that affidavit, and said:
“I believe that the documents referred to therein to be important in themselves, but insofar as the passports are concerned, I also sincerely believe that all these plaintiffs can be of considerable assistance to me in my inquiries, and that, if they leave the United Kingdom, they may not return.”
Neither affidavit alleged any belief that any of the plaintiffs was implicated in the suspected murder. Talbot J., held, ante, p. 698C-E, that the police had no right to retain the passports or letters and made a mandatory order for their return. The police officers appeal to this court. The case raises matters of importance on which there is very little direct authority in our books.
The first thing to notice is that the police officers had no search warrant. The reason is simple. No magistrate – no judge even – has any power to issue a search warrant for murder. He can issue a search warrant for stolen goods and for some statutory offences, such as coinage. But not for murder. Not to dig for the body. Nor to look for the axe, the gun or the poison dregs. The police have to get the consent of the householder to enter if they can: or, if not, do it by stealth or by force. Somehow they seem to manage. No decent person refuses them permission. If he does, he is probably implicated in some way or other. So the police risk an action for trespass. It is not much risk.
The second thing to notice is that the police officers kept the passports and letters without the consent of the holders. Mr. Leonard suggested that they took them with consent. This is a little far-fetched. Here were two police officers asking a Pakistani for the passports of himself and his wife. Of course he handed them to them. It would look bad for him if he did not. He bowed to their authority. Even if he consented to their looking at the passports, he did not consent to their keeping them. Even if he did consent to their keeping them, it was only for a while: and he could withdraw it at any time. As in fact he did. So it is all the same. They detain the passports without his consent.
The third thing to notice is that no one has been arrested for the murder or charged with it. The police officers believe that the woman has been murdered. They say so. In addition, although they do not say so, they must, I think, suspect that these three may in some way be implicated in it. Otherwise they would not hold on to the passports or papers as they do. But they have not arrested anyone or charged anyone. I can understand it. It would not be right for them to make an arrest or lay a charge unless the grounds were pretty strong.
So we have a case where the police officers, in investigating a murder, have seized property without a warrant and without making an arrest and have retained it without the consent of the party from whom they took it. Their justification is that they believe it to be of “evidential*706 value” on a prosecution for murder. Is this a sufficient justification in law?
I would start by considering the law where police officers enter a man’s house by virtue of a warrant, or arrest a man lawfully, with or without a warrant, for a serious offence. I take it to be settled law, without citing cases, that the officers are entitled to take any goods which they find in his possession or in his house which they reasonably believe to be material evidence in relation to the crime for which he is arrested or for which they enter. If in the course of their search they come upon any other goods which show him to be implicated in some other crime, they may take them provided they act reasonably and detain them no longer than is necessary. Such appears from the speech of Lord Chelmsford L.C., in Pringle v. Bremner and Stirling (1867) 5 Macph., H.L. 55, 60 and Chic Fashions (West Wales) Ltd. v. Jones  2 Q.B. 299.
Accepting those cases, I turn to two cases where the police acted against a man without the authority of a warrant or of an arrest. The first is Elias v. Pasmore. It is reported in  2 K.B. 164, but the facts are given more fully in (1934) 50 T.L.R. 196. Police officers there entered a house in Great Russell Street, of which Elias was the tenant. The police officers had only a warrant for the arrest of a man called Hannington. They had reasonable ground for believing that he had been guilty of sedition by attempting to cause disaffection among the police. They knew he was in the house. They entered and arrested him. They had no search warrant, authorising them to search the house. No search warrant is permissible to search for seditious papers. That is plain ever since since Entick v. Carrington (1765) 19 State Tr. 1029. Whilst there, however, they searched the place, seized a number of seditious papers and took them to Scotland Yard. These papers implicated, not only Hannington, but also Elias. They showed that Elias had been inciting Hannington to commit sedition. The police prosecuted first Hannington and second Elias. The papers were used at the trial of Elias. Both men were convicted. Elias afterwards said that the police had no right to take his papers and brought an action for their return and for damages for their detention. Horridge J. rejected the claim. He said  2 K.B. 164, 173: “The interests of the state must excuse the seizure of documents, which seizure would otherwise be unlawful, if it appears in fact that such documents were evidence of a crime committed by anyone.”
I confess that I think those words “by anyone” go too far. The decision itself can be justified on the ground that the papers bowed that Elias was implicated in the crime of sedition committed by Hannington. If they had only implicated Elias in some other crime, such as blackmail or libel, I do not think the police officers would have been entitled to seize them. For that would be a flat contradiction of Entick v. Carrington, 19 State Tr. 1029. The common law does not permit police officers, or anyone else, to ransack anyone’s house, or to search for papers or articles therein, or to search his person, simply to see if he may have committed some crime or other. If police officers should so do, they would be guilty of a trespass. Even if they should find something incriminating against him, I should have thought that the court would not allow it to be used in evidence against him if the conduct of the police*707 officers was so oppressive that it would not be right to allow the Crown to rely upon it: see King v. The Queen  1 A.C. 304.
The other case is Reg. v. Waterfield  1 Q.B. 164. Two men named Lynn and Waterfield assaulted a man in King’s Lynn. Lynn wounded another man. They drove off in Waterfield’s car. Lynn drove it dangerously and ran into a brick wall. They parked it in the Market Place and went off. The police sergeant was anxious to examine it so as to obtain evidence of the collision with the wall. He told two police constables to keep watch on it and not let it go as he wanted to examine it. He told them it had been involved in a serious offence. At 7.30 p.m. Lynn came back and wanted to drive the car off. The police constable told him it had to remain where it was. Waterfield, the owner of the car, then came up and said to the police officer: “You cannot impound my car.” He told Lynn to drive it away. One of the police officers stood in the path of the car. Waterfieid said: “Drive at him, he will get out of the way.” Lynn did drive forward. The officer jumped aside. The car was driven away.
Lynn was charged with assaulting the police officer in the execution of his duty, and Waterfield with commanding it. The jury convicted them both. They appealed. The Court of Criminal Appeal (consisting of Lord Parker C.J., Ashworth J. and Hinchcliffe J.) allowed the appeal, and said, at p. 171:
“It is to be noted that neither [Lynn nor Waterfield] had been charged or was under arrest and accordingly the decision in Dillon v. O’Brien and Davis (1887) 16 Cox C.C. 245, does not assist the prosecution.
It was contended that the two police constables were acting in the execution of a duty to preserve for use in court evidence of a crime, and in a sense they were, but the execution of that duty did not in the view of this court authorise them to prevent the removal of the car in the circumstances. In the course of argument instances were suggested where difficulty might arise if a police officer were not entitled to prevent removal of an article which had been used in the course of a crime, for instance, an axe used by a murderer and thrown away by him. Such a case can be decided If and when it arises. …”
The court did, however, go on to certify, at p. 172, that a point of law of general public importance was involved, namely,
“… whether at common law a constable, without making a prior charge or arrest, has the duty to detain as prospective evidence any property found in a public place and which he has reasonable grounds to believe to be material evidence to prove the commission of a crime.”
The police did not ask for leave to appeal to the House of Lords. Lynn and Waterfield had been convicted on other grounds. No doubt the police at King’s Lynn did not wish to put the ratepayers to the expense of an appeal, simply to clear up the law.
The decision causes me some misgiving. I expect that the car bore traces of its impact with the brick wall. The police had reason to believe that Lynn and Waterfield were implicated in a crime of which the marks on the car might be most material evidence at the trial. If Lynn and Waterfield were allowed to drive the car away, they might very well remove or obliterate all incriminating evidence. My comment on that case is this: The law should not allow wrongdoers to destroy evidence against them when it can be prevented. Test it by an instance put in argument. The robbers of a bank “borrow” a private car and use it in their raid, and escape. They abandon it by the roadside. The police find the car, i.e., the instrument of the crime, and want to examine it for finger prints. The owner of the “borrowed” car comes up and demands the return of it. He says he will drive it away and not allow them to examine it. Cannot the police say to him: “Nay, you cannot have it until we have examined it?” I should have thought they could. His conduct makes him look like an accessory after the fact, if not before it. At any rate it is quite unreasonable. Even though the raiders have not yet been caught, arrested or charged, nevertheless the police should be able to do whatever is necessary and reasonable to preserve the evidence of the crime. The Court of Criminal Appeal did not tell how Reg. v. Waterfield  1 Q.B. 164, is to be distinguished from such a case. The court simply said, at p. 171, that the police constables were under no duty “to prevent removal of the car in the circumstance.” They did not tell us what was the “circumstance” which took it out of the general rule. It may have been sufficient. I do not know.
Other instances were put in argument to test the position when no one had been arrested or charged. Edmund Davies L.J. drew from his unrivalled experience and told us that the great train robbers, when they were in hiding at Leatherslade Farm, used a saucer belonging to the farmer and gave the cat its milk. When seeking for the gang, before they were caught, the police officers took the saucer so as to examine it for finger prints. Could the farmer have said to them: “No, it is mine. You shall not have it?” Clearly not. His conduct might well lead them to think that he was trying to shield the gang. At any rate fit would have been quite unreasonable.
What is the principle underlying these instances? We have to consider, on the one hand, the freedom of the individual his privacy and his possessions are not to be invaded except for the most compelling reasons. On the other hand, we have to consider the interest of society at large in finding out wrongdoers and repressing crime. Honest citizens should help the police and not hinder them in their efforts to track down criminals. Balancing these interests, I should have thought that, in order to justify the taking of an article, when no man has been arrested or charged, these requisites must be satisfied:
The police officers must have reasonable grounds for believing that a serious offence has been committed – so serious that it is of the first importance that the offenders should be caught and brought to justice.
The police officers must have reasonable grounds for believing*709 that the article in question is either the fruit of the crime (as in the case of stolen goods) or is the instrument by which the crime was committed (as in the case of the axe used by the murderer) or is material evidence to prove the commission of the crime (as in the case of the car used by a bank raider or the saucer used by a train robber).
The police officers must have reasonable grounds to believe that the person in possession of it has himself committed the crime, or is implicated in it, or is accessory to it, or at any rate his refusal must be quite unreasonable.
The police must not keep the article, nor prevent its removal, for any longer than is reasonably necessary to complete their investigations or preserve it for evidence. If a copy will suffice, it should be made and the original returned. As soon as the case is over, or it is decided not to go on with it, the article should be returned.
The lawfulness of the conduct of the police must be judged at the time, and not by what happens afterwards.
Tested by these criteria, I do not think the police officers are entitled to hold on to these passports or letters. They may have reasonable grounds for believing that the woman has been murdered. But they have not shown reasonable grounds for believing that these passports and letters are material evidence to prove the commission of the murder. All they say is that they are of “evidential value,” whatever that may mean. Nor have they shown reasonable grounds for believing that the plaintiffs are in any way implicated in a crime, or accessory to it. In any case, they have held them quite long enough. They have no doubt made photographs of them, and that should suffice.
It was suggested that a mandatory order should not be made for their return. The case, it was said, should go for trial, and the officers made liable in damages if they are wrong. But I think their affidavits fall so far short of any justification for retention that they should be ordered to return them forthwith. I cannot help feeling that the real reason why the passports have not been returned is because the officers wish to prevent the plaintiffs from leaving this country pending police inquiries. That is not a legitimate ground for holding them. Either they have grounds for arresting them, or they have not. If they have not, the plaintiffs should be allowed to leave – even if it means they are fleeing from the reach of justice. A man’s liberty of movement is regarded so highly by the law of England that it is not to be hindered or prevented except on the surest grounds. It must not be taken away on a suspicion which is not grave enough to warrant his arrest.
I would, therefore, dismiss the appeal.
EDMUND DAVIES L.J.
Having already had the advantage of considering the judgment delivered by the Master of the Rolls, I have to say that I agree with it and cannot usefully add anything. I accordingly concur in holding that this appeal should be dismissed.*710 Sir GORDON WILLMER. I also agree.
Solicitors: E.O. Lane; Lawford & Co.
Appeal dismissed with costs. Leave to appeal. By consent, stay of execution for 14 days. (A. H. B. )