Police Home Trespass: Misuse of Section 18 Powers of Entry

Photo of John Hagan, solicitor.
John Hagan, solicitor.

This is a guest post by my colleague and fellow solicitor, John Hagan.

The phrase “An Englishman’s home is his castle” dates back to at least 1505 where it was cited in a King’s Bench ruling, before being enshrined in Sir Edward Coke’s Institutes of the Laws of England in 1628.  The familiarity of the phrase in both jurisprudence and common parlance is indicative of the importance which the English common law has always placed upon the security and integrity of a person’s home; the right of a person, when in his or her own home, to be safe from unreasonable interference by the State, whether in its modern or medieval incarnation. 

The home owner can decide who enters the house, can refuse entry and can use reasonable force to repel trespassers, even if they are Police Officers, unless they have a specific right of entry granted by a limited number of statutory powers. 

Indeed, it is out of this age-old common law right that the right to privacy and family life enshrined in Article 8 of the European Convention on Human Rights itself arises.  No matter how much the present Government may revile the Human Rights Act, the fact is that those Human Rights have their roots in the deep and ancient rights accorded to British citizens.

One of the powers of entry which Police Officers can potentially exercise without the consent of the homeowner – indeed even in the face of his or her explicit opposition – is that granted by Section 18 of the Police and Criminal Evidence Act 1984 [PACE]: 

18 Entry and search after arrest.

(1)Subject to the following provisions of this section, a constable may enter and search any premises occupied or controlled by a person who is under arrest for an [indictable] offence, if he has reasonable grounds for suspecting that there is on the premises evidence, other than items subject to legal privilege, that relates—

(a)to that offence; or

(b)to some other [indictable] offence which is connected with or similar to that offence.

(2)A constable may seize and retain anything for which he may search under subsection (1) above.

(3)The power to search conferred by subsection (1) above is only a power to search to the extent that is reasonably required for the purpose of discovering such evidence.

(4)Subject to subsection (5) below, the powers conferred by this section may not be exercised unless an officer of the rank of inspector or above has authorised them in writing.

[ (5)A constable may conduct a search under subsection (1)—

(a)before the person is taken to a police station or released … under section 30A, and

(b)without obtaining an authorisation under subsection (4),

if the condition in subsection (5A) is satisfied.

(5A)The condition is that the presence of the person at a place (other than a police station) is necessary for the effective investigation of the offence.]

However, it is an essential component of a lawful exercise of Section 18 Powers of Entry not merely that the Police believe (or purport to believe) that such an arrested individual resides at or owns the target address but that the individual actually does reside at or own the address. Note that the description of “premises occupied or controlled by a person who is under arrest” is not qualified by a ‘reasonable belief’ clause i.e the provision does not say “any premises which the constable reasonably suspects to be occupied or controlled by a person under arrest…”

Therefore, if the Police are acting under false or inaccurate information then any entry which they effect into a private property against the home owner’s consent is unlawful; and the Officers whilst on the property are unquestionably trespassers and therefore not acting in the lawful execution of their duty. 

This was a key factor in a case which I have recently concluded against Merseyside Police. 

My client, who I will identify for the purpose of this blog post as “Ben”, resides in a leasehold property in Liverpool with his partner and their young son. 

The incident in question began in the early hours the morning in March 2019.

Ben was working on his computer in the living room, with his young son asleep on the couch in the living room, whilst his partner was asleep in the bedroom upstairs. 

Ben heard a knock on the window at the front of his house and on looking out of the window saw a ‘Matrix’ van and Merseyside Police Officers outside his house. Accordingly, Ben went to the front door and opened it, to find himself confronted by three uniformed Police Officers led by PC Walters.

PC Walters demanded to know if Ben was another individual, George Bishop, and whether George Bishop lived at the address; Ben had never heard of this person, and told the officer this.

At this point in the conversation, Ben was aware that PC Walters had put his foot in the doorway to prevent him from closing it.  Ben had initially opened the door half ajar and the Officer’s foot was now over the threshold so that it was clear to my client that any attempt that he made to shut the door would be prevented by the Officer’s foot. 

Ben now asked “Can I go now?” to which PC Walters replied “We’re going to be searching this property under Section 18.”

This was despite a female Officer who was present (PC Highland) being overheard by Ben to say “He has clearly given a fake address.” (i.e that the individual George Bishop had wrongly given Ben’s address as if it were his own – which indeed was exactly what had happened).

Ben politely replied to PC Walters that he had no idea what a ‘Section 18’ was and asked the Officer to show him the relevant paperwork (as he assumed that some sort of warrant would be required).

PC Walters then asserted that the Police did not require any form of warrant to effect a Section 18 search (which was correct in principle, although incorrect in fact, owing to the fact that this was not George Bishop’s real address).

My client replied by asking the Officer to explain to him, in that case, what a ‘Section 18’ was, to which PC Walters asserted  “I have told you we have the power to enter the property.” No further explanation was offered.

Ben now offered to get documentary proof of who he was and that this was his home (ie that he was not George Bishop) however this offer was ignored by PC Walters who then stated “Move out of my way, now!” The Officers forced their way en masse into the house, lead by PC Walters.

Ben now found himself being crowded by PC Walters and other Officers in the small vestibule of his house.  Behind our client was a door (which was slightly ajar) which lead to the hallway within the house.

My client became aware that the family’s pet dog had been awoken (presumably by the voices of himself and the Police Officers) and had come into hallway.

Ben’s back was pushed up against the inner door by PC Walters.  He asked the Officer to let him go so that he could deal with the dog. 

PC Walters and other Officers however were becoming agitated and shouting at my client “Deal with the dog! Get the dog under control.”

Ben’s partner had now also been awoken by the noise and had come downstairs into the hallway of the house. 

PC Walters now produced a canister and used it to spray the pet dog in the face to Ben’s shock and disbelief.

The Police Officers now pushed Ben through the doorway into the hallway.  During this process Ben’s young son, who had been asleep on the couch in the living room, awoke and became hysterical at the sight of the strange people in his house manhandling his father.

Ben’s partner then took their dog upstairs, appealing to the Officers to leave, referring to the fact that her son was in the living room, but the Officers ignored this and PC Walters tried to push my client into the living room.

Ben did not want to be taken into the living room because he didn’t want his young son to become further distressed.

PC Walters then dragged Ben outside the property and slammed him up against the wheelie bins situated in the front yard.

As he was taking Ben outside, PC Walters put a handcuff on my client’s left wrist.  Throughout this process, Ben offered no resistance to the Officer, and he was shocked at what was being done to him. 

In attempting to put the handcuff on, PC Walters caused my client’s coat to become ripped and then he managed to put the handcuff on Ben’s right wrist as well.

PC Walters then made Ben sit on a seat inside the Matrix van and informed him that he was under arrest for obstructing an Officer in carrying out a Section 18 search.

Ben provided his personal details and confirmed that he had never before been in trouble with the Police. 

Another officer, Sergeant Michaels was then overheard saying to PC Highland  “Make sure you get the child’s details so we can contact Social Services.”

Ben was extremely disturbed by the Officer’s statement, as he was clearly suggesting that the Police were going to try and take his son away from him and his partner.

During the time that Ben was in the van, PC Highland spoke to Ben’s partner inside the house and informed her that ‘George Bishop’ was in Police custody and had given their address as his address.  PC Highland added “I don’t think this was explained too well to your partner.”  Ben’s partner confirmed to PC Highland that neither she nor Ben knew George Bishop and he had never dwelled at this address.

Ben was then taken to a Merseyside Custody Suite where he was detained for several hours in a cell and experienced ongoing stress and chest pains.  Thereafter Ben was interviewed under caution with a Solicitor present and was finally released from Custody almost 15 hours after his arrest.  

Ben was subsequently charged with the offence of obstruct/resist a Constable in the execution of his duty. He pleaded not guilty and the matter proceeded to Trial at Liverpool Magistrates Court where he was quite properly found not guilty. 

Police Rush In, Where Angels Fear To Tread

The essence of this matter was relatively simple: even if the Police had indeed been ‘hoodwinked’ by George Bishop as to his true address, they had no power to enter Ben’s home under Section 18 of PACE. The summary power of a Section 18 right of entry is not couched in terms of whether the Police ‘reasonably believe’ that the arrested person occupies or controls the address, but the absolutely objective question as to whether or not he really does; and this is only right and proper given the preference which the security and privacy of our homes should be granted over the intrusions of State power, wherever possible, and in accordance with the oldest inclinations of English jurisprudence.  

This position was endorsed in the clearest of terms by the Court of Appeal in the case of Khan v Commissioner of Police for the Metropolis [2008] EWCA Civ 723 which also involved Police use of Section 18 powers after a criminal suspect in custody had given a false address (Mr Khan’s address). Mr Khan was successful in his subsequent claim for trespass and the Police appeal against that decision was comprehensively rejected by the Court of Appeal; Lord Justice Pill set out his reasoning as follows (my emphasis) –

  1. I see no justification for reading Section 18 other than in accordance with its plain words. The power may be exercised only at premises “occupied or controlled” by the person under arrest. The scope of the concept “occupation or control” is for decision on another day, though I would not expect it to be construed restrictively. The requirement for occupation or control is central and fundamental to the operation of Section 18 and its absence cannot be treated as a “trivial or unimportant irregularity”…
  2. The expressions “reasonable belief” and “reasonable grounds” appear in different contexts in sections 8, 18 and 32 of the 1984 Act already cited [PACE] and the omission in the relevant part of section 18 (1) cannot have been accidental. Moreover Parliament plainly reviewed the operation of the relevant powers when passing the 2005 Act [Serious Organised Crime and Police Act], which included amendments, and it was not decided to qualify the requirement for occupation or control, which was also introduced, for certain purposes, into section 8.
  3. I find nothing absurd in the construction favoured by the judge. The power in section 18 is more limited than that for which Mr Shetty contends but will be exercisable in those cases, likely to be significant in number, where the arrested person’s occupation or control of the premises is known or can readily be ascertained. In other cases a search warrant may be sought under Section 8, which, like Section 18, now applies to indictable offences. In Section 8, the authority to enter and search is conferred by a Justice of the Peace; in Section 18 it is conferred by a police officer of the rank of inspector or above (section 18 (4)), but in my view there is nothing absurd about the distinction.
  4. Further, to give the words their ordinary meaning asserts the right to respect for private and family life and home provided by Article 8 of the European Convention on Human Rights (“the Convention”). Section 18 of the 1984 Act must be read so far as it is possible to do in a way which is compatible with Convention rights (Section 3 (1) of the Human Rights Act 1998). Article 8 (2) does permit interference with the exercise of the right in the interests of national security or public safety but the entitlement to justify interference does not permit section 18 to be read so as to insert words that the power may be exercised as long as a constable has reasonable belief in the arrested person’s occupation or control.

It is open to the Police to request a premises search warrant from the Court, initiating a process of judicial scrutiny and endorsement of the proposed search which then prevents the Police from becoming unwitting trespassers, if the proper statutory rules are complied with. Such a process, of course, involves the Police obtaining sufficient evidence to satisfy the Court that the premises are indeed those of the suspect/ arrested individual. If instead officers “rush in where Angels fear to tread”, short-circuiting the process of Judicial scrutiny, and end up invading an innocent family’s home, then it is essential that they bear the consequences of this, especially where in the process they resort to bully-boy tactics and unlawfully arrest a homeowner who was standing up for his rights.

I fully believe that notwithstanding the apparently false information given to the Police by George Bishop as to his residential address (notably unsubstantiated by any documentary evidence) this incident would not have escalated so badly to everybody’s detriment had the lead officer, PC Walters, not behaved in an arrogant and high-handed manner, favouring the exercise of his own perceived power and authority over the evidence which was immediately indicative of the officers having been led to the wrong address. Once again, this was a Police officer apparently substituting his own desire for personal power over others, for the carefully balanced powers of the legal system which he was supposed to be administering.

Merseyside Police initially sought to deny liability entirely, but I pressed my client’s case and held them to account, securing a liability admission for the officers’ trespass into Ben’s home and their wrongful arrest of Ben. I have recently recovered damages totalling almost £20,000 for Ben and his partner, plus legal costs, and have hopefully taught Merseyside Police a valuable lesson in the process.

If you have experienced a Police intrusion into your home, whether under PACE powers or a search warrant, please contact me for expert advice and representation; because – thankfully – five hundred years after the principle was first enunciated, English men and women are still well capable of defending their castles.

All names have been changed.

Author: iaingould

Actions against the police solicitor (lawyer) and blogger.

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