PROCEDURE

The case originated in an application (no. 28867/03) against the United Kingdom of Great Britain and Northern Ireland lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by Gerard Keegan and Moira Keegan, husband and wife, and their children, Carl, Michael, Katie and Sophie, on 4 September 2003.

The applicants, who had been granted legal aid, were represented by Mr Topping, a lawyer practising in Liverpool. The United Kingdom Government (“the Government”) were represented by their Agent, Mr J. Grainger of the Foreign and Commonwealth Office.

The applicants alleged that their home had been unjustifiably broken into and searched by police officers, relying on Articles 8 and 13 of the Convention.

The application was allocated to the Fourth Section of the Court (Rule 52 § 1 of the Rules of Court). Within that Section, the Chamber that would consider the case (Article 27 § 1 of the Convention) was constituted as provided in Rule 26 § 1.

By a decision of 11 October 2005, the Chamber declared the application admissible.

The applicants, but not the Government, filed further observations (Rule 59 § 1). The Chamber decided, after consulting the parties, that no hearing on the merits was required (Rule 59 § 3 in fine).

THE FACTS

I. THE CIRCUMSTANCES OF THE CASE

The applicants are Gerard Keegan, an Irish citizen born in 1955, and Moira Keegan, a United Kingdom national born in 1963, husband and wife, and their children, Carl, Michael, Katie and Sophie, United Kingdom citizens born in 1985, 1996, 1997 and 1997 respectively. They were all resident in Liverpool.

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

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

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

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

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

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

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

On 31 October 2002 the County Court Judge rejected the applicants’ claims. He made a number of findings of fact or inferences: – that the police made enquiries prior to the search with utility companies and Liverpool County Council Housing Department about 19 New Henderson Street and that the rough police notes of these enquiries had been destroyed or mislaid from which he drew the adverse inference that such checks revealed that Anita De La Cruz was no longer living there but that the applicants were; – that the police considered covert surveillance of the property but decided that this was not advisable as there were sophisticated criminals living in the area who were skilled at spotting covert police operations; – that Sergeant Gamble had reasonable grounds, following his briefing, for believing that a person wanted for robbery was to be found on the premises and that he had not been informed that the applicants were now living there.

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

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

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

On 3 July 2003 the Court of Appeal dismissed the applicants’ appeal. While Lord Justice Kennedy found that if proper enquiries had been made and the results properly reported there would have been no reasonable or probable cause to apply for a search warrant, he held that the requirement of malice was not made out as there was no evidence of any improper motive (incompetence or negligence did not suffice). He further held that the entry, being made under a warrant which was on the face of it lawful, was itself lawful and that while those responsible for sending Sergeant Gamble and his team to the address had been mistaken that did not deprive them of legal protection. Lord Justice Ward commented that the shoddy detective work did not justify a finding in the police’s favour and that the case caused him concern. However, notwithstanding his anxious consideration and sympathy for the family, he stated: “That an Englishman’s home is said to be his castle reveals an important public interest, but there is another public interest in the detection of crime and the bringing to justice of those who commit it. These interests are in conflict in a case like this and on the law as it stood when these events occurred, which is before the coming into force of the Human Rights Act 1998, which may be said to have elevated the right to respect for one’s home, a finding of malice on the part of the police is the proper balancing safeguard. Upon careful reflection, I agree with my Lords that it is inevitable that malice will not be proved in this case.”

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

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