CASE OF McLEOD v. THE UNITED KINGDOM
Violation of Art. 8;Not necessary to examine P1-1;Non-pecuniary damage - finding of violation sufficient;Costs and expenses partial award - domestic proceedings;Costs and expenses partial award - Convention proceedings
John Freeland;Simon Brown
6. The applicant, Ms Sally McLeod, was born in 1952 and lives in Middlesex. 7. In April 1986 the applicant and her husband separated and in July 1988 they were divorced. At about that time, the applicant’s elderly mother went to live with her in the former matrimonial home, which Ms McLeod had bought with her ex-husband in 1984. 8. Following the couple’s separation, proceedings were instigated before the Uxbridge County Court concerning the former matrimonial home and its contents. These proceedings were described by Mr Justice Tuckey in the High Court’s judgment of 12 November 1992 as substantial and acrimonious (see paragraph 18 below). 9. On 1 July 1988 the Uxbridge County Court ordered that the former matrimonial home be transferred to the applicant on payment of 30,000 pounds sterling (GBP). Although this amount was paid by the applicant on or about 26 July 1989, the house was not transferred into her sole ownership until after the events in question. Nevertheless, in its judgment of 27 November 1992, the Brentford County Court found that on payment of the GBP 30,000 “the beneficial ownership of the property vested in her as sole owner” (see paragraph 19 below). 10. On 30 June 1989 the Uxbridge County Court ordered the division of the furniture and other moveable property to be found in the former matrimonial home in accordance with a list identified in the order. However, delivery was not effected and on 23 August 1989 the County Court ordered Ms McLeod to make arrangements for the delivery of her ex-husband’s property within fourteen days. The order was backed by a penal notice. 11. On 8 September 1989 the applicant delivered property to her ex-husband which, save for one or two items, was not that described in the order. As a result, on 28 September 1989 the Uxbridge County Court made an order committing her to prison for twenty-one days. However, this order was suspended for seven days to allow her to deliver the property identified on the list to Mr McLeod on or before 6 October 1989. Immediately after the hearing the latter, through his counsel, offered to collect the property to save the applicant the trouble of delivering it. He suggested 4 p.m. on 3 October 1989. 12. Believing that the applicant had agreed to his suggestion, at 4 p.m. on 3 October 1989 Mr McLeod, accompanied by his brother and sister and a solicitor’s clerk, went to the former matrimonial home to collect his property. Fearing that there would be a breach of the peace (see paragraphs 24 to 27 below) because of Ms McLeod’s previous unwillingness to comply with orders of the court, Mr McLeod’s solicitors made arrangements for two police officers to be present while the property was being removed. When the police officers arrived, they were informed that Mr McLeod was there to collect his property pursuant to an agreement concluded between him and the applicant, and were given a copy of the list but not of the court order. According to one of the police officers, the solicitor’s clerk offered to return to his office to get a copy of the order, but the police officer did not require that this be done. 13. One of the police officers knocked at the door of the house. It was answered by the applicant’s mother who told him that her daughter was not at home, and that she was unaware of any arrangement concluded between the latter and Mr McLeod. In an affidavit sworn on 21 November 1990, the applicant’s mother claimed that the police officer had told her to open the door because they were from the court and had a court order to execute. The applicant’s mother opened the door and stepped aside, allowing Mr McLeod and his party access to the property. Subsequent court proceedings held that the entry of Mr McLeod, his siblings, and the solicitor’s clerk amounted to a trespass (see paragraph 19 below). 14. Upon entering the house, Mr McLeod and his siblings began removing his property. Although the police officers accompanied them into the house, according to the applicant’s mother’s affidavit the officers spent most of the time on the front driveway. They did not participate in the removal or disturbance of the property, although one of them checked that only the items on the list were removed. 15. When the applicant returned home at 5.30 p.m., she became angry and objected to the removal of the property. At that stage, one load had been driven away and a second load was in the van, which had been rented by her ex-husband. One of the police officers intervened and insisted that she allow Mr McLeod to leave with the property. She was permitted to inspect the contents of the van but the officer insisted that she should not unload items from it because he feared that, if she did so, there was likely to be a breach of the peace. He explained to Ms McLeod that any continuing dispute concerning the property should be resolved later by her and her ex-husband’s respective solicitors. Just after midnight the applicant’s mother, who had recently suffered a stroke, was taken to hospital suffering from high blood pressure. 16. The applicant instituted criminal proceedings against those involved in the incident, which were unsuccessful. Together with her mother, she then instituted three sets of civil proceedings for trespass, one against her ex-husband and his siblings, one against the solicitor’s clerk and a third against the two police officers. 17. On 26 January 1992 the applicant’s mother died. 18. On 12 November 1992 Mr Justice Tuckey in the High Court dismissed the action against the police officers on the grounds that they had not trespassed on the applicant’s land or goods. Although the judge considered that the applicant had not agreed to her ex-husband removing his property from the former matrimonial home on 3 October 1989, he found that the latter genuinely believed that an agreement had been concluded. Furthermore, he considered that the officers had had reasonable grounds for apprehending that a breach of the peace might take place and were therefore entitled, pursuant to the common law as preserved by statute, to enter on and remain at the property without the consent of the owner: “The [applicant] contends that the police did not have reasonable grounds for apprehending that there might be a breach of the peace and therefore they were trespassers on the property. I reject this contention. They had been told to go to the house on the information of a solicitor that there might be trouble. The history of the matter makes it clear in my judgment that the solicitor’s fears were well-founded. If [the applicant] had been there when her ex-husband’s party arrived, I have no doubt that the police constables’ role as peace-keepers would have been required.” Regarding the applicant’s claims for trespass to goods, the judge found that the police officers had not actively participated in the removal or the disturbance of the applicant’s property. Although one of the police officers had checked that only the items on the list figuring in the court’s order were removed, “he did not encourage or participate in the removal of those things that apparently were on the list or in the way in which things in or on those items were to be dealt with”. 19. On 27 November 1992 the Brentford County Court pronounced on the applicant’s two remaining civil actions against her ex-husband, his brother and sister and his solicitors. It considered that there had not been any agreement between Ms and Mr McLeod for him to collect his property on 3 October 1989 and that the applicant’s mother had not given permission to Mr McLeod and his party to enter the house. The court concluded that, as a result, they had trespassed on Ms McLeod’s land and property. She and her mother’s estate were awarded GBP 1,950 with interest by way of compensation. 20. On 1 December 1992 the applicant appealed against the decision of Mr Justice Tuckey on the ground that the police officers should have made enquiries before entering her house, that there had been no breach of the peace or threat of a breach of the peace and that the police had been negligent in failing to give adequate protection to her mother. 21. The Court of Appeal dismissed the appeal on 3 February 1994 (McLeod v. Commissioner of Police of the Metropolis [1994] 4 All England Law Reports 553). In his judgment Lord Justice Neill held: “The real issue in the case, as I see it, is whether the officers had any excuse in law for entering [the former matrimonial home]. It is common ground that some excuse is required because it does not appear that there was any consent to the entry by [the applicant] or her mother. The judge found that they took no active part in removing any property and, as I have said, all [one of the police officers] did was to check a list of what was being taken. But it is clear that they both entered the property and it may be that one of them knocked on the door. There are two questions which need to be decided. First, in what circumstances, if any, can police officers enter into a private house to prevent a breach of the peace? Secondly, if a right to enter a private house does exist in certain circumstances, did those circumstances exist here?” Noting that the common-law powers of the police to enter private premises were preserved by section 17(6) of the Police and Criminal Evidence Act 1984 (“the 1984 Act”), the judge considered that the principal authority under common law was the decision of the Divisional Court in Thomas v. Sawkins ([1935] King’s Bench Reports 249). Lord Justice Neill continued: “That was a case where police officers went to a hall where a public meeting which had been extensively advertised was about to take place; the police sergeant in charge of the party was refused admission to the hall but insisted on entering and remaining there during the meeting. The question arose as to whether the police were entitled to take that course. Lord Hewart, who delivered the first judgment in the case, said this at page 254: ‘I think that there is quite sufficient ground for the proposition that it is part of the preventive power, and, therefore, part of the preventive duty, of the police, in cases where there are such reasonable grounds of apprehension as the justices have found here, to enter and remain on private premises.’ At page 255 Avory J said, in relation to entering premises in connection with an affray: ‘... I cannot doubt that he has a right to break in to prevent an affray which he has reasonable cause to suspect may take place on private premises.’ He considered, therefore, that the police officers were justified in what they were doing. Lawrence J at page 257 put the matter as follows: ‘If a constable in the execution of his duty to preserve the peace is entitled to commit an assault, it appears to me that he is equally entitled to commit a trespass.’” Lord Justice Neill further considered that another precedent of relevance for the applicant’s case was McGowan v. Chief Police Constable of Kingston Upon Hull (reported in The Times on 21 October 1967): “In that case police officers had gone into a house where a child was being held in a man’s arms. The police officers said that they had reason to think that a breach of the peace might occur between the man and his mistress. But a question arose as to whether the mistress had authority to give an invitation to the police officers to come in. The Lord Chief Justice when giving his judgment said: ‘Regardless of the invitation, there was sufficient [ground] to justify the police entering the house on the basis that they genuinely suspected a danger of breach of the peace occurring.’” Lord Justice Neill then recalled that the judgment in Thomas v. Sawkins had been subjected to criticism in that it had appeared to infringe the basic principle that the law would not intervene until an offence had actually been committed. He also noted that it had been suggested that the precedent established in Thomas v. Sawkins should be limited to public meetings, and continued: “Having the benefit of argument, I am satisfied that Parliament in section 17(6) [of the 1984 Act] has now recognised that there is a power to enter premises to prevent a breach of the peace as a form of preventive justice. I can see no satisfactory basis for restricting that power to particular classes of premises such as those where public meetings are held. If the police reasonably believe that a breach of the peace is likely to take place on private premises, they have power to enter those premises to prevent it. The apprehension must of course be genuine and it must relate to the near future.” Mindful of the practical difficulties of using the power correctly and sensibly in domestic situations, Lord Justice Neill commented that: “… when exercising his power to prevent a breach of the peace a police officer should act with great care and discretion; this will be particularly important where the exercise of his power involves entering on private property contrary to the wishes of the owners or occupiers. The officer must satisfy himself that there is a real and imminent risk of a breach of the peace, because if the matter has to be tested in court thereafter there may be scrutiny not only of his belief at the time but also of the grounds for his belief.” Relying on the facts as established by the High Court, Lord Justice Neill considered that the police officers entered the applicant’s house to prevent a breach of the peace and were reasonable in concluding that there was a danger of such a breach. The other judges, Lords Justices Hoffman and Waite agreed. Leave to appeal to the House of Lords was refused. 22. On 1 March 1994 the applicant applied to the House of Lords for leave to appeal against the Court of Appeal’s decision of 3 February 1994. On 18 May 1994 the House of Lords refused the application. 23. Section 17 of the 1984 Act sets out the primary circumstances in which a police constable may enter and search premises. According to section 17(1)(e), a police officer may enter any premises for the purposes of saving life or limb or preventing serious damage to property. Whilst section 17(5) abolishes all common-law rules under which a police officer previously had power to enter premises without warrant, section 17(6) provides: “Nothing in subsection (5) affects any power of entry to deal with or prevent a breach of the peace.” 24. Breach of the peace – which does not constitute a criminal offence (R. v. County Quarter Sessions Appeals Committee, ex parte Metropolitan Police Commissioner [1948] 1 King’s Bench Reports 260) – is a common-law concept dating back to the tenth century. However, as Lord Justice Watkins, giving judgment in the Court of Appeal in the case of R. v. Howell ([1982] 1 Queen’s Bench Reports 416) remarked in January 1981: “A comprehensive definition of the term ‘breach of the peace’ has very rarely been formulated…” (p. 426) He continued: “We are emboldened to say that there is likely to be a breach of the peace whenever harm is actually done or is likely to be done to a person or in his presence to his property or a person is in fear of being so harmed through an assault, an affray, a riot, unlawful assembly or other disturbance.” (p. 427) 25. In October 1981, in a differently constituted Court of Appeal giving judgment in R. v. Chief Constable of Devon and Cornwall, ex parte Central Electricity Generating Board ([1982] Queen’s Bench Reports 458), which concerned a protest against the construction of a nuclear power station, Lord Denning, Master of the Rolls, defined “breach of the peace” more broadly, as follows: “There is a breach of the peace whenever a person who is lawfully carrying out his work is unlawfully and physically prevented by another from doing it. He is entitled by law peacefully to go on with his work on his lawful occasions. If anyone unlawfully and physically obstructs the worker – by lying down or chaining himself to a rig or the like – he is guilty of a breach of the peace.” (p. 471) 26. In a subsequent case before the Divisional Court (Percy v. Director of Public Prosecutions [1995] 1 Weekly Law Reports 1382), Mr Justice Collins followed Howell, rather than ex parte Central Electricity Generating Board, in holding that there must be a risk of violence before there could be a breach of the peace. However, it was not essential that the violence be perpetrated by the defendant, as long as it was established that the natural consequence of his behaviour would be to provoke violence in others: “The conduct in question does not itself have to be disorderly or a breach of the criminal law. It is sufficient if its natural consequence would, if persisted in, be to provoke others to violence, and so some actual danger to the peace is established.” (p. 1392) 27. In another case before the Divisional Court, Nicol and Selvanayagam v. Director of Public Prosecutions ([1996] Justice of the Peace Reports 155) Lord Justice Simon Brown stated: “… the court would surely not find a [breach of the peace] proved if any violence likely to have been provoked on the part of others would be not merely unlawful but wholly unreasonable – as of course, it would be if the defendant’s conduct was not merely lawful but such as in no material way interfered with the other’s rights. A fortiori, if the defendant was properly exercising his own basic rights, whether of assembly, demonstration or free speech.” (p. 163) 28. The common-law power of the police to enter private property to prevent a breach of the peace, as preserved by section 17(6) of the 1984 Act, was defined by Lord Chief Justice Hewart in Thomas v. Sawkins cited above: “I think that there is quite sufficient ground for the proposition that it is part of the preventive power, and, therefore, part of the preventive duty, of the police, in cases where there are such reasonable grounds of apprehension as the justices have found here, to enter and remain on private premises. It goes without saying that the powers and duties of the police are directed, not to the interests of the police, but to the protection and welfare of the public. (p. 254) … I am not at all prepared to accept the doctrine that it is only where [a breach of the peace] has been, or is being, committed, that the police are entitled to enter and remain on private premises. On the contrary, it seems to me that a police officer has ex virtute officii full right so to act when he has reasonable ground for believing that [a breach of the peace] is imminent or is likely to be committed.” (p. 255) 29. The continued existence of the common-law power of entry to prevent a breach of the peace and its applicability to circumstances of a domestic quarrel was recognised in McGowan v. Chief Constable of Kingston Upon Hull ([1968] Criminal Law Reports 34), where the Lord Chief Justice said: “Regardless of the invitation, there was sufficient [ground] to justify the police entering the house on the basis that they genuinely suspected a danger of breach of the peace occurring.”