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You are here: BAILII >> Databases >> England and Wales Court of Appeal (Civil Division) Decisions >> M, R (On the Application Of) v Secretary of State for the Home Department [2014] EWCA Civ 1651 (18 December 2014) URL: http://www.bailii.org/ew/cases/EWCA/Civ/2014/1651.html Cite as: [2015] 1 Cr App R 20, [2015] 1 WLR 1176, [2015] WLR 1176, [2014] EWCA Civ 1651, [2014] WLR(D) 541 |
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CIVIL
DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Lady Justice Hallett D.B.E. and Mr.
Justice Collins
Strand, London, WC2A 2LL |
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B e f o r
e :
MOORE-BICK
Vice-President of the Court of Appeal,
Civil
Division
LORD JUSTICE TOMLINSON
and
LADY JUSTICE KING
____________________
THE QUEEN (on the application of ![]() | Claimant/Appellant |
|
- and - |
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THE ![]() ![]() ![]() ![]() ![]() ![]() ![]() -and- | Defendant/![]() | |
SECRETARY of STATE for the HOME DEPARTMENT |
Intervener |
____________________
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Official Shorthand Writers to the Court)
Mr.
Hugh Southey Q.C. (instructed by Fulchers) for the appellant
Mr.
Dijen Basu (instructed by
Hampshire
Police) for the
respondent
Mr.
Martin
Chamberlain Q.C. (instructed by the Treasury Solicitor) for the intervener
____________________
VERSION
OF JUDGMENT
Crown Copyright ©
Lord Justice Moore-Bick
:
The statutory framework
"96B Power of entry and search ofrelevant
offender's home address
(1) If on an applicationmade
by a senior police officer of the
relevant
force a justice of the peace is satisfied that the
requirements
in subsection (2) are
met
in
relation
to any premises, he
may
issue a warrant authorising a
constable
of that force–
(a) to enter the premises for the purpose of assessing therisks
posed by the
relevant
offender to which the warrant
relates;
and
(b) to search the premises for that purpose.
(2) Therequirements
are—
(a) that the address of each set of premises specified in the application is an address falling within subsection (3);
(b) . . .
(c) that it is necessary for aconstable
to enter and search the premises for the purpose
mentioned
in subsection (1)(a); and
(d) that on at least two occasions aconstable
has sought entry to the premises in order to search them for that purpose and has been unable to obtain entry for that purpose.
. . .
(6) The warrantmay
authorise the
constable
executing it to use
reasonable
force if necessary to enter and search the premises."
The proceedings below
Informalvisits
"1. Everyone has theright
to
respect
for his private and family life, his home and his correspondence.
2. There shall be no interference by a public authority with the exercise of thisright
except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or
morals,
or for the protection of the
rights
and freedoms of others."
"31. Inmost
litigious situations the expression "waiver" is used to describe a
voluntary,
informed and unequivocal election by a party not to claim a
right
or
raise
an objection which it is open to that party to claim or
raise."
"the omission to do so will be taken to show an intention to abandon or waive the point unless circumstances show that it was not intended to abandon or waive it or that the omissionresulted
from ignorance or
misapprehension
which provided a
reasonable
explanation of the failure to take it."
"Where the legislature imposes on a commonplace action orrelationship,
such as a job application or selection process, a statutory fetter, whose terms would normally engage a person's Convention
right,
it cannot avoid the engagement of the
right
by including in the fetter's procedural provisions a term that the person
must
agree to those terms."
Exemption
Lord Justice Tomlinson :
Lady Justice King :