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You are here: BAILII >> Databases >> England and Wales Court of Appeal (Civil Division) Decisions >> R Cruickshank Ltd. v Kent County Constabulary [2002] EWCA Civ 1840 (13 December 2002) URL: https://www.bailii.org/ew/cases/EWCA/Civ/2002/1840.html Cite as: [2002] All ER (D) 215, [2002] EWCA Civ 1840 |
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COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM QUEEN'S BENCH DIVISION
Gray J
Strand, London, WC2A 2LL | ||
B e f o r e :
LORD JUSTICE TUCKEY
and
LORD JUSTICE SEDLEY
____________________
R CRUICKSHANK LIMITED | Appellant/ Claimant | |
and – | ||
THE CHIEF CONSTABLE OF KENT COUNTY CONSTABULARY | Respondent/Defendant |
____________________
Andrew Edis QC (instructed by Berrymans Lace Mawer) for the Respondent
Hearing dates : 6-7th November 2002
____________________
Crown Copyright ©
Lord Justice Brooke :
"Our client is an innocent party in this matter. It bought the vehicle in good faith, has paid for it, and has had to cancel a sale (and return a deposit) in a very difficult market. It has also asked us to convey to you that its losses continue as a result of the vehicle's depreciation."
"Premises is the base for a company engaged in the importation of stolen vehicles from Japan. It is unlikely that director will allow access to the premises and documents voluntarily."
Notwithstanding this language the Kent police have always been at pains to stress that on the evidence in their possession Cruickshank was not under investigation for any criminal offence.
"Please note that you may not be the legal owner of this vehicle even if you have paid for it. If you attempt to dispose of it or any part of it you must inform the prospective new owner of this fact, otherwise you may commit offences under the Theft Act 1968, or render yourself liable to civil proceedings."
The notice also contained a number of different pieces of advice (depending partly on whether the owner of the stolen vehicle had been identified), and ended with an acknowledgment of receipt which the recipient of the notice (who was given two copies of the notice, including one for his/her retention) should send back to an identified police officer.
"If it is made to appear by information on oath before a justice of the peace that there is reasonable cause to believe that any person has in his custody or possession or on his premises any stolen goods, the justice may grant a warrant to search for and seize the same …"
For this purpose it does not matter where the goods were stolen, provided that the stealing amounted to an offence where and at the time when the goods were stolen (Theft Act 1968 s 24(1)). (It is unnecessary to refer in the context of the present appeal to section 24(3), which prescribes the circumstances in which goods may cease to be regarded as stolen goods, because if these were indeed stolen Japanese cars, none of them were returned to their Japanese owners, and those owners did not cease to have any right to restitution in respect of their theft, before these proceedings commenced).
"(2) … may seize anything which is on the premises if he has reasonable grounds for believing:
(a) that it has been obtained in consequence of the commission of an offence; and
(b) that it is necessary to seize it in order to prevent it being concealed, lost, damaged, altered or destroyed.
(3) … may seize anything which is on the premises if he has reasonable grounds for believing:
(a) that it is evidence in relation to an offence which he is investigating or any other offence; and
(b) that it is necessary to seize it to prevent the evidence being concealed, lost, altered or destroyed."
It is settled law that the word "offence" in this section means a domestic offence (see R (Rottman) v Metropolitan Police Commissioner [2002] UKHL 20 at [67], [2002] 2 WLR 1315.
"An officer who decides that it is not appropriate to seize property because of an explanation given by the person holding it, but who has reasonable grounds for believing that it has been obtained in consequence of the commission of an offence by some person, shall inform the holder of his suspicions and shall explain that, if he disposes of the property, he may be liable to civil or criminal proceedings."
Mr Edis QC, who appeared for the defendant, did not attempt to argue that the conditions set out in the code were satisfied before these notices were served on Cruickshank's customers.
"(1) The relevant law governing the proprietary effects of assignments of chattels is the law of the place where the assignment of the chose in possession takes place.
(2) In civil law jurisdictions sales of stolen goods to innocent purchasers are and/or can be effective.
(3) In so far as may be different from 2 above, under civil law systems the assignment of choses in possession of tangible movables to a bona fide purchaser for value without notice (or some near equivalent) is effective to give the purchaser good title against all persons including the original owner.
(4) English law generally recognises the validity of such assignments where original owners (or anyone else) sought to recover possession of the movable when subsequent to such an assignment it was brought into the jurisdiction of the English courts."
(1) The effect of their solicitors' letter dated 11th May 2000;
(2) The unlawfulness of the seizure of the Aristo;
(3) The effect of their solicitors' letter dated 25th May 2000;
(4) The unlawfulness of the seizure of the Harrier;
(5) The unlawfulness of the service of the retention notices;
(6) The unlawfulness of the threats to the purchasers of the other cars on the initial list.
"The Defendant's servants or agents DC Roberts and DS Keep deliberately seized [the Aristo and the Harrier] knowing that there were no grounds to do so or being recklessly indifferent as to whether or not there were any such grounds. DC Roberts deliberately threatened the seizure of the other vehicles knowing that there were no grounds to do so or being recklessly indifferent as to whether or not there were any such grounds unless the keepers submitted to the terms of the retention notice.
It is the Claimant's case that
1. The Defendant through his servants and agents deliberately used unlawful means to interfere with the contractual relations existing between the Claimant and its trade or consumer clients.
2. The necessary and intended consequence of such conduct was to cause loss and damage to the business and goodwill of the Claimant in particular by exposing them to claims at the suit of their own customers and other loss of business as hereinafter particularised."
"The servants or agents of the Defendant hold a public office, namely that of constable. The Defendant who is also a public officer holder is vicariously liable for the conduct of his servants or agents. His servants or agents in the purported discharge of their functions and exercise of their powers were reckless in that such conduct was unlawful and undertaken in bad faith with a reckless disregard as to the lawfulness of their actions (including threatened actions) and/or with reckless indifference as to the truth and to the effect their actions or representations and oppressive exercise of or threat to exercise powers of seizure would have on the Claimant's business and its goodwill."
(1) If public officers, such as the police, are not making an honest attempt to perform their duties they are abusing their power and acting in bad faith;
(2) It does not matter for this purpose whether they are deliberately seeking to injure someone or whether they are being recklessly indifferent as to the consequences of their actions on him: each state of mind is equally blameworthy.
"It is necessary to show that the defendant had an 'intent to injure' the claimant, or that he was 'aiming at him' as the object of the economic pressure he was seeking to inflict … … [W]ith causing loss by unlawful means, [the defendant] must intend to inflict economic damage on the plaintiff as such."
(i) did an unlawful act (such as deceiving a third party)
(ii) knowing that this act would have an undesirable economic consequence to the claimant, and
(iii) having decided to pursue that act knowing what the consequences would be.
Compare, in the context of the criminal law, R v Woollin [1999] 1 AC 82, 87G-H and 95A.
Lord Justice Tuckey:
Lord Justice Sedley:
"Any official who exceeds the authority given to him by the law incurs the common responsibility for his wrongful act; he is amenable to the authority of the ordinary courts …" (Introduction to the Study of the Law of the Constitution, 10th ed., p.389).
Dicey, it is true, was principally concerned to draw a distinction now accepted as being largely false between the common law system and French droit administratif (see Wade and Forsyth, Administrative Law, 8th ed., 23-5). He also chose to ignore the fact that by his time the courts of England and Wales had themselves developed a sophisticated body of public law. But his essential point holds good: the courts recognise and give effect to powers conferred by law for public purposes on individuals or bodies, but they also draw the limits of such powers and make office holders accountable like anyone else for wrongs done in excess of their powers.