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England and Wales Court of Appeal (Civil Division) Decisions
You are here: BAILII >> Databases >> England and Wales Court of Appeal (Civil Division) Decisions >> Chic Fashions (West Wales) Ltd v Jones  EWCA Civ 4 (12 December 1967)
Cite as: (1968) 132 JP 175,  2 WLR 201,  2 QB 299,  1 All ER 229,  EWCA Civ 4
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COURT OF APPEAL
From His Honour Judge Rowe Harding
Llanelli County Court
B e f o r e :
LORD JUSTICE DIPLOCK
LORD JUSTICE SALMON
| CHIC FASHIONS (WEST WALES) LIMITED
|J. RONALD JONES
Room 392, Royal Courts of Justice, and 2, New Square, Lincoln's Inn, London, W.C.2.)
appeared as Counsel for the Appellant.
MR SIMON GOLDBLATT (instructed by Messrs Lewis Cutner & Co.)
appeared as Counsel for the Respondents.
Crown Copyright ©
THE MASTER OF THE ROLLS: In 1965 and 1966 thieves broke into several shops and factories and stole ladies' clothes valued at £30,000. The stolen goods were of various makes, including "Ian Peters", "Mornessa", "Mansfield" and "Blanes". In March 1966 the police received information that clothes of these makes were being sold at certain shops in Cardiff and Llanelly. These shops were owned by Chic Fashions and controlled by the managing director, Mr Jack Raeburn. The goods were being sold at less than trade prices. On 26th March, 1966, an "Ian Peters" garment was exhibited for sale at the Cardiff Branch of Chic Fashions. Now it so happened that a few weeks earlier the factory of Ian Peters in Leicestershire had been broken into and goods stolen. The police suspected that these stolen goods had found their way to the shops of Chic Fashions. So they arranged to search all their shops at one swoop: also Mr Raeburn's home and his parents' home. On 30th March, 1966, police officers went before the Magistrates in the various towns and obtained search warrants. A typical example is the search warrant for the shop of Chic Fashions in Llanelly. It was in these terms:
"IN THE COUNTY OF CARMARTHEN
Petty Sessional Division of LLANELLY To each and all of the Constables of the (said) County
INFORMATION has this day been laid before me, the undersigned Justice of the Peace? by John Owen Evans of No.8 Regional Crime Squad that the following goods,
to wit, ladies' coats, skirts and suits, knitwear, jumpers and skirts the property of Ian Peters Limited have lately been feloniously stolen, taken, and carried away out of the factory at Star Works, Mountsorrel Lane, Rothley, Leicestershire, and that he hath reasonable cause to suspect, and doth suspect, that the said goods, or some part thereof, are concealed in the shop of Chic Fashions Limited, at Stepney Street, Llanelly, in the said County of Carmarthen (hereinafter called the Accused).
You are therefore hereby authorised and commanded forthwith, with proper assistance, to enter the said shop of the Accused in the daytime, and there diligently search for the said goods, and if the same, or any part thereof, shall be found upon such search, that you bring the goods so found before the Magistrates' Court sitting at the Town Hall, Kidwelly in the said County to be disposed of and dealt with according to law.
Dated the 30th day of March, 1966.
Justice of the Peace for the County First aforesaid".
Armed with this warrant, the police on the morning of 31st March, 1966, went to the Llanelly Branch of Chic Fashions. As soon as the shop opened at 9 a.m. they entered and searched the premises. They did not find any garments of "Ian Peters" make such as were specified in the search warrant. Jut they found garments of other makes of the kinds which had been stolen previously, such as "Mornessa", "Mansfield" and "Blanes". These bore signs that the labels had been removed and they bore prices much less than the trade prices. The police thought that these were stolen and seized them. There were sixty-five items altogether they seized.
The police saw Mr Raeburn the same day. He said that the goods were "cabbage". He explained what this meant. The manufacturers used to supply cloth to sub-contractors for them to make up a number of garments. After fulfilling the order, the subcontractors had surplus cloth left over. They were allowed to use this surplus cloth for their own benefit and to make up garments with it for sale, but they had to see that the manufacturers' label was removed. As the sub-contractors got the surplus cloth for nothing, they could sell to the retailers at less than manufacturers' prices.
Mr Raeburn's explanation was accepted by the police. They returned the goods to the shop on 2nd April, 1966.
The Company now sue the Chief Constable for damages. To save expense, the parties have agreed to limit the issue to the question whether the police officers were justified in taking away and retaining the 65 items of clothing. They have also agreed the following facts:-
(i) None of the 65 items of clothing taken away and retained was within the description of the search warrant issued on the 30th March, 1966.
(ii) None of the said 65 items was stolen.
(iii) None of the said 65 items was used as evidence upon the prosecution of a criminal charge.
iv) The said 65 items were lawfully acquired by the plaintiffs in the course of their business.
v) In taking away and retaining the said 65 items of clothing? the police officers believed upon reasonable grounds that the said 65 items were stolen goods and would form material evidence upon the prosecution of a criminal charge.
It comes to this, therefore: The police officers held a search warrant entitling them to enter the shop to search for ladies' garments which had been recently stolen from the factory of Ian Peters Ltd. When the police entered the shop and searched it, they found none of the goods that had been stolen from Ian Peters Ltd. But they found 65 items of clothing, not mentioned in the warrant, which they believed upon reasonable grounds were stolen and would form material evidence on a criminal charge. The question is: Were the police entitled to seize goods not mentioned in the warrant but which they believed on reasonable grounds to have been stolen?
You might have thought that this question would have been settled long ago. But, strangely enough, there is very little authority upon it. Our English law has always bad great regard for the integrity of a man's home. In 1604 Lord Coke declared that "every man's house is his castle" (see Semayne's Case (1604) 5 Coke's Reports, p.91a, and Third Institute, p.73), and his aphorism has come down the centuries. It was given dramatic force by William Pitt, Earl of Chatham, when he declared that: "The poorest man may in his cottage bid defiance to all the forces of the Crown. It may be frail - its roof may shake - the wind may blow through it - the storm may enter - the rain may enter -but the King of England cannot enter - all his force dares not cross the threshold of the ruined tenement", see Brougham's Statesmen in the Times of George III, First Series.
Exceptions? however, have had to be made to this principle. They have been made in the public interest. No man's house is to be used as a hiding place for thieves or a receptacle for stolen goods. If there is reasonable ground for believing that there are stolen goods in the house, information can be laid before a Magistrate on oath: and the Magistrate can then issue a search warrant authorising a constable to enter the house and seize the goods. That case was the only exception permitted by the common law. In no other case was a constable allowed to enter and search a man's house. Even if a constable suspected that counterfeit coins were being made there, or banknotes forged, he could not at common law obtain a search warrant to enter. In the celebrated case of Entick v. Carrinaton (1765) 2 Wilson K.B. p.276, 19 How. State Trials, p.1029, Lord Halifax, the Secretary of State, issued a warrant authorising a search to be made for seditious papers. it was held to be unlawful. Lord Camden said at page 291: "We can safely say that there is no law in this country to justify the defendants in what they have done; if there was, it would destroy all the comforts of society: for papers are often the dearest property a man can have. This case was compared to that of stolen goods. Lord Coke denied the lawfulness of granting warrants to search for stolen goods, 4 Inst. 121, 122, though now it prevails to be law; but in that case the justice and the informer must proceed with great caution; there must bo an oath that the party has had his goods stolen, and has strong reason to believe they are concealed in such a place: but if the goods are not found there, he is a trespasser".
Since that time further exceptions have been made by statute. In a great many cases now Acts of Parliament permit Magistrates to grant search warrants so as to enable the police to enter and see if a house is being used for unlawful purposes, such as coining, betting, and so forth. But with none of these are we concerned today. We have to deal with stolen goods, for which the common law always allowed a search warrant to be granted. There is, to be sure, a statute on the matter, Section 42 of the Larceny Act, 1916, but, so far as concerns stolen goods, it does little more than state the common law. It says that: "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 property whatsoever with respect to which any offence against this Act has been committed, the justice may grant a warrant to search for and seize the same". That section deals with goods mentioned in the warrant. It does not say whether the constable can seize goods not mentioned in the warrant. To solve this question we must resort to the cases.
At one time the Courts held that the constable could seize only those goods which answered the description given in the warrant. He had to make sure, at his peril, that the goods were the very goods in the warrant. If he seized other goods, not mentioned in the warrant, he was a trespasser in respect of those goods: and not only so, but he was a trespasser on the land itself, a trespasser ab initio, in accordance with the doctrine of the Six Carpenters' case (1610) 8 Coke, 146a, which held that, if a man abuse an authority given by the law, he becomes a trespasser ab initio.
If such had remained the law, no constable would be safe in executing a search warrant. The law as it then stood was a boon to receivers of stolen property and an impediment to the forces of law and order. So much so, that the Judges gradually altered it. In the year 1800 they held that a constable is entitled to seize, by virtue of the warrant, any goods which he reasonably believes to be included in the warrant, even though it should turn out afterwards that his belief was mistaken. That is shown by Price v. Messenger 1800, 2 Bos. & Pul. 158). A search warrant authorised a constable to search Price's shop for a quantity of sugar which had been "stolen from some ship or vessel lying in the River Thames". The constable entered the shop and seized some sugar there which Price was selling under prime cost, and also a bag of nails and two parcels of tea of which no satisfactory account was given. After enquiries were made, it turned out that they were not stolen, and all the goods were returned to Price. He then sued the constable for trespass. It was argued for Price that "the warrant was to seize stolen sugar, and the officers were bound at their peril to seize stolen sugar or none at all". The Court rejected this argument. It was held that the constable was not liable in respect of the sugar. As to the tea and nails, the constable admitted that he was not justified in taking them because they wore not mentioned in the warrants and he suffered judgment by default in respect of them.
In 1827 the Judges extended the protection of a constable further. They held that a constable is entitled to seize, by virtue of the warrant, not only the goods mentioned in the warrant, but also any other goods which are likely to furnish evidence of the identity of the stolen goods so as to show that they really are the goods mentioned in the warrant. This is shown by Crozier v. Cundey. We were referred only to the report in 6 Barnewall & Cresswell, p.232: but the facts are more fully reported in 5 Law Journal, Magistrates' Cases, Old Series, p.50: and the arguments and judgment much better reported in 9 Dowling & Ryland, p.224. Cundey owned 100 lbs of cotton copps contained in two packing cases. They were stolen from him. A search warrant authorised a constable to enter Crozier's house to search for the "100 lbs. weight of cotton copps". The warrant did not mention the packing cases. The constable found the cotton in packing cases. He seized not only the cotton but also the packing cases in which it was contained. Then Cundey told the constable that there were other things of his. Thereupon he and the constable ransacked the place looking for other things. They rummaged for half an hour and ultimately took away a tin pan and a sieve besides the cotton. There was no reason for supposing that Crozier had stolen the things. There had been previous disputes between Crozier and Cundey about property. Crozier alleged that the seizure of the packing cases, tin pan and sieve was illegal because they were not mentioned in the warrant and that the illegality related back so as to make the original entry unlawful. Re sued Cundey and the constable for trespass (i) for entering the house (trespass ab initio) and (ii) for seizing the goods. The trial Judge nonsuited the plaintiff, who, being aggrieved, went to the Court of King's Bench, consisting of Chief Justice Abbott and Justices Bayley, Holroyd and Littledale. They held that the trial Judge was right in rejecting the claim for the seizure of the packing cases, because they were likely to furnish evidence of the identity of the cotton copps. But they hold that he ought not to have nonsuited the plaintiff in respect of the tin pan and sieve. Chief Justice Abbott said; ''If those articles had from their nature been likely to furnish evidence of the identity of the articles stolen and mentioned in the warrant, I should have been inclined to assent to Mr Reader's argument, and to think that there might have been reasonable ground for seizing them, though not mentioned in the warrant. But it cannot be contended that the tin pan and the hair sieve were articles likely to furnish such evidence, and therefore I am of opinion that the nonsuit cannot be supported".
Before leaving this case, it should be noticed that Crozier failed in his claim for trespass to the house (trespass ab initio). This illustrates the proposition that nowadays if a constable lawfully enters a house by virtue of a search warrant and seizes the goods mentioned in the warrant, his entry does not become unlawful simply because he unjustifiably seizes other goods. He is liable for trespass in respect of those other goods, but not for trespass to the house, see Canadian Pacific Wine Co. v. Tutley, 1921, 2 Appeal Cases, p.417.
In the case of Crozier v. Cundey seizure of other goods was only allowed so as to prove the identity of the stolen goods. The next case goes to allow seizure of other goods so as to prove the guilt of the thief or receiver. In 1867 in the House of Lords observations were made from which it may be inferred that a constable may seize other goods not mentioned in the warrant if they afford useful evidence to substantiate the charge for which the warrant was issued. In Pringle v. Bremnar (1867) 5 Macpherson, p.55, a search warrant authorised a constable to search a house for a piece of fuse used in making an explosion. The constable, in searching the house for the piece of fuse, found letters which served to throw light on the perpetrators of the explosion. The constable took possession of them. The Lord Chancellor (Lord Chelmsford) said at p.60: "Now it may be said (and as the argument has been urged it may be as well to observe upon it) that the constable, having a warrant to search merely for pieces of wood and pieces of a fuse, had no right whatever to go beyond that, to ransack the house (if I may use the expression) and to endeavour to find something which might implicate the pursuer on the charge which was preferred against him. But supposing that in a search which might have been improper originally, there were matters discovered which showed the complicity of the pursuer in a crime, then I think the officers, I can hardly say would have been justified, but would have been excused by the result of their search".
Those are the only cases on search warrants. But the last extension (where a constable may seize other goods which go to prove guilt) is supported by the cases on warrants of arrest. In Dillon v. O'Brien and Davis (1887) 16 Cox Criminal Cases, p.245, John Dillon was said to have taken part in a conspiracy. The Magistrates issued a warrant for the arrest of Dillon. The constable who went to effect the arrest found in the house a quantity of banknotes and papers which he thought would be useful evidence. Chief Baron Palles said (at p.249): "I, therefore, think that it is clear, and beyond doubt, that, at least in cases of treason and felony, constables (and probably also private persons) are entitled, upon a lawful arrest by them of one charged with treason or felony, to take and detain property found in his possession which will form material evidence in his prosecution for the crime.....The interest of the State in the person charged being brought to trial in due course necessarily extends to the preservation of material evidence of his guilt or innocence, as well as to his custody for the purpose of trial. His custody is of no value if the law is powerless to prevent the abstraction or destruction of the evidence, without which a trial would be no more than an empty form".
I must mention, however, Elias v. Pasmore, 1934, 2 King's Bench, p.64. A man called Hannington made a speech in Trafalgar Square which was said to be seditious. A warrant was issued for his arrest. The police went to the headquarters of the movement and arrested him. They seized also several documents, including a letter signed "P.C." to a Labour paper. Mr Justice Horridge said (at p,173): "In my opinion the seizure of these exhibits was justified, because they were capable of being used and were used as evidence in the trial. If I am right in the above view, the original seizure of these exhibits, though improper at the time, could therefore be excused".
It will be noticed that Mr Justice Horridge relied on the fact that the documents were used in evidence at the trial. But I cannot think that is a necessary condition to justify their seizure. It may often happen that, on investigation, the prosecution decide not to go on with the case. The seizure must be justified at the time, irrespective of whether the case goes to trial or not. It cannot be made lawful or unlawful according to what happens afterwards.
Such are the cases. They contain no broad statement of principles but proceed, in our English fashion, from case to case until the principle emerges. Now the time has come when we must endeavour to state it. We have to consider, on the one hand, the freedom of the individual. The security of his home is not to be broken except for the most compelling reason. On the other hand, we have to consider the interest of society at large in finding out wrongdoers and repressing crime. In these present times, with the ever-increasing wickness there is about, honest citizens must help the police and not hinder them in their efforts to track down criminals. I look at it in this way: So far as a man's individual liberty is concerned, the law is settled concerning powers of arrest. A constable may arrest him and deprive him of his liberty, if he has reasonable grounds for believing that a felony (now an "arrestable offence") has been committed and that he is the man. I see no reason why goods should be more sacred than persons. In my opinion, when a constable enters a house by virtue of a search warrant for stolen goods, he may seize not only the goods which he reasonably believes to be covered by the warrant, but also any other goods which he believes on reasonable grounds to have been stolen and to be material evidence on a charge of stealing or receiving, against . the person in possession of then or anyone associated with him. Test it this way: Suppose the constable does not find the goods mentioned in the warrant but finds other goods which he reasonably believes to be stolen. Is he to quit the premises and go back to the Magistrate and ask for another search warrant to cover these other goods? If he went away, I should imagine that in nine cases out of ten, by the time he came back with a warrant, these other goods would have disappeared. The true owner would not recover them. The evidence of the crime would have been lost. That would be to favour thieves and to discourage honest men. Even if it should turn out that the constable was mistaken and that the other goods were not stolen goods at all, nevertheless so long as he acted reasonably and did not retain them longer than necessary, he is protected. The lawfulness of his conduct must be judged at the time and not by what happens afterwards. I know that at one time a man could be made a trespasser ab initio by the doctrine of relation back. But that is no longer true. The Six Carpenters' case (1610) 8 Coke, p.146a, was a by-product of the old forms of action. Now that they are buried, it can be interred with their bones.
In this case, on the agreed facts, the police had reasonable ground for believing the 65 items of clothing to have been stolen and to be material evidence on a criminal charge against the Company or its officers. So they seized them. On investigation they found out that they were not stolen and they returned them. On the principles I have stated they are not liable.
I would allow this appeal and give judgment to the defendant.
LORD JUSTICE DIPLOCK: I need not repeat the facts agreed or proven; they have been stated by the Master of the Rolls, except to mention that the expression "cabbage", in the sense used by Mr Raeburn, has respectable antiquity and dates back to the eighteenth century. None of the goods seized turned out to be within the description contained in the search warrant: for none were in fact "the property of Ian Peters Ltd". Their seizure was not authorised by the warrant. Its only relevance is that it made lawful the entry of the police officers upon the plaintiff's premises and their remaining there for the purpose of conducting a search for the goods described in the warrant.
The question in this appeal, therefore, is whether at common law today a police officer, who is lawfully upon private property, is entitled without the permission of the occupier of the premises to seize and take away goods in the possession of the occupier which he has reasonable grounds to believe are stolen and to detain them as material evidence upon a criminal prosecution of the occupier for stealing the goods, or for receiving them knowing them to be stolen, until either such a prosecution is heard and determined or further information discloses that such a prosecution would not be justified.
In the present case there was no specific admission that at the time the goods were seized the police officers believed that the plaintiffs, in whose possession they were at the time of seizure, had themselves received the goods knowing them to be stolen. The case was argued before the County Court Judge upon the broader submission by the defendant that it was sufficient justification for the seizure that the police officers had reasonable grounds for believing that the goods had been stolen and might be material evidence on the prosecution of a criminal charge against any person, whether that person was the plaintiffs themselves or some third party. But the admitted facts made it plain beyond a peradventure that at the time of the seizure the police officers had reasonable grounds for believing that the plaintiff company through its responsible officers - in particular, its managing director - had received the goods knowing them to be stolen; and I propose to deal with this appeal upon that more limited basis. It may well be that there are other considerations which are relevant when police officers, although they have reasonable grounds for believing that goods are stolen, have none for believing that they came otherwise than innocently (which might include purchase in market overt) into the possession of the person in whose possession they are found. On this I deliberately refrain from expressing any view.
What answer docs the common law today give to the question I have posed? No direct answer is to be found in any decision of the English Courts, ancient or modern. From general observations to be found in various judgments ranging over two centuries to which we have been referred, it is possible to discern whereupon this matter various Judges would have thought the balance lay between the inviolability of private property and the pursuit of public weal in a society of the kind in which they lived. But it is worth while remembering that until Sommersett's case (20 State Trials, p.l) in 1771 the balance lay in favour of private property in slaves. This was six years later than Entick v. Carrington (19 State Trials, p.1029), a case to which we have been referred, whose reasoning we have been urged to follow. The society in which we live is not static, nor is the common law, since it comprises those rules which govern men's conduct in contemporary society on matters not expressly regulated by legislation. That is why in the question we have to answer I have stressed the word "today".
The plaintiff's cause of action for interference to his property in goods lies in trespass - a cause of action which historically did not necessarily involve blameworthiness on the part of the defendant. But the development of the common law in the last thirty years has tended towards equating civil liability with conduct which rightminded men in contemporary society would regard as blameworthy (see Fowler v. Lanning, Letang v. Cooper) and towards protecting those who act reasonably in intended performance of what right-minded men would deem a duty to their fellow men. (see Haynes v, Harwood, 1935, 1 King's Bench, p.146: Baker v. Hopkins & Son 1959,. 1 Weekly Law Reports, p.966). Today stealing is more widespread than it has ever been since statistics of crime have been available. Stolen goods can be swiftly carried far from the scene of the theft. Today, unlike the time of Entick v, Carrington (ubi sup), Price v. Messenger (1800) 2 Bosanquet & Pullen, p.158, and Crozier v. Cundey (1827) 2 Barnewall & Cresswell, p.232, there are throughout the country regular police forces whose officers are charged with the duty of preventing and detecting crime. The common law has always recognised that the discharge of this duty may justify some interference with rights of innocent private citizens which would in other circumstances be entitled to its protection. At common law a constable, even before there were regular police forces, was entitled to arrest a person whom he had reasonable grounds for believing to have committed a serious crime (felony). At the time of the arrest the arrestor cannot know that the arrested person is guilty. The purpose of the arrest is to bring him before a Court so that this issue may be tried. The justification of the arrest does not depend upon the result of the subsequent trial. The reasonable belief of the arrestor at the time of the arrest was a good defence to an action of false imprisonment notwithstanding that it ultimately proved to be unfounded. The balance between the inviolability of personal liberty and the pursuit of public weal in this case came down upon the side of him who acted reasonably in intended performance of what right minded men would deem a duty to their fellow men; the prevention and detection of crime.
It may be that well into the nineteenth century when arrest upon mesne process and imprisonment for debt formed part of the ordinary procedure of the Courts, the protection of private property weighed heavier in the scale of social values than the preservation of human liberty. Some of the language in Entick v. Carrington might so suggest. But such is not the case today, and unless forced to do so by recent binding authority, I decline to accept that a police officer who is unquestionably justified at common law in arresting a person whom he has reasonable grounds to believe is guilty of receiving stolen goods, is not likewise justified in the less draconian act of seizing what he, on reasonable grounds, believes to be the stolen goods in that person's possession. The purpose of the seizure in such a case is twofold: first, that the goods may be produced as material evidence upon the prosecution of a criminal charge against the person from whom they were seized, and, secondly, that after the trial they may be restored to their rightful owner, and a similar justification exists for their detention so long as the detainer has reasonable grounds for believing that such a charge will lie and that the goods will be material evidence upon its prosecution. I leave aside the question, which does not arise in the present case, of what constitutes sufficient justification for the seizure and detention if the contemplated criminal charge is not against the person in whose possession the goods were at the time of seizure.
In Dillon v. O'Brien (16 Cox's Criminal Cases, p.245), an Irish case, the seizure of the goods had been accompanied by the arrest of the person in whose possession the goods were found. The goods in question were not believed to be stolen but to be material evidence upon a charge of conspiracy against the person arrested. In the result the person arrested was convicted. But the robust common sense of the reasoning of Chief Baron Palles is not so limited in its application. It does not depend for its validity upon the contemporaneous arrest of the person in whose possession the goods were found, nor does it depend upon his subsequent conviction. The goods of Dillon which were seized were unquestionably his property, the justification of the seizure of the goods was not the assertion of any jus tertii but their intended production as material evidence upon the prosecution of a criminal charge against him of conspiracy. And the same reasoning which leads to the conclusion that in the case of an arrest itself reasonable grounds for belief in guilt at the time of arrest is sufficient justification, though subsequent information or events may show those grounds to be deceptive, leads to the same conclusion in the case of seizure. At common law, with the possible exception of the antiquarian doctrine of trespass ab initio (see Six Carpenters' case, 8 Coke, p.147a), subsequent events do not render unlawful an act which was lawful at the time when it was done, at any rate if those events are not themselves caused by the doer of the act. What application, if any, the rule applied in the Six Carpenters' case has in the modern law of tort, may some day call for re-examination, but it has no relevance to the present case if the original seizure of the goods was lawful.
The learned County Court Judge, after a careful review of all the cases cited to him, came to the conclusion that they did not constitute authority for the proposition that seizure of goods could be justified if in the result the goods proved not to have been stolen, but to bo in truth the property of the person from whose possession they were taken. I think that he was right in so concluding, but equally these cases are not authority for the converse of that proposition. Neither in Price v. Messenger, nor in Crozier v. Cundey, the cases nearest in their facts to these, was the point which has been argued in this appeal taken. In the former case the defendants had suffered judgment by default in respect of the goods not described in the search warrant. In the latter, in which the facts and argument are very summarily reported, the argument appears to have been limited to the contention that the seizure of goods not mentioned in the warrant was justified if "they might be serviceable in the investigation of the felony mentioned in the warrant". This contention was accepted as correct, but it was found that the particular facts in the case did not support it.
The point of law in this appeal thus comes before us in 1967 untrammelled by authority. It is for us to say how in 1967 it should be answered. For my part I, like the Master of the Rolls, would answer it by allowing this appeal.
LORD JUSTICE SALMONS: It is strange that there is no direct authority on the question which arises for decision on this appeal. It is a narrow question but one of great general importance, namely, whether the common law allows a policeman to seize goods which he finds in the possession or custody of a person if he believes, on reasonable grounds, that that person has stolen the goods or received them knowing them to be stolen. Since undoubtedly such a person can lawfully be arrested (Charles v. Dunbar, 2 Carrington & Payne, p.565), it is difficult to discover any sensible reason for conferring immunity from seizure upon the goods found on his premises. The production of stolen goods from the possession of an accused often provides most material evidence at his trial. There is certainly no decided case or statutory provision which compels us to find that in the circumstances postulated a policeman has no power of seizure, whilst common sense and principle alike strongly suggest that he must have such a power.
The common law has always been, and I hope and believe always will be, the jealous guardian of the right of the innocent to go free and also of the rights of property. These rights are perhaps complimentary to each other. Today, however, the first is undoubtedly regarded as of paramount importance. It may not always have been so. Indeed, the emphasis was at one time different. A little more than 200 years ago Lord Camden observed: "The great end for which men entered into society was to secure their property. That right is preserved sacred and incommunicable in all instances where it has not been abridged by some public law for the good of the whole": Entick v. Carrington (1765) 19 How. State Trials, p.1029 at p.1060. This today has an odd ring - both archaic and incongruous. I cannot be sure how the question which confronts us might have been answered in the 18th or even in the 19th century, but I have no doubt about how it should be answered now. It has often been stated that the common law is not static. It is a growing organism which continually adapts itself to meet the changing needs of time. There has never been a time when the incidence of crime was higher or the need for prevention of crime greater than it is today. The right of a policeman to arrest a person whom he believes on reasonable grounds to be guilty of a felony was an invasion of private liberty. It was an exception which was evolved and gained general acceptance as a necessary measure for the prevention of crime. No-one can doubt that it has worked for the benefit of society.
The arrested man must be informed of the offence for which he is arrested unless the circumstances of his arrest make this obvious. If there proves to be no evidence to justify his continued detention, he must be immediately released. Otherwise he must be brought before the Magistrates and dealt with as they direct (Christie v. Leachinsky, (1947) Appeal Cases, p.573; Wiltshire v. Barrett (1966) 1 Queen's Bench, p.312 at pp.324, 325. If the preservation of law and order requires that a policeman shall have the power to arrest a man whom he believes on reasonable grounds to be a thief or a receiver, it is difficult to understand why the policeman should not have the power to seize goods on that man's premises which the policeman believes on reasonable grounds that he has stolen or received. If the man's person is not sacrosanct in the eyes of the law, how can the goods which he is reasonably suspected of having stolen or received be sacrosanct? Only if the law regards property as more important than liberty. And I do not accept that it does so. It would be absurd if the police had the power to arrest a man, but having failed to catch him, had no power to seize the goods in his house which they reasonably believed he had stolen or unlawfully received. There is no doubt that if they find the goods in his possession when they arrest him, they may seize the goods (see the observations of Lord Campbell in the footnote to Bessell v. Wilson, 20 Law Times, Old Series, p.233, Dillon v. O'Brien, 16 Cox's Criminal Cases, p.245, Elias v. Pasmore, 1934, 2 King's Bench, p,l64). Suppose the police, reasonably believing a man has stolen some jewellery, follow him into his house in order to arrest him. As they enter the front door, they see him disappearing out of the back door, but there on the table is the jewellery. Surely they may seize it; the fact that he has evaded capture cannot confer any immunity upon him in respect of the stolen goods. He may be captured later and then the fate of the goods will depend upon whether or not he is committed for trial, and, if committed, whether he is found guilty or not guilty. If the suspected man disappears, the goods will be preserved until the true owner can be ascertained.
In the present case the warrant was badly drawn. It could have been drawn to protect the defendant, but it did not do so. It authorised him to enter the plaintiff company's Llanelly shop and search for certain goods "the property of Ian Peters Ltd"., and, if found, bring them before the Magistrates. The goods found and seized by the defendant were not the property of Ian Peters Ltd., but of other manufacturers. The defendant, therefore, could not rely upon the warrant for his seizure of the goods and it is upon wrongful seizure alone that the plaintiff company now relies in this action. The warrant enabled the defendant to enter the plaintiff company's premises. He was lawfully there. The question does not arise for decision and I express no concluded view upon it, but in spite of the Six Carpenters' case, 8 Coke, p.147a, I very much doubt whether the defendant's seizure of the goods, if wrongful, would have made his entry upon the promises wrongful ab initio. The general rule is that an act which is lawful at the time is not to be rendered unlawful afterwards by the doctrine of "relation back" (Wiltshire v. Barrett (supra) per Lord Denning, Master of the Rolls, at p.323).
There is no doubt that the defendant had reasonable grounds to believe and did believe that the goods he found upon the plaintiff company's premises were stolen goods and had been received by Mr Raeburn, the plaintiff company's alter ego, knowing them to be stolen. Similar goods had recently been stolen from the Ian Peters' factory. The plaintiff company was not a customer of Ian Peters. Many of these goods were similar to the goods of Ian Peters, had had their name tags removed and were being offered for sale by the plaintiff company at prices below manufacturers' prices. Mr Raeburn was being interviewed by other members of the police force at about the same time as the defendant entered the plaintiff company's shop, and unless Mr Raeburn had given an explanation which the police felt able to accept, he would no doubt have been detained and charged. As it was, he went free and the goods were returned.
On the facts of this case I would hold that the defendant has a good defence at common law. I go no further. In particular I wish to make it plain that I incline to the view that if a policeman finds property which he reasonably believes to be stolen in the possession of a person whom he has no reasonable grounds to believe is criminally implicated, the policeman has no common law right to seize the property. If, for example, a policeman is admitted to a house, and whilst there sees some silver on the side-board which he reasonably believes is stolen property but which he has no reason to suppose was dishonestly acquired by the house-holder, he cannot take it away without the householder's consent. Nor do I think that, in practice, Magistrates would or should issue a warrant under Section 42(1) of the Larceny Act, 1916, enabling the police to enter the house of a respectable citizen and search for and seize stolen goods of which the householder is thought to be innocently in possession after having acquired them in good faith.
I agree, however, that on the facts of the present case the defendant lawfully seized the plaintiff company's goods and the appeal should accordingly be allowed.
MR FRANCIS: I ask then that the appeal be allowed and that there should be judgment for the defendant with costs in your Lordship's Court and the County Court.
THE MASTER OF THE ROLLS: That must follow, Mr Goldblatt.
MR GOLDBLATT: Yes, that must follow from your Lordships' decision. My only application to your Lordships is that your Lordships should give leave to appeal in this case.
THE MASTER OF THE ROLLS: The appeal is allowed with costs here and below and judgment entered for the defendant accordingly. We do not give leave to appeal to the House of Lords.
MR FRANCIS: I omitted to ask your Lordship to say the scale of costs below. The appropriate scale was Scale 4.
THE MASTER OF THE ROLLS: That was made against you?
MR FRANCIS: Yes, and the learned Judge gave the appropriate direction that the Registrar could exceed the scale.
THE MASTER OF THE ROLLS: You may have the self-same directions so far as you are concerned.
MR GOLDBLATT: I think that was common ground between the parties.