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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 >> M, R (On the Application Of) v Secretary of State for the Home Department  EWCA Civ 1651 (18 December 2014)
Cite as:  WLR 1176,  WLR(D) 541,  1 WLR 1176,  1 Cr App R 20,  EWCA Civ 1651
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ON APPEAL FROM THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
Lady Justice Hallett D.B.E. and Mr. Justice Collins
Strand, London, WC2A 2LL
B e f o r e :
Vice-President of the Court of Appeal, Civil Division
LORD JUSTICE TOMLINSON
LADY JUSTICE KING
| THE QUEEN
(on the application of M)
|- and -
|THE CHIEF CONSTABLE of HAMPSHIRE CONSTABULARY
|SECRETARY of STATE for the HOME DEPARTMENT
WordWave International Limited
A Merrill Communications Company
165 Fleet Street, London EC4A 2DY
Tel No: 020 7404 1400, Fax No: 020 7831 8838
Official Shorthand Writers to the Court)
Mr. Dijen Basu (instructed by Hampshire Police) for the respondent
Mr. Martin Chamberlain Q.C. (instructed by the Treasury Solicitor) for the intervener
Crown Copyright ©
Lord Justice Moore-Bick :
The statutory framework
"96B Power of entry and search of relevant offender's home address
(1) If on an application made 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 the risks posed by the relevant offender to which the warrant relates; and
(b) to search the premises for that purpose.
(2) The requirements 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 a constable to enter and search the premises for the purpose mentioned in subsection (1)(a); and
(d) that on at least two occasions a constable 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 warrant may authorise the constable executing it to use reasonable force if necessary to enter and search the premises."
The proceedings below
"1. Everyone has the right 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 this right 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. In most 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 omission resulted from ignorance or misapprehension which provided a reasonable explanation of the failure to take it."
"Where the legislature imposes on a commonplace action or relationship, 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."
Lord Justice Tomlinson :
Lady Justice King :