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England and Wales High Court (Queen's Bench Division) Decisions |
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You are here: BAILII >> Databases >> England and Wales High Court (Queen's Bench Division) Decisions >> Stankovic v Chief Constable of the Ministry of Defence Police [2007] EWHC 2608 (QB) (09 November 2007) URL: http://www.bailii.org/ew/cases/EWHC/QB/2007/2608.html Cite as: [2007] EWHC 2608 (QB) |
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QUEEN'S BENCH DIVISION
Strand, London, WC2A 2LL |
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B e f o r e :
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Major Milos Vladimir Stankovic MBE |
Claimant |
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- and - |
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Chief Constable of the Ministry of Defence Police |
Defendant |
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Jonathan Crow QC, Angus McCullough and Miss Sarah Whitehouse (instructed by The Treasury Solicitor) for the Defendant
Hearing dates: 22nd October 2007 to 2nd November 2007
(Did not sit on 1st November 2007)
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Crown Copyright ©
The Hon. Mr. Justice Saunders:
Background.
Bosnia
The Claim.
i) The beginning of the police investigation in October 1996.
ii) The application for search warrants on 14th October 1997.
iii) The execution of the search warrants on 16th October 1997.
iv) The arrest and first interview of the Claimant on 16th October 1997.
v) The conduct of the investigation between 16th October 1997 and the re-arrest and further interview on 28th October 1998.
vi) The conduct of the second interview on 28th October 1998.
vii) The content of the police report prepared for the consideration of the CPS in late 1998 and the police's behaviour in relation to the Army investigation.
Evidence as to this was given by Walter Boreham, the Chief Constable of the Ministry of Defence Police at the time; Arthur Rucker who was the Assistant Under-Secretary at the Ministry of Defence with responsibility for security; 'Witness A' who dealt with this matter for the Security Services, and Mr. Love, the Detective Chief Inspector who was the assistant to Detective Chief Superintendent Anderson for the purpose of the inquiry. The Claimant, of course, can give no evidence to contradict what these witnesses have said, but does invite me to draw inferences adverse to the Defendant from the evidence I have heard. All the witnesses except 'Witness A' had difficulty in recollection, and Mr. Love's memory of the events in particular was not good. However, there are sufficient contemporaneous documents to enable the events to be re-constructed. There is no basis for doubting the accuracy of the evidence given by the witnesses and I accept it, based, as it is, almost entirely on briefing notes and notes of meetings which were made contemporaneously.
a) That they had intelligence that Major Stankovic supplied secret information to the Serbs in Bosnia.
b) That there had been a covert search of Major Stankovic's house which revealed that he was holding confidential information from Bosnia.
c) The nature of the particular document seen in the covert search and the diary entry to which I have already referred.
d) Major Stankovic's continued contact with members of the Bosnian Serb leadership after his return to England.
e) His association with people who still had access to confidential information about Bosnia.
f) His meeting with Zametica in March 1996 in contravention of the order of Captain Kelly which was not reported to Major Cook by Major Stankovic.
g) The belief that the Serbs had given Major Stankovic a medal.
1) That the Defendant made a successful application for a search warrant.
2) That the Defendant lacked any belief that he was placing before the issuing Judge material sufficient to meet the conditions for issue of the warrant sought (I have omitted the words 'bona fide' as qualifying the belief because it does not seem to me to add anything).
3) That the Defendant acted with malice, which encapsulates acting because of an improper motive.
I will not deal with the element of damage.
1) There was no basis for reasonable suspicion that disclosure coming within the terms of section 2 of the Official Secrets Act 1989 had been made because:
a) The Claimant never had access to secret information in Bosnia, the disclosure of which 'could endanger the interests of the U.K. abroad, or seriously obstruct the promotion or protection by the U.K. of their interests'.
b) There was no evidence that any disclosure had in fact been made by the Claimant in Bosnia.
c) The investigation between October 1996 and 1997 had revealed nothing to support such an allegation.
d) There was no evidence that since he returned to England the Claimant had in fact acquired any sensitive information which he could have passed on.
2) Even if there were grounds for such suspicions, that was rebutted by what they knew of the Claimant's character.
3) An application for a search warrant and in particular its execution is a draconian measure and the aim of the search warrant could have been achieved simply by asking the Claimant to hand over the documentation.
1) The results of the covert search, i.e. the finding of documents in the Claimant's house which he should not have had and the specific nature of the document identified by 'Witness A' and the diary entry to which I have already referred. In the absence of explanation, finding that document would provide evidence of an Official Secrets Act offence.
2) The continued contact with members of the Serbo-Croat leadership despite the direct order which was given.
It has been accepted by Detective Chief Inspector Love, that he did not believe that a search would reveal anything which would be evidence of disclosure, made after the Claimant's return to England in 1995.
In Reynolds -v- Metropolitan Police Commissioner 1985 1 QB 881 at p. 892 D-F, Slade LJ accepted that the fact of C.P.S. advice and approval for the obtaining of a search warrant was relevant to negating malice even though the function of the C.P.S. at that stage of the inquiry was only advisory.
1) That an offence contrary to the Official Secrets Act 1989 had been committed, and,
2) That this offence had been committed by Major Stankovic.
Once a person is arrested he is taken before the Custody Officer. The details of, and the reason for the arrest must be outlined in front of the person who has been arrested. The Custody Office has to be satisfied as to the reason for the arrest, and the need for the suspect to be detained. The difficulty in this case for the police, was how much of their information they could disclose to the Custody Officer, bearing in mind it would have to be disclosed also to Major Stankovic. No doubt for tactical reasons, it was decided to arrest on suspicion of unauthorised disclosures of information after Major Stankovic had returned to England. The Custody Officer was told that that suspicion was based on the fact that Major Stankovic had retained contact with representatives of the Bosnian-Serb leadership in contravention of a direct order not to contact them. For reasons of national security, no mention was made to the Custody Officer of the intelligence obtained from the Security Service or the results of their covert search. In the event the Custody Officer was satisfied that the arrest was lawful and the detention justified, both to interview, and to preserve evidence.
1) No matter how convenient the course may seem to be, a police officer acting under a search warrant issued under the Forgery Act 1913 is not entitled, without the consent of the owner, indiscriminately to remove from the premises each and every file, book, bundle or document he can lay his hands on, even if only for the purpose of temporary sorting. Before doing so, he must have regard to the nature and contents of the item in question.
2) However, provided that he acts reasonably in so doing, he is entitled to remove from the premises, files, books, bundles or documents which at the time of removal he reasonably believes contain (i) forged material or (ii) material which might be of evidential value, as showing that the owner is implicated in some other crime .
3) Any necessary sorting process in relation to all items removed (e.g. those contained in files and bundles) should be carried out with reasonable expedition and those of them which are not found to fall within either category should be returned reasonably promptly to the owner.
1) That Major Stankovic was in possession of documents which, had they been revealed to the Bosnian Serb leadership, would have constituted offences under section 2 of the Official Secrets Act 1989.
2) That he was in possession of documents which some others thought he should not have had.
3) That he had made careless disclosures particularly to his parents, including revealing pseudonyms used by other soldiers and details of visits by VIPs.
4) That details that he was supplying in letters to his parents of his job and the situation in Bosnia were being circulated to Serbs in England in circulars.
5) The use of a pseudonym for Zametica in a letter from his father.
6) The document which had been discovered in the covert search was found by the police.
7) There were other documents in the form of notes in Serbo-Croat which raised similar grounds for suspicion that secret information was being conveyed.
The first lasted from 11.48 to 12.24 (38 minutes).
The second lasted from 12.34 to 17.18 (52 minutes).
The third lasted from 14.26 to 14.46 (20 minutes).
Conclusion.
1) I am satisfied that the two arrests of the Claimant in 1997 and 1998 were lawful and accordingly the claims for false imprisonment fail.
2) I am not satisfied that at any stage of the inquiry the police committed the tort of a misfeasance in a public office.
3) I am not satisfied that the Claimant has established that in the application for search warrants or at any time thereafter the police committed the tort of malicious prosecution or malicious process.
4) I am satisfied that in seizing and removing the items that they did in the course of the search the police acted outside the terms of the warrant. In doing this, their conduct was negligent. Accordingly the allegation of trespass to goods is made out.
5) I am satisfied that this search warrant was lawfully obtained and accordingly the claim for trespass to land fails.
6) The claim was also made in negligence. Mr Ullstein conceded in his final submissions that the claim cannot survive in the light of the decision of the House of Lords in Brooks -v- Commissioner of Police for the Metropolis [2005] 1WLR 1495. The effect of that decision is that no duty of care was owed by the police to the Claimant for reasons of public policy.