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7.3 Trespass to the Person, Land and Goods Lecture - Hands on Examples

Question:

Kimmy owns a large country house and adjoining estate in the middle of Hampshire.

Her neighbour, Titus is in the process of building a stable for his collection of horses. The builders arrive and unload the bricks for the construction. They have unloaded some of the bricks past the property line, onto Kimmy’s property. This is a distant corner of the estate which Kimmy rarely ventures over to.

It emerges that Kimmy’s considerable fortune comes from the proceeds of an international drugs smuggling ring. After a protracted police investigation the police arrive to search her property and arrest Kimmy. The police arrive and begin to search the house with a valid warrant.

Kimmy is kept in the dining room of her house, and despite telling the police to get out, they refuse to leave. Two police officers are in the process of searching her house when they come across an ornate vase. One of the officers picks it up to search the inside for drugs. After he has finished searching he decides to prank the other officer. He throws the vase at him and yells ‘catch!’ The officer does not catch the vase which falls to the ground and shatters.

Kimmy hears the smashing vase and goes to see what the commotion is, the officer guarding her stops her from leaving the dining room. She asks him to move but he refuses. She asks he why she isn’t allowed to leave the dining room but he stays silent.

Kimmy is arrested an hour later. Despite Kimmy being of small statute and extremely calm, during the process of the arrest the police officer shouts ‘stop resisting!’ and kicks Kimmy in the back of her knee, leaving her with a bruise.

Kimmy wishes to bring a claim against the police for trespass onto her property (on the basis that she did not give permission for them to enter), for breaking the vase, for false imprisonment in her dining room, and for kicking her in the leg. She also wants to bring a claim against Titus for dumping the bricks onto her property. Finally, the police officer who was hit in the head with a vase wants to bring a claim against his colleague, despite not actually being injured by it.

Answer:

Kimmy’s claim for trespass against the police will likely fail. Whilst Kimmy is the legal possessor of the land, and the police have directly interfered with her rights by refusing to leave when asked, they have the defence of legal authority. Under s.8 of the Police and Criminal Evidence Act 1984, a search of premises can be authorised under a warrant. Kimmy might have a claim against the officer who broke the vase under this tort. Whilst the officer has a warrant to enter the property for the purpose of searching it, he arguably goes beyond the bounds of the warrant and becomes an unauthorised visitor. Under the principle of ab initio, this would mean that particular officer will be retroactively considered as a trespasser when he stepped onto Kimmy’s land, as per The Six Carpenters Case [1572] EngR 452.

Kimmy is, however, likely to have a claim for trespass to goods for the breaking of the vase. Whilst a warrant has been given authorised a search, it does not give the police carte-blanche to do as they will with Kimmy’s property. Since he has clearly overstepped the bounds of the warrant, the tort of trespass to goods applies, as per s.1(b) of the Torts (Interference with Goods) Act 1977. There is direct interference of a physical nature, distinguishing the facts from Malone v Metropolitan Police Commissioner [1979] Ch 344. There is little question of awareness – the police officer clearly knows what he is doing, hence the joke ‘warning’ to the other officer. Kimmy is therefore entitled to damages from the police officer (which will likely be ascribed to his employer.)

Kimmy also likely has a claim for false imprisonment. Whilst the police of in the process lawfully searching her house, they do not inform her that she is being held in her dining room – this moves the situation from a lawful arrest to an unlawful detention. The facts of this case match those of Murray v Ministry of Defence [1988] 1 WLR 692. The elements of false imprisonment are here: Kimmy is effectively being held in one place, experiences a total loss of freedom (as per Bird v Jones [1845] 7 QB 742.)

The claim for battery will also likely succeed. There is an intentional application of force to another by the police officer. Intention is clear, distinguishing Letang v Cooper [1965] 1 QB 232. Following Cole v Turner [1704] 6 Mod Rep 149, there appears to be some hostility in the actions of the officer in the lack of reasonable provocation. Whilst PACE 1984 provides the police officer with powers of arrest, this does not extend to inflicting unwarranted violence, and so a defence of lawful authority will likely fail. Whilst there also potentially exists an action for assault, since the kick comes from behind it is unlikely that Kimmy has a chance to apprehend the kick before it lands, meaning that the apprehension element of assault is not present.

The claim against Titus for leaving bricks on her property will likely succeed. As per Gregory v Piper [1829] 9 B & C 591 there is a direct interference with Kimmy’s property in the form of the bricks. This is voluntary – distinguishing Stone v Smith [1947] Style 65. Whilst Titus is not aware that he is trespassing onto Kimmy’s property, this will be no obstacle to a claim, as per Conway v George Wimpey & Co Ltd [1951] 2 KB 266.


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