Search and enter powers: liability in damages for negligent use

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The European Court of Human Rights (ECtHR) judgement in this case found that the police force had acted negligently in their use of the power of entry and search.  The court concluded that a search under warrant carried out at an address where the suspect no longer lived or occupied was ‘based on a misconception which could, and should, have been avoided with proper precautions’.

The judgement appears to award damages on the basis that the people in the house wrongly entered by the police suffered psychological injury following the event.  If this is the case then our policy would respond on the basis that the action had caused bodily injury.

In general terms, following the decision, it may be possible for someone to bring an action for breach of the HRA in similar circumstances.  It is possible that someone could allege that they have suffered loss without actual bodily injury, e.g. injury to feelings.  In such circumstances, we believe our policy would respond on the basis that any damages awarded would be deemed to be in relation to ‘personal injury’.  Although wrongful entry is not included in the definition of personal injury in the policy, the wording currently states that personal injury includes the definitions given.  It is therefore possible for the definition to be wide enough to cover such damages.  The only caveat to this statement is that each case would have to be viewed on its individual merits.

Our latest casualty policy for commercial accounts is more specific in its definition which includes ‘wrongful entry or eviction which interferes with right of private occupancy’.  It is likely that the public sector accounts will incorporate a similar wording when the policies are reissued, but in the meantime any claims would be interpreted along these lines.

It is worth noting that Section 8 of the HRA does allow for breaches of the section for reasons of the detection of crime.  However, the judgement shows that these need to be proportional and relevant to any particular investigation.  The government’s response to the judgement is that if police forces follow the requirements of PACE then they are likely to be acting within the requirements of the HRA.

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