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The West Indian Reports/Volume 51 /Attorney-General v Williams (Danhai) and Another - (1997) 51 WIR 264

(1997) 51 WIR 264

Attorney-General v Williams (Danhai) and Another

JUDICIAL COMMITTEE OF THE PRIVY COUNCIL

LORD LLOYD OF BERWICK, LORD HOFFMANN, LORD HOPE OF CRAIGHEAD, LORD CLYDE AND
LORD HUTTON

26 FEBRUARY,

Criminal law - Search warrant - Issue - Grounds upon which warrant issued - Reasonable cause to suspect -
Need for authority issuing warrant to be satisfied that applicant has such grounds - Customs Act, Cap 89 [J],
section 203

Criminal law - Search warrant - Validity - Failure to state expressly statutory power under which issued

Criminal law - Search warrant - Validity - Reference in warrant to powers in excess of powers authorised by
statute

Where a statute (eg the Customs Act, section 203) authorises the issue of a search warrant to a person who
can satisfy a resident magistrate or a justice of the peace that he has reasonable cause to suspect that
certain circumstances exist, it is necessary that the resident magistrate or justice should satisfy himself that
the person applying for the search warrant has in fact reasonable cause so to suspect and should apply his
mind to the matters upon which that person's cause for suspicion is based and/or to the credibility of that
person.

R v Inland Revenue Commissioners, ex parte Rossminster Ltd [1980] AC 592 applied.

Whilst it is highly desirable that a search warrant should contain an express statement of the statutory
authority under which it is issued, where a warrant which has been issued under proper authority does not
contain such statement and there was no resistance to entry under it, the warrant is not invalid; a fortiori
where the authority under which it was issued is clear from the terms of the warrant. Nor is the warrant
rendered invalid by the mere reference in it to powers which are not authorised by statute.
(1997) 51 WIR 264 at 265

Cases referred to by the Board

Entick v Carrington (1765) 2 Wils 275, 19 State Tr 1029, [1558- 1774] All ER Rep 41.

King v R (1968) 12 WIR 268, [1969] 1 AC 304, [1968] 2 All ER 610, [1968] 3 WLR 391, PC.

R v Inland Revenue Commissioners, ex parte Rossminster Ltd [1980] AC 592, [1979] 3 All ER 385,
[1980] 2 WLR 1, England Divisional Court, HL.

Appeal
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The Attorney-General appealed to the Judicial Committee of the Privy Council (appeal 70 of 1995)
against a decision of the Court of Appeal of Jamaica (Wright, Forte and Downer JJA) allowing an
appeal by the respondents (Danhai Williams and Danwills Construction Ltd) against the dismissal
by the Supreme Court (Patterson, Ellis and Smith JJ) of their constitutional motion. The Court of
Appeal had reconstituted the proceedings and treated them as if they were an action for tort
instituted by a writ. The facts are set out in the advice of the Board delivered by Lord Hoffmann.

Dr Kenneth Rattray QC, Solicitor-General of Jamaica, and Lennox Campbell, senior assistant Attorney-
General (instructed by Charles Russell) for the appellant.

James Dingemans (instructed by Edwin Coe) for the respondents.

Their lordships took time for consideration.

12 May 1997. The following judgment was delivered.

Lord Hoffmann delivered the advice of the Board. The fundamental human right to protection against
unlawful searches and seizures is part of the English common law. In Entick v Carrington (1765) 2 Wils 275,
the king's messengers entered the plaintiff's house and seized his papers under a warrant issued by the
Secretary of State, a Government Minister. Lord Camden CJ said (at page 291):

'Our law holds the property of every man so sacred, that no man can set his foot upon his neighbour's close without his
leave; if he does, he is a trespasser, though he does no damage at all; if he will tread upon his neighbour's ground, he
must justify it by law ... we can safely say 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.'

From the common law this right has passed into the Fourth Amendment to the Constitution of the USA and
into the Constitutions of countries

(1997) 51 WIR 264 at 266

throughout the world. In Jamaica it appears in section 19 (1) of the Constitution:

'Except with his own consent, no person shall be subject to the search of his person or his property or the entry by
others on his premises.'

But the right is not absolute. As Lord Camden said, the search must be justified by law. There are cases in
which the power to enter and search without the consent of the owner is necessary for the proper functioning
of a democratic society. Such powers have long existed at common law and under various statutes. In
Jamaica, section 19 of the Constitution restricts the power of the legislature to create new powers of search.
They must come within one or other of the categories contained in section 19(2), such as 'in the interests
of ... public revenue' or 'for the purpose of preventing or detecting crime'. But the constitutionality of the old,
pre-Independence powers is preserved by section 26(8).

This case concerns the power of search contained in section 203 of the Customs Act:
'If any officer shall have reasonable cause to suspect that any uncustomed or prohibited goods, or any books or
documents relating to uncustomed or prohibited goods, are harboured, kept or concealed in any house or other place
in the Island, and it shall be made to appear by information on oath before any resident magistrate or justice in the
Island, it shall be lawful for such resident magistrate or justice by special warrant under his hand to authorise such
officer to enter and search such house or other place, by day or by night, and to seize and carry away any such
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uncustomed or prohibited goods, or any books or documents relating to uncustomed or prohibited goods, as may be
found therein; and it shall be lawful for such officer, in case of resistance, to break open any door, and to force and
remove any other impediment or obstruction to such entry, search or seizure as aforesaid.'

It is a pre-Independence power and therefore constitutional by virtue of section 26(8). Even if it were new, it
is plainly in the interests of the public revenue and for the purpose of preventing or detecting crime and so
would have little difficulty in qualifying under section 19(2).

The circumstances in which this provision came to be invoked were as follows. In May 1992 the Revenue
Protection Division was investigating allegations of a conspiracy to evade customs duties by the fraudulent
importation of large numbers of motor vehicles. Mr Danhai Williams and Danwills Construction Ltd, a
company which he controls, were suspected of being implicated in the fraud. On 12 May 1992 Mr Arthur
McNeish, a detective assistant Superintendent of Police attached to the Revenue Protection Division, and Mr
Michael Surridge, an officer of the division,

(1997) 51 WIR 264 at 267

visited the business premises of Mr Williams's company in Windward Road, Kingston. According to their
evidence, they were confronted by a hostile and abusive crowd. They invited Mr Williams to come with them
to the offices of the Revenue Protection Division, but he refused. The investigation continued and some six
months later, on 5 November 1992, Mr McNeish applied to a justice of the peace pursuant to section 203 for
a warrant to search Mr Williams's home and two other premises occupied by him or his company, including
the premises in Windward Road.

The power conferred by section 203 is ancillary to section 210 of the Act, which makes it an offence (among
other things) knowingly to keep or conceal uncustomed goods or to be knowingly concerned in dealing with
any goods with intent to defraud Her Majesty of any duties due thereon or to be knowingly concerned in any
fraudulent evasion of import duties.

In support of his application for a warrant, Mr McNeish swore an affidavit as follows:

'The information and complaint of Arthur McNeish in the parish of Kingston made on oath before me the undersigned
one of Her Majesty's justices of the peace in and for the parish of Kingston this 5th November 1992 who saith that he
hath good reason to believe that in a certain place situated at 1051/2 Windward Road, in the said parish, occupied by
Danwills Construction Ltd and Danhai Williams is kept or concealed uncustomed goods or books or documents relating
thereto, contrary to section 210 of the Customs Act.'

The affidavits in respect of the other two premises were in similar terms.

The warrants were issued the same day and the one in respect of the Windward Road premises read as
follows:
'To Arthur McNeish or any customs officer,

'WHEREAS the undersigned, one of Her Majesty's justices of the peace in and for the parish of Kingston being satisfied
upon written information on oath that there is good reason to believe that in a certain place, to wit:

Danwills Construction Ltd and Danhai Williams

1051/2 Windward Road

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Kingston

is kept or concealed uncustomed goods on which the duty leviable by law has not been paid or books, documents or
instruments relating thereto.

'THESE ARE THEREFORE, in Her Majesty's name to authorise and command you, with proper assistance, by such force as
may be necessary by night or by day, to enter or go to the said place and to search the same and all persons found
therein and to seize all such

(1997) 51 WIR 264 at 268

goods and other articles reasonably supposed to have been used in connection with goods which may be found in the
said place and to take further action in the premises as the law allows.

Given under my hand and seal etc.

R. Stewart

justice of the peace.'

Armed with these warrants, Mr McNeish made arrangements for a search. He enlisted the help of members
of the Jamaica Defence Force to secure the area against any crowd intervention. He then carried out the
search with the support of a number of members of the Revenue Protection Division and the police. There
was no resistance. The items removed consisted of a large number of miscellaneous documents together
with a brief case and a plastic bag containing, in addition to documents, items such as a cellular phone case,
some keys and a pocket calculator.

The investigation then proceeded and on or about 9 December 1992 Mr Williams and others were charged
with conspiracy to defraud. In the following July, charges under the Customs Act were added. On 14
September 1993, nearly nine months after the events which their lordships have described, the respondents
issued a motion returnable in the Constitutional Court, claiming redress on the ground that the search and
the removal of documents and other property had been a violation of their fundamental rights. In addition to
section 19(1), the respondents relied in respect of the seizure upon section 18(1), of which the material
words are as follows: 'No property of any description shall be compulsorily taken possession of ...' But this
right is also subject to exceptions, in section 18(2) -
'Nothing in this section shall be construed as affecting the making or operation of any law so far as it provides for the
taking of possession ... of property ... (k) for so long only as may be necessary for the purposes of any examination,
investigation, trial or inquiry ...'

The motion was brought pursuant to section 25 of the Constitution. The following parts are material:
'(1) ... if any person alleges that any of the provisions of sections 14 to 24 (inclusive) of this Constitution has been, is
being or is likely to be contravened in relation to him, then, without prejudice to any other action with respect to the
same matter which is lawfully available, that person may apply to the Supreme Court for redress.

'(2) The Supreme Court shall have original jurisdiction to hear and determine any application made by any person in
pursuance of subsection (1) of this section and may make such orders, issue such writs and give such directions as it
may consider appropriate for the
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(1997) 51 WIR 264 at 269

purpose of enforcing, or securing the enforcement of, any of the provisions of the said sections 14 to 24 (inclusive) to
the protection of which the person concerned is entitled:

Provided that the Supreme Court shall not exercise its powers under this subsection if it is satisfied that adequate
means of redress for the contravention alleged are or have been available to the person concerned under any other
law.'

The redress sought by the motion was a declaration that the warrants were invalid and the searches unlawful
and unconstitutional and that the seizure of the documents, files and other property was illegal or made
without due process or an abuse of process. The respondents to this appeal sought orders for return of the
documents and other property and for compensation. Wider claims for a stay of the criminal proceedings and
the exclusion of the documents from evidence were abandoned at the hearing in the Supreme Court.

The court (Patterson, Ellis and Smith JJ) dismissed the motion. It held that (a) the justice of the peace had
material on which he could properly exercise his discretion to issue warrants under section 203; (b) the
warrants were formally valid; and (c) the searches and seizures were within the terms of the warrants and
therefore lawful. Further, it considered that, even if the search and seizure had been unlawful, the proviso to
section 25(2) precluded constitutional redress. It appeared to the court that adequate means of redress were
available under the ordinary law. The respondents to this appeal could sue for trespass, detinue or
conversion or invite the resident magistrate hearing the trial to exercise his discretion to exclude the seized
materials from evidence.

The respondents to this appeal appealed to the Court of Appeal (Wright, Forte and Downer JJA). The judges
of the Court of Appeal agreed with the Supreme Court that the justice of the peace had material on which he
could properly have exercised his discretion. But they considered that the terms of the warrants showed that
the discretion had not been properly exercised. The searches and seizures were accordingly unlawful. They
agreed that constitutional redress was precluded by the proviso to section 25(2), but reconstituted the
proceedings as if they had been an action in tort begun by writ. They held that the Attorney-General
(representing the Crown) was liable in tort for trespass to the respondents' land and goods and remitted the
matter to a judge of the Supreme Court for damages to be assessed and for trial of the question whether the
execution of the warrant had been an abuse of power by the authorities. Against that decision, the Attorney-
General appeals to their lordships' Board.

Their lordships think that it will be convenient to consider the matter in four stages. First, the duties of a
justice who is asked to issue a warrant under section 203. Secondly, the way in which the discretion was

(1997) 51 WIR 264 at 270

exercised in this case. Thirdly, the legal effect of the warrant. Fourthly, the remedies (if any) available to the
respondents to this appeal.

1. The duties of the justice

The purpose of the requirement that a warrant be issued by a justice is to interpose the protection of a
judicial decision between the citizen and the power of the State. If the legislature has decided in the public
interest that in particular circumstances it is right to authorise a policeman or other executive officer of the
State to enter upon a person's premises, search his belongings and seize his goods, the function of the
justice is to satisfy himself that the prescribed circumstances exist. This is a duty of high constitutional
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importance. The law relies upon the independent scrutiny of the judiciary to protect the citizen against the
excesses which would inevitably flow from allowing an executive officer to decide for himself whether the
conditions under which he is permitted to enter upon private property have been met.

Section 203 is clear as to the matters upon which the justice must be satisfied. It must appear to him from
information on oath that the officer has reasonable cause to suspect one or more of the matters there
specified. It is not sufficient that the justice is satisfied by the officer's oath that he suspects; it must appear to
the justice that his cause for suspicion is reasonable. The test is an objective one. The matter was
considered by the House of Lords in R v Inland Revenue Commissioners, ex parte Rossminster Ltd [1980]
AC 952, which also concerned a search by officers of the Revenue on a warrant issued by a judge. Although
the statutory provision in that case, section 20C of the Taxes Management Act 1970 (United Kingdom), as
amended, provided that it was for the appropriate judicial officer to be satisfied on information on oath given
by an officer of the Board of Inland Revenue that there was reasonable ground for suspicion that an offence
had been committed, the practical effect of the requirement was the same as that laid down by section 203 of
the Customs Act. Lord Wilberforce said (at page 998):

'If the judge does his duty ... he must carefully consider for himself the grounds put forward by the revenue officer and
judicially satisfy himself, in relation to each of the premises concerned, that these amount to reasonable grounds for
suspecting, etc. It would be quite wrong to suppose that he acts simply as a rubber stamp on the Revenue's
application.'

Viscount Dilhorne said (at page 1004):

'It cannot in my view be emphasised too strongly that the section requires that the appropriate judicial authority should
himself be satisfied of these matters and that it does not suffice for the person laying the information to say that he is.'

(1997) 51 WIR 264 at 271

Lord Salmon said (at page 1018):

'... if officers of the board require search warrants, they must give evidence on oath laying before a circuit judge the
grounds for their suspicion and ... the duty of the judge must then be to consider the evidence and decide whether he
(the judge) is satisfied that it establishes reasonable ground for the board's suspicion.'

Lord Scarman said (at page 1022):

'The judge must himself be satisfied. It is not enough that the officer should state on oath that he is satisfied ... The
issue of the warrant is a judicial act, and must be preceded by a judicial inquiry which satisfies the judge that the
requirements for its issue have been met.'

In the present case, the matter was correctly stated by Forte JA in the following passage:
'Although it is clear in the statute that it is the customs officer who has to have "reasonable cause to suspect" it is
equally clear in my view that he (i.e. the customs officer) has to make it appear to the justice that he (the customs
officer) has "reasonable cause" to suspect. If it does not appear to the justice of the peace that the officer has
"reasonable cause" then he ought not to issue the warrant. In coming to that conclusion, it is inescapable that the
justice would also have to apply his mind to the matters upon which the officer's cause for suspicion is based and/or the
credibility of the officer.'

Their lordships would not have thought it necessary to burden this opinion with such extensive citation if it
were not for certain passages in the judgments in both the Supreme Court and the Court of Appeal which
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might be read as justifying a less anxious degree of scrutiny by the justice to whom application is made for
the warrant. So, for example, Patterson J said:
'... I am of the view that the oath of the officer of his reasonable cause to suspect is what is required, and not the
particulars upon which the suspicion is grounded.'

Smith J said:
'... even if all the justice had before him was a statement on oath by the officer that he had good reasons to believe that
uncustomed goods were being kept or concealed on the premises aforesaid that would be sufficient to found
jurisdiction for the issuing of the warrants by the justice.'

(1997) 51 WIR 264 at 272

Wright JA said:

'... there is no requirement for the justice to make an assessment of the officer's reasonable cause to suspect and to
satisfy himself before issuing the warrant.'

It may be that some of these remarks are directed to the contents of the formal affidavit, sometimes
described as the 'information', which is prepared in a form which can be disclosed to the occupier of the
premises to be searched. It would plainly not be in the public interest for the grounds of the officer's
suspicions to be disclosed while the investigation is in progress and one would not expect them to be stated
in a publicly available document. The need for confidentiality in these matters was rightly stressed by
Patterson J in the Supreme Court. But there is no need for the same confidentiality in the privacy of the
justice's room. The application is made ex parte and the officer must disclose to the justice all that the latter
needs to know in order to discharge his duty. There may be some knowledge, for example the
identity of informers, with which the justice will find it unnecessary to be burdened. But
sufficient information to establish the grounds for suspicion to his satisfaction must be stated on oath. The
statute does not require the information to be provided in writing. An oral statement on oath is sufficient.

Their lordships do not underestimate the difficulty and delicacy of the task which is put upon justices and
other judicial officers to whom application is made for search warrants. The applicant is generally a police or
other law enforcement officer who knows far more than the justice about the investigation. The application is
made ex parte; there is naturally a predisposition upon the part of the justice to be helpful to the officer who is
present and assures him that a search is necessary. The officer may be known to the justice, who may have
learnt to trust his judgment and veracity. Their lordships do not suggest that this is something which should
be ignored. On the other hand, the citizen whose rights the justice is constitutionally required to protect is
absent and seldom depicted in the most favourable light. Nevertheless, if the constitutional safeguards are to
have any meaning, it is essential for the justice conscientiously to ask himself whether on the information
given to him upon oath (in the case of section 203, either orally or in writing) he is satisfied that the officer's
suspicion is based upon reasonable cause.

2. The issue of the warrants

The next question is whether the justice had before him information upon which he could be satisfied that Mr
McNeish had reasonable cause to suspect. Here one comes to the chief difficulty in the case, which is that
their lordships (like the courts in Jamaica) have no information about what passed between Mr McNeish and
the justice. This is entirely

(1997) 51 WIR 264 at 273

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understandable because, at the stage when the constitutional motion was launched, the criminal prosecution
was still pending. It would have been contrary to the public interest for any information about the grounds for
suspicion to be disclosed at that time to the respondents. The position may have been different if the civil
proceedings had been commenced after the criminal prosecution was concluded: see R v Inland Revenue
Commissioners, ex parte Rossminster Ltd [1980] AC 952 at pages 1000, 1001. But in proceedings
commenced, as these were, during the course of the investigation, the courts are handicapped in their ability
to protect the high constitutional right conferred on the citizen by section 19(1) because, as Lord Diplock said
in Rossminster (at page 1011) they have to try to reconcile two competing and conflicting public interests:

'... that offences involving tax frauds should be detected and punished, and that the right of the individual to the
protection of the law from unjustified interference with his private property should be upheld.'

But these limitations on the exercise of judicial control over the decision of the justice to issue the
warrant make it all the more important that he should make that decision with the greatest care. He
has the responsibility of fulfilling the requirements of the statute, the effect of which is that for practical
purposes the issue of the warrant is often likely to be incapable of effective review.

In the absence of any direct evidence of the information actually provided to the justice, the courts have to do
the best they can with such inferences as can be drawn from the terms of the warrant itself and such other
evidence as is available. In this case, each warrant recited upon its face that the justice was satisfied that -
'there is good reason to believe that in a certain place to wit [the premises to be searched] is kept or concealed
uncustomed goods ... or books, documents or instruments relating thereto.'

Prima facie, this statement must be accepted and their lordships agree with both lower courts that if the
justice was satisfied that there was 'good reason to believe' that uncustomed goods, etc were on the
premises, it must follow that he was satisfied that the officer had reasonable cause to suspect this to be the
case. Is there anything to rebut this statement; to show that the justice did not really have any information on
which he could have concluded that the officer had reasonable cause to suspect? Mr Dingemans, who
appeared for the respondents, said that one could draw this inference from the fact that the warrant recited
that the justice was satisfied 'upon written information on oath'. The only written information disclosed was
the formal

(1997) 51 WIR 264 at 274

affidavit which their lordships have already quoted in full. This plainly contains no material upon which the
justice could have been satisfied that the officer had reasonable cause to suspect. And Mr Dingemans says
that the reference to written information excludes the possibility, to which some of the judges referred, that
the justice may have been given oral information on oath.

Their lordships consider that the reference to written information is too slender a ground upon which to infer
that the statement that the justice was satisfied of the existence of reasonable grounds was not true. It is,
they think, consistent with his having treated the formal written statement as confirmed by oral information on
oath or with the existence of other written information on oath which, for the reasons already discussed, has
not been disclosed. As Forte JA said:

'The justice of the peace, having issued the warrants on the basis of the "information on oath" must have been so
satisfied, and it is not open to the court, in the absence of the details of what transpired before the justice of the peace,
to assume he acted contrary to what is required of him in the Act. For those reasons I would hold that the search
warrants were lawfully issued.'
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The other matters relied upon are certain features in the language of the warrant. They are, first, that the
warrant includes no express reference to the statutory power under which it was issued; secondly, that it
purports to authorise search of persons upon the premises when the section confers no such power; thirdly,
that it contains a reference to 'instruments' suspected to be upon the premises when the section does not
use that word; and fourthly, that it purports to authorise the seizure of goods 'and other articles' when the
section refers to 'books or documents'. Their lordships will presently have to consider whether these matters
affect the formal validity of the warrant. At this stage, the question is whether they provide grounds for
holding that, contrary to the recital, the justice was not satisfied as to the matters which would have given him
jurisdiction to issue the warrant.

As to the last two discrepancies, their lordships think that 'instruments' which appears in the preamble but not
in the main body of the warrant might have been intended to refer to such things as negotiable instruments,
which would fall within the category of documents, and that the authority to recover 'articles' appears to go
beyond the terms of the power, but could be intended to serve as a compendious description of the 'books,
documents or instruments relating thereto' in the recital. But even assuming that these discrepancies are
treated as indicating that the justice (a) did not know under which power he was acting; (b) wrongly thought
that it included a power to authorise the search of persons; (c) thought that suspicion of the presence of
'instruments' other than documents would justify the issue of a

(1997) 51 WIR 264 at 275

warrant; and (d) thought that he had power to authorise the seizure of articles relating to uncustomed goods
which were not books or documents, their lordships still do not think that individually or cumulatively these
discrepancies show that the justice was not entitled to issue the warrant. The section said that if he was
satisfied that there was reasonable cause to suspect that any of the things there mentioned was kept on the
premises, he could authorise a search and the seizure of those things. The recital declares him to be so
satisfied. If the other matters were inconsistent with his being satisfied on this central question, they might
throw doubt upon the accuracy of the recital. But they are not. The fact that the justice may have held
erroneous beliefs about the source or extent of the power, or may have been satisfied on other matters
irrelevant to the exercise of the power, is not inconsistent with the recital.

3. Effect of the warrants

In R v Inland Revenue Commissioners, ex parte Rossminster Ltd [1980] AC 952 at page 1000, Lord
Wilberforce said:

'There is no mystery about the word "warrant": it simply means a document issued by a person in authority ...
authorising the doing of an act which would otherwise be illegal.'

In these proceedings, the respondents to this appeal complain that 'the seizure of the documents, files and
other property pursuant to the aforesaid search was illegal and unconstitutional'. There is no doubt that a
search took place and that documents, files and other property were taken. The question is therefore
whether the warrant made this lawful. This must depend upon two questions of construction: first, did the
matters of which complaint is made fall within the acts authorised by the warrant; and, secondly, did the
statute give the person who issued the warrant power to authorise those acts?

In construing both the warrant and the empowering statute, the court, in Lord Diplock's words (at page 1008)
-
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'... ought, no doubt, to remind itself, if reminder should be necessary, that entering a man's house or office, searching it
and seizing his goods against his will are tortious acts against which he is entitled to the protection of the court unless
the acts can be justified either at common law or under some statutory authority. So if the statutory words relied upon
as authorising the acts are ambiguous or obscure, a construction should be placed upon them that is least restrictive of
individual rights which would otherwise enjoy the protection of the common law.'

Their lordships consider that even on the strictest construction, the warrant undoubtedly authorised, and the
statute enabled it to authorise,

(1997) 51 WIR 264 at 276

the search of the premises and the taking of files and documents reasonably suspected to be connected with
uncustomed goods. Whether the documents actually taken fell within this description is a question of fact.
There was in evidence a list of the documents which were taken, from which their lordships think it is
impossible to form a view as to whether they related to uncustomed goods or not. But there is nothing to
show that the officers conducting the search did not reasonably suspect this to be the case. So much was
recognised by the Court of Appeal; for example, in dealing with the claim for return of the documents, Forte
JA said:

'As there is no evidence as to the relevance of the seized articles to [the charges against Mr Williams] I would be
reluctant to make an order at this stage for the return of the articles, as they may be needed as evidence in the criminal
cases, in which case the Crown would be entitled to retain them.'

At that stage of the proceedings it was, for the reasons already discussed, impossible for the Crown to
disclose the grounds upon which it considered that the seized property was relevant to the charges. In those
circumstances their lordships think it cannot be assumed against the Crown that they did not have
reasonable grounds for taking the documents which they did. As Eveleigh LJ said of the search by Revenue
officers in R v Inland Revenue Commissioners, ex parte Rossminster Ltd [1980] AC 952 at page 966:
'What the applicants' evidence amounts to, as I say, is that not every document was read, and not every document, as
an individual document, was examined. Files were taken as files ... It seems to me that there can well be occasions
when a glance at a document will tell an investigating officer whether it is the kind of document that he is entitled to
take. No-one can expect that they should stay on the premises to read the words and details of every document.'

On the other hand, the taking of things other than documents (such as the pocket calculator) was probably
not authorised by the warrant (unless 'articles' is given a wider construction than the context would seem to
justify) and certainly not authorised by the statute. Unless, therefore, the taking of these articles could be
justified at common law, their removal was unlawful. But their lordships do not consider that this trivial excess
of power can vitiate the legality of the search and the taking of the documents properly authorised by the
statute and the warrant.

The Court of Appeal considered that the warrant was vitiated by the absence of any mention of the statutory
power under which the warrant was issued and the references in the document to the presence of
'instruments', the search of persons and the seizure of 'articles'. Their

(1997) 51 WIR 264 at 277

lordships have already dealt with the question of whether these matters threw any light on the propriety of the
decision to issue the warrant. But the Court of Appeal also seems to have regarded them as affecting the
formal validity of the warrant.
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Any inquiry into the formal validity of the warrant must start from the undoubted fact that the section does not
prescribe any form at all. The language of the warrant must be such as plainly to authorise the acts of which
complaint is made, but any further requirements as to form can only arise by implication. Professor Feldman,
in his book, The Law Relating to Entry, Search and Seizure at paragraph 5.02, says that a warrant fulfils
three main functions:

'First, the requirement for the officer to apply for a warrant in theory gives another person, usually an independent
judicial officer, a chance to check on the need for a search ... Second, the warrant allows the occupier of the premises
to be searched to satisfy himself that the officers who arrive and demand to be admitted are acting lawfully. This cuts
down the risk of misunderstandings, violence and the criminal charges which often follow and makes the job of the
police easier. Third, it should indicate the limits to the powers of the officers, circumscribing their discretion and
clarifying their rights.'

Their lordships have considered the first of these purposes under the heading 'The Issue of the Warrants'
and the third as a question of construction. This leaves the second. Does the need for the occupier to be able
to satisfy himself that the search is lawful give rise to any implied requirements about what the warrant
should say? In R v Inland Revenue Commissioners, ex parte Rossminster Ltd [1980] AC 952 at page 1000
Lord Wilberforce said:
'The person affected, of course, has the right to be satisfied that the power to issue it exists: therefore the warrant
should (and did) contain a reference to that power.'

Lord Diplock said (at page 1009):

'Even though the statute may not strictly so require (a matter on which I express no concluded opinion) the warrant ...
ought to state upon its face the statutory authority under which it has been issued.'

Their lordships agree that it is highly desirable for the warrant to contain an express statement of the
statutory authority under which it was issued. If it does not, the householder might reasonably think that it
was not based upon any authority and resist entry. But this does not mean that in a case in which the warrant
was in fact issued under proper authority and there was no resistance to entry, the warrant should be

(1997) 51 WIR 264 at 278

treated as invalid, particularly when, as Forte JA said, it is clear from the terms of the warrant that it was
issued under section 203. The Court of Appeal placed some reliance upon section 64(2) of the Justices of
the Peace Jurisdiction Act which requires that a warrant issued for the purpose of 'proceedings before
examining justices ... for an offence' must 'contain a reference to the section of the statute creating the
offence'. Their lordships do not understand the relevance of this provision. The warrant was not issued in
connection with proceedings for an offence since no offence had yet been charged. Furthermore, no-one is
suggesting that the warrant should have contained a reference to a section of the statute (if there was one;
the only offence originally charged was conspiracy to defraud at common law) creating the offence which
might at some future date be charged. The question is whether it should have referred to the section creating
the power of search. On this question, the Justices of the Peace Jurisdiction Act has nothing to say.

As for the references to a personal search, instruments and articles, their lordships do not see how it is
possible to imply some formal requirement in the language of the warrant which the inclusion of these
infelicities would infringe. Of course, if there had actually been a personal search, their lordships have no
doubt that it would not have been authorised by the section: see King v R (1968) 12 WIR 268. But as no such
search took place, the fact that the warrant wrongly purported to authorise one is in their lordships' view
irrelevant. Likewise, as their lordships have already said, the taking of property other than books and
 Page 13

documents could not be justified by the word 'articles' in the warrant, because this went beyond the statutory
power. But this does not mean that the warrant was formally invalid.

Although the courts may sometimes feel frustrated by their inability to go behind the curtain of the recital that
the justice was duly satisfied and to examine the substance of whether reasonable grounds for suspicion
existed (a frustration articulated by Lord Scarman in R v Inland Revenue Commissioners, ex parte
Rossminster Ltd [1980] AC 952 at page 1022) their lordships think that it would be wrong to try to
compensate by creating formal requirements for the validity of a warrant which the statute itself does not
impose. In so doing, there is a risk of having the worst of both worlds; the intention of the legislature to
promote the investigation of crime may be frustrated on technical and arbitrary grounds, while the courts, in
cases in which the outward formalities have been observed, remain incapable of protecting the substance of
the individual right conferred by the Constitution. The alleged defects in the warrants are all errors of drafting,
no doubt on the part of the officers of the Revenue Protection Division by whom it was prepared for
submission to the justice. So far as they may have led to substantive abuses, it is of course right that the
respondents to this appeal should have a remedy. But in a case like this in which they have caused little or
no prejudice to the respondents, their lordships think it would be wrong to treat them as

(1997) 51 WIR 264 at 279

punishable by invalidity of the entire search. Section 19(1) of the Constitution was intended to serve a higher
purpose than to promote accuracy in drafting in the Revenue Protection Division.

4. Remedies

The Court of Appeal, having held that the entire search and seizure was an unlawful trespass, reconstituted
the proceedings as an ordinary action in tort and remitted it to a judge of the Supreme Court. They gave no
redress under section 25(2) of the Constitution on the ground that an action in tort provided adequate means
of redress and that constitutional relief was therefore barred by the proviso to that subsection.

On behalf of the respondents to this appeal it was submitted to their lordships that, under the ordinary law of
Jamaica, the relief available against the officers of the Revenue in an ordinary action in tort was so limited as
not to be 'adequate means of redress'. The limitation period is very short and section 33 of the Constabulary
Force Act is said to require proof of malice or absence of reasonable and probable cause. Their lordships do
not find it necessary to enter into this difficult question because they consider that the Court of Appeal was
wrong to reverse the decision of the Supreme Court that the search as a whole was lawful. The decision to
reconstitute the proceedings was a procedural matter in which their lordships would not ordinarily wish to
interfere with the discretion of the Court of Appeal. But since it was based upon a wrong finding that the
whole search was unlawful, their lordships think it would be proper for them to consider the matter again. On
the evidence before the Supreme Court in these proceedings, the only arguable wrongdoing relates to the
few non-documentary items which were taken. The proceedings have therefore been almost entirely
unsuccessful and their lordships think that it would be wrong to keep them on foot merely for the purpose of
pursuing a claim over matters such as a pocket calculator and a mobile telephone case. They will therefore
humbly advise Her Majesty that the appeal should be allowed and the order of the Supreme Court dismissing
the constitutional motion restored. The respondents must pay the appellants' costs in the Court of Appeal and
before their lordships' Board.

Advice that appeal be allowed with costs.