Hon. Attorney General v Long (Criminal Appeal No. 725 of 1951) [1952] EACA 309 (1 January 1952)

APPELLATE CRIMINAL

Before SIR HECTOR HEARNE, C. J. and BOURKE, J.

THE HON. THE ATTORNEY GENERAL, Appellant (Original Prosecutor)

v

C. A. LONG. Respondent (Original Accused)

Criminal Appeal No. 725 of 1951

(Appeal from decision of the Resident Magistrate's Court at Nakuru,

R. M. H. Rodwell, Esq.)

Police Ordinance. 1948—Power of search of unlicensed premises without a warrant.

The Resident Magistrate, Nakuru, having acquitted the respondent of common assault and of obstructing a police officer in the execution of his duty, the the course of his judgment the Magistrate held:-

- (a) That the provisions of section 22 (2) of the Police Ordinance, 1948, must be read in conjunction with section 35 (1) of the same Ordinance. - $(b)$ that the power of search of unlicensed premises without warrant given to a police officer (under section 22 (2) of the Police Ordinance, 1948), can be exercised only when he is present at or near the said premises and has reasonable grounds for suspecting that illegal drinking is taking place there and then, and - (c) that when a police officer is acting under the orders of a superior officer then the provisions of section 30 of cap. 106 and those of section 35 $(1)$ of the Police Ordinance must be complied with.

The Attorney General submitted by way of case stated for the opinion of the Supreme Court the questions of whether in point of law the Resident Magistrate was correct in holding $(a)$ $(b)$ $(c)$ above.

The facts appear in the judgment reported:—

Held (27-3-52).—(1) A police constable having reasonable grounds to suspect that illegal<br>drinking is taking place, not near but at a distance from the police station is not<br>precluded from acting under the provisions of 1948. and is entitled to do so. Consequently the Magistrate was wrong on (a) above.

(2) When a police officer acting under the provisions of section 22 (2) of the Police (2) when a police officer acting under the provisions of section $22$ (2) or the ronce<br>Ordinance; sets out for premises in which he reasonably supects illegal drinking is<br>taking place, he need not obtain a search warrant

(3) That on the facts found the Magistrate was justified in acquitting the respondent on the first charge and that he was right in law in acquitting the respondent on the second charge.

Somerhough, Deputy Public Prosecutor, for Crown.

Salter for respondent.

JUDGMENT.—In the course of his judgment in the case of $\text{Re}x$ v. Long which was included in the case stated by the Resident Magistrate of Nakuru on the application of the Attorney General, he held: $-$

- (a) That the provisions of section 22 (2) of the Police Ordinance, 1948, must be read in conjunction with section 35 $(1)$ of the same Ordinance, - (b) that the power of search of unlicensed premises without warrant given to a police (under section 22 (2) of the Police Ordinance, 1948), can be exercised only when he is present at or near the said premises and has reasonable grounds for suspecting that illegal drinking is taking place there and then, and - (c) that when a police officer is acting under the orders of a superior officer then the provisions of section 30 of cap. 106 and those of section 35 (1) of the Police Ordinance must be complied with.

The Attorney General submitted for the opinion of this Court the question or rather the questions of whether in point of law the Resident Magistrate was correct in holding as he did in $(a)$ , $(b)$ and $(c)$ .

Among the facts found by the Magistrate to be admitted or proved (see paragraph 3 (b) of the case stated) were these—

"(1) that on the evening of the 15th April last on the instructions of Assistant Inspector of Police Cass who was in charge of Solai Police Station, this entry was made in the occurrence book of the police station.

'10.20 a.m. night raid. 3034 Sgt. Nelson, 3659 Const. Nzuki, 5020 Const. Owoto (and others) leave on above duty to farm of Mr. C. A. Long, Bahati re information that there is *pombe*.'

(2) that the police party arrived at the defendant's house and seeing no lights in the house raided the boys' quarters where they found *pombe*: that the defendant thereafter came out and pointed his revolver at Sgt. Nelson and told the police to go to his house which they did without any persons in custody and without any *pombe*: and that having satisfied himself that the police were genuine the defendant told the police to leave."

The defendant, hereinafter referred to as the respondent, was found to have committeed an assault on Sgt. Nelson by pointing his revolver at him and to have obstructed a police officer in the execution of his duty "in telling the police to go", but he was acquitted on both counts. He was acquitted on the first count for these reasons. The Resident Magistrate found as a fact that "the respondent did not believe and had good reason for not believing that the police were real police" (paragraph 3 $(b)$ of the case stated). In his judgment which as I have said was included in the case stated he also found that as Sgt. Nelson had no *barua*, as he claimed that the respondent had telephoned to the police which he had not done and as "there had been raids on farms in the locality by Africans dressed as and pretending to be police", the respondent had good reason to think that the police party may well have been Africans who did not belong to the police. In these circumstances he held that the respondent was acting in the genuine and reasonable belief that Sgt. Nelson and his party were unlawful intruders and that he was entitled to defend his property and his servants by a show of force.

The Resident Magistrate submitted the question of whether on the facts found by him "he came to a correct determination and decision in point of law". To that question, to which no reference was made by the learned Deputy Public Prosecutor, we return the answer that on the facts found by him the acquittal of the respondent on the first count was justified.

We pass to the second count. At the time the respondent "told the police to go" he was aware that they were "real police", but the Resident Magistrate acquitted him on that count as well on the ground that Sgt. Nelson and his party were trespassers. The question of whether they were trespassers or not turns on the correctness or otherwise of the view of the law which he took and on the facts found by him.

It may be said at once, in regard to (b) supra, that in our opinion the Resident Magistrate was wrong in holding that the power of search of unlicensed premises without warrant given to a police officer under section 22 (2) of the Police Ordinance, 1948, can be exercised only when he is present at or near the premises and has reasonable grounds for suspecting that illegal drinking is taking place there and then. So to hold would be to interpolate into the provisions of section 22 (2) something that is not there. In England a constable possesses the right of arrest under common law on reasonable suspicion that a treason or felony has been committed and of the person being guilty of it: "and he is justified in arresting upon a reasonable suspicion of a felony having been committed whether the reasonable grounds for suspicion are matters within his own knowledge or are facts stated by another to him" (Bullen and Leake, 3rd edition, page 795, and Hailsham, vol. 25 at page 323): and in our opinion if a police constable in Kenya on the basis of facts stated to him e.g. at a police station, has reasonable grounds to suspect that illegal drinking is taking place, not near or at a police station, but at a distance from the police station, he is not precluded from acting under the provisions of section 22 (2) of the Police Ordinance, 1948. On the contrary he is entitled to do so.

It was conceded by the learned Deputy Public Prosecutor that there is nothing in the case stated to suggest that Sgt. Nelson and his party were acting under section 30 of cap. 106 and the question of whether a police constable who purports to act under that section must at the same time comply with the provisions of section 35 (1) of the Police Ordinance is irrelevant to the appeal by way of case stated which we are considering. (See (c) supra.)

The crucial question is whether (see $(a)$ supra) "the provisions of section 22 (2) of the Police Ordinance must be read in conjunction with section 35 (1) of the same Ordinance". In the view taken by the Resident Magistrate, as appears from the case stated, he is of the opinion that when a police officer purports to act under section 22 (2) of the Police Ordinance in entering any place in which he has reasonable grounds to suspect that illegal drinking is taken place, he must before so acting "record in writing" the grounds of his belief that something necessary for the purpose of his investigation may be found in the place he has decided to enter. In our opinion this is not a correct view.

Section 118 of the Criminal Procedure Code lays down the normal procedure to be observed by a police officer who wishes to conduct a search in connexion with the investigation of an offence "that has been committed" for the purpose mentioned in the section. It is to apply for a search warrant. Section 35 (1) of the Police Ordinance lays down that if an officer in charge of a police station or a police officer wishes to conduct a search in connexion with "an alleged offence" and for the purpose mentioned in the section, and an appli cation for a search warrant would involve undue delay he may act under t section without a search warrant after compliance with the conditions mentior in the section.

But it does not follow from this that when a police officer acting v section 22 (2) of the Police Ordinance sets out for premises in which he $r$ ably suspects illegal drinking is taking place, and in which he hopes to $s$ persons who are participating in illegal drinking, he must obtain a search or in the absence of a search warrant comply with the conditions of "r etc." in section 35 (1) of the Police Ordinance.

We now return again, with reference to the second count on which the respondent was acquitted, to the question submitted by the Magistrate of whether on the facts found by him he came to a correct determination and decision in point of law. There is no reference in the case stated to a finding by the Magistrate that either Inspector Cass or Sgt. Nelson had reasonable grounds for suspecting that illegal drinking was taking place on the respondent's farm. The only finding, as appears in the case stated, is that Set. Nelson and his party set out in consequence of the receipt of a telephone message by Inspector Cass from an unknown source (certainly not from the respondent) that there was *nombe* on the respondent's farm. It was not argued that that was a finding of reasonable grounds of suspicion, and indeed the sole finding that Inspector Cass gave the instructions, he did, to Sgt. Nelson on the receipt of an anonymous communication and Sgt. Nelson carried out the instructions which were given to him by reason of the anonymous communication, as a finding which must be taken to negative or at least to exclude the existence of reasonable grounds of suspicion in Inspector Cass as well as Sgt. Nelson. Clearly, as the Magistrate observed, Inspector Cass or Sgt, Nelson should have contacted the respondent by telephone or otherwise before any steps were taken. If the police could

properly act and habitually acted on unverified anonymous communications to invade the privacy of private premises, it would certainly open the door to vindictive practices by members of the public against other members of the public. The fact that *pombe* was in fact found does not retrospectively import reasonable grounds of suspicion into the minds of Inspector Cass and Set. Nelson at the time the former issued his instructions and the latter obeyed them.

For the reasons we have given we think that the Magistrate was right in law in acquiting the respondent on the second count, though not for the reasons of law which he gave.

One final word. It may be that as Sgt. Nelson and his party were trespassers *ab initio* the order given to them by the respondent to remove themselves from his premises, even with the knowledge that *pombe* had been found, could not he held to be an obstruction of them in the course of their duties, but in the absence of argument we do not propose to decide the point.