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Police And The “Implied Licence” To Enter Private Property

June 2020

Police And The “Implied Licence” To Enter Private Property

 

Under the Land Transport Act, police officers have the power to enter private property, by force if necessary, for the purposes of carrying out breath testing procedures in certain specific circumstances where they are in fresh pursuit of a person.

 

Implied Licence

What may not be commonly understood, however, is that quite apart from this and other statutory powers of entry, police officers have the same right as any other member of the public to go onto residential properties for a lawful purpose. In brief, the law implies a licence for members of the public (including police officers) to go to the door of a private property in order to make enquiries of the occupier for any reasonable purpose. The stated rationale for this has shifted somewhat over the years, but a High Court Judge has previously commented that “…the common law has simply embraced the reality that many people in Western countries accept the right of others to come onto their land to communicate with them, provided the visitor’s enquiry is both reasonable and lawful.”

 

It is also settled that an implied licence can be revoked expressly or by implication for any reason, and if the visitor fails to leave, they are then trespassing. Perhaps unsurprisingly, the law reports are replete with examples of defendants relying on a purported revocation of the implied licence to exclude evidence obtained by the police while on their property or to otherwise have charges dismissed on that basis.

 

A recent High Court decision

A good example of the complexities that can arise in relation to the implied licence can be found in the recent High Court decision. 

 

The facts of the case were that the police had received a report of a vehicle being driven erratically. A constable was directed to investigate and found the vehicle a short time later parked in the driveway of a house. The constable parked on the street, walked up the driveway and spoke with the tenant of a garage on the property. The tenant indicated that Mr D, who was standing nearby, was the owner of the vehicle. Mr D was not a tenant but was a regular visitor to the property. He admitted that he was the driver of the vehicle but challenged the constable’s right to be on the property by repeatedly asking whether he had a search warrant. At some point, the constable required him to undergo a breath screening test, which was refused. He also declined to accompany the constable for the purposes of undergoing an evidential test and was ultimately arrested.

 

After a trial in the District Court, Mr D was convicted of refusing to permit a blood specimen to be taken and of resisting police. On appeal, the High Court accepted that the constable had initially entered the property lawfully under the implied licence and had gained the tacit permission of the tenant to stay on the property to speak to Mr D. The Court also found however, that Mr D had the implied authority of the tenants to control access to the property and that on the balance of probabilities, had made it clear to the constable that he should leave in words that were sufficiently clear to revoke the constable’s implied licence to be present. 

 

The constable was not able to rely on the statutory powers of entry under the Land Transport Act as it was not a situation of fresh pursuit. Accordingly, the constable was unlawfully on the property when he arrested Mr D. The High Court quashed Mr D’s convictions and declined to order a retrial.

 

Conclusion

We expect that most members of the public are not aware of their legal rights in this area and so it is hoped that article will go some small way towards clarifying the relevant principles.