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complaint of breach of the peace, then favourable termination must be shown.  Damage for these purposes is not as strictly confined as under the tort of malicious prosecution and encompasses all forms of recognised damage, as for example could ground a claim for misfeasance in a public office.

Inter-relationship with Article 8

44.The domestic claim in Keegan failed for the reasons discussed in para. 39 above.  No claim in negligence was brought, presumably because it is unlikely that officers owed a duty of care to the claimants in the circumstances.  The events occurred before the HRA was in force.  However the ECtHR found that the execution of the search warrant was an infringement of the applicants’ article 8 rights83.  It was accepted that the forcible entry into the applicants’ home engaged article 8 and that it was in “accordance with law” and pursued a legitimate aim (the prevention of disorder and crime); the central issue was whether the interference corresponded to a pressing social need and was proportionate to the legitimate aim.  The ECtHR noted that the fact that officers did not act maliciously was not decisive under the ECHR which is concerned with protection against abuse of power, however motivated or caused and a limitation of actions for damages to cases of malice was not necessary to protect the police in their vital functions of investigating crime84.  The Court found that the execution of the warrant was disproportionate as it was based on a misconception that could and should have been avoided if proper precautions had been taken85.  Damage in the sense referred to in the preceding para. are unnecessary for a claim under HRA section 7(1).     

Protection from Harassment Act 1997

45.A person may experience upsetting treatment at the hands of public officials that involves no physical contact, or threat of physical contact and no detention or prosecution.  In those circumstances the conventional torts of assault, battery, false imprisonment and malicious prosecution will not apply.  Where it can be shown that officers are abusing their powers in bad faith a claim in misfeasance may well lie.  A further cause of action to consider is provided for by the Protection from

83 Keegan v UK 18/10/2006

84 See para. 34.

85 See para. 33.

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