England and Wales Court of Appeal (Civil Division) Decisions

IN THE SUPREME COURT OF JUDICATURE CCRTF 96/l726/C

IN THE COURT OF APPEAL (CIVIL DIVISION )

(HIS HONOUR JUDGE O'BRIEN )

Royal Courts of Justice

Strand

London W2A 2LL

Wednesday 3rd December l997

B e f o r e

LORD JUSTICE ROCH

LORD JUSTICE THORPE

LORD JUSTICE BUXTON

O'LOUGHLIN Respondent

v.

CHIEF CONSTABLE OF ESSEX Appellant

(Handed down transcript of

Smith Bernal Reporting Limited, l8O Fleet Street

London EC4A 2HD

Tel: Ol7l 42l 4O4O

Official Shorthand Writers to the Court)

MR JOHN GRACE QC and MR MARK LEY-MORGAN (instructed by Messrs Barlow Lyde Gilbert, London EC3A 7NJ) appeared on behalf of the Appellant (Defendant).

MR MICHAEL DOUGLAS QC and MR MARK BRITTAIN (instructed by Messrs Hughmans, London EClM 5NA) appeared on behalf of the Respondent (Plaintiff).

J U D G M E N T

(As approved by the court)

©Crown Copyright

LORD JUSTICE ROCH: On the 25th November l996 judgment was entered for the plaintiff respondent in the sum of £7,785 with costs. The appellant, the Chief Constable of Essex, appeals against that judgment.

The action was tried by HHJ O’Brien and a jury at the Basildon Combined Court. During the course of the trial the judge ruled that the use of force by police officers to effect entry to the respondent’s house to arrest the respondent’s wife for an arrestable offence had not been necessary and was therefore unlawful. It followed that the appellant had no defence to the respondent’s action for trespass to his property and to his person and for false imprisonment. Having made that ruling the judge left two issues to the jury. First whether the police officers had smashed the frosted glass in the front door of the respondent’s house. Second the quantum of damages recoverable by the respondent.

It is against that ruling that the appellant appeals. Although the Notice of Appeal contains six grounds, essentially two issues arise for decision by this court. The first is whether the judge misdirected himself as to the law. The second is whether the judge should have taken the jury’s verdicts on certain factual issues before making his ruling. In addition, Mr Grace invites us to give guidance on the directions which a judge should give to a jury and the questions which a judge should leave to a jury in cases such as this.

The respondent is a married man. He is 5O years of age now. He describes himself as a musician. He is a man who has appeared before criminal courts on 26 occasions for a variety of offences, some being offences of violence, some being offences of dishonesty, and others being offences connected with the driving of motor cars. He has served a number of custodial sentences.

On the 24th November l99O the respondent and his wife went out for the evening. During the course of the evening they visited a number of public houses and a restaurant where they had a meal. When they returned home that night sometime after midnight the respondent described himself as having had “a good drink”, and as being very happy, mellow but definitely not drunk. The respondent’s description of his wife’s condition when they returned home was that “she was totally incapable, she had had a really good drink. She managed to walk home OK” The respondent added to that description by saying that his wife had been more than happy and that she was “Well gone”. Mrs O’Loughlin was not called to give evidence.

Evidence from a neighbour of the O’Loughlin’s which was read to the jury established that after the O’Loughlin’s had returned home that night, Mrs O’Loughlin smashed the windscreen of the neighbour’s car which was parked outside the O’Loughlin’s house with a piece of wood, probably a cricket bat. The neighbour, Miss Tracey Head, phoned the police station, the call being timed at OlO5 hours. As a result of that telephone call three police officers, PC Beauchamp, PC Beckett and PC Wilson went to Osbourne Road, Westcliffe. There they spoke to Miss Head who made a complaint that criminal damage had been caused to her car by Mrs O’Loughlin. The officers then proceeded to No 25 Osbourne Road, the O’Loughlin’s house the door of which was closed.

It was the appellant’s pleaded case that the officers arrived at the door of 25, Osbourne Road at about l.38 a.m. At that time the glass in the front door was broken and the door was being barricaded from the inside with furniture and a mattress by Mr & Mrs O’Loughlin both of whom were shouting and swearing. PC Beauchamp asked Mr O’Loughlin to let the officers into the house, whereupon Mrs O’Loughlin said “Fuck off you pigs I own this house and pay the mortgage” and spat at PC Wilson and PC Beckett. PC Beauchamp then attempted to gain entry through the door and the respondent pushed against the door and obstructed his attempt.

PC Beauchamp forced the door open and pulled the respondent through the open door. As PC Wilson and PC Beckett attempted to move the respondent out of the doorway he began struggling violently. Those two officers then used necessary and reasonable force to restrain the respondent. Once the respondent was restrained the officers placed handcuffs on him for their own safety and PC Beckett told the respondent that he was being arrested for “Public Order” and the respondent was conveyed to Southend Police Station. “In the premises, the respondent’s arrest was lawful in that the officers had reasonable grounds to suspect and there were reasonable grounds to suspect that the respondent had obstructed them in the execution of their duty, namely the investigation of the criminal damage to the car, and had committed public order and assault offences.”

The respondent was detained until 2.32 p.m. when he was released on police bail. On the 2Oth January l99l the respondent was charged with affray and other offences. On the l6th December l99l at the Southend Crown Court, the respondent was bound over by HHJ Lockhart to keep the peace for one year in the sum of £2OO, the Prosecution offering no evidence in respect of any charge.

The respondent sustained injuries in the incident which occurred at his front door in the early hours of the 25th November l99O which included a blackened and cut eye.

The evidence that PC Beauchamp gave to the jury was to the effect that having spoken to Miss Head he decided to arrest Mrs O’Loughlin for criminal damage to Miss Head’s car. That was a decision made before he arrived at the front door of the respondent’s house. PC Beauchamp’s evidence as to what he said to Mr & Mrs O’Loughlin was:

"I wanted to see the person responsible for the damage to the car outside."

When asked by the appellant’s counsel why he had not said that he was there to arrest Mrs O’Loughlin for criminal damage he said:

"At that stage there was a door between me that was locked. I am not in the habit of telling people they are arrested until I can take hold of them. Once they are arrested then I take hold of them and I was not in a position of taking hold of Mrs O’Loughlin because the door was between me and so was Mr O’Loughlin."

In cross examination when asked why he did not tell the respondent that he was there to arrest Mrs O’Loughlin the officer said:

"I did not think it was anything to do with Mr O’Loughlin that I was there to tell him that I was going to arrest his wife. I was not in a position to tell him I was arresting anybody. I could not see Mrs O’Loughlin at that stage."

And a little later the officer said that:

"I did not see the reason that Mr O’Loughlin should know that I was there to arrest Mrs O’Loughlin. I was there to arrest Mrs O’Loughlin and Section l7 of PACE allows me to enter a building when I think that a person within has committed a criminal offence."

Later the officer said that Mr O’Loughlin was not going to let him in at any price and had made that quite clear to him by his manner.

PC Beckett gave a similar account of the conversation between PC Beauchamp and the respondent. PC Wilson gave a different account telling the jury that PC Beauchamp had told the respondent that he was there to arrest the respondent’s wife, although that was not the conversation that that officer had recorded in his pocket book or set out in his statement. It was an account of the conversation which the judge withdrew from the jury having ruled that there was no evidence fit to go to the jury which could lead them to the conclusion that any of the three police officers at the door of the respondent’s house had told the respondent that they wanted to come in to arrest his wife. There is no appeal against that ruling or against the direction to the jury based on that ruling.

The first five grounds in the Notice of Appeal, in my view, raise the same issue in five slightly different guises. The issue is perhaps best put in Ground 3 which reads:

"The learned judge was wrong in law in holding that if the police officer does not explain to an occupant his powers of entry under section l7 (l)(b) of PACE and that his reason for wanting to enter is to arrest a person who is on the premises, then the use of any force in order to exercise his power of entry must be unlawful because such force cannot have been necessary and/or reasonable even if the occupant knows that the police officer wants to enter in order to arrest a person who is on the premises.. The Learned judge ought to have held that the occupant’s state of knowledge, or what the police officer reasonably believes that state of knowledge to be, is but one factor to be taken into account when deciding whether or not the force used is necessary and/or reasonable force."

The judge’s ruling was:

"I am firmly of the view, for reasons which I have advanced arguendo that if, as both of you concede, both reasonableness and necessity are matters of law, that as a matter of law, unless the circumstances make it impossible, impracticable or undesirable, an officer seeking to exercise powers of entry by force should, if the occupier or occupiers are present, give the true reason for seeking to exercise the power.

It seems to me that otherwise the householder who, as Donaldson LJ (as he then was), said in the Oxford case (I cannot remember the full name of it now), the householder who really does know and, as it is said there, the one piece of law that everybody seems to know (although of course they are deemed to know the whole lot, unrealistically) is that an Englishman’s home is his castle. Given that everybody knows that, if they are standing there, it seems to me it is neither necessary nor reasonable to use force until the person who is about to use the force has explained in language appropriate to the circumstances by what right he claims to breach the sanctity of the Englishman’s castle. Of course, there will be circumstances where that will be impossible, impracticable or, for other reasons, undesirable and one finds some of them set out in an analogous situation in the exercise of a right of entry and search in code B under the Police and Criminal Evidence Act at 5(4) and 5(5): that the officer in charge in a parallel situation shall attempt to communicate with the occupier or any other person entitled to grant access to the premises by explaining the authority under which he seeks entry to the premises and ask the occupier to allow him to enter unless the premises are known to be unoccupied (that does not apply here), the occupier etc. are known to be absent (that does not apply here), there are reasonable grounds for believing that to alert the occupier or any other person entitled to grant access by attempting to communicate with him would frustrate the object of the search or endanger the officers concerned or other people. One can see the sense of those exceptions in the code and it seems to me that they do reflect the common sense of the common law. Of course, if it is necessary to enter the premises to effect an arrest and there is nobody there except the person who is being sought but who cannot actually be seen, then if there is no-one to ask, in effect, there is no requirement that you sit around for a fortnight and let the trail go cold, so to speak. That would be hopelessly impracticable. Similarly, if there is an emergency, there is somebody armed with a gun or something of that sort, one can see sensible exceptions. Somebody who has perhaps phoned the Samaritans, suggesting they are about to commit suicide, that sort of thing. But where the occupiers are present and are actually in some sort of conversation with the police, even when as here it was irrational and abusive on the part of the plaintiff and his wife, it seems to me that the basic law applies to that situation: the police, who have a right of entry, must announce what that right is before they attempt to use force. To act otherwise in these circumstances it seems to me is unreasonable."

The judge gave a direction to the jury in these terms:

"There is a pretty well known principle of English Law which has most recently been re-stated in l982 by Donaldson LJ in this way: “‘An Englishman’s home is his castle’ is one of the few principles of law known to every citizen. The rule is of course subject to exceptions, but they are few and it is for the police to justify a forcible entry”.

We start off in this case with Mr & Mrs O’Loughlin being in their home, their castle. The police came along, PC Beauchamp has made certain inquiries and, as a result of that, he has decided, as he told you, to arrest Mrs O’Loughlin. There is no dispute about that decision or about the fact that he was entitled to make it. It is accepted on both sides that he had reasonable cause to believe Mrs O’Loughlin had committed an arrestable offence. He was therefore perfectly entitled to arrest her. In order to arrest her, he is entitled to go onto premises, to go into the Englishman’s castle. In order to go into the premises, he is entitled to use force, firstly, if it is necessary to do so and, secondly the force used must be reasonable.

In this case, the question of whether it was necessary for the police to use force to get into the house, although it may sound like a question of fact, is actually a matter of law. I will tell you straight away that I have ruled as a matter of law that, in the circumstances taken at their best from the point of view of the police, it was not necessary to use force. It was not necessary principally because I take the view that in ordinary circumstances until the police have announced their true reason for wishing to come into the Englishman’s castle (and in this case that would be, “We wish to arrest Mrs O’Loughlin for criminal damage”) - until they have done that - the necessity for force has not arisen, “Go away. You’re not coming in”, then they would be entitled to use reasonable force. But the point of that is this really. If a man or woman is standing at their threshold denying, as they are entitled to do, entry to all-comers and it is a right any breach of which has to be justified, until that person has been told there is good reason for them having to give up that right, it is obviously reasonable for them to defend the right.

So, although there may be circumstances when it would be necessary for officers to go in without announcing their intention, in the circumstances of this case I have come to the conclusion it had not got to that stage at the time they went it. That is, as I say, taking the situation at the highest from the police point of view: that they have got cause to go in; that they have asked to go in; that there is a conversation which, at the most, lasts for two minutes or, at the very most, three (on the evidence it is two minutes); accepting for the purposes of the argument that they did something which they called “reasoned with them”, although no words of reasoning were forthcoming other than in the most general kind; that accepting that they said, “We want to come in about some damage” or even, on one version, “some criminal damage”; accepting that the O’Loughlin’s were using abusive language and accepting that Mrs O’Loughlin managed to throw a piece or two or maybe three pieces of glass through the window at a police officer which hit him on his uniform. It seems to me in those circumstances, without giving the true reason for wanting to come in, the necessity had not arisen."

The judge went on to direct the jury that the respondent had succeeded in his action in so far as it was based on false arrest, assault and false imprisonment and that the question for the jury in a nutshell was “How much?”

Turning first to the second issue raised in the Grounds of Appeal, the judge made his ruling accepting the evidence of PC Beauchamp that he had decided to arrest Mrs O’Loughlin before going to the respondent’s house and accepting that officer’s account of what he had said to the respondent and his wife, of the behaviour of the respondent and his wife and the reason given by the officer why he did not tell the respondent and his wife that he wished to enter to arrest the wife. In view of the the difference between the appellant’s pleaded case on the words spoken by his officers and their evidence, the effective cross-examination of police witnesses and the jury’s finding that the officers had smashed the glass in the O’Loughlin’s front door, despite all three officers saying that glass was already broken when they went to the O’Loughlin’s house, it is unlikely that, had questions been put to the jury as to the events that occurred that night, the jury’s findings would have been as favourable to the appellant’s case as the facts as the judge assumed them to be when making his ruling. In my view there is no substance in the complaint that the judge should have but failed to take the jury’s verdicts on certain factual issues before making his ruling. Moreover there was very little difference, indeed it could be said no difference of any significance, between the respondent’s account of what the police officers said to him and the account given by PC Beauchamp and PC Beckett of that conversation.

The judge did not rule that a constable must explain his precise legal reason for wishing to enter premises to the available occupier before the use of force becomes necessary. The judge’s statement of principle was qualified, the judge recognising there would be situations in which it would be impossible, impracticable or undesirable to state the ground on which entry was sought, even where the occupier was available, and that in such cases the use of force could be necessary and lawful although no reason for entry had been given. The judge also directed himself that there was no requirement to give precise legal reasons, in the sense that colloquial expressions which conveyed the gist of the ground to the available occupier would suffice.

This case concerns the balancing of conflicting interests. The statutory power of a police constable to enter premises for the purposes which Parliament has identified in various statutory provisions such as s. l7 of the Police and Criminal Evidence Act, l984 and the public interest in effective policing on the one side, and the right of the home owner that the privacy and security of his home should not be invaded and that he should be entitled to protect that privacy and security on the other.

I have had the advantage of reading in draft the judgment of Buxton LJ in which the issues caused by the conflicts between these two interests in this case are considered and I agree with and gratefully adopt the analysis and resolution of those issues contained in his judgment.

The common law relating to a constable’s power to arrest without a warrant required, if the arrest was to be lawful, the constable to inform the person arrested of the true ground of the arrest. There were certain exceptions to this requirement, such as the person arrested himself making the giving of reasons practically impossible. In giving reasons for the arrest, the constable did not have to use technical or precise language, Christie v. Leachinsky [l947] A.C. 573.

A constable’s powers of arrest at common law have been replaced by statutory powers. The provision on which the police were relying in this case was s. l7 of the Police and Criminal Evidence Act, l984. Before setting out the terms of that section, it is worth noticing that the power to stop and search persons created by s. l of the l984 Act is expressly excluded in places which are dwellings, that being an indication that when passing that Act, Parliament still intended to give effect to the principle popularly expressed that “an Englishman’s home is his castle”. Section l7(l) provides:

"Subject to the following provisions of this section, and without prejudice to any other enactment, a constable may enter and search any premises for the purpose ....

(b)of arresting a person for an arrestable offence ...."

Section l7(3) underlines that the power to enter premises for the purpose of arresting a person for an arrestable offence is exerciseable by a constable who is not in uniform. This may be thought to be a further consideration that the courts should bear in mind when considering reasonable qualifications to a constable’s right to use force to effect entry to premises for the purpose of arresting a person for an arrestable offence. Sub-section (5) of s. l7 abolished the Rules of Common Law under which a constable had power to enter premises without a warrant subject only to the preservation of the power of entry to deal with or prevent a breach of the peace, s. l7(6).

Section ll7 of the Act empowers a constable to use reasonable force, if necessary in the exercise of any power conferred on the constable by the Act unless that power may only be exercised with the consent of some person, other than a police officer. It is, as was pointed out by Donaldson LJ in Swales v. Cox [l98l] Q.B. 849, the phrase “if necessary” that protects the ordinary citizen from the arbitrary use of the power to enter premises. In that case Donaldson LJ defined what he thought was meant by “force” in the context of entering premises. If a constable in seeking entry to any place meets an obstacle,

"then he uses force if he applies any energy to the obstacle with a view to removing it. It would follow that, if my view is correct, where there is a door which is ajar but is insufficiently ajar for someone to go through the opening without moving the door and energy is applied to that door to make it open further, force is being used. A fortiori force is used when the door is latched and you turn the handle from the outside and then ease the door open. Similarly if someone opens any window or increases the opening in any window, or indeed dislodges the window by the application of any energy he is using force to enter, and in all those cases the constable will have to justify the use of force.

The first hurdle he will have to overcome in justifying force will be by providing an answer to the question: “why did you not ask to be allowed in?” That “an Englishman’s home is his castle” is perhaps a trite expression and it has immense importance in the history of this country and it still has immense importance. Anybody who seeks to enter by force has a very severe burden to displace." (See page 854 G)

That case concerned s. 2 of the Criminal Law Act l967.

Later in his judgment at page 855 C Donaldson LJ said:

"For my part I think that it would be wholly wrong to add to the provisions of the statute. The statute says that force can be used “if need be”. All I am saying is that those words are of immense weight and importance, and if the question arises of “was it necessary?” the constable will have to prove that it really was necessary before he will be able to justify an entry by force in the sense in which I have indicated."

The appellant’s counsel relied upon this judgment as establishing that it was wrong to add to the words of the statute a further requirement and that, in the normal case it would be sufficient for the constable to ask to be allowed in and for that request to be refused to render the use of reasonable force lawful. I disagree with this reading of His Lordship’s judgment. Donaldson LJ was laying stress on the principle of the privacy and security of a person’s home and on the severe burden which a constable has to discharge when trying to prove that the use of force was really necessary in order to justify his use of force. It would, in my view, be quite wrong to read those passages in that judgment as saying that the simple refusal of a request by the constable to be allowed to enter the premises of itself rendered the use of force necessary. It cannot be right that an officer in plain clothes who has good grounds for entering a house under s. l7, can simply ask to enter the house and if refused then use force, or that the householder who tries to prevent entry in those circumstances finds that he is committing offences such as those of obstructing or assaulting a police officer in the execution of his duty.

Where the occupier of premises is present and can be spoken to by a police officer who has the power to enter the premises for one of the purposes set out in s. l7 of the l984 Act, should the law require the officer in the normal case to state the ground on which he intends to enter the premises? In short should the principles stated by Viscount Simon and Lord Simonds in Christie v. Leachinsky apply?

In Brazil v. Chief Constable of Surrey [l983] 3 All ER 537 a Divisional Court consisting of Robert Goff LJ and McNeill J did adopt a similar approach to that of the House of Lords in Christie v. Leachinsky in a case where the appellant had been convicted of assaulting a female police officer in the course of her duty where an attempt had been made to search the female appellant at a police station pursuant to s. 23(2) The Misuse of Drugs Act l97l. The Divisional Court allowed the appellant’s appeal on the ground that the police officers had not been acting in the execution of their duty because a search involved an affront to the dignity of a person and a police constable was not normally entitled to carry out such a search without first telling the victim of the search why it was necessary in the particular case. In the course of his judgment Robert Goff LJ observed that he could see no difficulty in general terms in the officer explaining to the person

"no doubt in the simplest and most ordinary language, why the search is proposed. In my judgment, generally speaking, that ought to be done."

He went on to indicate that the circumstances might be such that the giving of reasons would not be necessary, for example if it was perfectly obvious why the search was necessary, or because circumstances made communication impracticable. Then the Lord Justice said:

"In general terms, the citizens of this country should not have their freedom interfered with unless it would be lawful to do so, and, in my judgment, an explanation should generally be given to persons why a personal search is to be carried out."

The terms of s. 23(2) of The Misuse of Drugs Act l97l are instructive because like the terms of s. l7of the l984 Act they are unqualified. Section 23(2) provides:

"If a constable has reasonable grounds to suspect that any person is in possession of a controlled drug in contravention of this Act or of any regulations made thereunder, the constable may:

(a)search that person and detain him for the purpose of searching him."

Support for this approach is, in my view to be gained from the Codes of Practice and in particular Code B issued by the Secretary of State under s. 66 of the Police and Criminal Evidence Act l984. Section 67(ll) of that Act provides:

"In all .... civil proceedings any such Code shall be admissible in evidence; and if any provision of any such Code appears to a court .... conducting the proceedings to be relevant to any question arising in the proceedings it shall be taken into account in determining that question."

Section 66 reads:

"The Secretary of State shall issue Codes of Practice in connection with

(a) the exercise by police officers of statutory powers

(i) to search a person without first arresting him; or

(ii) To search a vehicle without making an arrest

(b) the detention, treatment, questioning and identification of persons by police officers;

(c) searches of premises by police officers, and

(d) the seizure of property found by police officers on persons or premises."

The section is not worded so as to require the Secretary of State to issue a Code of Practice in connection with the entry of premises by police officers to effect the arrest of a person for an arrestable offence where the police officers do not have to search for that person.

Code B of the Codes issued by the Secretary of State requires that it should be readily available at all police stations for consultation by police officers as well as detained persons and members of the public. Paragraph l.3(b) applies the Code to searches of premises “under powers conferred by s. l7 of the Police and Criminal Evidence Act l984". Paragraph B5.4 under the heading “Entry other than with consent” requires the officer in charge to attempt to communicate with the occupier or with any other person entitled to grant access to the premises

"by explaining the authority under which he seeks entry to the premises and ask the occupier to allow him to enter, unless

(i) The premises to be searched are known to be unoccupied;

(ii) The occupier and any other person entitled to grant access are known to be absent; or

(iii) There are reasonable grounds for believing that to alert the occupier or any other person entitled to grant access by attempting to communicate with him would frustrate the object of the search or endanger the officers concerned or other people."

Paragraph B5.5 requires an officer to identify himself and, if not in uniform, to show his warrant card.

It has to be accepted that these provisions in Code B are not designed to apply to the situation which existed in the present case. However, in my view the judge was perfectly correct to derive support from the provisions of this Code by way of analogy when deciding in the circumstances of this case as the appellant’s evidence showed them to be, whether the use of force had become necessary.

For those reasons and the reasons given by My Lord Buxton LJ in my judgment, the appeal against the judge’s first ruling fails.

This is not an appropriate case in which to accept Mr Grace’s invitation to give guidance on the directions that a judge should give in cases such as the present case to juries on the issue of quantum, nor is it necessary, that guidance already having been given by the Master of the Rolls, Lord Woolf, in the case of Thompson v. Commissioner of Police for the Metropolis [l997] 3 W.L.R. 4O3. The questions that are left to the jury on the issue of quantum will depend on the facts and circumstances of each case. In this case, there is no appeal against the quantum of damages.

LORD JUSTICT THORPE: In my judgment the trial in the court below was most unsatisfactory and resulted in a quite unjust conclusion. The facts of the case were exceptional and neither authority nor evidence compelled the defendant’s case on liability to be determined by the judge without the involvement of the jury.

For the purposes of this appeal we have been furnished with full transcripts of the proceedings in the court below excepting only the opening on behalf of the plaintiff. The case lasted six days and there are approximately 8lO pages of transcript. Of those approximately 3OO record dialogue or submissions in the form of discussion between counsel and the judge. Additionally there are approximately seven pages recording the judge’s two rulings on the principal legal question and approximately four pages recording his direction to the jury which includes his explanation for the reason why he had found against the defendant on liability. The balance records evidence. Amongst the near 3OO pages of debate it is possible to see the case for each of the parties veer and shift to such a degree that it is difficult to define precisely what position each took on the law and equally difficult to conclude that any proposition was never advanced or that any proposition was consistently rejected. My conclusion is that the consequence of all this endeavour was not to simplify and clarify but rather to complicate and ultimately to lose the essential issue, namely whether it was necessary for the police officers to use force in order to effect an entry onto the plaintiff’s premises for the purposes of arresting his wife. In the course of the trial that relatively simple issue was replaced by the issue as to whether the officers were obliged in law to give the plaintiff a clear explanation of their true reason for requiring entry before resorting to force. The substitution of the false issue for the true issue led to a conclusion which in my judgment was offensive to good sense on an appreciation of the essential conflict of evidence.

The plaintiff asserted that he was enjoying the comfort of his home after an evening of heavy drinking. His mellow content was interrupted in the early hours by the unwelcome intrusion of police officers who refused any cogent justification for their request to enter. Accordingly he had refused entry in clear if obscene terms. Had he been offered a proper explanation he would of course have complied. As it was when the officers proceeded to force entry through the front door he had offered no resistance but was nonetheless assaulted.

The defendant’s case was starkly different. The plaintiff’s neighbour had reported the plaintiff’s wife for smashing her car windscreen after the couple returned from their night out. The offence was an arrestable offence and there was no doubt as to the identity of the offender. Accordingly the intention of the officers was to arrest the plaintiff’s wife. On arrival at the house they were met with obscene abuse. The glass panels of the front door were smashed allowing the plaintiff’s wife to spit at the officers through the door and to throw at them pieces of the broken glass. Entry was barred by the plaintiff and his wife as well as by a makeshift barricade of small pieces of furniture. The officers said that they had come to ask about the damage to the car. The plaintiff and his wife knew full well the reason that entry was sought and that an arrest was imminent. In an inflammatory situation all attempts to negotiate a peaceable arrest were unavailing. The choice was to surrender to the abusive resistance or to go in. The door was opened without much difficulty thanks to the broken panels and after a violent struggle the plaintiff’s wife was subdued and arrested. The plaintiff had been restrained by necessary force.

Thus the real purpose of the trial was to determine this conflict of fact. Was the plaintiff honest in his assertion that he was ignorant of the reason that the police sought entry? Was he honestly ready and willing to co-operate with the officers if only they had explained to him some legitimate purpose for entry? Alternatively were his words and actions consistent only with a perfect understanding of the intent and purpose of the requested entry and a belligerent determination to hold out at least until the sobering light of day. Without the jury’s resolution of that essential factual conflict how could the judge begin to approach his task of determining the legal question, ‘was the use of force necessary?’ The judge thought he could perform his task because he conceived that the use of force must be preceded by a clear explanation of the reason that entry was sought in all but exceptional circumstances. Since he did not consider the circumstances of this case to be exceptional it followed that forceful entry was unlawful entry. By that route he deprived the defendant of his right to a jury verdict on the plausibility of the plaintiff’s case as well as the plausibility of the defendant’s case that his officers had handled an ugly situation, if not ideally, at least within the parameter of what was necessary, objectively judged.

In arriving at these conclusions I broadly accept Mr Grace’s submissions as to the effect of the relevant statute law. Section l7(l)(b) of the Police and Criminal Evidence Act l984 allows entry and search. Section ll7 permits the officer to use reasonable force, if necessary, in the exercise of the power conferred by section l7. The judgment of Donaldson LJ in the Divisional Court in l98O suggests that where the issue in any case is ‘was the force necessary’ the burden of proof is on the officer who resorted to force and that is a very heavy burden: Swales v. Cox [l98l] Q.B. 849 at 855 B-D. Whilst that judgment is upon similar sections of the Criminal Law Act l967, it obviously commands great respect. Nevertheless I would not wish to see the severity of the burden exaggerated. It is essentially a burden to prove on the balance of probabilities that the use of force was indeed necessary. Applying the objective test, would the reasonable police constable standing in the defendant’s shoes have concluded that the use of force was reasonably necessary? That the test is an objective test is clearly stated in the judgment of Diplock LJ in this court in the case of Dallison v. Caffery [l965] l Q.B. 348 at 37l E-F. Although that statement is upon the exercise of the common law power of arrest it seems to me equally applicable to the exercise of the statutory power under section l7.

On the question that diverted the judge’s attention, namely as to whether the use of force must be preceded by a statement of the reason for requiring entry, I conclude that none of the authorities is directly in point. The observations of Robert Goff LJ in the Divisional Court in Brazil v. Chief Constable of Surrey [l983] 3 All ER 537 at 543 A-C are helpful as are the observations of Bingham LJ in the same court in Chapman v Director of Public Prosecutions (l989) 89 CR App R l9O at l99. But if anything those observations in my judgment favour the submissions of Mr Grace more than those of Mr Douglas. Of course the case seemingly most in point is that of Lunt v. DPP decided in the Divisional Court on 23rd February l993. The attraction of that case is that the question identified by the stipendiary magistrate for the opinion of the court was as follows:

"Where the police have a right to enter premises in order to effect an arrest, are they entitled in pursuance of that right to make a forced entry onto premises without giving the occupier the precise legal reason they wish to enter those premises, when he refused to answer their requests to talk to them?”

The answer of Rose LJ was affirmative but confined to the provisions of section 4 of the Road Traffic Act l988. However the application of that decision to the Police and Criminal Evidence Act l984 is hindered by the fact that the issues argued and submissions of counsel scarcely allowed anything but an affirmative answer in that case. I prefer to regard the decision as being no more persuasive than the earlier cases in that court to which I have referred.

Thus I am of the firm opinion that in determining any question as to whether or not the use of force was necessary the court should throughout restrict itself to that issue having established through the medium of the jury the relevant facts and circumstances to enable the issue to be approached and decided. Of course in many cases the communication between the officer and the householder prior to the use of force will be a highly relevant factor. But in my judgment it should never be elevated to the extent that it predetermines the essential issue. Even if an explanation was plainly required, in the absence of concession it is always for the jury to determine whether it was given. If the jury determines that it was not then the way is clear for the judge to decide that without it the use of force had not been proved to be necessary.

The relevance of Code ‘B’ made under the Police and Criminal Evidence Act l984 was considerably debated in the court below. Section 67(ll) of the Police and Criminal Evidence Act l984 is generously drawn:

“If any provision of such a Code appears to the court or tribunal conducting the proceedings to be relevant to any question arising in the proceedings it shall be taken into account in determining that question.”

Therefore I am of the opinion that it was open to the judge to have regard to Code ‘B’ despite the fact that it is described as “Code of practice for the searching of premises by police officers and the seizure of property found”. It seems to me that the terms of the code are likely to have some bearing on the question as to whether the reasonable police constable would have judged the use of force necessary. But in my opinion they should not be elevated beyond that and argument as to whether or not paragraph 5.4 and paragraph 5.6 are disjunctive invites an over legalistic approach. Furthermore section 67(lO) of the Police and Criminal Evidence Act l984 specifically provides that a failure on the part of a police officer to comply with any provision of the Code shall not of itself render him liable to civil proceedings.

In my judgment the transcripts reveal the trial below to have been conducted without the necessary economy and control. Neither their pleaded case, nor their evidence, nor the loquacious discussions between the judge and their counsel, nor authority debarred the defendants from their entitlement to a jury verdict on their case. Quite simply they did not receive justice in the court below. I would allow the appeal and direct a re-trial.

LORD JUSTICE BUXTON: I gratefully adopt the account of the facts of this case, the proceedings in the court below and the arguments that has been set out by my Lord Roch LJ. That enables me to go directly to the issues that arise in this appeal.

This case can only be understood against the background of the general law as to the powers of the police when imposing restraints on the freedom of citizens. I do not understand that law itself to be a matter of controversy, but its application in the present case may be such. It is therefore necessary to set it out, in as short a compass as is possible.

There are two basic propositions that are relevant in the context of this case. First, that a citizen should not ordinarily be required to submit to restraints on his freedom, including restraints that fall within the powers of the police, unless he is told, or well knows, why those restraints are being imposed. Second, that in normal circumstances there is no legal, as opposed to moral, duty on a citizen to answer police questions.

The first of these propositions is to be found in the enquiry by the House of Lords in Christie v. Leachinsky [l947] A.C. 573 as to the need on the part of a constable, when exercising his power to arrest without warrant, to inform the person who he wasm arresting of the true reason for that arrest. Viscount Simon said, at p 587:

"If a policeman arrests without warrant...he must in ordinary circumstances inform the person arrested of the true ground of arrest....The requirement that the person arrested should be informed of the reason why he is seised naturally does not exist if the circumstances are such that he must know the general nature of the alleged offence for which he is detained...The matter is a matter of substance, and turns on the elementary proposition that in this country a person is, prima facie , entitled to his freedom and is only required to submit to restraint on his freedom if he knows in substance the reason why it is claimed this restraint should be imposed."

Lord Simonds said, at p 59l:

"This case raises questions of importance affecting the liberty of the subject...If, then, the appellants reasonably suspected that the respondent had committed a felony, was it not their right to arrest him without a warrant? And, if they did so arrest him, how is it that the arrest can be branded as illegal and an action for false imprisonment lie against them?.....it is the right of every citizen to be free from arrest unless there is in some other citizen, whether a constable or not, the right to arrest him. I would say next that it is the corollary of the right of every citizen to be thus free from arrest that he should be entitled to resist that arrest unless that arrest is lawful. How can these rights be reconciled with the proposition that he may be arrested without knowing why he is arrested?....I would, therefore, submit the general proposition that it is a condition of lawful arrest that a man arrested should be entitled to know why he is arrested, and then, since the affairs of life seldom admit an absolute standard or an unqualified proposition, see whether any qualification is of necessity imposed on it."

That principle, though strongly stated in general terms, was worked out in Christie v. Leachinsky in the specific context of arrest without warrant. It has, however, been acknowledged as of general application in matters affecting the liberty of the subject.

In Brazil v. Chief Constable of Surrey [l983] 3 All ER 537 the Divisional Court had to consider whether a police officer, exercising his power of search under section 23(2) of the Misuse of Drugs Act l97l, was entitled to search a suspect without first telling the victim of the search why the search was necessary. Robert Goff LJ cited the passages from Viscount Simon's speech in Christie v. Leachinsky set out above, and continued at p.542F:

"To require a person to submit to a personal search is to impose on that person a restraint on their freedom. Generally speaking, a person should not be required to submit to that restraint unless they know in substance the reason why that restraint is being imposed."

Robert Goff LJ recognised, as had Viscount Simon and Lord Simmonds in Christie v. Leachinsky , that the requirement to give reasons was not absolute, but might be qualified according to the circumstances. He said, at p.543A:

"There may well be circumstances where the giving of such reasons would not be necessary. To give an example, the circumstances may be such that it is perfectly obvious why a search is necessary. If so, it would be otiose for the officer concerned to give an explanation. Again, the circumstances may be such that the person concerned is, as Viscount Simon puts it, creating a situation where it is practically impossible to inform him. If the person is making a scene of some kind, communication may be impossible. Also, there may be circumstances where, for example, a person is so drunk that communication is impracticable."

Robert Goff LJ emphasised that that was not an exhaustive list. He concluded, however, by saying, at p.543B:

"In general terms, the citizens of this country should not have their freedom interfered with unless it would be lawful to do so and, in my judgement, an explanation should generally be given to persons why a personal search is to be carried out."

In Rice v. Connolly [l966] 2 Q.B. 4l4 the defendant had been convicted of wilfully obstructing the police, under section 5l(3) of the Police Act l964 [the l964 Act], when he was asked by a police officer for his name and address when seen to be acting suspiciously, and then refused to accompany the officer to a police box unless he was arrested. Opening the appeal before the Divisional Court Mr Geoffrey Lane QC submitted, at p.4l7G, that:

"It is a basic concept of a citizen's right that, unless properly arrested, he cannot be compelled to accompany a police officer or answer any questions put to him by a police officer in the absence of statutory authority...The duty to assist the police is moral, not legal."

The court upheld that submission, Lord Parker CJ saying, at p 4l9E:

"It seems to me quite clear that though every citizen has a moral duty or, if you like, a social duty to assist the police, there is no legal duty to that effect, and indeed the whole basis of the common law is the right of the individual to refuse to answer questions put to him by persons in authority."

That principle, which I conceive to be axiomatic, was applied by the Divisional Court in Collins v Willcock [l984] l WLR ll72, where the appellant was convicted under section 5l(l) of the l964 Act of assault on a police officer in the execution of her duty when she resisted the attempt of the police officer to restrain her by taking hold of her arm when she refused to respond to questioning. The Divisional Court (Robert Goff LJ and Mann J) held that because the police officer had not been exercising a power of arrest her attempt to restrain the subject had been unlawful and thus a battery.

Sections l7 and ll7 of the Police and Criminal Evidence Act l984 [PACE ]

By these two sections, read together, a constable may use reasonable force, if necessary, to enter and search any premises for the purpose of arresting a person for an arrestable offence.

In the present case, although it was contended otherwise at the trial, it was in the end common ground that on presenting themselves to Mr and Mrs O'Loughlin the police had explained their reason for entering the premises as being a wish to speak to Mrs O'Louglin about damage to the neighbour's car. The judge held, and there is no appeal against his finding, that there was no evidence fit to go to the jury that the police had stated that they wished entry in order to arrest Mrs O'Loughlin. That is an most important factor in the case, since it is therefore common ground that the police's stated reason for entry was one that gave them no right in law to enter. Mr Grace QC for the Chief Constable sought to argue that, in effect, the wish to talk to a subject could be elided into a wish to arrest her, since the implication was that she would or might be arrested at the end of the investigation. I cannot accept that argument. It is quite inconsistent with the clear contrast between the two activities, investigation on the one hand and arrest on the other, that was drawn in Rice v. Connolly . It is also, for what it is worth, inconsistent with the defendant's pleaded case, which was quite clearly, in paragraph 2(x) of the Defence, that the plaintiff was arrested because he "obstructed [the police] in the execution of their duty, namely the investigation of the criminal damage to the car" [emphasis supplied]

The issue in this case therefore concerns the relationship between a failure on the part of the constable to explain his lawful reason for entry and the subsequent use of force to effect that entry.

The provisions of sections l7 and ll7 of PACE substantially reproduce the then new law of powers of entry that was created by section 2 of the Criminal Law Act l967, and in particular section 2(6), which read:

For the purpose of arresting a person under any power conferred by this section a constable may enter (if need be, by force) and search any place where that person is or where the constable, with reasonable cause, suspects him to be

That provision was considered by the Divisional Court in Swales v. Cox [l98l] l Q.B. 849, where the defendant was convicted by the justices of obstructing the police under section 5l(3) of the l964 Act when he blocked the entry into his house of police officers who were chasing a suspected burglar. The Crown Court allowed his appeal, holding that a power of arrest existed, as at common law, only in four specific cases, set out by the Divisional Court at p 853F of the report, of which the present was not one. The Divisional Court disagreed with that approach, holding that the l967 Act had substituted for the limited common law powers a complete code governing powers of arrest. That "code" provided that [the constable] might enter without qualification but not that he might use force without qualification. If he had to use any force, then it is governed by the phrase..."if needs be": per Donaldson LJ at p. 854F.

Donaldson LJ continued, in respect of cases where force had been used to enter, at p. 855A:

"The first hurdle which [the constable] will have to overcome in justifying force will be by providing an ansser to the question: "Why did you not ask to be allowed in?" That "an Englishman's home is his castle" is perhaps a trite expression, but it has immense importance in the history of this country, and it still has immense importance. Anybody who seeks to enter by force has a very severe burden to displace......I think it would be wholly wrong to add to the provisions of the statute. The statute says that force can be used " if need be ". All I am sayig is that those words are of immense weight and importance, and if the question arises of "Was it necessary?" the constable will have to prove that it really was necessary before he will be able to justify an entry by force in the sense which I have indicated."

Since that issue had not been before the Crown Court, owing to its not having applied the statutory provisions, the case was remitted to that Court in order to continue the hearing and consider the question of whether in all the circumstances there was a need to use force.

Donaldson LJ did not refer to any authority in formulating the approach that the Divisional Court adopted in Swales v. Cox , but in my view that approach is fully in line with the general law of police powers that I have set out above. As was made clear in Christie v Leachinsky the obligation to inform a citizen why his liberty is being interfered with is not absolute: circumstances may make communication impossible or unnecessary. Subject to that, however, it is a strong obligation, and one that Parliament must be taken to have had in mind when conferring the power on the police that it created in section 2 of the l967 Act and continued in PACE. The very strong distinction between powers of arrest and powers of questioning recognised in Rice v. Connolly must also have been in Parliament's mind when creating these powers of entry to effect arrest. It is wholly unlikely that Parliament would have thought that those powers could be exercised on the basis of, or be adequately explained to the subject in terms of, a wish to investigate.

The position is no different under PACE. We were shown various sections of the Act where there is an express obligation to communicate, but those tend either to address limited situations, such as the use of search warrants, or to deal with ex post facto giving or recording of information, such as recording of reasons for delay in taking a person to the police station, or informing a detained person of the reasons for his detention. It is wholly unlikely that the presence of these sections in PACE indicates any intention on the part of Parliament to alter the implications for forcible entry to arrest contained in section 2 of the l967 Act when that provision was replaced in substantially the same terms by sections l7 and ll7 of PACE.

That that is the effect of sections l7 and ll7 of PACE is further reinforced by the terms of paragraph 5.4 of the Code of Practice for Searching of Premises by Police Officers formulated under PACE, paragraph 5.4 of which states, subject to certain exceptions not at present relevant, that the officer in charge shall first attempt to communicate with the occupier or any other person entitled to grant access to the premises by explaining the authority under which he seeks entry to the premises and ask the occupier to allow him in.

This paragraph strictly speaking did not apply in the present case, because no search was contemplated. It is, however, a strong indication of the importance and relevance of the officer who seeks entry explaining his authority, and certainly explaining the reason why he seeks entry.

I therefore respectfully agree with the burden of Donaldson LJ's judgment that a very important factor in deciding whether the police have proved that use of force to enter was necessary, as section ll7 requires, is whether before using force the police have explained the (proper) reason why they require entry, and nonetheless had been refused.

The Chief Constable sought to resist that construction of PACE by relying on the unreported Divisional Court case of Lunt v. DPP (l993). This was again a conviction under section 5l(3) of the l964 Act, the defendant, who had been involved in a traffic accident, having refused to open the door of his house, to which he had fled, when police officers sought entry in exercise of their powers under section 4 of the Road Traffic Act l988. Those powers are set out in broadly similar terms to sections l7 and ll7 of PACE. Objection was taken before the magistrate that the officers had not stated their reasons for wishing to enter.

Before the Divisional Court two points were taken. First, counsel appears to have contended, without reference to the detailed complaint made below, that "an Englishman's home being his castle, it is not susceptible to invasion at common law". The second was that an omission [to open the door] cannot amount to obstruction under section 5l of the l964 Act. The first of these contentions was plainly misconceived since, as the Court pointed out, whatever might have been the position at common law the matter had now to be assessed according to the police's statutory powers. The Court did not, however, go on to consider whether in the circumstances the use of force had been necessary, under section 4(7) of the Road Traffic Act (which applies the same priciples as operate under the l967 Act and under PACE) because the defendant conceded that point: "it had, as I understood [counsel], to be conceded that it really was necessary for the constable to act as he did" (per Waller J).

The case therefore gives no help on the issue before us. Mr Grace however points to an observation by Rose LJ when he was considering the second of the two points raised, the appellant's claim that an omission could not amount to obstruction under section 5l of the l964 Act. Rose LJ, in holding the submission to be wholly untenable, pointed out that it had been conceded that the appellant was not entitled to keep the officers out, and then continued

"That, as it seems to me, is an inevitable concession from the statutory power conferred upon the police of a right to enter. That, as it seems to me, must pre-suppose a duty on the occupier to admit and the failure to admit is, of course depending upon the facts and circumstances of the particular case, capable of being wilful conduct by omission."

That observation must clearly be seen in its context. The existence of a "duty" was relevant to the issue raised under section 5l(3) because failure to perform a duty can amount to a (positive) act of obstruction, as was found to have occurred in the instant case. The duty to admit the police officer existed because, as had been conceded, in the circumstances of that case he had a right to enter. It is, however, impossible to take Rose LJ's formulation further, and claim, as did the Chief Constable, that it recognises that, apparently irrespective of the circumstances, there is a right on the part of the officer to enter without giving reasons, and a correlative duty on the subject to submit to such entry. That was not the point in issue, nor what Rose LJ said. And, if his words were to be applied literally, and entirely without reference to their context, they would prove far too much so far as the Chief Constable's case is concerned: since I understood it to be conceded, at least in argument before us, that there would be some cases where a constable would indeed be obliged to give reasons before attempting a forcible entry.

If Lunt v. DPP addressed the issue now before this court I do not need to say that I would be strongly disposed to follow it, even though it is not, strictly speaking, binding on us. But since the Divisional Court in that case was deprived of considering these issues because of the way in which the argument was presented to them, I cannot find the case of any assistance.

Lunt v. DPP was the subject of an abbreviated report at [l993] Crim LR 534, where it attracted the considerable benefit of a note by Professor Sir John Smith. We were not shown that note, but it is of interest to see that in it Professor Smith, without suggesting that the point arose in Lunt's case itself, asks should it not be necessary, by analogy with the common law rule regarding arrest laid down in Christie v. Leachinsky [l947] A.C. 573, for the officer to give reasons?....Freedom of the home from invasion is an interest of comparable importance to freedom from arrest and is deserving of a comparable degree of protection

I respectfully agree. But I go further, by saying that I consider that that important rule of the common law, applying not only to arrest but, as in Brazil, to other interferences with liberty, does indeed apply to the exercise of powers under sections l7 and ll7 of PACE.

It follows that in my view the judge was entirely right in the ruling that he gave on the issues of reasonableness and necessity, that it was agreed were a matter for him. He said [Day 5, p88,2] that as a matter of law, unless circumstances make it impossible, impracticable or undesirable, an officer seeking to exercise powers of entry by force should, if the occupier or occupiers are present, give the true reason for seeking to exercise the power.

Correctly, in the light of Christie v. Leachinsky , he recognised that that obligation was not an absolute one [Day 5, p 88,2O]:

Of course, there will be circumstances where that will be impossible, impracticable or, for other reasons, undesirable, and one finds some of them set out in an analogous situation in the exercise of a right of entry and search in Code B under [PACE]....

He gave a range of examples of possible cases where the giving of reasons would be impracticable or fruitless, or would permit the person searched for to escape. But, bringing those principles to bear on the reality of the case before him he concluded [Day 5, p 89,l2]

"But where the occupiers are present and are actually in some sort of conversation with the police, even when as here it was irrational and abusive on the part of the Plaintiff ad his wife, it seem to me that the basic law applies to that situtation: the police, who have a right of entry, must announce what that right is before they attempt to use force. To act otherwise in these circumstances it seems to me is unreasonable."

And then, as to the substance of what was said [Day 5, p lO9,l2]:

I am not saying that necessarily the word "arrest" should have been used; some other word in current usage such as "nicked" would have been sufficient. But, in my judgement, to say they wanted to come in to talk to the O'Loughlins was not sufficient to indicate that they were exercising a right to enter his house.

Those rulings seem to me to be entirely in line with the authority that I have reviewed above, including importantly the decision in Swales v. Cox . I would uphold their correctness.

The judge told the jury [Day 6, page ll, 6] that the result of his conclusion set out above, that the police had not proved that it was necessary to use force, meant that the plaintiff had succeeded in his action for false arrest, assault and false imprisonment. Their function in respect of those issues was only to determine the amount of damages. The only factual issue left to them was whether the glass in the front door was broken before the police arrived or whether they, the police, broke it. I shall have to say something about that latter issue in another context later in this judgment. At this stage, I have to consider the defendant's contention that the judge was wrong in the first of those rulings: despite the fact that, so far as I can see, no complaint was made about the ruling by the defendant's counsel at the trial; and despite the fact that there does not seem to be any such complaint in the Notice of Appeal.

The defendant's contention before us was that even if, contrary to his contention, the use of force to obtain entry had been unlawful, that did not make his officers' presence on the premises in itself unlawful, and did not make their subsequent actions unjustifiable. He reminded us that the unnecessary use of force does not render an arrest unlawful, and took us to what was said by Fox LJ in Simpson v. Chief Constable of South Yorkshire (l99l, unreported), that

"If the arrest itself if justified in law...errors in the mode of conducting it, though they may be the basis for other remedies, do not seem to be a good basis for invalidating the arrest itself which is necessary in the public interest."

On that basis, therefore, even though the plaintiff was entitled to use force to prevent the officers using force to gain entry, he was not entitled to use force to eject the officers once they had entered or to prevent them from arresting his wife.

The problem about this contention is twofold. First, as the judge no doubt had in mind, the defendant's pleaded case as to his officers' dealing with and arrest of the plaintiff was that

"the Plaintiff's arrest was lawful in that the officers had reasonable grounds to suspect, and there were reasonable grounds to suspect, that the Plaintiff had obstructed them in the execution of their duty, namely the investigation of criminal damage to the car, and had committed public order and assault offences."

The case was therefore in effect pleaded on the basis that the lawful entry and the plaintiff's obstruction of it justified all that followed. Second, if that is too narrow a view, even taking the evidence at its highest for the police it is difficult or impossible to discern any further act of violence or obstruction on the plaintiff's part that is distinguishable from his attempt to prevent entry. On the view of the law that the judge took, and which I uphold, the plaintiff was justified in taking reasonable steps to prevent entry; and the legality of those steps is not to be judged by a fine distinction between what he does at the doorway and what he does immediately thereafter. The police were in the circumstances trespassers, and I am not prepared to hold that, in that capacity, the landowner nonetheless has no right to eject them: even though, in this case, the landowner does not seem to have done anything that could properly be characterised as ejection rather than protest at entry.

In my view therefore the judge was right, and he was certainly realistic on the facts of this case, in his conclusion as to the effect of his ruling on the future conduct of the trial. I would uphold that ruling.

Should there be a new trial ?

The application in the Notice of Appeal is for a new trial. There, that application is based on the complaint that the judge erred in witholding various questions from the jury. The questions should have gone to the jury "so that the parties knew inter alia upon what findings of fact the jury's award of damages was based". It is quite true that most of the questions proposed do indeed appear to relate to the issue of quantum, and I deal with that issue later in this judgment. Here, however, I must address the contention that developed in the course of the appeal that, even granted that the law is as the judge found it to be, there should be a new trial to consider whether (at this stage put very broadly) any of the conditions that under the law as stated in Christie v. Leachinsky , and as recognised by the judge, would make the giving of reasons unreasonable or otiose apply in the present case.

I say that this contention developed during the course of the appeal with some reason. The only question that arguably bore on that issue that was set out in the Notice of Appeal was that in paragraph 6(l):

"Did Mr O'Loughlin know that the police officers standing at the front door were there to speak to his wife about the damage to Tracy Head's car?"

It will however be apparent that on the law as found by the judge that question is irrelevant: because whether the police officers were there to "speak to" Mrs O'Loughlin, as opposed to being there to arrest her, and whether Mr O'Loughlin knew that, was on the authority of Rice v Connolly irrelevant to their right to use force in order to enter to arrest her. We do not, therefore, have the benefit of any formulated list of relevant issues that the jury should have considered but did not; but in the course of argument Mr Grace provided a number of such issues. I hope that I do not misrepresent the argument if I say that the principal matters on which it was said that the Chief Constable was entitled to the jury's verdict, and without such verdict the judge could not properly rule on the necessity in law of the use of force, were

l. Whether Mr and Mrs O'Loughlin in fact knew that the officers were present in order to arrest Mrs O'Loughlin

2. Whether a reasonable officer in the position of the police officers in this case would have concluded that Mr and Mrs O'Loughlin were not going to let him in "come what may", so that the giving of reasons would be otiose

3. Whether the plaintiff was so drunk that he was incapable of acting rationally

4. Whether Mrs O'Loughlin spat at and threw glass at the officers and, it would seem more generally, the general events on the arrival of the officers, including the placing of a "barricade" inside the door by Mr and Mrs O'Loughlin.

The relevance of some or most of these matters to the test set out above will be obvious. The question for us is whether the fact that the jury did not make findings on them justifies a new trial. I take the matters in turn.

First, as to whether the plaintiff knew that the reason for the officers attending was to arrest his wife, as opposed to what they in fact said, which was to speak to her. Like the judge, I find great difficulty in permitting the police to argue that the plaintiff really knew why they were there, when they themselves persisted, for whatever reason, in telling him a different story. I should say incidentally that there might be some cases, though I would expect them to be more extreme on their facts than the present, where the police realised that the occupier knew of their intention to arrest but for tactical reasons, or to avoid inflaming the situation, did not articulate that reason. There was however no evidence that that was this case, nor was that pleaded.

There seems however to be a conclusive reason why the defendant should not be permitted a new trial on this issue. The judge in discussion with counsel for the defendant before giving his ruling twice raised this very point, and was told by counsel that that was not his case. On Day 5, at page 65,7 this discussion took place, speaking in fact of Mrs O'Loughlin:

"Counsel: That is a clear issue on which the jury would come to one and one only finding: she knew why they were there.

The Judge: She had a guilty conscience then; she correctly surmised that they wanted to arrest her.

Counsel: Your Honour, with respect, I do not think we need go that far. They wanted to speak to her."

The judge was clearly seised of the importance of this issue, because he reverted to it later on that same day, at page 7O,23:

"The Judge: You say she knows why they are there.

Counsel: I say from all the facts that is an inescapable inference.

The Judge: That knowledge being that they want to arrest her for criminal damage.

Counsel: Your Honour, possibly, but I do not think I need to go that far. I think I am safe with them saying, 'We want to speak to you'."

Counsel who appeared at the trial is certainly not to be criticised for taking that position. It was entirely consistent with his client's pleadings (which I should perhaps mention were not drafted by trial counsel), which stood firmly on the fact that the officers had conveyed a desire to speak to Mrs O'Loughlin, and said nothing about a desire to arrest her, or about her knowledge of such desire. However, to permit a new trial now on this issue would be to permit the defendant to investigate an issue that not only he did not assert in his pleadings or at the trial, but which he also specifically disclaimed at the trial when the judge himself raised the issue.

The second issue, of whether a reasonable officer in the position of the police would have concluded that the giving of reasons was otiose or fruitless, was equally not pleaded, and not so far as I can see ventilated before the judge. Nor did the evidence of the police, at least in those passages that we were shown in support of this part of the defendant's case, establish that that was the police's conclusion. That evidence was that they had for some minutes sought to reason with Mr O'Loughlin, without however telling him the actual reason for their desire to enter, and it was after that process that they concluded that Mr O'Loughlin did not want to listen to anything that they had to say [Volume 3, p 5l, l9ff].

That may have deterred them, at that stage , from going on to give the real reason for wishing to enter, though no evidence was given to that effect: understandably, since it was the police's case both at trial and before us that to express a desire simply to speak to the occupant was a sufficient discharge of the police's obligations. But, if the police were to establish that they did not give the real reason because they thought that that step would be fruitless, they had to show that that was a conscious decision, and taken before other steps were taken. There is no basis in the defendant's pleaded case or evidence for that contention, or for anything resembling it. The judge may well have had this factor in mind, without specifically articulating it, when he pointed out that the police did indeed speak to the plaintiff, albeit under unwelcome circumstances, and in so doing gave reasons for entry that were however not the correct reasons. Here again, to permit a retrial in order to investigate this issue would permit the defendant to raise at the retrial an issue that he did not originally assert or rely on. I do not think that that would be a proper course.

The third issue, of the plaintiff's intoxication, can be dealt with more shortly. We were shown evidence, mainly or entirely given by the plaintiff, that he had indeed consumed a formidable amount of alchohol on the evening in question, but no evidence on the part of the police officers that his intoxication made him impossible, as opposed to unpleasant, to deal with. Nor, again, was any such contention pleaded. I do not think that this would be a proper issue for a retrial.

Fourth, the defendant at the retrial would appear to want to investigate not only the allegations of spitting and throwing of glass by the plaintiff's wife, but also the whole of the history of what occurred at the door and thereafter, and whether the door was, as alleged, barricaded by the plaintiff. I infer that from the fact that we were read a great deal of the evidence on those matters given by the police at the trial. I am afraid that I cannot see the relevance of these matters to any question that a new jury will have to decide. It is not in issue that, however deplorably the plaintiff and his wife had behaved, the officers decided to speak to the plaintiff, and were able to do so. In the course of so doing, and before they entered, they were able to give him an account of why they were there: to speak to his wife. The judge based his ruling on those statements by the police. I cannot see that any finding by the jury as to the surrounding circumstances would have advanced the matter at all.

There is a further matter that causes difficulty in contemplating a retrial directed to this fourth issue. The police's case was that the glass in the front door was already broken when they arrived at the house, and their evidence appears to have proceeded on the basis that it was that circumstance that enabled Mrs O'Loughlin to spit at them, and certainly that enabled her to throw glass at them. Whether that was how they were able to see the barricade, or for that matter speak to Mr O'Loughlin, is somewhat obscure. However, the jury, on the one factual question that was left to them, found that it had been the police officers who had broken the glass in the front door: Day 6,p 63, ll. There is no appeal either against the judge's directions on that issue or in respect of the jury's finding on it.

Counsel for Mr O'Loughlin drew our attention to this fact, but did not seek to expand upon it, and I therefore address it with some diffidence. If that finding of the jury were to stand, however, it would appear to present some difficulty in respect of the premise on which the police's evidence as to events before their entry was based. Not having heard argument on the point, I am not prepared to reach any conclusions as to the technical position of that finding at the second trial, and whether the defendant will be free to ask the second jury to go behind it: though I do note that the case cited in paragraph 59/ll/6 of the Supreme Court Practice in favour of the view that the two trials will be entirely independent, Bobolas v. Economist Newspaper [l987] l W.L.R. llOl, concerned the directions of the judge at a previous trial at which the jury had been discharged because they had been unable to agree. If there were substantial reasons for granting a retrial in this case I would, with some considerable hesitation, not allow this point to stand in the way. As it is, however, I am reinforced by this difficulty in my conclusion that this is not an appropriate case for a retrial.

I say that because, for the reasons I have already indicated, a retrial, on the grounds contended for by the appellant, would involve his putting a case substantially different from that which he supported at the first trial, and which, to some extent, he specifically disclaimed by his pleadings and otherwise.

It will be recalled that this was the reason stated in the Notice of Appeal for seeking a retrial. The defendant said that, in the light of the decision of this court in Thompson v. Commissioner of Police for the Metropolis [l997] 3 W.L.R. 4O3, it was necessary to have the jury's answers to a series of specific questions about events after the police had entered, including whether the police as alleged kicked and punched the plaintiff or struck him with a truncheon, so that the jury's award of damages could be reviewed if needs be by this court.

This contention is somewhat surprising, at least in the context of this present case, because there is no appeal against the jury's award, and no complaint made of the judge's directions on the issue of damages. I would therefore reject this application for a retrial as not arising from any issue in the appeal. Quite apart from that, however, I agree with the submission of Mr Douglas QC that, in a case such as the present, where there was a comparatively brief altercation, about which the jury have heard detailed evidence from both sides, it is artificial and burdensome, and of no assistance to either the jury or the court, to invite the jury to try to break the incident down into a series of separate episodes, and make a separate finding about each of them. Whilst fully appreciating the approach taken by this court in Thompson, I do not think that that case constrains us to require the degree of detailed fact-finding on the part of the jury that the defendant would wish to see at the second trial.

I would not grant the application for a new trial. I would dismiss this appeal.

Order: Appeal dismissed with costs;

legal aid taxation of appellant's

costs; application for leave to

appeal to the House of Lords refused;

stay of execution 28 days pending

application.