England and Wales Court of Appeal (Civil Division) Decisions

IN THE SUPREME COURT OF JUDICATURE CCRTRF 97/1340/2

IN THE COURT OF APPEAL (CIVIL DIVISION )

(HIS HONOUR JUDGE TOYN )

Royal Courts of Justice

Strand

London W2A 2LL

Thursday 2nd July 1998

B e f o r e

LORD JUSTICE STUART-SMITH

LORD JUSTICE SWINTON THOMAS

LORD JUSTICE ALDOUS

SHAUN GAPPER Appellant

v.

THE CHIEF CONSTABLE OF Respondent

AVON AND SOMERSET CONSTABULARY

(Computer Aided Transcription of the Stenograph Notes of

Smith Bernal Reporting Limited, 180 Fleet Street

London EC4A 2HD Tel: 0171 421 4040

Official Shorthand Writers to the Court)

MR PETER CODNER (instructed by Messrs Secretts, Bath) appeared on behalf of the Appellant (Plaintiff).

MR NICHOLAS AINLEY (instructed by Clerk to the Police Authority, Bristol) appeared on behalf of the Respondent (Defendant).

J U D G M E N T

(As approved by the court)

©Crown Copyright

LORD JUSTICE STUART-SMITH: I will ask Lord Justice Swinton Thomas to give the first judgment.

LORD JUSTICE SWINTON THOMAS: This is an appeal from a judgment of Deputy Circuit Judge Toyn at the Bristol County Court on 3 September 1997. The judge had to rule on an issue as to whether the appellant had been lawfully arrested under the provisions of section 6 of the Vagrancy Act 1824. The plaintiff brought proceedings against the chief constable for unlawful arrest.

The facts giving rise to the action can be stated shortly. At about 2.15 a.m. on 17 May 1993, two police officers, Constables Croll and Hammett, found the plaintiff hiding in the garden of 10 Miles Buildings, Bartlett Square, Bath. The officers arrested him for having committed an offence of being on enclosed premises for an unlawful purpose contrary to section 4 of the Vagrancy Act 1824. The section reads in so far as is relevant:

"...every Person ... found ... in any inclosed Yard, Garden or Area, for any unlawful purpose ... shall be deemed a Rogue and Vagabond ... and it shall be lawful for any Justice of the Peace to commit such Offender ... to the House of Correction ... for any Time not exceeding Three Calendar Months."

Section 6 of the Act reads:

"...it shall be lawful for any person whatsoever to apprehend any Person who shall be found offending against this Act..."

The issue that the judge had to resolve was whether the power of arrest contained in section 6 of the Act has survived the provisions of the Police and Criminal Evidence Act 1984 and in particular section 26 of that Act. It was agreed by the parties that if the plaintiff's arrest was lawful then his action must fail and, equally, that if his arrest was unlawful then he must succeed, and the only outstanding question would be the assessment of damages.

His Honour Judge Toyn, having considered the relevant statutory provisions and such authority as is helpful, found that the power of arrest contained in section 6 of the Vagrancy Act survived the provisions of the Police and Criminal Evidence Act and accordingly the arrest was lawful.

Section 24 of the Police and Criminal Evidence Act makes provision for arrest without warrant for arrestable offences. Arrestable offences are defined in the section and an offence under the Vagrancy Act is not included. Those offences which are included are set out in the section itself and Schedule 2 to the Act preserves the power of arrest in relation to certain specific statutes. The power of arrest without warrant can be exercised under section 24 in certain given circumstances by any person, that is to say police officers and ordinary members of the public, and in certain other specified circumstances by a constable only.

Section 25 of the Police and Criminal Evidence Act sets out the general arrest conditions, that is to say powers of arrest in respect of non-arrestable offences. Those powers can be exercised by a constable only and it is common ground that the provisions of the section 25 do not arise in this case. However, section 25(6) provides:

"This section shall not prejudicee any power of arrest conferred apart from this section."

That is an important provision and was relied upon by Mr Ainley on behalf of the Chief Constable.

Then section 26(1) of the Police and Criminal Evidence Act provides:

"(1) Subject to subsection (2) below, so much of any Act (including a local Act) passed before this Act as enables a constable

(a) to arrest a person for an offence without a warrant; or

(b) to arrest a person otherwise than for an offence without a warrant or an order of a court

shall cease to have effect."

(2) Nothing in subsection (1) above affects the enactments specified in Schedule 2 to this Act."

The provisions of the Vagrancy Act are not included in Schedule 2.

Mr Codner on behalf of the plaintiff makes the simple, succinct and straightforward submission that the wording of section 26(1) is clear and that, unless the offence is an arrestable offence as defined in section 24 of the Police and Criminal Evidence Act or is an offence, the power of arrest in respect of which is preserved by Schedule 2, the power of the constable to arrest for an offence without a warrant has ceased to have effect.

In order to answer the question that is raised on this appeal one must first return to the wording of section 6 of the Vagrancy Act itself. The section provides that

"...it shall be lawful for any Person whatsoever to apprehend any Person who shall be found offending against this Act."

The section is in itself plain. It gives power to any person, whether a constable or a citizen to arrest a person who has committed an offence under the Act. Section 26 of the Police and Criminal Evidence Act relates to Acts giving power to constables to arrest without warrant. There were of course a number of Acts of Parliament which conferred that power. In my judgment section 26 bites on those Acts and not on an Act such as the Vagrancy Act, which conferred a general power of arrest. If it were otherwise, then the absurd position would arise that a citizen would be entitled to arrest a person under the provision of section 6 of the Vagrancy Act whereas a constable would not.

I am reinforced in that view by the fact that Schedule 7, Part I of the Police and Criminal Evidence Act repeals sections 8 and 13 of the Vagrancy Act but does not repeal section 6. In my judgment if it had been intended that the power of arrest provided by section 6 of the Act was to be abolished, then section 6 would likewise have been repealed. I am also reinforced in my view that that is the correct interpretation of the provisions of the Police and Criminal Evidence Act in relation to the power of arrest under section 6 of the Vagrancy Act by the decision of the Divisional Court in The Director of Public Prosecutions v. Kitchen [1990] CLR 394.

The point that arose in that case was different but similar to the point that arises in this case. The case concerned section 91(1) of the Criminal Justice Act 1967 which provides:

"Any person who in any public place is guilty, while drunk of disorderly behaviour, may be arrested without warrant..."

The court in that case referred to section 26 and to section 25 of the Police and Criminal Evidence Act and in particular to section 25(6). The court held that section 91(1) still survived and had not been repealed by section 26 of the Police and Criminal Evidence Act. Accordingly, the power to arrest without warrant remained.

That provides powerful support for the argument put forward on behalf of the Chief Constable in this case. Although there is a powerful criticism of the decision in Kitchen by the editors of Archbold in the 10th Cumulative Supplement to the 43rd Edition, I note that Professor John Smith in his note in the Criminal Law Review said that "the court reached the right answer."

In my judgment Judge Toyn likewise reached the right answer on this issue in this case. The terms of section 6 of the Vagrancy Act are clear. The section has not been repealed. Section 26 in my judgment bites on those powers which are specifically granted to constables by reason of their office. Any other conclusion would lead to the absurdity which I have described above.

I would accordingly dismiss this appeal.

LORD JUSTICE ALDOUS: I agree.

LORD JUSTICE STUART-SMITH: I also agree.

Order: Appeal dismissed; order nisi against legal aid

fund with nil contribution; application for leave

to appeal to the House of Lords refused.