England and Wales Court of Appeal (Criminal Division) Decisions

IN THE COURT OF APPEAL
CRIMINAL DIVISION

		Royal Courts of Justice,
		31st July. 1975.

LORD JUSTICE JAMES: The Judgment I am about to read is the judgment of the Court with which Mr. Justice Cusack agrees.

This is an appeal against conviction by Henson George Venna who, on 5th December, 1974, in the Crown Court at Gloucester, was convicted of threatening behaviour contrary to section 5 of the Public Order Act, 1936, and of an assault occasioning actual bodily harm. A co-defendant Edwards was also convicted of threatening behaviour and of an assault on a police constable contrary to section 51(1) of the Police Act, 1964, of which he was separately charged. Another co-defendant Allison, separately charged with criminal damage to a police officer's uniform, was acquitted of that offence and also of the charge of threatening behaviour. The third co-defendant, Robinson, charged only with the offence of threatening behaviour was acquitted by direction of the trial Judge at the close of the prosecution case.

Mr. Woods for the Appellant relied substantially upon the acquittals of Allison and Robinson and argued that the convictions of the Appellant are inconsistent with those acquittals.

The various charges against the four defendants arose out of an incident which occurred in the early hours of 30th August, 1974, in Station Road, Gloucester. The four defendants and another youth called Patterson, who was not arrested, were creating a disturbance in the public street by shouting and singing and dancing. At one stage there was a banging of dustbin lids. The local residents were disturbed and at least one complaint of the noise was made to the police. A police officer named Leach went to investigate. What took place between him and the youths was described in evidence by three taxi drivers. Leach patiently and tactfully tried to persuade the four youths to be quiet and to go home. The response was a remark by Robinson "Fuck off" and the continuation of the noise and dancing. Leach told them there had already been a complaint about their unruly behaviour and ordered them on their way. Robinson thereafter stood apart from the others and did nothing. That was the foundation of his subsequent acquittal. The others continued a sort of war dance and went on singing. Leach told them that if they continued to create a disturbance and obstruct the pavement they would be arrested. Allison in defiance sat down on the pavement. Leach moved towards him to arrest him and the Appellant, Edwards and Patterson crowded round. As he placed his hand on Allison Leach said "You are all under arrest."

The Appellant's evidence at the trial was that he did not hear these words and did not appreciate that he was being arrested until a later stage of the incident. As Leach picked Allison up Allison struggled to free himself and the Appellant, Edwards and Patterson tried to pull Allison out of the officer's grip. Leach held on to Allison and called for help on his pocket radio. The scene was such that the taxi drivers were about to intervene. A passer-by, referred to as "the fat man", did intervene on the officer's behalf. The Appellant in evidence surmised that he did so because "he thought the coppers head might be bashed in". Other police officers arrived and assisted Leach in the arrest of the Appellant and the co-defendants. Before those who were resisting arrest were finally overpowered, Allison had torn Leach's uniform, Edwards had seized Leach's left thumb and bent it forceably backwards causing physical injury, and the Appellant had fought so violently that four officers were required to restrain him. In the course of the Appellant's struggles he was knocked or fell to the ground. Two police officers held him by the arms. Upon the Appellant's own admission he then knew he was being arrested and he continued to "lash out" wildly with his legs. In doing so he kicked the hand of a police officer who was trying to pick him up. The kick caused a fracture of a bone and was the subject of the charge of assault occasioning actual bodily harm.

The Appellant's evidence was to the effect that he and his friends were not told that they were creating a disturbance and that all he had done was to tell Leach that he could not arrest Allison. He said that he had been struck on the chin and knocked to the ground and that he had lashed out with his feet in an effort to get up. He did not know or suspect that there was a police officer in the way or that his foot might strike a police officer's hand.

The whole incident leading to the charges was, unfortunately, a very ordinary and all too common one. On any view the Appellant and his friends were behaving in an unruly and disgraceful anti-social manner, but it was not a very grave or serious incident. It was certainly not the sort of incident that Parliament had in mind when enacting the Public Order Act, 1936. We are not prepared to say that in this case it was wrong to perfer a charge under the provisions of that Act. The jury did find that there was threatening behaviour and, although the Police officer, Leach, agreed in evidence that he did not think the initial behaviour was threatening he made the arrest on the basis of belief that a breach of the peace was imminent.

There was ample evidence upon which the jury could find that there was behaviour within the terms of section 5. But those who have the responsibility of deciding what charges to prefer should consider very carefully, before having recourse to section 5 of the Public Order Act, 1936, whether the facts reveal a state of affairs which justifies proceedings under that Statute. In Ambrose (1973) 57 Criminal Appeal Reports, 538, Lord Justice Lawton, at page 540, issued a clear warning against the misuse of section 5 of the Act, which warning we repeat. In the end this comparatively minor matter occupied the time of the Crown Court for four days and the argument in this Court extended into a second day.

The argument for the Appellant was first that the Judge erred in law in his directions to the jury in a number of respects, and was wrong, having regard to the state of the evidence and the way the ease was put for the prosecution, to leave to the jury the question whether the Appellant, Edwards and Allison had been guilty of threatening behaviour and to invite the jury to consider whether the conduct of the conduct of the Appellant after the point of time when the officer said "You are all under arrest" was threatening behaviour. This argument drew together a number of the heads enumerated in the grounds of appeal. It was essentially dependent upon the premise that the arrest of Allison was unlawful.

The pattern of summing-up suggested to the jury that they could regard the incident as comprising two stages separated by the arrest of the defendants; that they might reach the conclusion, as he expressly stated he had done, that up to the time of arrest there was little if any threatening behaviour; that on that view of the facts the jury might think that Leach, who had said that the arrest was made under his powers derived from section 7(3) of the Public Order Act, 1936, had made the arrest technically for the wrong reason; and that the jury, if they so found, should approach the case on the basis that the arrest was unlawful. The Judge then gave directions to the jury upon the duty of a person purporting to effect an arrest to make known to the person arrested the reason for the arrest, upon the right of a person to resist an unlawful arrest, and upon the right of a person to assist another who is the subject of an unlawful arrest to free himself from the unlawful restraint.

We find it unnecessary to recite the argument of Mr. Woods on this aspect of the appeal in any detail. The Judge had rightly told the jury that they were not bound to accept the police officer's opinion as to whether there was threatening behaviour prior to the arrest. He correctly directed the jury as to what constitutes threatening behaviour, that noise is not enough and that the behaviour has to be menacing or alarming in relation to a breach of the peace. He reminded them of the evidence of the taxi drivers.

In our view the Judge rightly left the evidence to the jury on the charge of threatening behaviour in relation to the time before the arrest, although he said he was not impressed by the evidence and although he had in the exercise of his discretion directed a verdict of not guilty in respect of Robinson. The jury reached the conclusion that the evidence established threatening behaviour before the arrest. This is clear not only from the verdicts of guilty on Count 1 but also, and conclusively from the verdict of guilty, of the charge of assaulting a police officer in the execution of his duty in relation to Edwards. That verdict could be returned only if the jury had decided that the arrest was a lawful arrest.

The argument pressed in this Court that the jury were or may have been returning a verdict of guilty of common assault because of the form in which the Court Clerk asked for the verdict is simply not tenable. The jury had a copy of the indictment. They had agreed on the verdict before the Clerk put the question. There was no room for confusion. At the trial it was accepted that the jury's verdict on Count 2 must be construed as a finding that the arrest was lawful.

What Mr. Woods was able to do was to point to the acquittal of Allison on Count 1 and to the evidence which, on the face of it, implicated Allison as much as, if not more, than the other defendants in their behaviour before arrest. We think there is force in the argument that the verdict in respect of Allison is inconsistent with the verdicts in respect of the Appellant. It does not follow that the verdicts in respect of the Appellant are unsafe or unsatisfactory. Due to the pattern of the summing-up Allison may well have been regarded by the jury as the one defendant remaining in their charge who did not strike a blow or aim kicks from first to last and as one who, although he sat down on the pavement, did not himself directly threaten a breach of the peace.

The terms in which the case against Allison was summed-up were such as the jury may have construed to be an invitation to acquit. This may have been unduly favourable to Allison. It does not afford a basis for thinking the verdicts in respect of the Appellant are unsafe or unsatisfactory. Mr. Woods invited our attention to authorities both old and recent in order to demonstrate that the Judge misdirected the jury by telling them as a matter of law that, whereas a person who is unlawfully arrested may reasonably resist the arrest, a person is not entitled to go to the aid of another who is unlawfully arrested unless he genuinely believes that other person to be in imminent danger of physical injury, and by directing the jury in terms which by use of the word "resist" put too low a standard on the right to match force with force.

The directions of which criticism was made are to be found at pages 39 E-G, 40 B and E-F, 42 B-D and 47 H-48 A. The authorities cited such as Osmer 5 East 304, Kenlin and another v. Gardiner and another (1967) 2 Queen's Bench 510, and Regina v. Duffy (1967) 1 Queen's Bench 63 have however no relevance to a situation in which the arrest is a lawful arrest.

Mr. Barnes for the Crown argued that in any event the directions of the Judge were correct in law and cited Fennell (1971) 1 Queen's Bench 428 in support. We do not find it necessary to decide in this case whether the directions of the Judge in relation to these matters were right or wrong. The finding of fact by the jury that the arrest was lawful is conclusive.

The jury having found the arrest to be a lawful arrest were not concerned with the directions given by the Judge as to the right to resist arrest or the right to assist a person resisting an unlawful arrest. The finding that the arrest was lawful presupposes a finding of threatening behaviour before the arrest and there was no reason why the jury should not regard the evidence of behaviour of the Appellant after the moment Allison was seized by the officer as part and parcel of the same incident. It was not suggested in this Court nor was it suggested at the trial that the Appellant could be acting lawfully if, contrary to his own evidence, he tried to release Allison from the lawful custody of Leach.

The second substantial ground of appeal relates to the conviction of assault occasioning actual bodily harm. Having summed-up to the jury the issue of self defence in relation to the alleged assault the Judge directed them in these terms, and I read from the transcript page 44 E (it is necessary to read rather a long passage): "However, you would still have to consider, on this question of assault by Venna, whether it was an accident. If he is lashing out ......

Let me put it this way. Mr. Woods on behalf of Venna says 'Well, he is not guilty of an assault because it was neither intentional nor reckless. It was a pure accident that he happened to hit the officer', and that is quite right. If you hit somebody accidentally, it cannot be a criminal offence so you have got to ask yourselves, 'Was this deliberate, or was it reckless?' If it was, then he is guilty. To do an act deliberately hardly needs explanation. If you see somebody in front of you and you deliberately kick him on the knee, that is a deliberate act and, no two ways about it, that is an assault but it can equally well be an assault if you are lashing out, knowing that there are people in the neighbourhood or that there are likely to be people in the neighbourhood and, in this case, it is suggested that he had two people by his arms and he knew that he was being restrained so as to lead to arrest. If he lashes out with his feet, knowing that there are officers about him and knowing that by lashing out he will probably or is likely to kick somebody or hurt his hand by banging his heel down on it, then he is equally guilty of the offence. Venna can therefore be guilty of the offence in count three in the indictment if he deliberately brought his foot down on Police Constable Spencer's hand or if he lashed out simply reckless as to who was there, not caring an iota as to whether he kicked somebody or brought his heel down on his hands."

Mr. Woods argued that the direction is wrong in law because it states that the mental element of recklessness is enough, when coupled with the actus reus of physical contact, to constitute the battery involved in assault occasioning actual bodily harm. Recklessness, it is argued, is not enough; there must be intention to do the physical act the subject matter of the charge. Counsel relied on the case of Lamb [1967] 2 Q.B. 981 and argued that an assault is not established by proof of a deliberate act which gives rise to consequences which are not intended.

In Fagan v. Commissioner of Metropolitan Police [1969] 1 QB 439, it was said "An assault is any act which intentionally or possibly recklessly causes another person to apprehend immediate and unlawful personal violence". In Fagan it was not necessary to decide the question whether proof of recklessness is sufficient to establish the mens rea ingredient of assault. That question falls for decision in the present case. Why it was considered necessary for the Crown to put the case forward on the alternative bases of "intention" and "recklessness" is not clear to us. This resulted in the direction given in the summing-up.

On the evidence of the Appellant himself one would have thought that the inescapable inference was that the Appellant intended to make physical contact with whoever might try to restrain him. Be that as it may, in the light of the direction given, the verdict may have been arrived at on the basis of "recklessness". Mr. Woods cited Ackroyd v. Barett (1894) which is shortly reported in 11 Times Law Reports 115 in support of his argument that recklessness, which falls short of intention, is not enough to support a charge of battery, and argued that, there being no authority to the contrary, it is now too late to extend the law by a decision of the Courts and that any extension must be by the decision of Parliament.

Mr. Woods sought support from the distinction between the offences which are assaults and offences which by statute include the element contained in the word "maliciously", e.g. unlawful and malicious wounding contrary to section 20 of the Offences against the Person Act, 1861, in which recklessness will suffice to support the charge. See Cunningham 41 Criminal Appeal Reports 155. In so far as the editors of text books commit themselves to an opinion on this branch of the law they are favourable to the view that recklessness is or should logically be sufficient to support the charge of assault or battery. See Glanville Williams Criminal Law paragraph 27 page 65; Kenny paragraph 164 page 218; Russell 12 Edition page 656 and Smith and Hogan 3rd Edition page 286.

We think that the decision in Ackroyd v. Barett is explicable on the basis that the facts of the case did not support a finding of recklessness. The case was not argued for both sides. The case of Bradshaw (1878) 14 Cox Criminal Cases 83 can be read as supporting the view that unlawful physical force applied recklessly constitutes a criminal assault. In our view the element of mens rea in the offence of battery is satisfied by proof that the defendant intentionally or recklessly applied force to the person of another. If it were otherwise the strange consequence would be that an offence of unlawful wounding contrary to section 20 of the Offences against the Person Act, 1861, could be established by proof that the defendant wounded the victim either intentionally or recklessly but, if the victim's skin was not broken and the offence was therefore laid as an assault occasioning actual bodily harm contrary to section 47 of the Act, it would be necessary to prove that the physical force was intentionally applied.

We see no reason in logic or in law why a person who recklessly applies physical force to the person of another should be outside the criminal law of assault. In many cases the dividing line between intention and recklessness is barely distinguishable. This is such a case.

In our judgment the direction was right in law and this ground of appeal fails.

There are other grounds of appeal which we do not propose to consider in detail. In particular it was contended that the Judge did not put the defence that the Appellant had the right to use force which matched the unlawful use of force, and that the issue of failure to inform the Appellant of the reason for his arrest, which bore on the lawfulness of his arrest, was in effect withdrawn from the jury. There is no substance in the argument advanced in support of these grounds. The finding that Leach was acting in the execution of his duty and lawfully is an insuperable obstacle in the Appellant's path.

For these reasons we dismissed the appeal.