England and Wales Court of Appeal (Criminal Division) Decisions

IN THE COURT OF APPEAL
CRIMINAL DIVISION

		No: 200606207/B3 Royal Courts of Justice Strand London, WC2A 2LL
		4th December 2007

1. LORD JUSTICE THOMAS: On 17th December 2006 in the Crown Court at Southwark before Mr Recorder Howard QC and a jury, the appellant was convicted of intentionally obstructing a constable contrary to section 23(4)(a) of the Misuse of Drugs Act 1971. He was sentenced to 12 months' imprisonment, with the time spent of 4 months on remand to be taken into account. He was released from custody on 19th January 2007. He appeals against conviction and sentence by leave of the Single Judge. The appeal on sentence might, in all the circumstances, bearing in mind it is now December to be thought academic.
2. On 7th July 2006 the appellant was in Berwick Street in the West End of London. The appellant had in the past been the subject of an exclusion order but that had been lifted. Also in the street were police officers who were on duty patrolling the street as they considered this a street where drug deals were carried out. One of the police officers, Constable Mansson believed the appellant was subject to an exclusion order. He did not find out until later that it had been lifted. He approached the appellant, who he knew and in relation to whom there had been a number of incidents over the previous months. It is common ground that the appellant had something in his mouth when he was approached by Constable Mansson.
3. Before turning to what then happened it is necessary to summarise the statutory provisions with which we are concerned. Section 23(2) of the Misuse of Drugs Act 1971 provides that:

"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..."

Subsection (4)(a) provides:

(4) A person commits an offence if he-

(a) intentionally obstructs a person in the exercise of his powers under this section..."

4. The powers to search are conferred by the Police and Criminal Evidence Act 1984. The relevant provisions are the following. Section 2(2) provides that:

2) If a constable contemplates a search, other than a search of an unattended vehicle, in the exercise-

(a) of the power conferred by section 1 above; or

(b) of any other power, except the power conferred by section 6 below and the power conferred by section 27(2) of the Aviation Security Act 1982-

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

(ii) to search a vehicle without making an arrest.

it shall be his duty, subject to subsection (4) below, to take reasonable steps before he commences the search to bring to the attention of the appropriate person-

(i) if the constable is not in uniform, documentary evidence that he is a constable, and.

(ii) whether he is in uniform or not, the matters specified in subsection (3) below;

and the constable shall not commence the search until he has performed that duty."

5. The matter is referred in subsection (2) above are: (a) the constable's name and the name of the police station to which he is attached; (b) the object of the proposed search; (c) the constable's ground for proposing to make it and (d) the effect of sections 3, 7 or 8 below as may be appropriate. That particular section has been considered by the Divisional Court in Osman v the Southwark Crown Court 163 JPR 725 and this appeal involves the application of the well-known provisions of the Act and that case to the facts of this case.
6. It is also relevant to refer to Code A, paragraphs 3.1 and 3.2. 3.1 provides:

"All stops and searches must be carried out with courtesy, consideration and respect for the person concerned. This has a significant impact on public confidence in the police. Every reasonable effort must be made to minimise the embarrassment that a person being searched may experience.

3.2. The co-operation of the person to be searched must be sought in every case, even if the person initially object to the search. A forcible search may be made only if it has been established that the person is unwilling to co-operate or resists. Reasonable force may be used as a last resort if necessary to conduct a search or to detain a person or vehicle for the purposes of a search."

7. It is against those statutory provisions and the decision in Osman that we then turn to deal with what then happened in this case.
8. It can be summarised as follows. It was the evidence of Police Constable Mansson that the appellant put his head back, but nonetheless he could see there was what he thought a large wrap of drugs; he described as being the size of an old 50p piece. When he asked the appellant what it was, the appellant said it was chewing gum. The appellant's evidence is that he had some chicken in his mouth and he pushed his head forward so the police could see. He had picked that piece of chicken up on the way to a chinese restaurant where he was to have a meal.
9. Police Constable Mansson said he did not have time to go through the niceties of explaining what his police station was and the appellant knew who he was any way and he was in uniform. This was plainly a reference to the provisions of the Police and Criminal Evidence Act, to which we have referred. He considered it an emergency as the appellant might swallow the drugs. He therefore immediately applied mandibular pressure which enables a person to stop the person to whom that pressure is subjected swallowing. As he did so, he said: "drugs search, spit it out". It is common ground that he did not give his name or police station.
10. The appellant accepted he was told to spit it out but denied it was said it was a drugs search. He said he did spit it out. Nothing was found. There was then a very considerable struggle where other officers joined in. Nothing was found on him or elsewhere. The police did not wait for a bowel movement which may have produced some evidence. But it is unnecessary to go into the facts of what thereafter happened as the point involved in the case turns entirely on the application of section 2(2) and (3) to the facts as we have set them out.
11. It is accepted by the appellant that when Police Constable Mansson first saw what was in the appellant's mouth, that the police constable was entitled to have formed a reasonable belief and therefore was within his rights to exercise the power under section 23(2) of the Misuse of Drugs Act 1971.
12. It is accepted on behalf of the prosecution that section 2 and the Police and Criminal Evidence Act Codes applied, so that if there was a breach of subsection (2) and (3), the search was unlawful and a conviction could not be sustained.
13. It is common ground, as we have already mentioned, that the leading decision on this provision is Osman v Southwark Crown Court, where it was admitted there was a breach of section 2 and subsections (2) and (3). The court in that case held in consequence that the search was unlawful and that the defendant in that case could not be convicted for an assault on a police in the execution of his duty.
14. It is, we think, important to refer to some of the passages. The first judgment given by Sedley LJ. The submission made was to the Court on that occasion that it was a daylight search in a fairground by uniformed officers, who it was plain for everyone to see and it was reasonable for the officers to do as they did. Sedley LJ continued:

"The submission, however, overlooks the fact that what the officers are required by law to do is to take 'reasonable steps' before beginning the search to bring the prescribed data to the attention of the members of the public whom they are proposing to search. On the evidence set out in the Crown Court's findings, no step whatever was taken in this direction. It is impossible, therefore, to begin to attach the epithet 'reasonable' to what was done.

It seems to me, having heard Mr Boothby's submission, that while there is an element of formality and, perhaps, of excessive use of time in having to recite the constable's name and station to every person searched, it is nevertheless Parliament's view that such formality is of great importance in relation to civil liberties. There would be nothing, I would have thought, to prevent uniformed officers, who are sent out to make searches of this kind from carrying in their pocket slips of paper giving their name and station, so that the person searched not only is told what these are but can carry the information away with him or her, and the officer is saved the trouble of going through an oral rigmarole. That, however, is beside the present point. This search was unlawful for the reasons given."

15. It is also helpful to refer to what Sedley LJ said in what in relation to two questions the court was asked to answer in that case. The second question was this: did the failure of the officers apply details of their names and station notwithstanding their availability from the officers' lapels render the search unlawful as a result of breaching section 2(3)(a) of the Police and Criminal Evidence 1984. Sedley LJ said this:

"It follows that I would answer the second question in the affirmative; that is to say, I would hold that the failure of the officers to supply details of their names and station rendered the search unlawful. The availability of information on the officer's lapels is in law neither here nor there; and in any case nothing that we know of suggests that these officers, uniquely, were carrying details of their names and station on their lapels. In the ordinary way, one would expect their numbers but no more to be visible there, and there is no different finding in this case."

At the close of the prosecution case it was the submission made on behalf of the appellant that the search was unlawful and therefore there was no case to answer. The Recorder was referred to the statutory provisions which we have set out and to Osman. A submission was made to the effect that as the police officer had not given his name or police station, the search was illegal as the officer had failed to take any, let alone any reasonable steps to communicate the requisite information set out in section 2(3).

16. The Recorder ruled that the requirement to take reasonable steps must be looked at as a whole and the question was whether, in all the circumstances, as much information as should reasonably be conveyed to the appellant had been conveyed. There was evidence of that, and it was a question for the jury. He therefore allowed the case to proceed. When he came to sum the case up to the jury, the learned Recorder summarised the law in these terms (page 4F to 5D of transcript):

"The offence in question is committed if the defendant intentionally obstructs such a search. There are certain safeguards to prevent people from being searched at random and being harassed by the police. In particular, the policeman has to take reasonable steps to bring certain matters to the attention of the person to be searched. Those reasonable steps include -- and the focus in this case has been on those requirements -- that the police officer tells the person to be searched his name and the police station to which he is attached.

It is not an issue in the present case that PC Mansson, who was the initiator of the search, the principal actor among the prosecution witnesses, did not give those matters to [the appellant] at the relevant time. The important question for you is did he take reasonable steps? The Crown says he did take reasonable steps because in the circumstances which arose time was of the essence and the evidence was likely to disappear and did, in fact, disappear. That is broadly speaking, the issue that you have to decide."

The jury considered the evidence and returned verdicts of guilty.

17. It is contended on behalf of the appellant that the Recorder had summed the law up incorrectly but more importantly that there the case should have been stopped at the close of the prosecution case because there was simply no evidence that the police constable had taken reasonable steps to bring to the attention of the appellant the constable's name and name of the police station and until he had done so, he could not commence the search.
18. The law is not any real doubt. The words of the section are clear and the decision of the Divisional Court in Osman has merely underlined the clear words. The question before us, therefore, is whether there was any evidence that the officer had taken reasonable steps before he commenced the search to bring to the attention of the defendant the constable's name and the police station to which he was attached.
19. In our view, all that the officer had to say was his name, "Mansson", his police station, which we understand to be "Charing Cross" and then continue with the words "drugs search, spit it out". There was no need for him to say any more. But Parliament has specified that he had at least to say that. Had he taken reasonable steps to do so? It in our view clear that there is no evidence that he did, there is no evidence that he gave his name and that there is no evidence that he gave his police station. It is common ground he did not. It seems to us that the requirements of the section are clear. This is not a case where Parliament has legislated that the officer should do so, if it was reasonable in all the circumstances to do so, which is more or less the view that the learned Recorder took, but they had specified that certain steps have to be taken. It may well be for the reasons given by Sedley LJ that Parliament set out strict formalities in order to unsure that a person's civil liberties were protected.
20. It has been urged on our behalf by Mr Rustom, on behalf of the Crown, that we ought to take a more liberal view of this section and Parliament surely intended that, if in circumstances such as these someone might swallow the drugs, a police officer was entitled to act without giving his name or police station, even though he did say "drugs search, spit it out".
21. There are, we think two answers to that. First, that is not what the Act says, and secondly, in any event there is no evidence that it was impracticable for him to give the words "Mansson, Charing Cross". It is asserted that within the time available he was not able to give the words "Mansson, Charring Cross". There is absolutely no evidence that was in fact the case. There are only three words and we find it impossible to credit that that those words could not have been said. Thus, on the particular facts of this case, there are two answers. First, there is no evidence that those words could not have been said and, even if there was, although the point does not arise in this case, we do not think that Parliament contemplated that those steps should be omitted. It would have been easy for Parliament to have chosen different words.
22. In a decision of the Administrative Court, given by McCombe J in Bonner v the DPP [2004] EWHC 2415 (Admin) Admin McCombe J said at paragraph 18:

"While one has the very greatest sympathy with officers who have to confront day in and day out the realities of life rather than the black letter law which this court has to apply, that law does have to be applied."

It seems to us that if these particular provisions are thought not to be applicable to the present position, then it is for Parliament to look at those words again. Indeed, no one has been able to make clear to us why the Metropolitan area of London, for example, the name of the police station has to be given. But that is not a matter for us. Parliament decided that was necessary and, in our view, it is for us merely to apply the law. It follows, therefore, that the learned Recorder should have ruled that there was no case to answer as the provisions of section 2 had not been complied with and therefore the case should not have gone to the jury. In those circumstance we have no alternative, though we share entirely the sympathies expressed by McCombe J, but to quash the conviction.