England and Wales High Court (Administrative Court) Decisions

1. LORD JUSTICE SEDLEY: This is an appeal, by way of case stated, from a decision of Southwark Crown Court (His Honour Judge Hardy sitting with justices) which on 17th November 1997 upheld two convictions of the appellant for assaulting each of two police officers in the execution of their duty. The appellant was sentenced concurrently on each charge to 21 days' detention in a young offender institution which, I am sorry to have to record, he has now long since served.

2. The facts found by the Crown Court were these:

3. The Crown Court's conclusions are expressed as follows:

4. The case, as originally stated, contained no questions. By amendment, the following two questions are now posed for the opinion of this court:

5. For reasons which will appear, it seems to me that the second question needs to be addressed first. Indeed, it may well be that, by addressing the issues in the wrong order, the Crown Court contributed to the error of law which, in my judgment, has vitiated their conclusions.

6. Section 60 of the Criminal Justice and Public Order Act 1994 provides, in its material sub-sections:

7. That power had been, on the Crown Court's findings, exercised in the present case. The section then provides:

8. The powers of search so conferred are governed by the pre-existing requirements of the Police and Criminal Evidence Act 1984. Section 2 makes the following relevant provision:

9. It is undisputed - indeed indisputable - that this regime applies to the powers of search under section 60 of the 1994 Act. It is plain from the mandatory words "the constable shall not commence the search until he has performed that duty" that any search initiated without prior compliance with the duties of disclosure and information-giving set out in section 2 of PACE is an unlawful search. If so, no officer who is assaulted in conducting it is assaulted in the execution of his duty, even though it may well be that excessive resistance nevertheless constitutes an assault in law. That, however, was not the charge laid against this appellant. Indeed, it was only the manifest seriousness of the additional element of assaulting the police officers in the execution of their duty that led to his loss of liberty for 21 days. If there were any doubt about the importance of the provision, it can be readily stilled by the reflection that any search of a person, even upon reasonable suspicion, is on the face of it a trespass requiring proper justification in law. A search conducted under statutory powers which does not even require reasonable suspicion in relation to the individual is doubly appropriate for that qualification.

10. What happened in this case, on the Crown Court's findings of fact, was, as the Crown Court accepts, a breach of sub-sections 2(2) and (3) of the Police and Criminal Evidence Act 1984. From this, without more, it followed that the search which was initiated by the officers was not a lawful search and that, even though they may have been assaulted, they were not assaulted in the execution of their duty.

11. The Crown Court, it seems to me, have mistakenly approached the issue as if it were a section 78 issue in a jury trial. They have considered whether the breach, evident though it was, was venial in the light of the factors that they mention. But Mr Boothby for the CPS, with realism and candour, has accepted that this will not do. His best effort is to focus upon the word "reasonable" qualifying the noun "steps" in section 2(2) of PACE. He has submitted that, given that a daylight search of a fairground crowd by uniformed officers was plain for all to see, it was reasonable for the officers to do as they did. 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.

12. 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.

13. This being so, the appellant's conduct in presenting himself as if he were consenting to the search - assuming that that was a legitimate finding - was nothing to the point. That he may have consented to being searched would not make the search that was being inaugurated and attempted by the officers a lawful one. What is more, I have the gravest doubts about whether the officers were entitled to infer from the conduct described that there was consent to the search, much less to infer from the appellant's resistance to being searched anywhere but at a police station that he might well be carrying a weapon. Nothing in the Crown Court's conclusions or in Mr Boothby's submissions is predicated upon any suggestion that some independent ground for search, based on reasonable suspicion, had arisen in the course of the confrontation - rightly so, in my judgment, because the questions posed to do not touch on the point.

14. 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.

15. This being so, I would, if necessary, answer the first pair of questions in the negative. I do not think that the appellant's conduct amounted to consent; nor, if it did amount to consent, would it have entitled the officers, without more, to commit what technically, on any view, would have been an assault on the appellant. The question, however, for the reasons I have given, is not a necessary question. The case is concluded in the appellant's favour by the answer to the second of the questions posed.

16. Accordingly, I would allow this appeal and quash both convictions.

17. MR JUSTICE COLLINS: I have been troubled by the findings of the Crown Court in this case. Section 2 of the Police and Criminal Evidence Act 1984 has imposed a duty upon a constable, whether he is in uniform or not, to take reasonable steps before he commences the search to bring to the attention of the appropriate person the matters specified in sub-section (3) of section 2: that is to say, his name and the name of the police station to which he is attached; the object of the proposed search; his grounds for proposing to make it; and an indication that he is going to make a record, of which the individual can in due course, if necessary, obtain a copy.

18. This is, no doubt, because Parliament has recognised that a search of a person is a serious interference with his liberty, and all proper safeguards must be followed. The facts found show that there was no reason why the officers could not have given the necessary information. It is not for the court to disapply the duties set out in the Act, but only to decide whether, in a given set of circumstances, the officers have taken all reasonable steps to do what Parliament has required them to do. I emphasise that we are not concerned with the admissibility of evidence found as a result of a search, but whether the search itself was lawful, so that the officers were acting in the execution of their duty when carrying it out.

19. The first question asked by the Crown Court concerns consent. Consent is not relevant. If the officer fails to comply with section 2, there can be no proper consent. The ordinary law-abiding citizen no doubt usually accepts the constable's word that he has the powers he asserts and, if he has nothing to hide, will accept that he can be searched. But that apparent consent cannot mean that the officer is acting in the execution of his duty in carrying out the search. In any event, I cannot see how the Crown Court could reasonably have found that the officers could have assumed consent. The respondent's reaction, when the officer took hold of him in order to search him, made it as clear as it could be that he was not consenting. He said, "You cannot fucking search me here, take me to a fucking police station."

20. In those circumstances, in agreement with my Lord, I would answer the first question, that the appellant's conduct did not entitle the police to assume that there had been consent to the search and, in any event, even if they had properly assumed consent, they were not entitled to hold him in order to carry out the search. That is because the answer to the second question is quite clearly that the search was unlawful. In those circumstances I too would allow this appeal and quash the convictions.

21. LORD JUSTICE SEDLEY: Mr Jordash, is such an order as we have both proposed sufficient and in proper form, or is a remission required to the Crown Court so that it may make the necessary modification of its record? Because, of course, this not being a judicial review, quashing does not take the form of certiorari. MR JORDASH: I do not think it needs to be remitted to the Crown Court. I think the order can be made here.

22. LORD JUSTICE SEDLEY: Can the associate help us? (Pause) Mr Jordash, my concern was that the judgment in this court will lie in the Crown Office and may not reach those responsible for maintaining the memoranda of conviction and, therefore, your client's criminal record. But I gather that automatically the court's order will be sent to the chief clerk at Southwark and should therefore result in the correction of the record.

23. LORD JUSTICE SEDLEY: You are content with that?

24. MR BOOTHBY: I agree that this is the right way, because this court orders the lower court to change its ways rather than set aside.

25. MR JORDASH: The appellant is legally aided. May I request an order for any of the costs incurred by the appellant, ie travel expenses, to be reimbursed?

26. LORD JUSTICE SEDLEY: I think you are obliged, to protect the Fund, if you can, to seek an order. You can have your costs out of central funds in the ordinary way, can you not?

27. MR BOOTHBY: I have no submissions.

28. LORD JUSTICE SEDLEY: You have your costs out of central funds and you have a legal aid taxation, too.

29. ORDER: Appeal allowed. Convictions quashed. Appellant's costs to be reimbursed from central funds. Legal aid taxation.