QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT
B e f o r e :
|THE QUEEN ON THE APPLICATION OF ANTHONY COLLMAN||(APPELLANT)|
|THE DIRECTOR OF PUBLIC PROSECUTIONS||RESPONDENT)|
Smith Bernal Wordwave Limited
190 Fleet Street London EC4A 2AG
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(Official Shorthand Writers to the Court)
MR A BAILIN appeared on behalf of the RESPONDENT
Crown Copyright ©
"2.1. On 13 February 2002 PCs Logan, Tribble, Jones and Bolton, attended the appellant's address at 4 Broom Walk, Stevenage. They attended in order to arrest the appellant for an alleged offence of assault occasioning actual bodily harm to a shop assistant on the preceding day. Prior to attending the address, the officers had checked the police national computer records in respect of the appellant. The records showed that he had 'markers' for being violent and using weapons and drugs;
2.2. PCs Logan and Tribble went to the front door of the premises, where they spoke to the appellant. The alleged offence was put to the appellant. He was arrested and cautioned;
2.3. PC Logan followed the appellant into the house whilst he collected his coat and shoes. Both officers then walked the appellant to the police vehicle where they met the other two officers;
2.4. PC Logan observed that the appellant was becoming more agitated as they walked to the vehicle;
2.5 PC Tribble decided that the appellant should be given an 'empty pockets and pat-down' search before he was placed in the police vehicle. The police officers had reasonable grounds for believing that the appellant may present a danger to himself or others, thus satisfying the requirements of section 32(1) of the Police and Criminal Evidence Act 1984. There were 'reasonable grounds' because of the nature of the offence for which the appellant was being arrested, and due to the markers on the police national computer;
2.6 The appellant initially refused to be searched as he was in a public place. The appellant was moved by the officers to the rear of the police vehicle as this afforded some shielding from public view;
2.7. PC Tribble asked the appellant to empty his pockets. The appellant took some items from his pockets and gave them to PC Tribble, but then tried to snatch items back whilst the search was on-going. The appellant removed a folded piece of paper from his pocket, and tried to return it to his pocket immediately, without handing it to the officers. PC Tribble took hold of the appellant's wrists in order to get the folded paper and explain that he would have to open the paper to make sure that a blade was not concealed inside;
2.8 The officers intended to keep all of the items handed to them until the search had been concluded and then return them to the appellant;
2.9 The appellant was getting increasingly agitated throughout the search. He was shouting, clenching his fists and making unpredictable movements. The officers believed the situation was getting out of hand and that the appellant would not co-operate with the search any further;
2.10. PC Bolton decided that the appellant would have to be handcuffed before being placed in the police vehicle. He was concerned that officers may be injured because the appellant was becoming increasingly volatile and aggressive in his manner. Further, the officers could not be satisfied that the appellant did not have concealed items, as their attempts to search him had been frustrated;
2.11. PC Logan attempted to take hold of the appellant's right arm in order to apply the handcuffs. The appellant began lashing out towards the officers' faces with both hands. He flung his arms upwards in order to prevent the handcuffs being applied and struck PC Logan in the face. PC Logan was caused soreness and reddening, as a result of the blow;
2.12. All four officers tried to retrain the appellant, as he was flailing about violently and kicking out with his feet. The appellant was eventually restrained after CS spray was administered;
2.13. The appellant was conveyed to Stevenage Police Station, where he was detained and questioned for the offence for which he had been arrested;
2.14. The appellant did not intend to strike PC Logan in the face, but in flinging his arms upwards to avoid the use of handcuffs, the appellant was reckless as to whether the officer would be struck. Further, the appellant would have foreseen that his actions involved the possibility of the officer being subjected to unlawful force, but went on to take this risk regardless;
2.15 The force used by the officers to both carry out the search on the appellant and then apply handcuffs, was reasonable and appropriate in the circumstances.
2.16. PC Logan and the other officers were acted in the lawful execution of their duties in their dealings with the appellant;
Those then were the findings of fact. The stated case in its amended form then recites the evidence that was heard by the justices.
As to the moments before the alleged assault, the magistrates refer to the evidence as follows:
"All four officers gave evidence that PC Tribble attempted to put the handcuffs on Mr Collman's wrists. PC Logan, Tribble and Jones gave evidence that Mr Collman lashed out and flung his arms up. PC Jones said that Mr Collman began lashing out with both hands towards the officers' faces. She said that Mr Collman's fists were clenched and his hands were above his head;
2.24 PC Logan gave evidence that he was attempting to get hold of Mr Collman's right arm when PC Tribble was trying to apply the handcuffs. PC Logan said that Mr Collman lashed out to free himself, flinging his arm upwards hitting in him the face. The other officers did not see PC Logan being struck in the face".
"It was the intention of the police officers to return all items taken from the appellant after the search had been carried out. If items were returned one by one immediately following the pockets inspection by the officer, as the appellant contends they should, the search would become wholly impractical. The returned items would presumably be placed by the searched person in his pockets, and so when the officers carry out the 'pat-down' part of the search, the pockets would not be empty. As a result the officers would not know if the all items had been removed from the pockets and inspected. We are of the opinion that the officers were acting lawfully in requiring the appellant to empty all of his pockets and then retaining items, so a 'pat-down' search could take place, as long as it was the officers' intention to return all items which would not be legitimately seized at the end of the search."
"We find that the officers only intended to retain items taken from Mr Collman until the end of the search. To return individual items during the search would clearly make the search much more difficult to administer. We find the officers were acting lawfully in searching in this manner."
"A constable may search an arrested person, in any case where the person to be searched has been arrested at a place other than a police station, if the constable has reasonable grounds for believing that the arrested person may present a danger to himself or others."
"A constable searching a person in the exercise of the power conferred by subsection (1) above may seize and retain anything he finds, if he has reasonable grounds for believing that the person searched might use to it cause physical injury to himself or to any other person."
"Recklessness in common assault, therefore, involves foresight of the possibility that the complainant would apprehend immediate and unlawful violence in taken and taking that risk; in battery, it involves foresight of the possibility that the complainant will be subjected to unlawful force, however slight, in taking that risk."
"In the absence of any findings of fact or any other way in which one can identify from the case stated the bodily movements and the actual foresight, or inference of foresight, I feel bound to come to the conclusion that there was not, on the basis of the information before me in the case stated, any evidence upon which the justices could have convicted the appellant on the basis of recklessness."