England and Wales High Court (Administrative Court) Decisions

IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
DIVISIONAL COURT

		Royal Courts of Justice Strand London WC2
		1 December 2003

1. LORD JUSTICE ROSE: This is an appeal by way of case stated against a decision of the Sussex Justices for the Petty Sessional Division of Mid-Sussex who, sitting at Horsham, on 11th February 2003, concluded that there was in relation to the defendant (as I shall call him) no case for him to answer. Two questions were posed at the conclusion of the case stated to which, in due course, I shall come.
2. The circumstances were that, on 3rd October 2002, informations were preferred against the defendant for assaulting Police Constable Convery while in the execution of his duty, contrary to section 89(1) of the Police Act 1996, and wilfully obstructing PC Pinyoun in the execution of his duty, contrary to section 89(2) of the same Act.
3. The case stated in paragraph 2 identifies the facts found by the justices, and then rehearses the evidence given.
4. In the present case, no difficulty arises from that because the recital of facts, helpfully set out by Mr Davis, for the appellant, the Director of Public Prosecutions, in his skeleton argument are accepted by Mr Fitzgibbon for the defence.
5. The facts were these. On 3rd October 2002 a number of police officers, between 7 and 14 of them, executed a search warrant issued by magistrates on 1st October 2002, under section 23 of the Misuse of Drugs Act 1971 and section 15 of the Police and Criminal Evidence Act 1984. That warrant identified the premises to be searched as 68 Washington Road, Haywards Heath, and associated outbuildings and vehicles, on the basis of a suspicion that controlled drugs, or documents which might be connected with offences under the Misuse of Drugs Act, might be found in those premises, or in the possession of persons at those premises. It is pertinent to note, particularly having regard to the terms of the warrant in the Court of Appeal's decision in Hepburn v Chief Constable of Thames Valley, to which the justices were referred, that the warrant extended not only to the premises but also to searching any persons found therein.
6. The premises in question were on two floors. Constables Pinyoun and Convery were ordered to search and contain the upper floor. That was occupied by the defendant and two relations of his, Sheila Meaden and Christine Meaden. The defendant was immediately abusive to the officers. The procedure for searching the property was to search one room and, when it was ascertained that that was sterile in the sense that there was nothing of interest to those searching within it, the occupants of the premises were then, having themselves been searched, moved into that room, in order to enable the other rooms in the premises to be properly searched; thereby, of course, the disposal of drugs by any of the occupants, and the contamination of other rooms which had already been searched, could be avoided.
7. The defendant, in accordance with that procedure, was searched and then went into the bathroom. There was no evidence as to whether the bathroom had been searched at that time, but a bedroom was searched. It was Mrs Meaden's bedroom. The defendant was detained in the bathroom while the bedroom was being searched. He asked to go downstairs to get himself a drink. Constable Pinyoun refused. The defendant said it was his house and he could do whatever he liked. His language was robust, and he was warned about swearing. Once the bedroom had been searched, the defendant was asked to move into it. He repeatedly refused. He was warned that he might be arrested for obstructing a police officer, although, as will emerge, there are conspicuous limitations on the power of the police in that respect.
8. Constable Pinyoun sought to guide the defendant. He resisted. He held out both his arms to block the doorway, and he tensed his body and shouted abuse towards the officer. Eventually, however, although still angry, he was persuaded to leave the bathroom and was guided to the searched bedroom. There was no question at that stage of him being under arrest. But that conduct was the basis of the first of the charges against him, namely wilfully obstructing Constable Pinyoun in the execution of his duty, contrary to section 89(2), by resisting the officer's attempt to remove him from the bathroom and put him in the bedroom.
9. Once he was in the bedroom, Constable Convery was ordered to keep an eye on the defendant to ensure he did not leave it. The officer stood in the doorway to achieve this. The defendant now swore at this officer. He asked if he could go downstairs. He was refused permission and he pushed the officer. He was told to stay in the bedroom. He became more abusive and ran at Constable Convery with arms raised and fists clenched. The officer pushed him away. The defendant threw a cigarette lighter at the officer. He was, thereupon, arrested for assaulting Constable Convery in the execution of his duty.
10. The case stated indicates that the justices were referred to three authorities: Donnelly v Jackman (1970) 1 WLR 562; Rahman (1985) 81 Cr App R 349 21, and Hepburn v Chief Constable of Thames Valley Police (as reported in the Time Law Report of 19th December 2002). They were also referred to certain passage in Blackstone's Criminal Practice. Their conclusions are set out in paragraph 6 of the case:

"We were of the opinion that the police officers had stepped outside their duty by not allowing the Respondent to move about the premises. The police had no express power to detain the Respondent and he was therefore falsely imprisoned. When the Respondent obstructed the search the officers' remedy was to arrest him in accordance with the case of Hepburn. The police on failing to arrest the Respondent detained him unlawfully and therefore acted outside their duty. An essential element of both of the offences was missing and therefore there was no case to answer and the case was dismissed."

11. The case concludes by posing these questions for the consideration of this court:

"Are police officers that are executing a search warrant of a property acting within the execution of their duty if they ask individuals within the property to go into and remain in certain rooms whilst they are searching other rooms in the property? Further, are they entitled to prevent individuals from leaving the property altogether?"

It is to be noted that in posing those questions the justices refer to the search warrant in relation to the property. They do not refer to the material aspect of this search warrant, which related to persons within the premises as well as the premises. To those questions, in due course, I shall return.

12. The submission which is made on behalf of the Director, by Mr Davis, is that police officers are acting in the execution of their duty in requiring those within premises, the subject to lawful search, to remain in sterile rooms within the premises during the search, or at least to refrain from visiting non-sterile areas of the premises subject to the search. It is further submitted that the present case is distinguishable from Hepburn because the search warrants in Hepburn simply authorised a search of the premises, rather than extending also to persons within them. Furthermore, whereas Mr Hepburn was seeking to leave the premises subject to search completely, the defendant was seeking to "move freely" within the premises during the search. Mr Davies submits that the reasoning of Hepburn should be reviewed because the judgment of Sedley LJ, with which the other members of the court agreed, appears to proceed on the basis that the offence of obstructing a police officer in the execution of his duty under section 89(2) of the Police Act 1996 is an arrestable offence.
13. So far as that aspect of the matter is concerned, it is common ground that there is no express power of arrest for wilful obstruction of a police officer in the execution of his duty contrary to section 89(2) of the Police Act 1996. It is an offence triable only summarily, and section 26 of the Police and Criminal Evidence Act 1984 repealed, subject to express exemptions within Schedule 2, any Act enabling a constable to arrest a person for an offence without warrant. Neither section 23(4) of the Misuse of Drugs Act 1971, nor section 89 of the Police Act 1996 is specified among the exceptions listed in Schedule 2. By paragraph 22, Schedule 1(a), an offence under section 89(1) of the Police Act is specified but not an offence under section 89(2). And so, it is common ground, the only power of arrest that the officers carrying out this search would have had, in relation to obstruction of their conduct, would be if the criteria identified in section 5 of the Police and Criminal Evidence Act 1984, by way of general arrest conditions, were fulfilled. Those general arrest conditions, as identified in section 25(3), are for present purposes:

"(d) that the constable has reasonable grounds for believing that arrest is necessary to prevent the relevant person:

(i) causing physical injury to himself or any other person;

(ii) suffering physical injury;

(iii) causing loss of, or damage to, property."

Accordingly, submits Mr Davies, when the judgment of the Court of Appeal in Hepburn [2002] EWCA Civ 1841 is considered in the full transcript (that full transcript not, as I have said, being before the justices at the time of their decision) paragraph 14 of Sedley LJ's judgment is not, as it stands, a correct statement of the law. Sedley LJ said:

"If a person obstructs a police officer in the execution of his or her duty an offence is committed and a power of arrest arises. That, and not an implied power to detain or manhandle people who are doing nothing wrong, is how the law protects officers executing a search warrant from interference."

14. That passage, submits Mr Davies, has to be read in the light of the absence of any specific power of arrest, for the reasons which we have given, in relation to obstructing a police officer in the execution of his duty, and the need, before any power of arrest could arise in the circumstances of such a search as the one with which we are concerned, for the criteria set out in section 25 of the Police and Criminal Evidence Act to be fulfilled. That is to say, there is no general power of arrest merely because someone is obstructing a police officer in the execution of his duty.
15. I return to the statutory provisions which gave rise to, and supported, the issuing of the search warrant in the present case. Section 23 of the Misuse of Drugs Act 1971, provides in material part:

"Powers to search and obtain evidence ...

(2) If a constable has reasonable grounds to suspect that any person is in possession of a controlled drug ... the constable may-

(a) search that person, and detain him for the purpose of searching him ....

(3) If a justice of the peace ... is satisfied by information on oath that there is reasonable ground for suspecting-

(a) that any controlled drugs are, in contravention of this Act or of any regulations made thereunder, in the possession of a person on any premises; or

(b) that a document directly or indirectly relating to, or connected with, a transaction or dealing which was, or an intended transaction or dealing which would if carried out be, an offence under this Act ..."

A search warrant can be issued. Section 23 continues:

(4) A person commits an offence if he-

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

16. Section 15 of the Police and Criminal Evidence Act 1984 was the other section under which a search warrant in the present case was issued. It identifies the safeguards in relation to the execution of search warrants, which impose a variety of duties and obligations upon a constable who is applying for the issue of such a warrant.
17. Section 117 of the Police and Criminal Evidence Act 1984 provides:

"Power of constable to use reasonable force

Where any provision of this Act

(a) confers a power on a constable; and

(b) does not provide that the power may only be exercised with the consent of some person, other than a police officer,

the officer may use reasonable force, if necessary, in the exercise of the power."

18. The Code of Practice issued under PACE has a status identified by sections 60, 66 and 67 of the Act, namely it is designed to regulate the conduct of persons charged with the duty of investigating offences. Non-observance of the Code does not of itself give rise to any criminal or civil liability, but compliance therewith, or breach thereof, may be relevant to decisions about the admissibility of the evidence. The Code of Practice for the Searching of Premises by Police Officers and the Seizure of Property found by Police Officers on Persons or Premises, provides:

"B:5.9 Premises may be searched only to the extent necessary to achieve the object of the search, having regard to the size and nature of whatever is sought."

And B:5.10 provides:

"Searches must be conducted with due consideration for the property and privacy of the occupier of the premises searched, and with no more disturbance than necessary. Reasonable force may be used only where this is necessary because the co-operation of the occupier cannot be obtained or is insufficient for the purpose."

19. In the light of those provisions, Mr Davies submits that the Code provisions as to reasonable force echo the power to use reasonable force set out in section 117. It follows, he submits, that, in any particular case, a police officer will be acting in the execution of his duty if he uses reasonable force to execute the search warrant; whether force is reasonable is obviously a matter of fact in each case.
20. Mr Davies submits, and this is conceded by Mr Fitzgibbon on behalf of the defendant, that it is a legitimate and proportionate reading of any statutory power to search that reasonable steps may be taken by the police to ensure that the search is effective. The right of any individual to move freely around premises as they are searched, and thereby likely to compromise the search, must be balanced against the forensic requirements of the search in terms of evidence. There is an obvious public interest in the police being able to carry out thorough, effective, searches, and to secure the integrity of exhibits for evidential purposes.
21. Mr Davies submits that, in the present case, the justices do not appear to have taken into account the section 117 powers to which I have referred. Had they done so, rather than directing themselves in accordance with the Times Law Report in Hepburn they could, he submits, only rationally have concluded that the police officers in the present case were using reasonable force and thus acting in the execution of their duty. It would defeat the object of the search of premises and occupants of premises, if members of the public from outside, or occupants within the premises, were permitted to wander freely around the premises during the search. Accordingly, he submits, the defendant's detention was reasonable in the context of this search, and such force as was used was reasonable as being ancillary to the power to search. Had he been permitted to wander around the premises it might well have been necessary to search him again.
22. On behalf of the defendant, Mr Fitzgibbon submits that the justices were entitled to find that Constable Convery was not acting in the execution of his duty when the defendant assaulted him. The defendant was not being lawfully detained, the police having no power to detain him at the time. In that the defendant was prevented from leaving first the bathroom and then the bedroom, he was being held in unlawful detention. Section 117, he submits, does no more than permit the police to use reasonable force when exercising the power conferred by other provisions of PACE. It confers no freestanding right to use force, much less to detain someone. The question which arises, in particular under code B:5.10, is whether the defendant was being so unco-operative once the police had entered the premises that it was a necessary and proportionate response to detain him in the manner in which he was detained. The submission is that it was not so necessary and proportionate and, therefore, the justices were entitled to reach the conclusion they did.
23. Mr Fitzgibbon referred to a number of authorities: O'Loughlin v Chief Constable of Essex [1998] 1 WLR 374 and, in particular, a passage in the judgment of Roch LJ in that case, at page 383, where he referred to the:

"severe burden which a constable has to discharge when trying to prove that the use of force was really necessary in order to justify his use of force."

That observation, for my part, I bear in mind.

24. Mr Fitzgibbon also referred to R v Jones and Nelson (unreported, Court of Appeal (Criminal Division) of 26th March 1999) and to certain observations by Beldam LJ in relation to Code C, paragraph 8.9, and Beldam LJ's view that the requirement that reasonable force may be used to secure conditions of detention does not authorise the use of force to bring about a confrontation. That observation, in a very different factual context, does not, to my mind, assist in the resolution of the present case.
25. Mr Fitzgibbon submits, courageously, that it is immaterial that the justices relied on Hepburn. Mr Fitzgibbon also referred to Ludlow v Burgess (1982) Cr App R 277 and Bentley v Brudzinski 75 Cr App R 217. It is to be noted that the facts in those cases were very different and, in particular, neither of them related to the execution of a search warrant. For my part, I do not find them of assistance in the present case.
26. Mr Fitzgibbon finally relied on Articles 5 and 8 of the European Convention on Human Rights. Article 5 asserts everyone's right to liberty and security. He submits that what occurred in the present case was not "within a procedure prescribed by law" within (c), namely the lawful arrest or detention of a person for the purpose of bringing him before the competent legal authority. For my part, I am happy to accept that that is so. It may well be, as it seems to me, however, that the conduct here was within (b) of Article 5.1. Be that as it may, it does not seem to me that Article 5 adds anything to the common law principles which are, to my mind, determinative in the present case.
27. As to Article 8, the right to respect for private and family life. The provisions in relation to interference by a public authority, so far as is in accordance with the law and necessary in a democratic society for the prevention of disorder or crime, seem to me, again, not to add, in the circumstances of the present case, materially to the common law position.
28. In essence, Mr Fitzgibbon's submission amounted to this. Absent any specific statutory power, this defendant ought to have been permitted, having himself been searched, to wander around the premises save those parts which were in the process of being searched. Any other conclusion, he submits, would be a step too far in conferring power upon the police in carrying out this search.
29. As it seems to me, the justices' reliance on the Court of Appeal's decision in Hepburn was misplaced. They were plainly thereby led into error. The crucial distinction between Hepburn and the present case, although this is perhaps not as clear from the Times Law Report, to which the justices were referred, as it is from the full transcript which is before us, is that the search warrant in that case was limited to the premises, whereas here the warrant applied both to the premises and to any persons found there. It is not for this court to question the conclusion reached by the Court of Appeal on the particulars facts in Hepburn. But the reasoning of Sedley LJ in paragraph 14, which I have rehearsed, may, on some future occasion, merit consideration. It may also be that, in Hepburn, the warrant was issued only under section 23(3) of the Misuse of Drugs Act 1971, for section 117 of the Police and Criminal Evidence Act was not referred to in the judgment in that case. But, in any event, for the reasons which I have already sought to explain, contrary to the observation made by Sedley LJ, there is not any general power of arrest for obstructing a police officer in the execution of his duty.
30. That said, those are not matters which affect the outcome of the present appeal because, as I have already indicated, Hepburn is plainly distinguishable from the present case. Furthermore, the warrant here was not only issued in relation to persons as well as premises, it was issued under both section 23 of the 1971 Act and section 15 of the Police and Criminal Evidence Act, in relation to which there are the powers enshrined in section 117 of that Act. Section 23 conferred on the officers a power to detain people for the purpose of searching them, and section 117 conferred the power to use reasonable force for the purpose of executing the warrant.
31. I accept Mr Fitzgibbon's submission that the primary focus of section 117 no doubt relates to the circumstances in which officers in executing a warrant enter premises, and it is not the entry of the premises which gives rise to the present difficulty. But it is also plain to my mind that section 117 also extends to what goes on once the premises have been entered and are being searched and also when the occupants of the premises are being searched. Whether, in a particular case, the force used is reasonable, depends on the particular facts and, in my judgment, has to be gauged in the context of the purpose for which the force is being used.
32. Here the warrant authorised a search of premises and persons for controlled drugs and documents connected with drugs offences. That authority, to be meaningful, had, as it seems to me, to enable the search to be effective. It could not be effective, particularly in premises on two floors, presently occupied by a number of people, if the occupiers were permitted to move about freely within the premises while the searches were going on. Although I accept it is for the police to show, and the burden upon them is a heavy one, that the use of force was necessary and reasonable, it seems to me to be entirely reasonable that officers should seek, by no more force than is necessary, to restrict the movement of those in occupation of premises while those premises are being searched.
33. In the present case, it was reasonable to restrict the defendant initially in the bathroom while the bedroom was being searched and, subsequently, in the bedroom while the rest of the premises were being searched.
34. Accordingly, returning to the questions posed by the justices at the end of the case, I would answer both of them in the affirmative, subject to the proviso that what is appropriate depends on the facts of the particular case. The justices were, in my view, wrong to accede to the submission that there was no case to answer.
35. If my Lord agrees, I would allow this appeal and remit the matter to the justices to continue the hearing.
36. MR JUSTICE JACKSON: I agree. In Chief Constable of Thames Valley Police v Hepburn [2002] EWCA Civ 1841 at paragraph 14, Sedley LJ said:

"It is a bedrock of our liberties that a citizen's freedom of person and of movement is inviolable except where the law unequivocally gives the state power to restrict it. If a person obstructs a police officer in the execution of his or her duty an offence is committed and a power of arrest arises. That, and not an implied power to detain or manhandle people who are doing nothing wrong, is how the law protects officers executing a search warrant from interference."

37. The latter part of that paragraph is open to question for the reasons stated by Rose LJ. However, the first sentence of that paragraph states an important principle of English law, which is not open to question. In the present case the warrant issued under section 23 of the Misuse of Drugs Act 1971 and under section 15 of the Police and Criminal Evidence Act 1984, expressly authorised police officers both to search the property and also to search any persons within the property, such as the respondent.
38. In my judgment, that search warrant, in conjunction with the statutory provisions governing it, did unequivocally give to police officers the power to restrict the respondent to a sterile room during the currency of the search.
39. Accordingly, the important principle of law stated by Sedley LJ was not infringed by restricting the respondent to the bedroom and the bathroom at the relevant time.
40. In those circumstances, the justices erred in law in concluding at the end of the prosecution evidence that there was no case to answer.
41. LORD JUSTICE ROSE: The case will be remitted so that the justices can continue the hearing in accordance with the judgment in this case.
42. MR FITZGIBBON: Thank you, my Lord. My Lord, I have two further applications to make. First, may I please apply for legal aid taxation for this hearing?
43. LORD JUSTICE ROSE: Yes, if you need that order you have it.
44. MR FITZGIBBON: And, as far as inviting the court to certify a question is concerned, my Lord may I respectfully ask for seven days to consider?
45. LORD JUSTICE ROSE: I think you may be permitted 14 days. You will, no doubt, bear in mind, when considering that matter, that any question has got to be one of general public importance.
46. MR FITZGIBBON: Yes, of course.
47. LORD JUSTICE ROSE: Thank you.