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 WC2A 2LL
		Friday, 5th November 2004

1. MR JUSTICE FULFORD:

Introduction

2. This is an appeal by way of case stated against a decision of the Luton and South Bedfordshire justices on 8 April 2004 convicting the appellant of an offence of assaulting a police constable in the execution of his duty contrary to section 89 of the Police Act 1996.
3. The applicant did not give or call evidence during the trial and the submissions on his behalf before the court below were directed at the sufficiency of the prosecution evidence. A submission was made at the conclusion of the prosecution evidence that there was no case to answer: it was argued that the evidence was insufficient to found a proper conviction. This argument was broadly repeated in the different context of the defence closing submissions prior to the justices retiring to consider their verdict: it was argued that the evidence was such that the justices should not be satisfied to the criminal standard of the applicant's guilt.

Evidence

4. The prosecution witnesses naturally did not give wholly identical accounts and the following summary is a distillation of the key evidence of the four main witnesses. We are bound by the findings of fact made by the justices and accordingly any differences between the prosecution witnesses is essentially immaterial, given that this court, in determining this appeal, does not have a fact-finding role.
5. On 16th March 2003 four police officers, responding to a 999 emergency telephone call, went to the appellant's home. They were aware that there had been a report from a woman, who had identified herself, as we now know, as a Miss McGowan, that a drunken man was attempting or had attempted to remove her child from 66 Holly Bush Road, Luton.
6. The contents of that emergency call are of high significance, given the arguments advanced in support of this appeal. The caller said, inter alia:

"He is taking my baby out of the house drunk."

7. The call was interrupted and when contact was re-established, the caller said that the man had gone but had not taken the child. However, during this second part of the conversation it was clear the caller was being prompted or interrupted by someone in the background. Moreover, it was not clear whether the man referred to was the appellant or another man, or how many people either had been or were at the premises. At the end of the call Miss McGowan, on being informed officers were on their way, said:

"No, I do not want you up here."

8. When the officers were approaching the house via the footpath, the appellant, who the officers knew lived at the address or had done so in the past and who had a reputation for aggression, threw open the door and came towards them in an extremely aggressive manner with his arms spread wide open, making a pushing motion away from the house and telling them they had 30 seconds to get off his property. Police Sergeant Nouch described how he found this behaviour and statement quite intimidating and he took what was said as a threat. Police Sergeant Millar said he was in fear at the time and that the appellants behaviour was very loud and tending towards violence. Mr Millar said that they were told twice that they should:

"Fuck off this property. You have 30 seconds."

9. Any attempts by the officers to explain that they were there for the welfare of the child or children were met by shouts of abuse and aggressive actions on the appellant's part.
10. As the appellant returned to his house, he was followed by the officers, who, out of concern for the child or children they believed to be inside the house, attempted to force an entry. They acted pursuant to their powers under section 17(1)(e) Police and Criminal Evidence Act 1984, which enables them to enter and search any premises for the purpose of saving life or limb. Police Sergeant Nouch pushed up against the front door with his body and tried to get an arm inside the door. The appellant apparently pushed the door against him and the officer's arm thereby became stuck. The officers called out to the appellant why they wished to enter the premises and the appellant was warned he was committing a breach of the peace. Police Sergeant Nouch, whose arm was still stuck and who feared he might be injured as a result, then warned the appellant that CS gas spray would be used if he persisted. When the officer heard further shouting inside the house, CS gas was sprayed through the gap in the door, which hit the appellant. The door then opened and the appellant, who was found in the front room with his hands over his face, no doubt because of the spray, was removed from the house. He struggled during this and continued to be abusive to the officers and, whilst so behaving, he was handcuffed. The appellant resisted while the handcuffs were being placed on him. He said to Police Constable Parsons:

"You do not know what you done. You wait,"

in a way that the officer took as a personal threat. Mr Nouch heard him say:

"I am going to get you. Do you know I have found out where Ken Hughes lived."

And:

"1251, I'll find you."

11. Mr Nouch described that these things were said aggressively and with venom.
12. Prior to that the officers had been unable formally to arrest the appellant. However, before he was placed in a police vehicle, Police Constable Parsons informed the appellant that he had been arrested in order to prevent a breach of the peace, and thereafter, as the officer opened the door of the police vehicle in order to place the appellant inside, the latter spat at PC Parsons, hitting him on the chin area to the right side of his face. The appellant continued to struggle and was eventually placed in a van. Mr Blench was not formally arrested for the assault until the following day.

The Findings of the Justices

13. The justices identified the question they had to answer in the case was whether the appellant was guilty of assaulting a police constable in the execution of his duty on 16 March 2003. They found that he did assault the officer by spitting at him. The two further questions they considered fell for determination were, first, whether the officer had been acting in the execution of his duty at the time of the assault and, second, whether what happened between the arrival of the officers at the scene and the assault was lawful and particularly whether the appellant's arrest for a breach of the peace was lawful.
14. The justices explained their conclusions as follows:

"We ... heard that officers attended Mr Blench's address as they were concerned that a violent domestic incident had occurred, or was occurring, involving Miss McGowan and, possibly, another male, and that children were known to be present at the address.

"We are satisfied the officers had statutory powers to make an entry to the premises pursuant to s. 17 Police and Criminal Evidence Act 1984 [and at this point the justices referred to the provisions of s.17(1)(e) in full]. We are satisfied the power was being used appropriately in this case.

"We have heard that Mr Blench made it clear that he did not wish the officers to remain on or in his property. We find that Mr Blench was hostile in an obvious way towards the police, to such an extent that the police felt that a breach of the peace was about to be committed.

"It seems to us that the police were entitled to seek entry to the premises, not only to save life and limb, but to investigate an arrestable offence.

"The question is, was the officer entitled to arrest Mr Blench for a breach of the peace, or would it have been more appropriate to arrest him for obstructing a police officer in the execution of his duty?

"It is clear from the evidence that Mr Blench was arrested for breach of the peace.

"At the submission of no case to answer we were asked to consider the common law power of arrest of a person who is acting lawfully -- the case of Lesley Edward Bibby v Chief Constable of Essex Police ((2000) 164 JP 297, CA; judgment 6th April 2000) was cited. In that case it was said that six conditions must be met in relation to the person who is to be arrested and to his conduct.

"We have been asked to revisit our finding that all six of those conditions have been met, in particular condition 4 (the submission was that there was no consequence of violence from anywhere other than the police or any third party). We do find that condition and the other five conditions have been met. It is quite conceivable that once Mr Blench had retreated into his house, Miss McGowan or another male may have been present. Bearing in mind what was in the transcript of the 999 call, they may have been involved in further potential violence.

"It seems to us the situation was highly volatile and the police had to make a quick decision as to what action to take. We find the police acted lawfully in arresting Mr Blench and in attempting to gain entry to the premises.

"We note that CS gas was used and that Mr Blench would have been affected but we are sure the spit was [a] deliberate act, which amounted to an assault of PC Parsons.

"We do not draw any adverse inferences regarding Mr Blench's failure to give evidence.

"We find Mr Blench guilty as charged, beyond reasonable doubt."

The questions in the appeal

15. The questions posed for this court by the justices are:

i. Was there evidence on which the justices could have come to the decision they did with regard to the submission of no case to answer?

ii. Mr Blench was told the police wished to check upon persons inside the house and that by trying to prevent officers gaining entry he was committing a breach of the peace and liable to arrest for a further breach of the peace. Did Mr Blench, upon receipt of that information, have the lawful right to deny entry to the police officers into his house?

iii. Was the court correct in finding that, as police officers, they had the right of entry under section 17 of the Police and Criminal Evidence Act 1984 this made irrelevant what information was passed to Mr Blench (ie that they were acting under common law)?

iv. Was the court correct in finding PC Parsons was acting in the execution of his duty when arresting Mr Blench?

The submissions of the appellant

16. Mr Speed, on behalf of the appellant, has advanced, both orally and in writing, a number of diverse arguments, which have been clearly set out before us, certainly in part, in helpful submissions today. Without, I hope, doing injustice to the matters he has raised, the four principal submissions that underpin the appellant's case, as I understand them, were, in outline, as follows:

i. There was no evidence of a breach of the peace, actual or likely, on the part of the appellant, before he was detained; accordingly, it is argued that the officer was not acting in the execution of his duty at the moment of the alleged assault.

ii. The clearest evidence of an impending breach of the peace is required before the extreme step is taken of effecting an arrest.

iii. In any event, the police had no right to be within the curtilage of the property, particularly given that Miss McGowan had said that she did not want officers to attend there, thereby withdrawing any licence to enter the premises and accordingly the officers were trespassers, both ab initio and later, when they followed Mr Blench into the house or attempted to do so.

iv. The officers contravened the provisions of section 28(3) of the Police and Criminal Evidence Act 1984 when they arrested Mr Blench for assault but delayed until the next day informing him of the reasons for that arrest.

17. In amplification of those arguments, it is suggested that, prior to attempting to enter the premises, none of the officers had been injured and there had been no threat of injury or any other sufficient unlawful threat to the officers. In the premises it is contended that the appellant's conduct alone did not found a reasonable apprehension that a breach of the peace was likely. Further, Mr Speed argues that the appellant had terminated any short-lived right that the officers may have had to be on the property.

Breach of the peace and the power to detain or arrest

18. In the recent case of R (on the application of Laporte) v Chief Constable of Gloucestershire [2004] 2 All ER 874; [2004] EWHC 253 Admin May LJ confirmed the now long-accepted definition of breach of the peace together with the arrest powers for such a breach as follows:

"There is a breach of the peace whenever harm is actually done or is likely to be done to a person or in his presence to his property or a person is in fear of being so harmed through an assault, an affray, a riot, unlawful assembly or other unlawful disturbance. For such a breach of the peace when done in his presence, a constable or anyone else may arrest an offender without a warrant (see R v Howell [1981] 3 All ER 383 at 389; [1982] QB 416 at 427). A constable or an ordinary citizen has a power of arrest where there is 'reasonable apprehension of imminent danger of a breach of the peace'. This includes where the arrestor reasonably believes that a breach of the peace will be committed in the immediate future by the person arrested (see [1981] 3 All ER 383 at 388; [1982] QB 416 at 426)."

19. In Albert v Lavin [1982] AC 546 Lord Diplock, at page 565, said:

"…every citizen in whose presence a breach of the peace is being, or reasonably appears to be about to be, committed has the right to take reasonable steps to make the person who is breaking or threatening to break the peace refrain from doing so; and those reasonable steps in appropriate cases will include detaining him against his will. At common law this is not only the right of every citizen, it is also his duty, although, except in the case of a citizen who is a constable, it is a duty of imperfect obligation."

Analysis

20. Although, as I have observed, a significant number of issues have been advanced by Mr Speed, with various authorities cited in support of his submissions, in my judgment the answers to the justices' questions are straightforward and they are most conveniently revealed by considering this incident chronologically, together with the lawfulness or otherwise of the appellant's and the officers' actions at each stage, on the evidence before the justices.
21. Section 17(1)(e) Police and Criminal Evidence Act 1984 provides a complete answer to the submission that the officers were trespassers, either ab initio or when they attempted to enter the house. An emergency call had been made, in which it was stated that a drunken man was trying to take a woman's child. Although at the end of the report to the police Miss McGowan claimed the man had gone without removing the child, and she did not want the police to attend, the original account by her was on any view a highly worrying one and, given there was a voice in the background during the second part of the call interrupting or prompting Miss McGowan, the police were fully entitled, as an exercise of their discretion under the section, to enter on to the premises without a warrant to investigate. This entitlement was in addition to the implied licence that all subjects, including police officers, have to approach the front door to a house: Snook v Mannion [1982] Crim LR 601. I would observe, however, that whether or not Miss McGowan's statement "I do not want you here" was sufficient in the circumstances to terminate that licence is not an issue which needs to be resolved on this appeal given my conclusions as to s.17 (1) (e).
22. Moreover, once they arrived, they were met by the appellant, who behaved in an extremely aggressive, intimidating and threatening manner. If he had been the man referred to during the emergency call, contrary to what Miss McGowan had said, he had not left the premises and accordingly the police were fully entitled to be concerned that a child may be at risk, either from him or from someone else. Indeed, if on these extreme facts the police had meekly turned on their heels and walked away, they would, in my judgment, have been in grave dereliction of their duty, given both the worrying terms of the first part of the 999 call and the power already referred to under s. 17(1)(e) that enables officers to enter and search any premises for the purpose of saving life or limb.
23. Accordingly, I unhesitatingly conclude that the officers were acting lawfully in approaching the front door of the house and, once they had been met by the bizarre and aggressive behaviour of the appellant, who tried to exclude them from the property, they were fully entitled, as an exercise of discretion, to attempt to enter the house for the purpose of securing (saving) the child who had been the subject of the original call to the police.
24. The appellant has submitted that the officers should at the very least have left the premises when ordered to do so by Mr Blench and, once they failed to do so, they became trespassers and all their actions thereafter were both unlawful and outside of their duty. For this proposition he relies on Davis v Lisle [1936] 2 KB 435; however, that authority goes no further than confirming that permission to be on private property can be revoked. On the facts of this case, that undoubtedly correct statement of the law does not assist the appellant because the officers were acting under the powers expressly conferred on them by s.17 (1) (e), which rendered their presence on the property lawful.
25. Bearing in mind the definition of breach of the peace set out above, there was abundant evidence in my view on which the police could reasonably determine that there had been a breach of the peace and for them reasonably to apprehend that in the immediate future this may be repeated whilst they lawfully attempted to secure (save) the child. The appellant's words and actions outside the house, together with the trapping of the officers' arm in the door, led to a reasonable conclusion both that harm had been done and was likely to be done to a person; as regards that latter possibility, the appellant's behaviour overall demonstrated the risk of harm to one or more of the officers in the immediate future.
26. Turning to the power of arrest, there were sustainable reasons, therefore, to conclude that an arrest was necessary both because a breach of the peace had occurred and in order to prevent a recurrence, since it was reasonably apprehended it was likely imminently to be repeated.
27. If follows that Police Constable Parsons was acting, in my judgment, in the execution of his duty and, having arrested the appellant, he was then assaulted. The argument that he was acting unlawfully at that stage is unsustainable: the prosecution had led evidence during the trial establishing that at each stage the officers had acted lawfully and within the execution of their duty (see Riley v DPP (1990) 91 Cr App R 14).
28. One consequence of those conclusions is that Lesley Edward Bibby v Chief Constable of Essex Police (ibid) and the six conditions identified by Schiemann LJ during the course of his judgment in that case that should be met before this common law power of arrest is exercised, relied on by the appellant, is irrelevant to the present appeal. That case involved the risk of a breach of the peace following, and being provoked by, lawful behaviour on the part of the person who was arrested. In those circumstances, as the Court of Appeal indicated in Bibby, it was critical that pre-detention criteria needed to be satisfied that protected, insofar as is possible, the position of the person who, though responsible for the apprehended breach of the peace, had not committed any unlawful act. Here, in my judgment, the appellant had acted unlawfully, both by a clear and serious breach of the peace and by obstructing the officers in the execution of their duty. Accordingly, the six-point test identified in Bibby did not arise.

The answers to the questions

29. Against that analysis I would answer the questions as follows:

i. Given my conclusions on the twin issues of the lawfulness of the actions by the officers and the breach of the peace, both committed and threatened by the appellant, the justices were correct to reject the submission of no case to answer, and I answer this question in the affirmative.

ii. Although I consider this question as essentially irrelevant to the validity of the justices' conclusions on both the submission at the close of the prosecution case and their finding of guilt, in my judgment the appellant was not entitled to attempt to bar the officers from the house, given they were acting pursuant to section 17 (1) (e) and they had told him, or had attempted to tell him, why they were seeking to enter. Police Sergeant Nouch had explained that they were seeking entry for the safety of the child and any further explanation was prevented by the appellant and his violent reaction. In those circumstances, by threatening and impeding the officers as he did, the appellant was unlawfully obstructing them in the execution of their duty. Accordingly, I answer the second question in the negative.

iii. I have concluded the police have a right of entry into the house pursuant to section 17 (1) (e) of the 1984 Act. They explained substantively why they were at the house and any technical mistake, such as reference to the common law rather than statute, would not render their actions unlawful or take them outside the execution of their duty. Accordingly, I answer this question in the affirmative.

iv. I have already indicated that in my view Police Constable Parsons was acting in the execution of his duty in arresting the appellant and in consequence the answer to the fourth question is yes.

30. An outstanding argument of Mr Speed that falls for consideration is whether the officers, in arresting Mr Blench, contravened the provisions of section 28(3) Police and Criminal Evidence Act 1984. The relevant parts of that section provide as follows:

"(3) Subject to subsection (5) below, no arrest is lawful unless the person arrested is informed of the ground for the arrest at the time of, or as soon as is practicable after, the arrest."

31. The short answer to the submission is that where it is not practicable for an officer to inform someone who is being arrested of the reason for his arrest, the arrest should be maintained until it is possible to inform the detained person of the reason. If, later, the officer failed to inform the prisoner timeously of the ground of arrest, although that would constitute a breach of section 28(3), it would not invalidate or otherwise have an effect on what had gone before: DPP v Hawkins [1989] 88 Cr App R 166. The officers, on the evidence before the justices, attempted to inform Mr Blench that their detention of him in the house was for a breach of the peace, but they were prevented from communicating this properly or at all because of the appellant's aggression and violence. Having been taken outside, Police Constable Parsons told the appellant he was under arrest in order to prevent a further breach of the peace, thereby complying fully with the provisions of section 28(3).
32. The failure formally to arrest Mr Blench for the assault on Police Constable Parsons until the following day does not impact on the answers to any of the questions posed by the justices in this case. That delay in giving reasons cannot retrospectively render unlawful the detention of the appellant by the officer, not least because he had been arrested correctly and lawfully for breach of the peace. The detention of the appellant was, accordingly, wholly lawful and this delay could not affect, certainly not in any material way, the decision of the justices as to whether there was a case to answer; at most, it went marginally to the officer's credit.
33. Having reached the conclusions I have explained and having answered the four questions against the appellant, it follows I would dismiss this appeal.
34. LORD JUSTICE THOMAS: I agree. Mr Speed, Miss de Silva, thank you both.