England and Wales High Court (Administrative Court) Decisions

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

		Royal Courts of Justice The Strand London WC2A 2LL
		15 April 2005

Friday 15 April 2005

LORD JUSTICE LAWS:

1. This is an appeal by way of case stated against the appellant's conviction on 22 July 2004 at the Harrogate Magistrates' Court of an offence of assaulting a police constable in the execution of his duty, contrary to section 89(1) of the Police Act 1996. The appellant was acquitted of a further offence of resisting a police constable in the execution of his duty, contrary to section 89(2) of the 1996 Act. Both charges arose out of the same incident which took place on 4 July 2003.
2. The magistrates found the following facts:

"A. That the appellant, on the day in question, was taking part in a march organised as part of a protest against the invasion of Iraq, in the vicinity of the Menwish Hill RAF base near Harrogate.

B. That the route prescribed by the police for the said march included the main highway adjacent to the base but not the areas between the highway and the perimeter fence of the said base.

C. That a large number of participants were present at the march who mostly behaved in a proper manner. However, a group of between 12 and 20 members, including the appellant, left the road and approached the perimeter fence, having crossed a ditch in order to do so. There is some form of footpath that runs alongside the perimeter fence.

D. That, fearing possible damage to the perimeter fence, the police officers present decided to intervene. They made a verbal request to the group to return to the road which resulted in a small number of people doing so.

E. That the appellant did not return to the prescribed route as requested, as a result of which Police Sergeant Pollard pulled him back by the rucksack which the appellant was wearing. In the course of the struggle which took place on the ground, the appellant deliberately knocked off Sergeant Pollard's police helmet. The appellant was eventually arrested and hand-cuffed.

F. We were invited to find (but declined to do so) that the appellant had knocked off PS Pollard's helmet in order to provide a distraction which would cause the release of his partner, Nancy Jackson, who at the time was being restrained by him."

In the following section of the case stated the magistrates summarise the testimony of the witnesses who gave evidence. They included Sergeant Pollard, the appellant, and his partner Nancy Jackson. The issue relevant to the assault charge was whether at the material time PS Pollard had reasonable grounds to believe that the appellant might be about to cause damage to the perimeter fence and thereby commit an arrestable offence. If he did not, the officer was not acting in the execution of his duty and the appellant was not guilty of the offence of assaulting him in the execution of his duty.

3. The recital of the evidence includes this in relation to Sergeant Pollard:

"The people were asked to return to the road as they were no longer on the prescribed route and he [the sergeant] feared that some form of damage could be caused to the fence. The appellant, being a young male carrying a rucksack, was considered by the officer to be one of the people most likely to cause any damage."

The inference (although it is not expressly stated) is that this evidence was accepted by the magistrates. The magistrates then set out their reasoning in the case as follows:

"6. We were of the opinion that

a) as the appellant had deliberately left the road and started to approach the perimeter fence of the base, he had put himself in a position where the police were obliged to intervene;

b) this police intervention was reasonable because a group of 20 people, who had ignored warnings and requests to go back onto the road, were moving towards the perimeter fence. This group, which included the appellant, had no legitimate reason to approach the fence and it was reasonable for PS Pollard to believe that criminal offences, such as damage or aggravated trespass, could occur. We concluded that in asking the appellant to move away from the fence and in physically attempting to turn him away from the fence PS Pollard acted reasonably and in the execution of his duty.

c) the allegation that the appellant slapped PS Pollard was not supported by sufficiently strong evidence and indeed some contradictory accounts were given. However, the appellant admitted to deliberately knocking off PS Pollard's hat which, in our view, constituted an assault, that is to say an intentional or reckless act which caused (PS Pollard) to apprehend immediate unlawful force or personal violence;

d) the appellant argued that by knocking off PS Pollard's hat this would somehow have distracted the officer and had the effect of releasing Miss Jackson who was being restrained by PC Booth. This was, in our view, an extremely tenuous argument and we could find no causal link between the hat being dislodged and the release of Miss Jackson. We therefore rejected the argument of defence of another."

4. The questions posed for the opinion of this court are as follows:

"i. Were the magistrates correct in finding that PS Pollard was acting in the execution of his duty?

ii. Were the magistrates correct in rejecting the submission of no case to answer?

iii. Were the magistrates correct in rejecting the appellant's argument of self-defence?

iv. Were the magistrates' findings of fact supported by the evidence?"

There can be no doubt that the magistrates were entitled to reject the argument of self-defence or defence of another. The contrary is not pursued by Mr Shaw. The real question is whether there was evidence to support the conclusion that PS Pollard was acting in the execution of his duty. Mr Shaw says that the fact that the appellant was young, male and carrying a rucksack cannot reasonably have given rise to an apprehension by the officer that the appellant was about to damage the fence; that something more was required which objectively pointed to the likelihood of his doing so; and that the fact that the group of twelve to twenty had no legitimate reason to approach the perimeter fence was irrelevant to the question whether the appellant might indeed damage it. In short, Mr Shaw submits that there was not material before the magistrates which entitled them to conclude on the facts that PS Pollard reasonably apprehended that the appellant would damage the perimeter fence.

5. I do not agree with these submissions. Mr Shaw's argument, although attractively put, is unreal. The officer surely had to consider the whole situation. The context was an anti-war demonstration. The fence was at the perimeter of the Royal Air Force base. The group of twelve to twenty left the prescribed route plainly deliberately, and crossed a ditch to approach the perimeter fence. The appellant was one of those who refused to return to the road when requested to do so. It was clearly reasonable to fear that the fence might be damaged by this group, or some of them, including the appellant. While I doubt whether the rucksack matters very much, the officer was entitled to have regard to the fact that the appellant was a young male.
6. The conclusion reached by the bench here was well within the range of results open to them on the evidence. I would answer all four questions in the affirmative and dismiss the appeal.
7. MR JUSTICE DAVID STEEL: I agree.
8. LORD JUSTICE LAWS: Thank you, Mr Shaw.
9. MISS DODDS: My Lord, I am instructed to apply for costs.
10. LORD JUSTICE LAWS: Are you legally aided, Mr Shaw?
11. MR SHAW: I am legally aided, my Lord, yes.
12. LORD JUSTICE LAWS: What order do you seek, Miss Dodds?
13. MISS DODDS: My Lord, perhaps an order for costs not to be enforced without leave.
14. MR JUSTICE DAVID STEEL: The reality is that you are not going to get your costs unless it is established that the appellant had sufficient means or comes into sufficient means.
15. MISS DODDS: My Lord, as far as I understand it, the appellant is in full-time employment and is certainly in a position to pay some costs.
16. LORD JUSTICE LAWS: You should be asking for a specific and relatively modest sum then.
17. MISS DODDS: My Lord, my instructions are to request the sum of £1200. Of course it is a matter for your Lordships.
18. LORD JUSTICE LAWS: That is far too much. We think £1200 is far too much. We are going to make you £300, unless you can persuade us to do any better than that?
19. MR SHAW: My Lord, I am grateful. I cannot. I wonder if that might be paid at £100 a month?
20. LORD JUSTICE LAWS: Very well.
21. MR SHAW: I am very grateful, my Lord.