QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT
B e f o r e :
|THE QUEEN ON THE APPLICATION OF HAWKES||(CLAIMANT)|
|DIRECTOR OF PUBLIC PROSECUTIONS||(DEFENDANT)|
Smith Bernal Wordwave Limited
190 Fleet Street London EC4A 2AG
Tel No: 020 7404 1400 Fax No: 020 7831 8838
(Official Shorthand Writers to the Court)
MISS L MUSTARD (instructed by Crown Prosecution Service) appeared on behalf of the DEFENDANT
Crown Copyright ©
(1) That the officer when cross-examined as to the reason for the arrest did not state that he arrested her because he believed that a breach of the peace was threatened. According to the case stated, paragraph 4, the position, she said was as follows:
"The officer's evidence was that Miss Hawkes voluntarily got into the police car that her son had been put in and then refused to get out of the vehicle despite warnings to her by the police. She continued to be abusive. PC Slee then arrested her for breach of the peace. PC Slee was cross-examined about the appellant's behaviour and the reason for the arrest. To the latter, his response was that the appellant refused to get out of the police car."
(2) The case records the evidence given by Miss Hawkes which was to the following effect. That while she was abusive to the police, it was because the officers had behaved inappropriately in arresting her son. She argued that she never became violent nor threatened violence at any time, nor was her behaviour unreasonable in the circumstances. She also said (which I will summarise only) that the reason that she went out was to take a jumper to her son and that the police in fact trapped her in the police car and refused to let her get out.
"Having heard all the evidence the Magistrates found that:
(i) she accepted that she was abusive to the police;
(ii) she was obstructing the police. By her demeanour she made the police job more difficult . . . "
Miss Whitaker emphasises, in my judgment correctly, that the Magistrates found that a breach of the peace took place. They said in paragraph 11(c)(iv):
"The breach of the peace took place while she was [excluding a grammatical error] sitting in the car. She was [again a similar grammatical error] sitting in the car of her own free will. She was asked to get out several times. Her evidence was unclear. She was arrested because there had been a breach of the peace. Her manner and language were abusive and aggressive.
" . . . since keeping the peace in this country in the latter half of the 20th century presents formidable problems which bear upon the evolving process of the development of this breach of the common law. Nevertheless, even in these days when affrays, riotous behaviour and other disturbances happen all too frequently ..."
"We cannot accept that there can be no breach of the peace unless there has been an act done or threatened to be done which actually harms a person or in his presence his property, or is likely to cause such harm or which puts someone in fear of such harm being done."
"Evidence was heard from PC Slee and PC Loscum that they attended Miss Hawkes' address in order to affect the arrest of her son. Miss Hawkes allowed the officers access in order to affect the arrest and caused no obstruction at this stage. She then followed the officers into the street and was verbally abusive to them. She was warned several times about her language by the officers. The officers [contended] that her behaviour went beyond what was reasonable for someone who was angry for having been woken by an early arrest."
Paragraph 4 I have already read relating to the reason for the arrest. Paragraph 11 states that she was abusive, that she was obstructing the police, that she made the police job more difficult, that she was asked to get out of the car several times and then her manner and her language were abusive and aggressive. In this catalogue of highly discreditable behaviour, no verbal threats are disclosed and so far as violent conduct is concerned or even touched upon, nothing more than the adoption of what is described as an aggressive manner can be relied upon which, as Miss Whitaker submits, does not constitute violent conduct for the purposes of breach of the peace.
"The Attorney General, to whom the court is grateful for his assistance, has appeared and has told the court that he feels unable to contend that a constable is entitled to arrest somebody for obstructing him in the course of his duty, which of course is a misdemeanour under the Prevention of Crimes Amendment Act 1885 unless the circumstances show that a breach of the peace or an apprehended breach of the peace is involved, meaning by that some affray or violence or possible disturbance."
"A central issue which was only raised by the defence in the trial when a submission of no case to answer was made was whether the arrest by PC Slee had been lawful. At no time in cross-examination was PC Slee nor his colleague PC Loscum, who was present at the scene, questioned in relation to the lawfulness of the arrest."
Criminal proceedings should not proceed by way of ambush, and this is a principle which applies equally to the prosecution as to the defence. If, as appears to be the case, the Magistrates had not understood what was being raised by way of defence nor understood what a line of questioning by way of cross-examination was directed towards, it would indicate that the defence did not properly perform their task. Miss Mustard candidly accepts that she had an understanding that a point was being raised in the line of cross-examination which had as its goal establishing a case for the arrest being unlawful. But the case also records this:
"The CPS responded that the defence had not challenged the lawfulness of the arrest in cross-examination and mentioned that the case as cited should be reviewed on the basis of the facts as they were."
Again, Miss Mustard has been able to shed some light on that matter. She accepts that she did make it plain to the bench that there had not been a specific challenge to the lawfulness of the arrest -- for example, it had not been put to the officer that there had been an unlawful arrest -- but through her own experience clearly she understood that that is what was implied.
"Having regard to all that authority, what then is the position in relation to a refusal by Magistrates to accede to a submission of no case to answer? In my judgment, even after 2nd October 2000 there is still no legal obligation on the Magistrates to give reasons for rejecting a submission of no case. It is now usual for us to give reasons following a finding on appeal, and that has been done in this case. If a defendant is concerned about the conduct or outcome of a summary trial, he has a number of procedural options. In particular, (1) an appeal by way of re-hearing in the Crown Court, (2) an appeal by this court by way of case stated, in which case the Justices may be required to explain in the case stated the route by which they reached a particular conclusion, or (3) in some circumstances on application for judicial review."
The judge then went on to observe that it would not be in the interests of justice if Magistrates were required to give detailed reasons for their current assessment of the evidence and the weight to witnesses at the end of the prosecution case. There was then further discussion of the comparative differences between the Crown Court position and the Magistrates' Court position.
The second question is: "Were the Justices entitled to find at the conclusion of the prosecution case that there was a case to answer in relation to the allegation of assaulting a police officer?". In the light of the answer to the first question, the answer to that plainly must be "No".
Third: "Was it acceptable for the Justices not to give reasons for finding that there was a case to answer?". In the fact of this case I am satisfied it was.
The fourth question is: "Whether, having found a case to answer, the Justices were entitled to find proof beyond reasonable doubt on these facts that the appellant had acted aggressively and that the arrest was therefore lawful?". It will be apparent from the judgment that it is not in issue that the Magistrates were entitled to conclude that the appellant had acted aggressively, but, for the reasons contained in the judgment, the arrest was not lawful.
The last question of "Whether the Justices were entitled to find that by failing to get out of the police vehicle the appellant wilfully obstructed the police officer in the execution of his duty". As to that, there is no issue and the answer therefore is "Yes".