CO/3385/2005 
Neutral Citation Number: [2005] EWCA 3046 (Admin)
IN THE HIGH COURT OF JUSTICE 
QUEEN'S BENCH DIVISION  
THE ADMINISTRATIVE COURT 
Royal Courts of Justice 
Strand
London WC2 

Wednesday, 2nd November 2005
 
B E F O R E:

MR JUSTICE NEWMAN 

- - - - - - -
THE QUEEN ON THE APPLICATION OF HAWKES
(CLAIMANT)

-v- 

DIRECTOR OF PUBLIC PROSECUTIONS
(DEFENDANT) 
 - - - - - - -
Computer-Aided Transcript of the Stenograph Notes of 
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 Q WHITAKER (instructed by Ben Hoare Bell) appeared on behalf of the CLAIMANT
MISS L MUSTARD (instructed by Crown Prosecution Service) appeared on behalf of the DEFENDANT
 - - - - - - -
J U D G M E N T 
1.	MR JUSTICE NEWMAN:  This is an appeal by way of case stated by the Justices for the County of Tyne and Wear acting for the local justice area of Wearside.  The appellant was convicted by the Sunderland Magistrates on 16th February 2005 and sentenced on 9th March for offences of assaulting a police officer and obstructing a police officer in the execution of his duty on 5th October 2004.  The appeal concerns only the offence of assaulting a police officer in the execution of his duty.  No appeal is pursued in relation to the obstruction for reasons which will be apparent from the judgment. 
2.	On 5th October 2004, in a summary of the facts which I take from the case stated, Police Constables Slee and Loscum attended an address to arrest the appellant's son.  After arrest, the appellant followed the officers into the street and "was verbally abusive to them".  She was then warned several times about her language and the evidence before the court was that her conduct, as seen by the officers, was not within the range of responses which could be regarded as reasonable at "having been woken by an early arrest".  The appellant then got into the police car which was outside her house, into which her son had been put.  She did this of her own accord.  Having got in the car, she was given warnings but she refused to get out and was abusive.  She was at that stage arrested for breach of the peace.
3.	When cross-examined PC Slee, in answering questions about the appellant's behaviour and the reason for the arrest, replied that the reason for her arrest was that she "refused to get out of the police car".  She did get out of the police car when a second police vehicle arrived.  Having done so, she went towards her home.  At this, the Police Constable took hold of her arms to detain her but she took the arm, by some means, to her mouth and bit his hand.  
4.	It will be apparent from the above where the gravamen for the charges was based.  There was conduct which is not disputed amounted to obstructing the police in the execution of their duty, namely behaving in the way that she did and getting into the police car, and there was an assault, namely the biting of the officer.  But the issue which is before this court turns on whether or not her arrest for breach of the peace was lawful or not.
5.	In essence, Miss Whitaker, in an able and forceful argument which she has put before this court, submits that there was insufficient evidence to justify a finding that there had been a breach of the peace.  I emphasise the fact that the submission is directed towards the contention that a breach of the peace had occurred by the time the appellant was arrested.
6.	It is convenient now to remind oneself of the law.  Miss Whitaker submits that there is a power of arrest for breach of the peace, (1) where a breach of the peace has been committed in the presence of the person making the arrest, or (2) where there is a threatened breach of the peace, the person making the arrest reasonably and honestly believing that such a breach could be committed in the immediate future.  With that summary of the legal position, I entirely concur.  It is an accurate statement of the law.  But her starting point on the appeal is that it was the case for the prosecution in the court below that the appellant had been arrested on the ground that a breach had been committed in the presence of the police officer making the arrest.  Miss Whitaker points to the following parts of the case stated to support that submission: 
(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.
7.	It is a feature of this case that the case stated is regrettably sparse in the findings which were made in relation to the evidence in the case.  There is no indication from the case stated as to whether the Magistrates accepted or rejected the evidence that the appellant never became violent nor threatened violence at any time.  The findings, such as they are, are terse, but it would appear that the findings, terse as they are, point to the Magistrates having accepted her evidence for in paragraph 11 at (c) they record: 
"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. 
8.	In the light of these three points, Miss Whitaker submits that it is beyond argument that the Magistrates proceeded upon the basis that a breach of the peace had been committed in the presence of PC Slee, at or about the time the appellant was sitting in the car.  This is a compelling submission.  The court's initial reaction upon reading the terms of the case stated and the submission made by Miss Whitaker, as it appeared in her skeleton argument, was that there was a risk the appeal, if allowed, would be allowed on a false basis; namely that the prosecution's case may have been that the arrest was lawful, because the officer reasonably believed that a breach of the peace was imminent and that the case stated simply did not reflect this position.
9.	Fortunately, the court has had the advantage of Miss Mustard appearing for the respondent, who was counsel instructed for the prosecution below.  She has been able to assist.  She has informed the court that she did not advance a case of a threatened breach of the peace as being the ground or reason for the arrest by PC Slee, and that the case did proceed upon the basis of an actual breach.  In those circumstances, it was only right that the appeal should be allowed to proceed upon that basis.
10.	I turn to such law as it is necessary to review.  The well known case in this area is R v Howell [1982] 1 QB 416.  At page 426, between F and H, Watkins LJ, when summarising the definition of the term "breach of the peace" and the history that had been laid out before the court with the assistance of counsel, referred to the old cases as not being a sure guide to what the term is understood to mean today: 
" . . . 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 ..." 
11.	I pause, breaking the citation at this point, to add that in the 21st century, conduct such as undeniably occurred on this occasion, namely the use of abusive language and the adoption of an aggressive demeanour going beyond that which any possible occurrence could justify, is also "all too frequent", not only as between individuals but also as between members of the public and the police.  I have no doubt that conduct involving such extreme abuse and aggression, and and aggressive demeanour may cross the threshold and constitute a breach of the peace.  The absence of verbal threats and the absence of actual threats, for example, by the shaking of a fist, will not be determinative.  Conduct of the nature which occurred on this occasion may well cross the threshold and put a police officer in a situation where he would be entitled, on reasonable grounds, to believe that unless he arrested the malefactor, a breach of the peace might take place.  But, as I have emphasised and accepted, on this occasion the case did not proceed upon that basis.  We therefore turn back to the continuation of the citation: 
"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." 
12.	The case establishes, as I accept, that whether it be a case of actual or threatened breach of the peace, there has to be a connection to violence which appears from the evidence.  That being the test, Miss Whitaker points to the facts as found, in paragraph 3 of the case stated:   
"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. 
13.	Taken together, the facts may well have been capable of giving rise to a case of an imminent threat of violence to the police, but in my judgment there is no evidence to justify a conclusion that her conduct had involved violence or had a sufficiently violent content or connection to justify a conclusion that a breach of the peace had been committed in the presence of the police officer.  Miss Mustard has made no submission to these submissions which, as I have already indicated, I accept as being the position.  
14.	In these circumstances, the appeal against the conviction for assaulting a police officer in the execution of his duty must be allowed because the assault was one which took place when the police officer was exercising his powers unlawfully, there having been an unlawful arrest of the appellant for breach of the peace.  Because of the frequency with which conduct such as this has occasion to arise, it may be useful to point out that on this occasion there would have been nothing to prevent the police officers, short of arrest, removing Miss Hawkes from the rear of the police car with a view to preventing her obstructing the police officers.
15.	The second matter to which one can draw attention is that the offence of obstructing a police officer in the course of their duty is not an arrestable offence.  In this regard, one can refer to that which is recorded in the case of Howell at page 427, C to D, where the definition provided by the then Attorney General, Sir Reginald Manningham-Buller, in another case is referred to: 
"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." 
16.	On this occasion Miss Hawkes, once she was out of the vehicle, unquestionably, in the light of the conviction which is not appealed, had in fact committed an offence of obstructing the police in the course of their duty.  But again, as Miss Whitaker forcefully and correctly maintained, there was no power in the police officer at that time to arrest Miss Hawkes for that offence.  When she was taken to the police station she was charged with a public order offence, namely an offence against section 5 of the Public Order Act, and charged with assaulting a police officer.  It may be that she could have been arrested at the scene, as it were, in respect of the section 5 offence.  These matters give rise to difficulty for police officers in carrying out their duties in the face of conduct such as this.
17.	Before passing from the case, I should mention a further argument advanced by Miss Whitaker, and I must make some reference to the questions.  Paragraph 2 of the case stated records: 
"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.
18.	In my judgment, the Magistrates are entitled to better support from advocates.  They are entitled to help.  Advocates have a duty to conduct their cases so that the Magistrates understand the issues which are being raised.  It is not open to advocates to lightly touch on matters and pass on if a seemingly partial or favourably selective piece of evidence has been given, alternatively if it is plainly the responsibility of prosecuting counsel, in response to defence conduct of this nature, to be alert so that the Magistrates are not left in a state of suspended impartial knowledge as to what is going on.  I emphasise this in this case because I have little doubt that had the issue of the lawfulness of this arrest been canvassed fully, whether the police apprehended that a breach of the peace was imminent, could well have been made clear.  It is not to say that they would have said that that was the basis of it, but at least the position would have been clear.
19.	Next I turn to an subsidiary point which is raised by Miss Whitaker which is to the effect that in this case the failure of the Magistrates to give their reasons for rejecting a submission of no case to answer amounts to some procedural failing, or a failure to act in accordance with Article 6 of the ECHR.  It is not necessary for me, in the light of the conclusion to which I have come, to deal with this aspect of the appeal.  No specific relief is claimed as a result of it and it is not being suggested that if there was a culpable failure it has given rise to any consequence in the case, certainly as it is now being concluded by the court.  
20.	The present state of the law stands as determined by Maurice Kay J (as he then was) in Moran v DPP [2002] EWHC 89 Admin.  At paragraph 16 the judge said: 
"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.  
21.	It has been submitted here that reasons should have been given because all that was involved at the halfway stage was a question of law.  As it happens, I do not accept the submission which is made to that effect.  It is very difficult sometimes to find in any court what could be regarded as a pure point of law.  The majority of points of law turn upon particular facts.  They depend upon a precise conclusion being reached in relation to particular facts.  That, indeed, was the position in this case.  One cannot, in my judgment, isolate the facts -- as they have now been done in the light of the case stated and in the light of the understanding of the issues which the Magistrates had at the conclusion of the case -- to point to this being a case in which it was obviously outside the range of cases in which it has been concluded it is undesirable for Magistrates to give reasons.
22.	Having regard to the court's apparent ignorance, as we can see from the case stated, as to the issues which were being investigated, it seems to me that this is a case which demonstrates that the Magistrates were not in a position where they were in any way under any duty to give reasons.  Indeed, unless they have a thorough grasp at the halfway stage, much of which grasp will depend upon the way the case has been conducted by advocates before them, there is a lot to be said for them to await the final outcome and development of the case.  Suffice it to say that there has been no prejudice or unfairness or injustice to the appellant by the course which was taken.  Indeed, it might well have militated in her favour.
23.	Finally, the questions.  The first question: "Was the arrest for breach of the peace in the circumstances lawful?", to which the answer is "No".   
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". 
24.	For those reasons, the conviction for assault must be quashed.  Is there any other relief that you ask for, Miss Whitaker?
25.	MISS WHITAKER:  My Lord, that the fine and the compensation order be quashed.
26.	MR JUSTICE NEWMAN:  I am not aware of what it was.
27.	MISS WHITAKER:  My Lord, the fine is £100 and the compensation to the officer was £50, I believe.  In addition, she was ordered to pay £100 as costs, my Lord, and I am instructed to invite your Lordship to quash that order as well rather than remit it to the Magistrate to apportion costs.  Clearly she was convicted on the obstruction but I would envisage that it would be difficult for my Lord to apportion costs at this stage, if indeed my Lord thought that was appropriate.  Perhaps in the interests of saving costs I would invite my Lord simply to quash the costs order.
28.	MR JUSTICE NEWMAN:  Or, in the interest of saving costs, not to quash it.
29.	MISS MUSTARD:  My Lord, there is perhaps one point.  The trial involved a challenge to the allegation that Miss Hawkes obstructed PC Slee in executing his duties.  She was subsequently convicted of that.
30.	MR JUSTICE NEWMAN:  Yes, I think it is accepted that some of the costs must be sustainable because of the conviction which survives.
31.	MISS MUSTARD:  My Lord, from experience, costs for a summary trial are generally in a greater sum than £100.  It would appear that the Magistrates have awarded a part sum.
32.	MR JUSTICE NEWMAN:  It does not sound to me to be a great sum.  I am not minded to quash the costs, for reasons which are apparent from the judgment.
33.	MISS WHITAKER:  Indeed, my Lord.  My Lord, I would ask my Lord for a Community Legal Services funding assessment and the costs of this appeal.  I would submit that on principle -- 
34.	MR JUSTICE NEWMAN:  Yes, you have succeeded.  You cannot resist that, can you, Miss Mustard?
35.	MISS MUSTARD:  No, my Lord. 
36.	MR JUSTICE NEWMAN:  You can try, but I do not think you will be successful.
37.	MISS MUSTARD:  My Lord, I am not going to try. 
38.	MR JUSTICE NEWMAN:  Thank you both very much.