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
		18 May 2005

Mr Justice David Steel :

1. This is an appeal by way of case stated from a decision of the Combined South and East Hampshire Youth Court Panel sitting at Fareham on 9 August 2004. By virtue of its decision the appellant, who pursues this appeal by his mother and litigation friend, was convicted of an offence of assaulting a police constable in the execution of his duty, contrary to section 89 of the Police Act 1996.
2. The facts as derived from the stated case are as follows. On the 13^th April 2004 PC Bristow attended a property in Paulsgrove, Hampshire, in response to a report of a domestic incident. He was in uniform. He arrived at about 9.10 in the evening. The appellant was outside the property. The officer went inside and spoke to the occupants. He was told by them that a dispute had arisen as to the appellant's access to his new born daughter. The appellant had threatened to remove the baby. He had acted in a hostile manner towards the occupants wielding a knife and screwdriver but he had apparently been disarmed and escorted outside.
3. At about 9.40 the officer went out of the property. The appellant was still outside, having not walked away and returned to his own house which was nearby despite having been asked to earlier by the occupants. He was agitated albeit not aggressive. The officer spoke to him about his concerns and then arrested the appellant to prevent a future breach of the peace. He was put in a police van. The appellant calmed down and was later allowed to see his baby daughter outside the property whilst under arrest.
4. He then ran away pursued by the officer to his home address. During a subsequent struggle between the appellant and the officer, the appellant bit the officer on the left hand under the index finger. He was eventually restrained with the help of another officer and the appellant's mother. He was then arrested for assaulting a police constable.
5. The stated case ends as follows: -

"22. We found:

a) We believe all the witnesses are credible but there were some inconsistencies;

b) The appellant was guilty of assaulting PC Bristow who was acting in the execution of his duty.

c) That during the scuffle the appellant bit the police officer on his left hand under the index finger.

d) That the appellant's actions were reckless during the scuffle although we accept the prosecution did not put their case on this basis, we have come to this conclusion having considered all the evidence. …

23. The questions for the consideration of the High Court are:

1) Whether on the evidence and case law the justices were entitled to find there was a case to answer that PC Bristow was acting in the execution of his duty when he arrested the appellant to prevent a further breach of the peace.

2) Whether on the evidence the justices were entitled to conclude that the appellants actions were reckless during the scuffle when the prosecution did not present their case on that basis.

3) Whether there was evidence upon which the justices were entitled to convict the appellant of a reckless or any assault on a police constable in the execution of his duty."

6. There had indeed been a submission of no case on the basis that the prosecution had not established that PC Bristow was acting in the course of the execution of his duty. The thrust of the appellant's case was that, at the time of the arrest, PC Bristow had no reasonable cause to fear that a breach of the peace would occur. In my judgment, this submission was rejected correctly for the following reasons.
7. It is well established that the power of arrest to prevent a breach of the peace arises in three situations:

i) a breach of the peace is committed in the presence of the persons making the arrest.

ii) the arrestor reasonably believes that such a breach will be committed in the immediate future by the person arrested although he has not yet committed any breach, or

iii) where a breach has been committed it is reasonably believed that a renewal of it is threatened: see R v Howell [1982] 1 QB 416 at p.426 per Watkins LJ.

8. As regards the third category, the renewal of a breach of the peace must be apprehended as likely to recur within a short time: see Chief Constable of Cleveland Police v McGrogan [2002] 1 FLR 707.
9. In my judgment, the relevant material which the officer had to assess when considering whether to arrest was as follows: -

i) Prior to the officer's arrival, the appellant was reported to have been in the property, had threatened to remove the child and had acted in a hostile manner whilst wielding a knife and a screwdriver.

ii) He had been disarmed and escorted outside. However he remained outside the property having refused to walk away, albeit his house was nearby.

iii) He was upset and had stayed outside for nearly half an hour despite the presence of a police officer at the scene.

iv) Although he alleged that it was he who had been the victim of an assault rather than the other way round, this was an even less satisfactory explanation for continuing to hang around.

10. The principal submission on the appellant's behalf was that the officer failed to embark on any process of persuasion to encourage the appellant to go home and that his arrest was precipitate. Indeed this proposition was put to the officer in the cross-examination. In response he stated that in his view "taking the appellant home… would not have solved the situation." In the judgment of the officer, the arrest was the only option at the time as there was still likely to be a danger to the property or to the persons residing in it once he was no longer present. Given the very close proximity of the appellant's house to which he later ran, I do not regard the officer's evidence as unconvincing particularly at half time.
11. I would certainly agree that the avoidance of police involvement is to be preferred in seeking to calm down an essentially domestic disagreement. But the officer was aware that there had been a confrontation in which one side was contending that weapons had been wielded. This gives rise to quite different considerations: see Foulkes v Chief Constable of Merseyside Police [1998] 3 All ER 705 per Thorpe LJ at 713.g.
12. In my judgment there was ample evidence on which the justices could conclude that there were reasonable grounds for believing that a renewed breach of the peace was likely and was about to occur but for the presence of the uniformed officer.
13. I turn to the second limb of the appeal. The appellant was convicted of assault. The basis of this is set out in Paragraph 22 of the stated case. The appellant challenges these conclusions on two grounds. First that there was no evidence of recklessness and secondly that there should not have been a finding on a basis not put forward by the prosecution.
14. It is desirable to go back to first principles. An assault involving a battery is an act by which a person intentionally or recklessly causes a complainant to sustain unlawful personal violence. In the present case, there is no need to consider the actus reus further. The Magistrates have found that the appellant bit the complainant's left hand. There is in my judgment no basis for challenging the finding that there was a bite. The fact that all the witnesses were regarded as credible (with some inconsistencies) did not prevent the Magistrates reaching that conclusion. The absence of any sighting of the bite by the appellant's parents is not surprising in a fast moving struggle. As regards the appellant's own denial, the Magistrates were entitled to take the view that he may have been unable to recollect how far his actions went in the course of the struggle.
15. What is in issue is the mens rea. The prosecution case was that the bite was deliberate and intentional. It can be inferred that the Magistrates did not find this made out despite their finding that there had been a bite and the appellant's admission in cross examination that during the struggle he had "brought PC Bristow's hand to his mouth".
16. Instead the Magistrates found the appellant to have been reckless. Was this open to them? The test of recklessness in an assault of this kind involves foresight of the risk that the complainant will be subjected to unlawful force and the taking of that risk, that state of mind being coincident with the act of biting. The appellant contends that the concept of a reckless bite is unreal: either it was deliberate (which the Magistrates have rejected) or it was accidental.
17. In this regard, the appellant places reliance on Cooper v DPP [2003] Crim.L.R.116 where the appellant had been convicted of assault of a police officer in the execution of his duty where the officer had pushed the appellant whilst seeking to disperse a crowd and her foot had contacted the officer's leg. The magistrates had found that the contact was the reckless result of the appellant's general behaviour and bodily movements. Harrison, J allowed the appeal because of the absence of any findings in the Case Stated from which it was possible to identify the relevant body movements or the inference of foresight.
18. The present case is quite different. As already stated, there is no basis for challenging the finding that there was a bite. As for the appellant's state of mind at the time of the bite:

a) the appellant was struggling to avoid recapture;

b) he brought the police officer's hand to his mouth;

c) in the premises the Magistrates were fully entitled to find the risk of contact with his teeth as he shouted and struggled was clearly foreseeable and that that risk was duly taken.

19. In this regard it is of no materiality that the prosecution's case to the effect that the bite was deliberate was rejected. The appellant's case was that there had been no bite at all. An allegation of recklessness, as opposed to deliberate action, would have had no impact on the manner in which the appellant presented his case.
20. In all the circumstances I would answer the three questions posed by the court in the affirmative.

Lord Justice Brooke:

21. I agree.