England and Wales High Court (Administrative Court) Decisions

IN THE HIGH COURT OF JUSTICE
DIVISIONAL

		Royal Courts of Justice Strand, London, WC2A 2LL
		14/05/2008

Lord Justice Latham :

1. This is an appeal by way of Case Stated from a decision of the Crown Court at Luton which, on 17^th July 2007 dismissed the appellant's appeal against his conviction on the 27^th June 2006 by the North Hertfordshire Magistrates Court for two offences of assaulting police officers and one offence of threatening behaviour.
2. The charges arose out of the events of the evening of the 23^rd February 2006. The police received a report that a customer by the name of Fraser had been disruptive and had smashed an ashtray at a public house, The Standard Bearer in Stevenage. The police officers who attended, Police Sergeant Cannon and Constables Davies and Brown who went to the scene were given a vague description of the man known as "Fraser". A check of the Police National Computer suggested that the man might be the appellant who had a reputation for violence and was infected with Hepatitis B. None of the police officers knew the appellant. Acting on information that they had received, the three officers went to Yates Wine Bar near the public house. The facts thereafter, as found by the Crown Court in its Case Stated, were as follows:

"7. On approaching Yates Wine Bar a man fitting the

description of "Fraser" emerged from the premises.

8. Sergeant Cannon took hold of the appellant by the arm and asked,

"Are you Fraser?"

9. The appellant denied that he was Fraser whereupon PC Davies took hold of the appellant's other arm.

10. Some seconds later, others emerged from Yates Wine Bar and spoke to the appellant referring to him as "Fraser".

11. We accepted the un-contradicted evidence of Sergeant Cannon about his (the Officer's) state of mind at this time when he said in cross examination,

"I was looking for Fraser, who had been reported to me as having committed an offence of criminal damage by throwing an ashtray in another public house, and I had a vague description. I had not met him but I knew him by reputation. I could imagine which way it would go if we sought to arrest him. When he (the appellant) came out of the wine bar where he was - Yates Stevenage - I had a good idea it was him. I couldn't arrest him as I was not sure who he was. I took hold of his arm, and asked, "Are you Fraser?" in order to detain him to confirm who he was. Thereafter, a very short time after, others came out of Yates and talked to him, referring to him as "Fraser". It crystallised and gave me reasonable grounds to arrest him. As soon as I started to detain him, he became agitated…"

12. By the time that those others had emerged from the wine bar and had addressed the appellant as "Fraser", he, the appellant, was struggling with the Officers and trying to pull away. The appellant became increasingly violent and in the ensuing struggle the appellant assaulted both Constables Davies and Brown and was guilty of threatening behaviour.

13. Because of his behaviour the appellant could not and was not informed of the reasons for his arrest at that time but was told the reason as soon as was reasonably practicable thereafter

14. Constables Brown and Davies were assaulted whilst acting in the execution of their duty.

15. The appellant was guilty of threatening behaviour contrary to Section 4 of the Public Order Act, 1986."

3. The Case Stated then went on to set out the submissions on behalf of the appellant which it said that the court rejected for the reasons given in the oral ruling by His Honour Judge Bevan on convicting the appellant. The relevant part of the ruling was in the following terms:

"The reality of the situation is – although this is not, it seems to us, crucial on this point – that he was dealing with a man that he believed, from information he had, had hepatitis B; was violent; could be seen to be drunk; and who had in fact committed an arrestable offence, as well as the officer believing that he had.

This is not a question of semantics. It is our clear view that whatever the officer says about detaining him to confirm who he was, and, "--only when others referred to him as "Fraser", having put my arm on him to detain him, it crystallised and gave me reasonable grounds to arrest him".

In fact, if one asks the question whether the officer had reasonable grounds to suspect that an arrestable offence had been committed by the person standing in front of him, the answer is clearly that it had, and what the officer was doing was detaining him because he had reasonable grounds for suspicion. That suspicion crystallised in to…certainty at the point at which, first of all, it was confirmed in his mind that he was called Fraser because other people referred to him as "Fraser", and, secondly it confirmed in his mind that the person who he was detaining, who had denied being Fraser, was obviously lying and therefore behaving as if he had something to hide. In addition, he fitted the vague description of the person named Fraser that they were looking for.

We are therefore quite satisfied that what the officer was doing, as he was justified in law in doing, was seeking to arrest this man, and it is a question of semantics to say whether he was detaining him or arresting him. The fact is that he plainly had reasonable grounds to suspect the person in front of him as having committed an arrestable offence and was putting that into practice, even if he may have used unfortunate wording in cross-examination. We are satisfied that that was what he was trying to do. We are therefore satisfied that what he did, and what others following did, was lawful"

4. Mr Bowden, on behalf of the appellant, submits that the court was not entitled to come to the conclusion that it did. It is, he submits, trite law that a police officer is not acting in the execution of his duty if he seeks to restrain someone either when he has no grounds to arrest him, or when he is not purporting to arrest him, but merely to detain him or otherwise restrain him. In the latter situations, a police officer has no more right to lay hands on someone than any other member of the community. The person so restrained is entitled to use reasonable force to free himself. He has referred us to a number of authorities, but in particular to the clear statement of principle to this effect, in the judgment of the Lord Chief Justice, Lord Parker, in Ludlow & Others v Burgess 75 Cr App R 227. He submits that the findings of fact in the Case Stated did not permit the court to conclude that the distinction made by Sergeant Cannon in his evidence between detaining the appellant and arresting him was mere semantics. The Sergeant, whether rightly or wrongly, concluded when he first took hold of the appellant that he did not have the power to arrest him under s.24 of the Police and Criminal Evidence Act 1984, and did not purport to arrest him. If he had done so, he would have been bound to inform the appellant that he was under arrest. There is no suggestion that the appellant was told at that stage that he was under arrest. In those circumstances, the conclusion that the court came to that the appellant was under lawful arrest at the relevant time, that is when he was struggling, was a conclusion which was not open to the court on the facts.
5. On behalf of the Respondent, Mr Fields submits that Sergeant Cannon, and indeed Constables Brown and Davies had reasonable grounds for suspecting that an offence, namely criminal damage, had been committed, and that the appellant, who answered the description of the man Fraser, was the person who had committed it. Accordingly, they were entitled to arrest the appellant pursuant to s.24 (2) of the Act. The court was therefore entitled to conclude that, although Sergeant Cannon did not consider that he was arresting the appellant in the first instance, that was in reality what he was doing and the two constables, in helping him, were accordingly effecting a lawful arrest when the appellant struggled. He was therefore guilty of the offences charged.
6. I have no doubt that on the basis of the Case Stated, Mr Bowden's submissions are well founded. It is perhaps unfortunate that there are no findings as to the intentions of the two constables. Nor are there any findings as to what, if anything, the officers may have said. The facts of the present case seem to me to be covered by the decision of this court in the case of Kenlin & Another v Gardiner & Another [1967] 2 Q.B. 510. In that case two school boys, innocently visiting a number of premises for a perfectly lawful purpose, aroused suspicion of police officers on duty in plain clothes. One of the police officers produced his warrant card, stated that they were police officers and asked why they were calling at the houses. It would appear that the boys did not believe that they were police officers. One of them made as if to run away and one of the constables caught hold of his arm and cautioned him. There was then a struggle which involved the other boy. Winn L. J. stated the issue in the following terms at page 519:

"So one comes back to the question in the end, in the ultimate analysis: was this officer entitled in law to take hold of the first boy by the arm – of course the same situation arises with the other officer in regard to the second boy a little later – justified in committing that technical assault by the exercise of any power which he as a police constable in the precise circumstances prevailing at that exact moment possessed?

I regret, really, that I feel myself compelled to say that the answer to that question must be in the negative. This officer might or might not in the particular circumstances have possessed a power to arrest these boys. I leave that question open, saying no more than I feel some doubt whether he would have had a power of arrest: but on the assumption that he had a power to arrest it is to my mind perfectly plain that neither of these officers purported to arrest either of these boys. What was done was not done as an integral step in the process of arresting, but was done in order to secure an opportunity, by detaining the boys from escape, to put to them or either of them the question that was regarded as the test question to satisfy the officers whether or not it would be right in the circumstances, and having regard to the answer obtained from that question, if any, to arrest them.

I regret to say that I think there was a technical assault by the police officers."

7. It seems to me that the inexorable logic of this passage is that where a police officer restrains a person, but does not at that time intend or purport to arrest him, then he is committing an assault, even if an arrest would have been justified. In the present case, Sergeant Cannon did not intend or purport to arrest the appellant when he restrained him and at no stage in the course of the fracas which resulted, did he assert that he was arresting the appellant. If he had done so or either of the constables had done so, before the appellant struggled in order to obtain his release, the position would be different. But the facts found do not support such a conclusion. It follows that the appeal is allowed, and the convictions must be quashed.

Mr Justice Underhill

8. I agree.