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
		3rd November 2009

1. LORD JUSTICE ELIAS: The claimant was convicted on 6th November 2007 of an offence of obstructing police officers contrary to section 23(4) of the Misuse of Drugs Act 1971. The issue in this case is whether that conviction should stand.
2. The background facts are as follows. The claimant had been seen by police officers. He appeared to be acting in a suspicious manner. Initially, he sought to avoid them by hiding behind a wall, but he then started walking towards them. The officers approached him and when five metres away the claimant was seen to place something in his mouth. He then placed a cigarette in his mouth. He was questioned at the scene. He was informed that he was going to be searched pursuant to section 23 of the Misuse of Drugs Act 1971. He was asked to open his mouth. He did so and the wrap of drugs was seen. At that point, the police officer took hold of him by the throat and told the claimant not to swallow the wrap. He did swallow it and at that stage he began to struggle. It was then that he was arrested under section 23(4) of the Misuse of Drugs Act.
3. Section 23(4) provides:

"A person commits an offence if he --

(a) intentionally obstructs a person in the exercise of his powers under this section . . .

Section 2 of the Police and Criminal Evidence Act is also material in this case. It provides, in so far as is material:

"(2) If a constable contemplates a search, other than a search of an unattended vehicle, in the exercise . . .

(b) of any other power, except the power conferred by section 6 below and the power conferred by section 27(2) of the Aviation Security Act 1982 --

(i) to search a person without first arresting him . . .

it shall be his duty, subject to subsection (4) below, to take reasonable steps before he commences the search to bring to the attention of the appropriate person . . .

(ii) whether he is in uniform or not, the matters specified in subsection (3) below;

and the constable shall not commence the search until he has performed that duty.

(3) The matters referred to in subsection (2)(ii) above are --

(a) the constable's name and the name of the police station to which he is attached;

(b) the object of the proposed search;

(c) the constable's grounds for proposing to make it; and

(d) the effect of section 3(7) or (8) below, as may be appropriate."

There is no need to spell out sections 3(7) or 3(8).

4. Section 2 is then supplemented by paragraph 3.2 of Code A of the Code of Practice issued under the Police and Criminal Evidence Act 1984. Paragraph 3.2 provides:

"The co-operation of the person to be searched must be sought in every case, even if the person initially objects to the search. A forcible search may be made only if it has been established that the person is unwilling to co-operate or resists. Reasonable force may be used as a last resort if necessary to conduct a search or to detain a person or vehicle for the purposes of a search."

5. Mr Southey advances two grounds on which he says this conviction cannot be sustained. The first and primary argument he advances is this. He submits that in order for the police to be acting in the execution of their duty, they must be acting lawfully. They are not acting lawfully if they use force when the suspect is cooperating in the search. The evidence here establishes that the suspect was cooperating in the search, and therefore there was no justification for using force against him. He was entitled, in the circumstances, to seek to resist the use of that force, therefore the police officers were not acting in the execution of their duty and he was not obstructing them in the exercise of their duty.
6. The second argument he advances (which did not figure very prominently, it has to be said, in the initial application for judicial review) is a much simpler point. He observes that the requirement under section 2 is, amongst other matters, for the policeman, before the search begins, to take reasonable steps to inform the suspect of his name and the name of the police station to which he is attached. The evidence from Officer Rabbett, who is the officer who primarily conducted this search, indicates that he did not comply with that requirement. The judge considered that matter and concluded that it was not material because the officer in fact knew the suspect well. They had come across each other on a number of previous occasions and therefore he considered that this was not a sufficiently serious matter to render the search unlawful.
7. We will deal with this second issue first. We agree with Mr Southey that the authorities are clear that however formalistic this requirement may appear to be, it is one which the courts have insisted must be complied with in order for the subsequent search to be lawful. The most authoritative decision confirming this is the case of R v Bristol [2007] EWCA Crim 3214, a decision of the Court of Appeal. That case in turn follow the decision of the Divisional Court in Osmond v Southwark Crown Court, in which it was held that a breach of section 2(3) would render a subsequent search unlawful. It follows that an attempt to resist the police when conducting such an unlawful search cannot constitute a failure to cooperate with them.
8. In the Bristol case the evidence was that again the suspect was known to the officer who commenced the search, but that was held to be no excuse for the officer failing to give his name and station. Thomas LJ, giving the judgment of the court which included Silber J and Cook J, observed that there was nothing impracticable about the officer identifying his name and station and that, however technical the error, nonetheless it rendered the subsequent search unlawful. He said this at paragraph 22:

"It seems to us that if these particular provisions are thought not to be applicable to the present position, then it is for Parliament to look at those words again . . . Parliament decided that was necessary and, in our view, it is for us merely to apply the law."

That case has in turn been followed more recently in B v Director of Public Prosecutions [2008] EWHC 1655 (Admin).

9. We are plainly bound by the decision of the Court of Appeal. It seems to us to apply directly to the circumstances of this case. The failure to identify name and station renders the subsequent search unlawful. It means that the officers were not then acting in the execution of their duty and no offence was committed under section 23(4). On that ground, therefore, we would uphold this application and set aside the conviction.
10. Mr Southey runs a separate argument, as I have indicated. He says that there was no failure to cooperate by the suspect and there was no proper evidential basis on which the judge was entitled to find that there was. The judge had relied on two matters. Firstly, the fact that the suspect had hidden behind a wall when initially he saw the police, and then the placing the object in his mouth before the police officer took hold of him. I do not think that the first reason shows any failure to co-operate with the search; by that time he was not seeking to avoid the officers. It is a nice question whether it can be said that the suspect had demonstrated that he was not cooperating by the act of placing the drug, as it was suspected to be, in his mouth. The judge below considered that that was sufficient evidence of non-cooperation notwithstanding that when asked to open his mouth subsequently he did so.
11. We do not find it necessary to resolve this matter. We have come to a clear view in relation to the ground which I have already identified that this was an unlawful search. In the circumstances, we think it not necessary to explore this second and more difficult issue. We say that in particular since Mr Southey alone is represented before us today and there is nobody from the defendant, understandably, or the Crown Prosecution Service as an interested party. We were able to deal with this matter on the basis that there was non-compliance with section 2. That is fatal to the subsequent search and fatal in turn to the conviction.
12. MR JUSTICE DAVID CLARKE: I agree
13. MR SOUTHEY: My Lord, I raise two matters. One, which I suspect is perhaps obvious, is that we seek an assessment of our costs for the purposes of the Community Legal Service. Secondly, perhaps less obviously, we would also seek our costs from central funds. The reason I do that, and I have done that in a number of previous judicial reviews, is for two reasons. First, it is clear, particularly these days, the Community Legal Service is cash limited. It does matter where funds come from. In those circumstances, it is important that the costs are recovered from some source. I recognise, of course, that we cannot get costs against the Magistrates' Court in the circumstances of this case. But it is important because otherwise there would be less costs for arguably justifiable claims. Secondly, it is also significant that under the current regulations essentially the costs that can be claimed by the claimant's solicitors, in particular, are less than they would be if they were acting on a private basis. In circumstances where effectively the court has determined they have brought a proper claim, in my submission they ought to be properly recompensed.
14. LORD JUSTICE ELIAS: There must be an established procedure for this.
15. MR SOUTHEY: What has happened in previous cases where I have done this is the court makes a defence costs order from central funds and we go to court and it is paid. It is a matter for the discretion of the court, I accept, and from memory, I suspect, in probably about four of five cases I have had an order made and in one case I have not.
16. LORD JUSTICE ELIAS: We will give you costs out of central funds.
17. MR SOUTHEY: Thank you, my Lord.