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
		13th January 2010

1. MR JUSTICE COLLINS: This is an appeal by way of case stated from a decision of the justices for the County of Oxfordshire sitting at Oxford Magistrates' Court on 21st April 2009. They then convicted the appellant of assaulting a constable in the execution of his duty contrary to section 89 of the Police Act 1996.
2. The facts upon which this conviction was based were as follows. On 24th January 2009 police officers came to the appellant's address in Oxford. A neighbour had telephoned because there had been sounds of a disturbance from that address. It is not entirely clear precisely what those signs consisted of, but it seems there may well have been some shouting and possibly screaming.
3. When the officers arrived there was no sign of any disturbance. The front door was opened by a young Asian man who did not speak English. There was also inside, near the door, an elderly Asian woman, who equally did not speak English. It was the appellant, who does speak English, who came to the door and with whom the officers spoke. They explained that the police had had a phone call and were concerned that something had happened. The appellant explained that he had had a verbal argument with his brother.
4. The police said that, when asked if the brother was the one who had answered the door or there was another brother, the appellant became evasive and refused to answer and seemed to want to end the conversation at that point.
5. The police officer explained the powers of the police to enter premises without a warrant under section 17 of the Police and Criminal Evidence Act 1984. The way it was put was that the right to enter existed if the police were in fear for the welfare of a person or persons within the house. The appellant, according to the justices, understood the explanation. The appellant's reaction was that they had no power to enter the house and that, accordingly, they should not be permitted to do so.
6. There was no sign of anything untoward happening in the house at that time and there was no evidence of any damage to property, but the appellant's reaction was to spit in the face of one of the officers and to headbutt the other.
7. The justices set out in the case the evidence which was given before them. It is not, I think, necessary to go into that, since their findings are contained within the question which they ask of this court. That question is as follows (it is in paragraph 8 of the case):

"Could a court properly conclude that police officers had been acting in the execution of their duty when they purported to exercise their powers under section 17 of the Police and Criminal Evidence Act 1984 to use force to enter premises without a warrant when:-

A. They had received information from an operator stating that a report had been made that a verbal argument had taken place at [the premises];

B. The caller did not disclose that any of the occupants had been injured or harmed in any way;

C. The occupants showed no physical sign of injury;

D. The occupants made no complaint of having sustained a physical injury;

E. The occupants made no suggestion that any other person had caused or sustained physical injury at the premises;

F. There was no visible sign of damage having been caused at the property;

G. The occupants made no complaint of damage having been caused at the property;

H. The occupants made no complaint of damage having been caused at the property;

I. The occupants did not disclose that any criminal offence had been committed at the property;

J. The defendant explained to the officers that he had simply had a verbal argument with his brother;

K. This was not contradicted by the other occupants of the address;

L. The officers had no information to suggest that this was not the case."

8. The justices' view, upon which they acted in convicting, was that concern for the welfare of people in the property was sufficient, having regard to the evasiveness of the appellant, to entitle the officers to enter by force.
9. The power upon which the officers were relying is contained in section 17(1)(e) of the Police and Criminal Evidence Act 1984. That provides as follows:

"Subject to the following provisions of this section, and without prejudice to any other enactment, a constable may enter and search any premises for the purpose-

...

(e) of saving life or limb or preventing serious damage to property."

10. That particular paragraph has been considered in the case Baker v Crown Prosecution Service [2009] EWHC 299 (Admin), a decision given on 27th January 2009. It is reported in volume 173 of the Justice of the Peace Reports at page 215. That particular case involved the possible use of a knife and so the entry was held to have been justified, but May LJ, in giving a judgment concurring in the main judgment given by my Lord, Mr Justice Silber, said this at paragraph 25:

"The expression 'saving life or limb' is a colourful, slightly outmoded expression. It is here used in close proximity with the expression 'preventing serious damage to property'. That predicates a degree of apprehended serious bodily injury. Without implicitly limiting or excluding the possible types of serious bodily injury, apprehended knife injuries and gunshot injuries will obviously normally be capable of coming within the subsection."

11. It is plain that Parliament intended that the right of entry by force without any warrant should be limited to cases where there was an apprehension that something serious was otherwise likely to occur, or perhaps had occurred, within the house, hence the adjective "serious" applied to any question of damage; and, although I entirely agree with May LJ that the expression "danger to life or limb" is somewhat outmoded, it again indicates a serious matter — that what had happened in the premises, or what might happen in the premises, would involve some serious injury to an individual therein.
12. The test applied by the officers, and accepted by the justices in this case, was a concern for the welfare of someone within the premises. Concern for welfare is not sufficient to justify an entry within the terms of section 17(1)(e). It is altogether too low a test. I appreciate and have some sympathy with the problems that face police officers in a situation such as was faced by these officers. In a sense they are damned if they do and damned if they do not, because if in fact something serious had happened, or was about to happen, and they did not do anything about it because they took the view that they had no right of entry, no doubt there would have been a degree of ex post facto criticism. But it is important to bear in mind that Parliament set the threshold at the height indicated by section 17(1)(e) because it is a serious matter for a citizen to have his house entered against his will and by force by police officers. Parliament having set that level, it is important that it be met in any particular case.
13. The reaction of the appellant may well have been one which was inappropriate, but the charge that was laid was assaulting a police officer in the execution of his duty. Accordingly, in establishing that charge it was necessary to prove that he was acting in the execution of his duty. No doubt if a charge of assault simpliciter had been laid different considerations might well have applied, but in the light of the charge that was made, and in the light of the matters to which I have referred, in my view this conviction cannot stand.
14. The answer that I would give to the question raised by the justices is that the court could not properly have concluded on the facts of the case before it that the officers had been acting in the execution of their duty at the material time.
15. MR JUSTICE SILBER: I agree.
16. I attach great weight to the fact that the words "saving life or limb" are followed by the words "or preventing serious damage to property". This is one of those cases in which in the absence of other assistance, the significance of the neighbouring words is decisive. As was explained by Stamp J in Bourne (Inspector of Taxes) v Norwich Crematorium Ltd [1967] 1 WLR 691 at 696 that:

"English words derive colour from those which surround them. Sentences are not mere collections of words to be taken out of the sentence, defined separately by reference to the dictionary or decided cases, and then put back again into the sentence with the meaning which one has assigned to them as separate words so as to give the sentence or phrase a meaning which as a sentence or phrase it cannot bear without distortion of the English language. That one must construe a word or phrase in a section of an Act of Parliament with all the assistance one can from decided cases and, if you will, from the dictionary, is not in doubt; but having obtained all that assistance, one must not at the end of the day distort that which has to be construed and give it a meaning which in its context one would not think it can possibly bear."

That leads to the conclusion, which has been explained by my Lord, that the words used of "saving life or limb" apprehend serious bodily injuries.

17. For the reasons he gave, I agree with the order proposed.
18. MR JUSTICE COLLINS: What about costs?
19. MISS TAPPER: My Lord, I know that the appellant has a representation order. I do not know if it is appropriate to ask for costs over and above that.
20. MR JUSTICE COLLINS: I think you are bound to ask for costs, are you not?
21. MR JUSTICE SILBER: I think you have to ask for them from central funds, do you not?
22. MR JUSTICE COLLINS: Normally it is central funds.
23. MISS TAPPER: That may well be. I am afraid I do not know, my Lord. If that is the case, then I would ask for costs from central funds.
24. MR JUSTICE COLLINS: That is the usual order that the court would make in a case such as this and at the moment I do not think we see any reason not to make the usual order.
25. MISS TAPPER: I am most grateful. Thank you.
26. MR JUSTICE SILBER: Thank you for your help.