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
		27 April 2012

1. LORD JUSTICE MOSES: This is an appeal by way of case stated in which, in excellent and clear argument, Mr Davies, QC, challenges the conclusion of the Harringay Magistrates, who, on 8 March 2011, convicted this appellant of an offence of assaulting a constable, PC Ironside, in the execution of his duty, contrary to section 89(1) of the Police Act 1996. Another offence of assault was also alleged but no findings were made in relation to that in light of the conviction.
2. The issue was whether PC Ironside, at the time of the assault, was acting in the execution of his duty. At that time, the appellant, Mr Demetriou, had been arrested and was indeed in handcuffs. The essential question was whether PC Ironside had lawfully arrested him. The matters had arisen out of what appeared to have been at some stage, on the night of 1 December 2010, a quarrel, to put it at its lowest, between the appellant and his mother, Ms O'Brien. That, said the defendant, had died down. The only trouble had been caused after he had agreed to leave the premises -- where he was paying rent and which he regarded as being home -- at the invitation of one of the officers there, PC Balsdon. PC Ironside had misread the situation and, fearing that he would return and cause a breach of the peace, had arrested him. The violence that then ensued was effectively as a result of that over-reaction by the police officer who had, in legal and factual terms, no basis for reasonably believing that Mr Demetriou, once he had left the premises, would return and cause trouble.
3. There had been an earlier hearing in which I and Irwin J had declined to amend the case stated to include other items of evidence at which Mr Davies had asked us to consider but we had changed the question posed so as to focus upon the real issue in the case. In order to make further sense of that issue, it is necessary, I believe, to refer to some of the facts found by the Magistrates over the space of one and a half days.
4. There had been a 999 phonecall by Ms O'Brien that had been interrupted. The finding of fact was that it was made some time after 11.30 pm. Police did not arrive at the property until the following morning, 2 December, at 3.15 am. Accordingly, Mr Davies submits that there is no evidence that there had been a 999 phonecall immediately prior to the arrival of the police officers. Indeed, Ms O'Brien -- who appeared to have been drinking and was to an extent, and I hope it doesn't sound unkind to say so, intoxicated -- thought that she had made the interrupted 999 call at 3.30 am after the police officers had arrived, which clearly was not right. The finding of fact that an interrupted phonecall had been made was evidence of trouble in the past but was not evidence that there had been trouble immediately before the police officers arrived. However, when they did arrive, they observed a number of factors within the house that suggested more than a mere quarrel: there was a broken chair. It is true that Mr Demetriou had said that he bumped into it on some earlier occasion on that day; that of course did not explain why it was still there. There was blood on the floor: again, parties have sought to explain that, Ms O'Brien particularly, by the fact that two dogs had been fighting outside. More significantly was the presence of a knife under clothing on the kitchen table: not itself a cause of concern, until one adds to that evidence that, according to Ms O'Brien, the knife had been used by her son, this appellant, to threaten one of the dogs.
5. When the officers arrived, the appellant apparently had been upstairs, a factor on which Mr Davies strongly relied, showing that any argument there had clearly finished and, he added by way of evidence not included in the case stated, that the appellant at that stage was not dressed. He asked the officers what they were doing there in what is described by the justices as an aggressive tone, although of course if there was no row at the time and they had barged in without good reason there was no reason for him not to be aggressive in those circumstances.
6. One of the officers had encouraged and indeed persuaded, albeit perhaps with some difficulty, the appellant to leave the premises and apparently the appellant had agreed to do so. This is the most vital finding on which Mr Davies, QC, relies, because he says, once the appellant had agreed to leave there could be no possible basis for a reasonable belief that he might return and cause trouble. But, so PC Ironside the arresting officer said, he feared that the appellant would return and cause trouble. He did so partly on the basis of the appellant's obduracy and truculence, but more importantly because, rather than immediately believing the appellant had gone upstairs, collected a dog lead and, so PC Ironside thought on that basis, was almost inevitably going to return having taken the dog for a walk. It was PC Ironside's fear that he would return and cause trouble that led him to arrest the appellant. Of course once the arrest took place and the appellant was handcuffed, further violence, perhaps understandably, ensued because the appellant, no doubt furious at being arrested when he had agreed to leave, punched PC Ironside twice with his right fist and attacked the officers with the dog lead. Mr Lodato, on behalf of the respondent, says that is evidence of his aggression and belligerence which the justices were entitled to take into account, but of course that happened after the arrest and after the time when it must be judged whether there was a reasonable basis for fearing an imminent breach of the peace such as to justify the arrest.
7. In our judgment, cogent though those arguments on behalf of the appellant are, they are issues of fact on which the justices were required to form a judgment. It is not for the Divisional Court in an appeal by way of case stated merely to substitute their own inferences from those drawn by the justices. The justices took the view that a combination of the facts of the scene, as discovered by the officers when they arrived, with the background of the 999 call and the attitude of the appellant led to the conclusion that there was a reasonable basis upon which the constable could anticipate that the appellant might return, notwithstanding his apparent willingness to leave and cause similar trouble to that which had apparently occurred as it appeared to the officers at the time. In my judgment, the justices, on the facts they found, were entitled, having regard both to the burden and standard of proof, to reach the conclusion they did as to the fear of imminent violence in the future.
8. It must be recalled that this disturbance was taking place within a domestic setting and that any intervention by the officers was likely to inflame anyone who regarded those premises as their home. But the days when courts sought to distinguish violence within the home from violence on the streets are, in my judgment, long gone. Cases such as Foulkes v Chief Constable of the Merseyside Police [1998] 3 All ER and McConnell v Chief Constable of Greater Manchester Police [1990] 1 WLR, 364, in their attempts to distinguish between situations of violence and breach of the peace in a domestic context and elsewhere are, in my view, not to be relied upon and hopelessly out of date.
9. The correct view is that expressed by Newman J in R(on the application of Shane Wragg) v Director of Public Prosecutions [2005] EWHC 1389, in which he draws a contrast in paragraphs 14 and 15 between the ability of those confronting each other in the street to go their own ways, and those in a domestic setting who may be compelled, by reasons of the fact that they both share a home, to spend further time together. That was of powerful relevance in this case where Mr Demetriou was asserting the right to live there with his mother. That was a circumstance that made it all the more probable that he would seek to return once the backs of the police officers were turned. Mr Lodato goes so far as to submit that it would have been a dereliction of duty merely to ignore the circumstances and walk away rather than arrest Mr Demetriou. There is, in my judgment, powerful evidence in this case to suggest that that is entirely right. The officers had, in a short time, to assess the risks for the future: were they merely to let Mr Demetriou walk away for a time and were the officers to leave? On the findings of fact by the justices, the officer was acting in the execution of his duty. Thus, the arrest was lawful and indeed the violence was taken against the officer in the execution of his duty. In those circumstances, in answer to the question, in the opinion of High Court were the justices entitled to find that the officer was acting in the execution of his duty, I would answer "yes".
10. MR JUSTICE EADY: I agree.
11. MR DAVIS: My Lords, may I raise the issue of costs, given the outcome of this appeal?
12. LORD JUSTICE MOSES: Yes.
13. MR DAVIS: In preparing the response to this appeal, the Crown, having expended a sum of £1,587 pounds, the Crown would ask that in accordance with section 28(a)(3)(b) of the 1981 Act that costs in that amount are ordered against the appellant.
14. MR LODATO: My Lord, the appellant is legally aided. He has very limited means. He has taken this course on advice from those who represent him and would ask your Lordship to take that into account.
15. LORD JUSTICE MOSES: What does he do?
16. MR DAVIS: He is unemployed and in receipt of benefit.
17. LORD JUSTICE MOSES: What was the sentence?
18. MR LODATO: I think it was a suspended sentence.
19. MR DAVIS: 6 months' custody suspended for 12 months.
20. LORD JUSTICE MOSES: And has everything been all right since?
21. MR LODATO: Part of the suspended sentence was a curfew order, I think.
22. LORD JUSTICE MOSES: Where is he living? Back with his mother? I don't want to enter into a discussion. I don't want to make matters worse.
23. MR LODATO: He is back with his mum.
24. LORD JUSTICE MOSES: We will make no order as to costs, I think it will just make matters worse. I know people should not think they can have free appeals and an awful lot of work has gone into this, but on the other hand, given the situation that things seem to be peaceful now I rather fear that if you make an order for costs, apart from enforcing, it will be more expensive than the amount of costs. Given the situation we will make no order.
25. MR LODATO: I am very grateful, my Lord.
26. LORD JUSTICE MOSES: Thank you all very much.