England and Wales High Court (Administrative Court) Decisions

IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT

		Manchester Civil Justice Centre 1 Bridge Street West Manchester Greater Manchester M60 9DJ
		16th October 2013

1. MR JUSTICE HADDON-CAVE: This is an appeal by way of Case Stated from the justices for the county of Greater Manchester, dated 15th March 2013.
2. The appellant, Wayne Sykes, appeals against the decision of the justices, made on 3rd January 2013, convicting him after trial of the offence of obstructing a police officer in the execution of his duty, contrary to section 89(2) of the Police Act 1996. The appellant was sentenced to a 12 month conditional discharge and ordered to pay £150 costs and a £15 victim surcharge.
3. The essence of the appeal that was, ably argued before me today by Mr Leach of counsel, that there was no actual evidence at the trial that the officer in question, PC O'Brien, was acting in the lawful execution of his duty at the time that he arrested the appellant.
4. The background facts can be briefly stated. On 18th October 2012 PC O'Brien attended the appellant's address at 6 Dinington Drive, Manchester, along with other officers as part of the Tactical Aid Unit to execute a warrant to search for illegal drugs. PC O'Brien believed that the appellant, who was swearing, was about to assault a colleague, Sergeant Geenan, who was also present at the scene as part of the Tactical Aid Unit team. As a consequence PC O'Brien arrested the appellant and cautioned him. The appellant was subsequently charged with the above offence and pleaded not guilty.
5. At the trial on 3rd January 2013 the appellant's counsel made an application of no case to answer at the conclusion of the prosecution case. The submission was that there was no evidence that PC O'Brien was acting in the lawful execution of his duty because there was no evidence that PC O'Brien had attended the appellant's home in pursuance of a valid warrant.
6. The learned magistrates rejected that application of no case and proceeded with the trial, which resulted in the conviction and sentence to which I have referred above. The magistrates, Messrs ML Walker, Mr P Berry and Mr M Lease, the Justices of the Peace for the county of Greater Manchester, together with the assistance of the justices' clerk, DL Garner, prepared a careful Case Stated, which provides in material part as follows:

"CASE

1. On 2nd November 2012 the appellant appeared before the court charged that he on the 18th October 2012, at Cheetham Hill, in the county of Greater Manchester wilfully obstructed PC 137290 O'Brien, a Constable, in the execution of his duty contrary to section 89(2) of The Police Act 1996.

2. The appellant entered a not guilty plea.

3. We heard the trial on 3rd January 2013.

EVIDENCE

(a) PC O'Brien gave evidence that he entered the property with the Tactical Aid Unit to execute a warrant to search for illegal drugs, that he went upstairs and saw Sgt Geenan on his right facing into a bedroom.

(b) PC O'Brien could hear a male swearing 'what the fuck are you doing?' The male came over to Sergeant Geenan and PC O'Brien thought he was going to head-butt Sergeant Geenan.

(c) PC O'Brien said he thought that Sergeant Geenan was going to be assaulted and the search could not continue.

(d) PC O'Brien said he arrested the male and took him downstairs and cautioned the male.

CROSS-EXAMINATION

(e) PC O'Brien said that he was present with other officers as part of a search team, that he did not make the application to the justices and he was not aware what was on the search warrant or the date on it.

(h) it was contended by the appellant ...

(i) That there was no case to answer on the basis on 18th October PC O'Brien was not acting in the execution of his duty.

(j) We were referred by the legal advice of the cases of Reilly v DPP 1989 and R(on the application of) Odawali v DPP 2000 Stones Justices Manual 2012 edition at 8.23824, where it was held that justices are not entitled to infer that a police officer was acting in the course of his duty in carrying out a search pursuant to section 18 of the Police and Criminal Evidence Act from his bare, albeit unchallenged assertion in evidence that he was carrying out such a search and R v Galbraith (1981) 2 All ER 10, 1060. We were directed to consider if the prosecution had failed to prove an essential element of the offence alleged in this case, whether PC O'Brien was acting in the execution of his duty we must dismiss the case against the respondent. (k) We found that a reasonable Tribunal may convict therefore there was a case to answer...

CROSS-EXAMINATION... It was contended by the appellant that the prosecution had not shown the police officer O'Brien was acting in the execution of his duty, that the case management hearing on 2/11/12 the appellant had disputed whether the officer was acting in the execution of his duty. The appellant also stated that at that case management hearing the appellant had not had sight of the search warrant. That police officer, O'Brien had not been able to give any details of the contents of the search warrant or give the date of issue on it. Indeed, he had no personal knowledge of the details of the search warrant.

(v) It was contended for the respondent that the court was able to determine the issue that the officer was acting in the execution of his duty that he had given evidence he had entered the premises as directed as part of a search team, pursuant to a drugs search under a search warrant and there was evidence before the court that the appellant had been aggressive towards the police (he accepted only being abusive to the police). His behaviour towards the police officer amounted to willful obstruction of PC O'Brien who was acting in the execution of his duty.

FINDINGS OF FACT

(a) On 18th October 2012 police officers forcibly entered the property to execute a search warrant when the appellant was upstairs in the bedroom.... (e) that PC O'Brien was present in the property and pursuance of a warrant issued to search the property for illegal drugs.

(f) that PC O'Brien was acting as he was directed by the superior officers to take part in a drugs search. Under the authority of a search warrant albeit he personally was not party to the particulars of the search warrant.

(g) in carrying out an entry and search as part of a police team pursuant to a search under a search warrant, PC O'Brien was acting in the execution of his duty.

(h) PC O'Brien was wilfully obstructed in the execution of his duty by the actions of the appellant.

Accordingly we are of the opinion that the respondent has proved the case beyond a reasonable doubt and convicted the appellant. We proceeded to sentence the appellant by imposing a conditional discharge for 12 months, £150 towards the costs of prosecution and £15 victim surcharge."

7. The magistrates then went on to state the following two questions for the court:

"The question for the opinion of the High Court is: (a) whether it was open to the court to reject a submission of no case to answer and to convict the defendant in absence of further evidence, relating to the existence of a warrant or the details contained in that warrant and

(b) whether it was appropriate for the court to find that the police officer was acting in the execution of his duty in the absence of evidence from the police officer having personal knowledge of the details of the search warrant."

In his able and succinct submissions Mr Leach, counsel for the appellant, submits that this case raises a fundamental point, namely whether a mere belief by the police officer that he is acting pursuant to a search warrant is sufficient evidence of the actual existence of a search warrant.

8. Mr Leach says that it is not sufficient simply for the prosecution to call evidence from a police officer that he believes, or believes that he was acting pursuant to a search warrant. Mr Leach submits that it is axiomatic that the prosecution proves the actual existence of a search warrant, either by the officer in question giving evidence as to his or her direct knowledge of the warrant in question, or by the prosecution calling another officer to speak to the existence of the warrant. Mr Leach submits that in the absence of such actual evidence there is no proper basis upon which the court can conclude beyond reasonable doubt that the officer in question was acting "in the execution of his duty".
9. It is clear from the decision in Linehan v DPP BAILII: [1990] EWHC 4005 (Admin), that actual production of a warrant is not necessary. As Laws LJ said in that case:

"Whether the Justices were entitled to find that the officers were acting in the execution of their duty.

(a) without the production in court of the warrant or notice of authority."

10. Mr Leach submits that crucially in this case there was no evidence as to the actual existence of a warrant and that mere evidence from a police officer of belief as to the existence of a warrant is not the same thing. So the issue before the court is whether or not the prosecution were able to prove, or raise any case in support of the proposition, that at the material time PC O'Brien was acting "in the execution of his duty".
11. Mr Leach makes three particular submissions. The first is if the court can merely infer that there is a warrant, a valid warrant, because a mere statement by a police officer that such a warrant exists, then that is a potentially dangerous matter. It runs contrary to the fundamental requirement of the prosecution to prove beyond a reasonable doubt that the officer is acting in the execution of his lawful duty. It runs contrary to what Mr Leach submits is the duty of the prosecution to provide the first hand evidence of a warrant. Secondly, he submits that in this case the precise nature of the warrant was not clear. In Linehan it was a warrant under section 18 of Police and Criminal Evidence Act. This case, however, concerns a Misuse of Drugs Act warrant but without seeing of the contents of the warrant the court could not verify whether or not it applied to this particular property and was executed within the relevant deadline - normally one month. Thirdly, he submits that one cannot merely infer the existence of a valid warrant from a mere statement of belief, based on hearsay.
12. Mr Weaver, counsel for the Crown Prosecution Service, in his able submissions, submits that in fact there is no problem in this case because, when one examines the findings of fact and summary of evidence in the Case Stated, it is clear that the magistrates were entitled to infer that the officer in question was acting in the lawful execution of his duty and that there was or must have been a valid warrant.
13. In my judgment, Mr Leach is correct when he says that evidence of the mere belief of the existence of a warrant, by an officer who was not involved in making the application for the warrant, who has not seen the warrant and who has no personal knowledge of the details of the warrant is not actual or sufficient evidence of the existence of the warrant itself. However, careful examination of the evidence that was heard by the magistrates goes rather further than evidence of mere belief by one officer as to the existence of or warrant.
14. The following points in the evidence it seems to me are pertinent. First, that PC O'Brien entered the property with the Tactical Aid Unit, to execute a warrant to search for illegal drugs (3(a)). Second, that PC O'Brien said he knew he was present with other officers as part of a search team (3(e)). Third, that on 18th October 2012 police officers forcibly entered the property to execute a search warrant (paragraph 5(a)). Fourth, that PC O'Brien was actually present in the property in pursuance of a warrant issued to search the property for illegal drugs (5(e)). Five, PC O'Brien acted as he was directed by his superior officers to take part in a drugs search under the authority of a search warrant. (paragraph 5 (f)). It should be noted that some of the findings of fact made by the magistrate do not appear in the body of the Case Stated as emanating from the evidence from cross-examination, nevertheless it is to be inferred that the magistrates made findings of the fact that such PC O'Brien was acting as directed by his superior officers "as directed by his superior officers" on the basis of what they heard.
15. The simple question seems to me before the court today on this appeal is whether, looking at the evidence as a whole that is before the magistrates they were properly entitled to conclude or infer that PC O'Brien's evidence that he entered the property to execute a warrant to search for illegal drugs, "that he believed" that there was a valid warrant, where something that the magistrates could properly find. Put the matter another way, could the magistrate have properly inferred from all the evidence, including the belief of the officer in question that there was or must have been an effective warrant in existence. Mr Leach submits that this was merely a rebuttable inference and the experience of the court is that some times warrants are defective or not valid.
16. In my judgment however, on the evidence before the magistrates, in particular the fact that (a) this was a planned raid (b) it involved the Tactical Aid Unit and a number of officers and (c) it was clear that PC O'Brien was an integral part of that Tactical Aid Unit team, acting as directed by the superior officers at all material times and (d) that there was forcible entry of the property in question. That there was sufficient evidence before the magistrate for them properly to infer in the absence of any countervailing evidence that there was an existence, a valid and effective warrant and therefore the officer in question was at all material times acting in the lawful execution of his duty.
17. The case of Linehan makes clear that it is not necessary for the actual warrant to be produced in court. The question in every case is whether or not the Crown have called sufficient evidence to entitle the court to find that the officers were acting in the execution of their duty at the time. There may be cases in which the bare belief of a police officer, that he was acting in pursuance of a warrant will not be sufficient but in this case, in my judgment, for the reasons that I have given, there was ample supporting evidence to entitle the magistrates properly to infer that a valid warrant was in existence. I do not accept the submission of Mr Leach that in every case the prosecution has either produced the warrant or called direct evidence from senior officer as to the existence of the warrant, or the particular officer or call direct evidence that the particular officer concerned, that he has direct knowledge of the warrant. The magistrate in this case were entitled to weigh up all the evidence as a whole. As I have said, in the absence of any evidence or suggestion that might have cast doubt on the validity of the officers belief in existence of the warrant, they were entitled to reject the submission of no case answer and make the findings of fact that they did.
18. For those reasons, I answer the two questions for the opinion of the High Court as follows:

(a) whether it was open to the court to reject a submission of no case to answer to convict the defendant in the absence of further evidence relating to the existence of a warrant, the details contained in that warrant?

Answer: yes.

(b) whether it was appropriate for the court to find that the police officer was acting in the execution of his duty in the the absence of evidence from the police officer having personal knowledge of the detail of the search warrant Answer: yes.

19. All that remains for me is to thank both counsel for their scholarship and diligence in a very interesting argument.