Court of Appeal in Northern Ireland Decisions

"66. - (1) Any person who assaults, resists, obstructs or impedes a constable in the execution of his duty, or a person assisting a constable in the execution of his duty, shall be guilty of an offence.

1(A) Any person who assaults, resists, obstructs or impedes a designated person in the execution of his duty, or a person assisting a designated person in the execution of his duty, shall be guilty of an offence.

(2) A person guilty of an offence under subsection (1) or (1A) shall be liable-

(a) on summary conviction, to imprisonment for a term not exceeding 6 months or to a fine not exceeding the statutory maximum, or to both;

(b) on conviction on indictment, to imprisonment for a term not exceeding 2 years or to a fine, or to both."

"On Saturday 3 September 2005 police on mobile patrol responded to a radio transmission to a disturbance in Main Street, Glenavy. Police were in the process of making an arrest when the appellant became involved. He shouted and used abusive language to the police. He was warned about his behaviour but tried to lunge forward towards police who were making an arrest. He was therefore arrested by Constable Wilson for disorderly behaviour. He struggled and was placed in a police vehicle and was cautioned. He replied: 'All right. I am sorry'. He was conveyed to the police station and on the journey became abusive. He refused to give Constable Wilson his name and details while in the vehicle and at Lisburn Police Station he continued to refuse to give his name. His mother arrived at the police station and it was his mother who first gave his name and details to the police."

(i) Obstruction requires an act whether physical or non-physical. The refusal by the appellant to give his name and address did not constitute such an act.

(ii) If it did constitute such an act the appellant was under no duty to answer the constable's questions.

(iii) If he was under such a duty the appellant had a lawful excuse for not doing so.

"we consider that the primary meaning is the true meaning- namely making it more difficult for the police to carry out their duty."

"…it seems to me quite clear that the defendant was making it more difficult for the police to carry out their duties, and that the police at the time and throughout were acting in accordance with their duties. The only remaining ingredient, and the one upon which in my judgment this case revolves, is whether the obstructing of which the defendant was guilty was a wilful obstruction. 'Wilful' in this context not only in my judgment means "intentional" but something which is done without lawful excuse, and that is indeed conceded by Mr Skinner who appears for the prosecution in this case. Accordingly, the sole question here is whether the defendant had a lawful excuse for refusing to answer the questions put to him. In my judgment he had. It seems to me quite clear that although every citizen has a moral duty or, if you like, a social duty to assist the police, there is no legal duty to that effect, and indeed the whole basis of the common law is the right of the individual to refuse to answer questions put to him by persons in authority, and to refuse to accompany those in authority to any particular place; short, of course, of arrest."

He continued at p.420:

"In my judgment there is all the difference in the world between deliberately telling a false story—something which on no view a citizen has a right to do—and preserving silence or refusing to answer, something which he has every right to do. Accordingly, in my judgment, looked at in that perfectly general way, it was not shown that the refusal of the defendant to answer the questions or to accompany the police officer in the first instance to the police box was an obstruction without lawful excuse. "

"For my part I would draw a clear distinction between a refusal to act, on the one hand, and the doing of some positive act on the other. In a case, as in Rice v Connolly [1966] 2 QB 414, where the obstruction alleged consists of a refusal by the defendant to do the act which the constable had asked him to do – to give information, it might be, or to give assistance to the police constable – one can see readily the soundness of the principle, if I may say so with respect, applied in Rice v Connelly, that such a refusal to act cannot amount to a wilful obstruction under Section 51 unless the law imposes upon the person concerned some obligation in the circumstances to act in the manner requested by the police officer."

Mr Magee submitted on this line of authority that the appellant was under no legal duty to provide the constable with his name and address.

[10] Finally, if the appellant's behaviour did amount to an 'act' and he was under a legal duty to provide his name and address it was submitted by Mr Magee that the appellant had a lawful excuse for not doing so. He had been arrested for the offence of disorderly behaviour and cautioned before the alleged obstruction took place. Since he had just been told by the constable that he did not have to say anything in such circumstances he had a right to remain silent.

"The only remaining ingredient and the one upon which in my judgment this case revolves, is whether the obstructing of which the defendant was guilty was a wilful obstruction "Wilful" in this context not only means in my judgment "intentional" but something which is done without lawful excuse, and that indeed is conceded by Mr Skinner who appears for the prosecution in this case. Accordingly, the sole question here is whether the appellant had a lawful excuse for refusing to answer the questions put to him."

In his Text Book of Criminal Law 2^nd Ed. at p 202 Dr. Glanville Williams suggests that in Rice v Connolly the Divisional Court;

"reached an impeccable conclusion for a reason that was slightly flawed but substantially sound. The impeccable conclusion was that a citizen who refuses to answer the questions of the police is not guilty of wilfully obstructing them in the execution of their duty. The slightly peccable reason, contained in the leading judgment delivered by Lord Parker CJ, was that the offence requires wilfulness, which implies an absence of lawful excuse; and the citizen has a lawful excuse for not answering questions, presumably because of his "right of silence." The objection to this line of argument is, first, that questions of excuse have nothing to do with the mental state of wilfulness. Secondly, the logical and proper reason why a failure to answer the questions of the police is not an obstruction is not because of any specific right the citizen has but simply because an "obstruction" must be taken to mean an active obstruction, not a mere failure to co-operate. If we are to be put under a legal duty to help the police, it must be by an Act of Parliament; and Parliament should say in what respects we are required to help the police on their request, and it should provide proper exemptions, and name the appropriate penalty for refusal. The job ought not to be done by judicial "interpretation" of the obstruction offence, which was obviously designed to do nothing more than prevent active obstructions."

He goes on to say:

"To be fair to Lord Parker, although he started on the wrong foot he arrived at the right conclusion, because he said: 'Though every citizen has a moral duty . . . to assist the police, he has no legal duty to that effect'."

"(1) Where a constable has reasonable grounds for suspecting that any offence which is not an arrestable offence has been committed or attempted, or is being committed or attempted, he may arrest the relevant person if it appears to him that service of a summons is impracticable or inappropriate because any of the general arrest conditions is satisfied.

…

The general arrest conditions are —

(3) (a) that the name of the relevant person is unknown to, and cannot be readily ascertained by, the constable

(b) that the constable has reasonable grounds for doubting whether a name furnished by the relevant person as his name is his real name;

(c) that-

(i) the relevant person has failed to furnish a satisfactory address for service; or

(ii) the constable has reasonable grounds for doubting whether an address furnished by the relevant person is a satisfactory address for service…"

Disorderly behaviour under s.18 of the Public Order (NI) Order 1987 is a summary offence and Mr Valentine submitted that the power of arrest of a person who has failed to furnish a satisfactory address implies a corresponding duty to provide this information.

"…it is submitted that the refusal by an offender to give his name and address does not constitute an obstruction, for at least two reasons. First, if it were an obstruction, all the statutes making it an offence to refuse to give name and address in specific situations would have been unnecessary. When, for example, Parliament passed the Public Order Act in 1936, it must have been thought that the police had no general power to demand name and address. Secondly, it is a fundamental principle of English law that an accused person cannot be interrogated or at least cannot be forced to answer questions under a legal penalty if he refuses; this principle is absolute, and does not admit of exception even for a demand of name and address, unless a statute has expressly created an exception. To say that the police have a duty to gather evidence, and therefore that a criminal's refusal to give his name and address is an obstruction, is far too wide, because the same premises would yield the conclusion that a criminal's refusal to confess to the crime is an obstruction".

In Moore v The Queen 43 C.C.C. (2d) 83 a cyclist rode through a red light. A police officer followed him and when the accused stopped the officer asked him for identification. The Supreme Court of Canada held by a majority that the police officer was performing his duty and by refusing to accede to the officer's request the accused was obstructing him. Dickson J dissenting said:

"The fact that a police officer has a duty to identify a person suspected of, or seen committing, an offence says nothing about whether the person has the duty to identify himself on being asked. Each duty is entirely independent. Only if the police have a lawful claim to demand that a person identify himself, does the person have a corresponding duty to do so."

In Elder v Evans [1951] NZLR 801 the statutory provision under consideration provided for arrest without warrant of any person who, within view of a constable, offends in any manner against the Act, and whose name and residence are unknown to such constable and cannot be ascertained by him. It was submitted that by implication it was obstruction by the accused to refuse to give his name and address. At 806 of the report Hay J. said "It would be going too far to hold that a mere nondisclosure by a person of his name and address amounts to wilful obstruction, even where the person making the inquiry is a constable engaged in the execution of his duty. "

Counsel referred also to Green v Director of Public Prosecutions 155 JP 816 where the appellant was convicted of wilfully obstructing a police officer in the execution of his duty contrary to s 51 of the Police Act 1964. The facts were that two police officers on mobile patrol and searching for a man involved in aggravated burglary saw the appellant standing next to a girl who was crying. Having ascertained that she was all right the officers noticed another man standing nearby whom they suspected was involved in the burglary. An officer approached the man whom he suspected of burglary to question him and as he did so the appellant (the man's brother) shouted "Say fuck all to them" and continued being abusive and persistently shouted to his brother not to say anything. He was warned about his behaviour but he continued to shout and swear and when told to be quiet or he would be arrested, he replied "fuck off". He was then arrested for obstruction. In the case stated the justices expressed their opinion that the police officers were entitled to question the appellant's brother in the course of their duties without detaining him or exercising any element of compulsion, in order to confirm or allay their suspicions and that the appellant's behaviour had made it impossible for them to do so. The question they posed for the opinion of the High Court was whether the appellant in saying to his brother "Say fuck all to them" when his brother was being questioned by police officers, did or said anything which amounted in law to obstruction of a police officer whilst acting in the execution of his duty. It was held (allowing the appeal and quashing the conviction) that it was lawful for a suspect not to answer questions directed to him by the police and for a third party to advise a suspect of his right not to answer questions. If, however, the third party by his abusive, persistent and unruly behaviour, behaved in a way that went well beyond the exercise of his legal rights and rendered the police officers' task more difficult this could amount to obstruction.

Conclusion