Fiak, R v [2005] EWCA Crim 2381

[2005] EWCA Crim 2381Case No 200406188C4
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CRIMINAL DIVISION)
ON APPEAL FROM SNARESBROOK CROWN COURT
HIS HONOUR JUDGE MEDAWAR AND A JURY
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate 11th October 2005
Before
THE RT HON. SIR IGOR JUDGEPRESIDENT OF THE QUEEN’S BENCH DIVISIONLADY JUSTICE HALLETTMRS JUSTICE RAFFERTY
Between
RCrownFiakDefendant
Mr T. Belger for AppellantMr P. Gribble for Crown
JudgmentThe Rt Hon. Sir Igor Judge President of the Queen’s Bench Division:
[1]This is an appeal by Engin Fiak against his conviction on 4th October 2004 at Snaresbrook Crown Court before HHJ Medawar QC and a jury of two counts, count one, criminal damage to a blanket and police cell belonging to the Metropolitan Police and count two, assault of a police officer, PC Alison Smith, with intent to avoid or prevent his lawful apprehension or detention.[2]The appellant was fined £750 on each count.[3]For the purposes of this appeal, the essential facts are straightforward. At about midnight on 17th January 2004 two uniformed police officers on mobile patrol saw the appellant sitting in the driver’s seat of a stationary BMW car. He was alone, leaning out of the front door, vomiting into the roadside. The police officers pulled up behind the appellant’s car and he closed the driver’s door. A male officer, PC Short, went over and opened the door and asked the appellant to join him on the kerbside. When the appellant got out of his car, leaving the car keys in the ignition, he was fully dressed, wearing an overcoat. His breath smelled of alcohol and he was very unsteady on his feet. PC Smith concluded that the appellant was drunk.[4]On the basis of the facts as she appreciated them, PC Smith plainly had reasonable grounds for believing that the appellant was in charge of the vehicle when he had consumed excess alcohol. No-one suggested otherwise. However the appellant told the police that after a row with his wife at home, he had left his house for a few minutes to get some fresh air. He was asked where he lived, and pointed to a nearby house, saying that he had a drink, that he admitted doing so, but asserted he had not been driving. He emphasised that his car keys were left in the ignition. He started to walk towards the house, and PC Smith stood in front of him and told him to wait because she needed to confirm his story. She asked who was at home and was told that the appellant’s wife and two children were there, but that they would be asleep. The appellant kept trying to make his way into his house. By now he was within his driveway, which he seems to have believed would have rendered him immune from arrest, asserting that he had committed no offence, and that she could not stop him from going into his own house. PC Smith told him, “You are being detained in order for us to establish whether an offence has been committed. Now stay where you are.”[5]PC Smith knocked on the door of the appellant’s house, without success. Following a telephone call, Mrs Fiak answered the door. Once she did so the appellant tried to get past the police into the house. He reached the doorway itself and grabbed hold of the frame and the police pulled him away, prising his fingers off the doorframe. There was then a brief conversation between PC Smith and Mrs Fiak, who told her that she had not seen her husband all night. In the meantime, the appellant was determined to disregard the instruction to stay where he was. PC Smith heard noises of a scuffle outside and saw PC Short holding the appellant by the right arm. The appellant shouted to his wife, twice, “Tell them I’ve been home all night” adding something in a foreign language. PC Smith called for police assistance and then seized hold of the appellant’s left arm.[6]A difficult struggle then ensued, in which the police officers eventually brought the defendant to the ground and attempted to handcuff him. The struggle continued, with PC Smith’s left leg trapped between the defendant’s legs. He wrapped both his legs around her leg near the knee, causing the knee joint to be twisted and inflicting a sharp pain. She shouted to him to let go of her leg, and stop struggling. He did not desist until PC Short managed to help her free her leg. Eventually, with the assistance of another officer, the appellant was brought under control. He was then told by PC Smith that he was being arrested for being in charge of a motor vehicle and for assaulting a police officer with intent to resist arrest. After caution he replied: “I want a sergeant down here”.[7]We need not give the appellant’s account of this incident. It was implicit from the directions given to the jury in the summing up that if the jury thought that his account was or may have been true, he would have been acquitted. In summary, however, he accepted that he was “slightly intoxicated” when he sat in the driver’s seat of the car. He had drunk some beer at home and became light-headed and felt like some fresh air, so he put on his overcoat and went outside. He accepted that he was being sick when he saw the police officers, but denied that he had said that he had an argument with his wife. He denied shouting anything to his wife, and had no idea why he had been taken to the ground by the police officers. He denied resisting arrest, and said that he had not used his legs to clamp or cause pain to PC Smith.[8]At the Police Station, after what we shall describe as the usual drink/drive procedure, the defendant was found to be well over the prescribed limit, and he was placed in cell 10, and provided with an unused new mattress, a clean, dry blanket and a pillow. While in his cell, the appellant placed his blanket down the lavatory, and then flushed it repeatedly, causing his own cell, and two adjoining cells and the passage to become flooded. The blanket was wet, but not visibly soiled, and the water which caused flooding was clean water from the lavatory falling onto a waterproof cell floor. However the water made the blanket unusable until it was cleaned and dry, and the cells themselves were cleaned by a contract cleaner before they were available to the police for normal use.[9]When interviewed later, the appellant said he had no idea how the blanket had come to be in the lavatory. However at trial he explained that he had put the blanket down the lavatory, and flushed it, “essentially to get my rights”. He was quite upset and angry, a bit awkward, and not “the most co-operative”, but he did not deliberately want to cause damage to police property, he had pressed the buzzer and banged on the cell door for attention.[10]We need not further narrate the facts or summarise the evidence. In reality this was a straight forward case in which the jury had to address and resolve conflicting accounts. However it is submitted on behalf of the appellant that the judge was wrong to reject his submission that there was no case for the appellant to answer on either count, and in any event, that the judge’s directions to the jury were erroneous.[11]We shall begin with count two, the assault on PC Smith. Mr Belger suggested that the only power to arrest his client arose under s 4(6) of the Road Traffic Act 1988, which provides, “any constable may arrest anyone he has reasonable cause to suspect of having committed the offence of ... being in charge of a vehicle when under the influence of drink or drugs.” He suggested that until the appellant was lawfully arrested he was at liberty to resist any unlawful attempt to restrain him. He submitted that even if, which his client denied, he had hurt PC Smith in the way she alleged, he had not assaulted her to avoid or prevent his own lawful arrest. That arrest did not take place until after he was fully under the physical control of the police and he was told expressly why he had been arrested. Mr Belger drew our attention to Collins v Wilcock [1984] 1WLR 1172, in support of the proposition that a police officer has no greater rights than the ordinary citizen to restrain another, except when lawfully exercising his powers of arrest. If a police officer is not exercising the power of arrest, but seeks to reinforce a request to someone he has asked to wait by using force or the threat of force, then his purported detention of the other person is unlawful.[12]Our analysis is simple. Mr Belger’s submission depends on the proposition that until PC Smith used the actual word “arrest”, explaining the reasons for the physical restraint of the appellant, her actions, and those of PC Short were unlawful. However Mr Belger accepted that when PC Smith told the appellant that he was being detained and that he should stay where he was, she already had ample grounds to justify his arrest under the relevant Road Traffic Act provisions. Indeed he made clear that if she had used the word “arrest” at that earlier stage, there would have been no argument.[13]An arrest takes place when an individual is taken into custody and words or actions restrain him from moving anywhere beyond the control of the person affecting the arrest. (Holgate-Mohammed v Duke [1984] AC 437). As the judge said to the jury, “Whether a person has been arrested depends not on the legality of his arrest but on whether he has been deprived of his liberty to go where he pleases.” (Lewis v Chief Constable of South Wales Constabulary [1991] 1 AER 206, citing Spicer v Holt [1977] AC 987 at 1000, per Viscount Dilhorne.) Although the point was not addressed before us, it is arguable that the appellant was arrested when PC Smith told him in unequivocal terms that he was being detained and that he should stay where he was, and physically sought to prevent him from going into his home. At that time he knew precisely why she had given him that instruction, but she was willing to check his story that he had been in his home all evening, and as he asserted, neither driving nor in charge of his vehicle. If it was true, that would be the end of the incident. There would be no need to remove the appellant from his street, and take him down to the police station, with the appropriate statutory procedure to follow. He could simply return to his home, without any inconvenience to anyone, including most particularly, the appellant himself. If on the other hand it was untrue, then the implementation of the statutory procedure would continue to its proper conclusion.[14]In short, and dealing with the point as it was argued before us, rather than act officiously and in complete disregard of what she was told by an apparently respectable, even if intoxicated citizen, PC Smith sensibly elected to postpone the formal completion of the arrest until the facts were more fully investigated. In our judgment this was all part of a single process, not to be artificially compartmentalised, or fragmented into a series of individual processes. In these circumstances, her conduct was not rendered unlawful because she did not formally use the word “arrest” until her brief investigation into the appellant’s story was completed.[15]By the time the exchange between the appellant and his wife finished PC Smith had very good reason to complete the arrest, and indeed it became obvious to her that help would be needed to affect it. Given that she knew that the appellant knew precisely why he had been detained, and that he had demonstrated a fixed determination to get back into his house where he seems to have believed that he would be immune from arrest, and given finally the scene she observed when she left the appellant’s home, her express communication of the reasons for the appellant’s arrest took place as soon as reasonably practicable.[16]In our judgment the assault issue was rightly left to the jury. On the Crown’s evidence, there was a case to answer, and the decision in the end largely turned on the conflicting factual accounts of events outside and at the appellant’s home. Mr Belger raised a number of matters of minor criticism about the directions to the jury. We have examined them. In our view, whether taken singly or cumulatively, they do not impinge on the safety of this conviction.[17]The issue in relation to criminal damage can be summarised very simply. Mr Belger argued that there was no evidence that either the blanket or the cells were damaged. He suggested that clean water had flooded onto a waterproof floor, and that in the process the blanket was made wet by clean water. The blanket would have been reusable when dry. Cleaning up a wet cell floor does not constitute damage to the cell itself. However widely interpreted “damage” may be for the purposes of the Criminal Damage Act 1971, a wet blanket and a wet cell floor fall outside any sensible definition. The argument of course assumes that the absence of any possible contamination or infection from the lavatory itself, and the confident expectation that there would be none.[18]In the 1971 Act, hardly surprisingly, the word “damage” itself is not further defined. The Concise Oxford Dictionary explains damage as “harm or injury impairing the value or usefulness of something ...”. We need refer to only two authorities. The first is Morphitis v Salmon [1990] Crim LR 48, where the transcript of Auld J’s judgment reads:
“The authorities show that the term “damage” for the purpose of this provision, should be widely interpreted so as to conclude not only permanent or temporary physical harm, but also permanent or temporary impairment of value or usefulness.”
[19]This analysis was approved in R v Whiteley [1991] 93 CAR 25 where, after a comprehensive examination of the authorities, Lord Lane CJ summarised their effect. “Any alteration to the physical nature of the property concerned may amount to damage within the meaning of the section. Whether it does so or not will depend on the effect that the alteration has had upon the legitimate operator (who for convenience may be referred to as the owner) ... where ... the interference ... amounts to an impairment of the value or usefulness of the [property] to the owner, then the necessary damage is established.”[20]Applying these principles to the present case, while it is true that the effect of the appellant’s actions in relation to the blanket and the cell were both remediable, the simple reality is that the blanket could not be used as a blanket by any other prisoner until it had been dried out (and, we believe, also cleaned) and the flooded cells remained out of action until the water was cleared. In our judgment it is clear that both sustained damage for the purposes of the 1971 Act. There plainly was a case to answer.[21]Two different criticisms arise from the summing up.

The judge directed the jury:

“What is required before you can be satisfied that this defendant is guilty of criminal damage? One, that he did damage the cell and the blanket. Now, in law, you damage a thing if you render it imperfect or inoperative and you know on the evidence, the uncontested evidence, that as a result of putting the blanket down the lavatory and flooding the cell, the blanket was not capable of being used, obviously, and the cell and the adjoining cells were not capable of being used for a period of time. That in law would amount to damage. So you have to consider the rest of it. Can you be satisfied that that is what this defendant intended to do?”
[22]Although this direction accurately described the constituents of criminal damage for the purposes of this case, Mr Belger nevertheless argued that the language amounted to a direction that on the basis of the uncontested facts the blanket and the cell did in fact sustain damage for the purpose of the statute. That is a fair reading of this passage. In the normal way we would expect an issue of this kind to be resolved by the jury. That said, assuming the jury addressed the uncontested facts in accordance with the appropriate legal principles, a conclusion that the blanket and the cell did not sustain damage for the purposes of the 1971 Act would have been incomprehensible. The argument to the contrary was not even superficially plausible. We cannot discern any basis for concluding that the safety of this particular conviction is undermined by the way in which the judge dealt with this issue.[23]The second criticism arises from the failure of the judge to direct the jury about the precise circumstances in which a lawful excuse for causing such damage might arise. He did not do so. However the judge reminded the jury of the appellant’s explanation for his actions, and his assertion that he acted as he did, “essentially to get [his] rights”. There is a disagreement between counsel whether it was argued on behalf of the defendant that this may have provided a lawful excuse for his actions, but it was in any event not suggested that s 5(2) of the 1971 Act had any application. When Mr Belger was asked to explain to us what the lawful excuse was, he in effect summarised the appellant’s explanation to the jury.[24]We leave open any questions which might arise if the defendant were unlawfully detained in the police cell. In the circumstances here, the judge might have considered directing the jury that no lawful excuse had been advanced by the appellant. In the end he did not do so. If he had sought to explain the constituents of a lawful excuse for damaging the police blanket and cell, following a lawful arrest, Mr Belger would almost certainly have complained that the judge had in effect withdrawn this issue too from the jury. In reality, the appellant did not proffer a lawful excuse. No doubt he was affected by alcohol when he behaved as he did, and presumably rather angry at his arrest. His first reaction when invited to explain his actions did not hint any excuse. At trial, he proffered an explanation which the judge left to the jury, without comment. Even if the jury believed his explanation (and there were very serious grounds for doubting that they did) they were fully justified in concluding that the explanation provided no sort of lawful excuse. The safety of the conviction is not impugned by the way in which the judge dealt with this aspect of the case.[25]Accordingly the appeal will be dismissed. We shall invite counsel for the appellant to make submissions why a representation order should not be made, and why, further, the appellant should not be responsible for the costs of the prosecution.

Cited in 2 later judgments