Mossop v Director of Public Prosecutions [2003] EWHC 1261 (Admin)

Case No CO/915/2003[2003] EWHC 1261 Admin
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
DIVISIONAL COURT
Venue Royal Courts of JusticeDate Monday, 12th May 2003
Strand
London WC2
B E F O R E:
LORD JUSTICE SCOTT BAKER
MR JUSTICE PITCHFORD
Between
MOSSOPClaimant-v-
Between
DIRECTOR OF PUBLIC PROSECUTIONSDefendant
Computer-Aided Transcript of the Stenograph Notes ofSmith Bernal Wordwave Limited190 Fleet Street London EC4A 2AGTel No: 020 7404 1400 Fax No: 020 7831 8838(Official Shorthand Writers to the Court)
MR N LEY (instructed by K J Commons & Co) appeared for CLAIMANTMR T EATON (instructed by Crown Prosecution Service, Cumbria Area Office) appeared for DEFENDANT
J U D G M E N T(As approved by the Court)
Crown copyright©Monday, 12th May 2003
[1]MR JUSTICE PITCHFORD: This is an appeal by way of case stated from a conviction by the justices sitting at Carlisle on 14th October 2002 for two offences of resisting arrest by a police constable acting in the execution of his duty.[2]The Justices found that Police Constable Pickthall was called to 10 Friars Close in Penrith at 5.50 pm on 8th July 2002. On arrival he was told that the appellant, Keith Mossop, had threatened the occupants of that property with a hammer. At 6 o'clock the same evening Police Constable Pickthall and Police Sergeant Rutherford saw a man answering the description Police Constable Pickthall had been given in Friars Gate, Penrith. That person was in fact the appellant. Protruding from the appellant's jacket pocket was the black handle of a hammer. Police Constable Pickthall asked the appellant to give him the hammer and he did so. Police Constable Pickthall then told the appellant he was being arrested for an offence of possession of an offensive weapon and Mr Mossop resisted the arrest effected by the officers.[3]Both officers gave evidence. At the close of the prosecution case the defence made a submission of no case to answer. The argument was that the offence of possession of an offensive weapon can only be committed in a public place. A hammer is not of itself an offensive weapon, only if it is carried for that purpose under section 1(4) of the Prevention of Crime Act 1953. That purpose can, of course, include self-defence if the occasion arises.[4]Before he could arrest the suspect, Police Constable Pickthall required a suspicion, on reasonable grounds, that an offence had been committed. It was argued before the Justices that there was no evidence revealed by the police constable that he had inquired whether the Friars Close incident had occurred in a public place. Thus, he cannot have had reasonable grounds to suspect that an offence had been committed.[5]The Justices were, in my view, correctly advised that what they needed to ask themselves was what was in the mind of Police Constable Pickthall at the time of making the arrest. They were advised that in order to reject the submission that there was no case to answer, they had to be satisfied that a reasonable tribunal, properly directed, could convict the defendant on the evidence they had heard so far. In particular, they had to be satisfied that at the time of making the arrest, and in the light of information the officer had received, a reasonable tribunal could hold that the officer had reasonable grounds for suspecting that an arrestable offence had been committed and that he did in fact so suspect.[6]The submission made on behalf of the appellant at the close of the prosecution case was, it is clear, confined to the issue whether, as a result of the information he had been given of events at Friars Close, he had a reasonable cause to suspect the commission of an offence at that place. That becomes clear when one considers paragraph 7 of the case stated by the Justices:
"We were of opinion that the officer did have reasonable grounds for his suspicion that an arrestable offence had been committed at Friar's Close, based on information that he had received that (based on the ECHR definition of 'reasonable suspicion') the officer did not have to be satisfied at that stage that all elements of the arrestable offence could be proved, that therefore the arrest was lawful and that consequently he was acting in the execution of his duty. We therefore held that the defendant had a case to answer."
Following that ruling the appellant changed his plea to guilty.[7]The question posed for the opinion of this court is:
"Did the failure of PC Pickthall to satisfy himself that the threats with the hammer had occurred in a public place render the subsequent arrest of the defendant unlawful so that the officers could not be said to be acting in the execution of their duty when seeking to arrest the defendant?"
[8]In this connection, Mr Nigel Ley, who has represented the appellant before us, has drawn our attention to a decision of the Divisional Court, over which Bingham LJ presided, in Chapman v Director of Public Prosecutions [1989] 89 Cr App R 190. The court was in that case considering facts in some respects similar to those with which we have to deal. A police officer had received information by his radio from a fellow police constable that he had just been assaulted by six youths who had run away. The police constable who went in pursuit, Police Constable Sneller, went to the home of the father of the youth. The father opened the door and was subsequently charged with contravening section 51(1) of the Police Act 1964. The issue was whether or not Police Constable Sneller had reasonable grounds to suspect that one of the youths whom he was pursuing at the material time had committed an arrestable offence. An arrestable offence had only been committed if there were reasonable grounds to suspect that the assault had resulted in harm to the first of the officers. At page 196 of the report Bingham LJ said this:
"Constable Sneller may well have suspected that there had been an assault on the first constable in the execution of that constable's duty. That is an offence under section 51 of the Police Act 1964. The maximum penalty for conviction on that offence is now six months' imprisonment, so reasonable suspicion of the commission of that offence would not give grounds for summary arrest. Whether Constable Sneller appreciated this, we do not know since there is no finding. So far as we know he was never asked. I have some doubt on the point having regard to the grounds given by Constable Sneller when he arrested the defendant. It is true that by that stage Constable Sneller had suffered injury and so had grounds of arrest for assault occasioning actual bodily harm, but it is not clear from what he said that he regarded the injury as justifying the arrest. Be that as it may, reasonable suspicion of a section 51 offence against the first constable would not have provided grounds for arresting Mr Chapman."
For that reason, the court found that Constable Sneller was not seeking to effect a lawful arrest on the suspect and, accordingly, an offence could not have been committed by the father who had refused him access to his home to search for that suspect.[9]It seems to me that in view of the confined way in which the Justices approached the issue presented to them on behalf of the defendant and on behalf of the prosecution, they erred in coming to the conclusion that they did. There was no evidence before the Justices that the officer had any reasonable cause to suspect that the appellant had been, in a public place at Friars Close, carrying an offensive weapon in the sense that he was carrying an instrument which he intended to use for an offensive purpose. For that reason, it seems to me that the reasoning in Chapman is indistinguishable and the conviction cannot stand.[10]However, it is regrettable that the Justices' attention was not drawn at the time to the further circumstances which, it seems to me, may well have justified an arrest on the information which Police Constable Pickthall possessed. The circumstances in which the police officers came across the appellant in the street were such that the police constable would, in my view, have been perfectly entitled to suspect the appellant on the basis that he continued in possession of a hammer in the street with the intention of using it if, for example, approached by those who were the victims of the earlier incident. The plain fact is that the officer was never asked about the reasons underlying the arrest and the possibility of an unlawful arrest was hardly put in issue by the defence in cross-examination. The officer is recorded as saying that the reason why he arrested the appellant was for safety, which, it seems to me, opens up at least a consideration whether it was for that reason which Police Constable Pickthall had arrested the appellant and not as a result purely of the information which he had been given in respect of the earlier incident. As Mr Ley pointed out it would have been open to the prosecutor to apply to recall Police Constable Pickthall to deal with the matter but a decision was made to confine submissions to the Friars Close incident. In view of the way in which the matter was approached before the Justices it seems to me that the question posed for this court must be answered in the affirmative and the appeal allowed.

LORD JUSTICE SCOTT BAKER: I agree. In my judgment, in the light of the particular findings of the Justices this case cannot be distinguished from Chapman v Director of Public Prosecutions. As in Chapman, the officer had to have reasonable grounds for suspicion that all the elements of the offence were committed including actual bodily harm, so here the officer had to have reasonable grounds for suspicion that the defendant had possession of an offensive weapon in a public place. Unfortunately, the Justices in paragraph 7 directed themselves only to the question of an arrestable offence having been committed at Friars Close. They said:

"We were of opinion that the officer did have reasonable grounds for his suspicion that an arrestable offence had been committed at Friars Close, based on information that he had received, that (based on the ECHR definition of 'reasonable suspicion') the officer did not have to be satisfied at that stage that all elements of the arrestable offence could be proved, that therefore the arrest was lawful and that consequently he was acting in the execution of his duty. We therefore held that the defendant had a case to answer."
[12]The Justices did not consider the possibility that the police officer may have suspected that as the appellant had been threatening to use the hammer as a weapon earlier in the evening, there were reasonable grounds for suspecting that, when the police officer saw him, he had the hammer with him to use offensively in the future. Had they done so, they could well have concluded that there was a case to answer, but they did not, and we cannot, it seems to me, go behind what they did find in paragraph 7.[13]The problem in this case could easily have been overcome by recalling the police officer to clarify the basis of his reasonable suspicion, but that course, unfortunately, was not followed. The appeal accordingly must be allowed.[14]MR LEY: My Lords, I would ask for legal aid taxation.

LORD JUSTICE SCOTT BAKER: Very well.

Cited in 1 later judgment