Bucher, R (on the application of) v Director of Public Prosecutions [2003] EWHC 580 (Admin)

[2003] EWHC 580 Admin

IN THE HIGH COURT OF JUSTICE

QUEEN'S BENCH DIVISION

THE ADMINISTRATIVE COURT

Venue Royal Courts of Justice

Date Friday, 7th March 2003

Strand

London WC2

B E F O R E:

MR JUSTICE SULLIVAN

THE QUEEN ON THE APPLICATION OF BUCHER

(CLAIMANT)

-v-

DIRECTOR OF PUBLIC PROSECUTIONS

(DEFENDANT)

Computer-Aided Transcript of the Stenograph Notes of

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MISS WOLFE (instructed by Shawcross & Co Solicitors, Hereford HR1 2BP) appeared on behalf of the CLAIMANT

MR A WEITZMAN (instructed by Treasury Solicitors) appeared on behalf of the DEFENDANT

J U D G M E N T

(As Approved by the Court)

Between

Bucher, R (on the application of)Claimant

Director of Public ProsecutionsDefendant

[1]MR JUSTICE SULLIVAN: This is an appeal by way of case stated against a decision of the Hereford Magistrates' Court on 9th July 2002, that the appellant was guilty of assaulting Police Sergeant Clive Graham Eastwood in the execution of his duty contrary to section 89(1) of the Police Act 1996.

[2]I make it plain at the outset of this judgment that in my view this challenge to the Magistrates' decision is devoid of merit and moreover it is a disgraceful waste of public funds. The facts as found by the Magistrates are as follows:

"i. On the 31st October Sergeant Eastwood was on duty and performing the duties of a Custody Sergeant at Hereford Police Station. "ii. He was in the company of Mr Anthony Bayliss, a custody assistant, employed by Reliance Custodial Services. "iii. Also present in the custody suite were the appellant and her mother Mrs Karen Bucher who was acting as an appropriate adult for her daughter [who was 16 years old at the time]. Mr Bayliss had identified them to Sergeant Eastwood [the appellant was there to answer bail in respect of an alleged theft and assault]. "iv. They had been asked to wait in the 'Doctors Room' and were so doing. "v. At approximately 12.50 pm Sergeant Eastwood was in the process of detaining a prisoner who had been arrested on an unrelated matter by Police Constable Price. "vi. Sergeant Eastwood was taking the details of the defendant and performing his duties as prescribed by the Police and Criminal Evidence Act 1984. "vii. The appellant's mother, Mrs Karen Bucher, together with the appellant approached Sergeant Eastwood. "viii. Mrs Bucher wanted to know when they would be dealt with and was extremely agitated and angry. "ix. Sergeant Eastwood asked them both to return to the 'Doctors Room' as he was dealing with a prisoner and could not deal with them at the same time. "x. The appellant and Mrs Bucher refused to return to the 'Doctors Room' with Sergeant Eastwood being told to 'Fuck off' by Mrs Karen Bucher and a 'Fucking twat' by the defendant. "xi. Both the appellant and Mrs Bucher were asked to return to the 'Doctors Room'. They both refused and were extremely angry. "xii. The actions of the appellant and Mrs Bucher were such that Sergeant Eastwood was unable to perform his duties as a Custody Sergeant without resolving the situation. "xiii. Sergeant Eastwood decided that the appellant should be placed in a secure cell and that Mrs Bucher should be escorted from the custody suite. "xiv. Sergeant Eastwood instructed Mr Bayliss to place the appellant in a secure cell. "xv. Mr Bayliss, acting in response to those instructions, took hold of the appellant. "xvi. At the same time Sergeant Eastwood went to escort Mrs Bucher from the custody suite by placing his hand on her forearm to guide her to the exit door. We found that any force used in this action was trivial and that Sergeant Eastwood was acting in the execution of his duty. "xvii. The appellant was struggling violently with Mr Bayliss in an attempt to break free from his restraint and they both came into close proximity of Sergeant Eastwood. "xviii. In struggling violently with Mr Bayliss the appellant 'lunged' past Mr Bayliss in an attempt to reach her mother. "xix. The appellant's hand made contact with Sergeant Eastwood causing him injuries to his face as detailed in the photographs exhibited to us. We found this to be a reckless assault. "xx. Mr Bayliss placed the appellant in a cell and Mrs Bucher was escorted from the custody suite. "xxi. The appellant was duly charged with the above offence and bailed to attend Hereford Youth Court."

[3]The Magistrates then recorded the rival contentions in paragraphs 3 and 4 of the case stated:

"3. It was contended by the appellant that Sergeant Eastwood, in taking hold of Mrs Karen Bucher was not acting in the execution of his duty as he did not have the right to take hold of her against her wishes. The appellant further contended that even if Sergeant Eastwood had taken hold of Mrs Bucher gently he was still acting outside the scope of his duty. The appellant therefore submitted that any actions taken by her were to protect her mother from an unlawful assault by Sergeant Eastwood and was thus acting in the self-defence of her mother."

[4]Pausing there, it will be seen that no complaint was made of Sergeant Eastwood's decision that the appellant should be placed in a secure cell. The sole complaint relates to his decision that Mrs Bucher should be escorted from the custody suite:

"4. It was contended by the respondent that the appellant intentionally assaulted the Custody Sergeant who was acting in the execution of his duty in that he was acting lawfully as he was dealing with a disturbance in the custody suite and was exercising the only realistic option available to him by removing Mrs Bucher from the custody suite."

[5]The Magistrates set out the cases to which they were referred. They were: Donelly v Jackman

(1970) 1 All ER 987

; Rice v Connolly

(1966) 2 All ER 651

; Bentley v Brudzinski 75 Cr.App.R 217; Ludlow v Burgess 75 Cr.App.R. 227.

[6]The Magistrates then set out their opinion in paragraph 6 as follows:

"We were of the opinion that Sergeant Eastwood was acting in the execution of his duty in that he was faced with a situation that threatened the operation of the custody suite, namely the appellant and her mother being verbally abusive and aggressive while he was dealing with another prisoner. They refused to cooperate with his requests and continued to disrupt the running of the custody suite. We considered that the primary duty of Sergeant Eastwood was to ensure that the custody suite was operated effectively. It was quite clear to us that the actions of the appellant and her mother were preventing Sergeant Eastwood from performing those duties. We were also of the opinion that he had a duty to all persons present in the custody suite and therefore had to deal with the disorder being caused by the appellant and her mother in order that he could perform his duty as Custody Sergeant. "

We did not consider that the appellant had any cause to believe that she was entitled to protect her mother. Although Sergeant Eastwood took hold of Mrs Bucher to escort her from the custody suite we were of the opinion that this was no more than a trivial interference with her liberty and that any 'force' used was minimal. Consequently there was no 'assault' by Sergeant Eastwood on Mrs Bucher and consequently the appellant was not acting in the defence of her mother. We found that she assaulted Sergeant Eastwood who was acting in the execution of his duty although we found that this was a reckless assault in that by struggling so violently with Mr Bayliss in the close proximity of Sergeant Eastwood she must have realised that there was a real possibility that he would be subjected to unlawful force. "Accordingly we found the appellant guilty of the charge and sentenced the appellant to a conditional discharge for three years and further ordered that she pay compensation in the sum of £125 to Sergeant Eastwood."

[7]The Magistrates then posed two questions for the court. They were:

"7a) Whether the Officer was acting in the execution of his duty?"

And:

"7b) Whether anything that he did caused him to cease to be acting in the execution of his duty?"

[8]It might be thought that the Magistrates' conclusion that Sergeant Eastwood was acting in the execution of his duty as Custody Sergeant in the circumstances described above was so obviously correct as a matter of common sense that there could be no possible argument to the contrary.

[9]Miss Wolfe, who was not responsible for the appellant's skeleton argument, valiantly sought to contend to the contrary on her behalf. She submitted that Sergeant Eastwood was acting outside his powers because he was neither arresting nor trying to arrest Mrs Bucher. Nor was he acting to prevent a breach of the peace.

[10]She submitted that the powers of the police are carefully circumscribed by statute and under the common law so as to protect the liberty of the citizen. Even a relatively minor act of detention outside those powers will be unlawful.

[11]It is perfectly true that Sergeant Eastwood was not seeking to arrest Mrs Bucher, nor did he purport to be acting so as to prevent a breach of the peace. Rather, as the Magistrates found, he was acting for the purpose of ensuring that the custody suite in the police station was able to operate effectively so that those who had to be processed could be processed with due expedition. It is plain from the Magistrates' findings that the appellant and her mother's loutish behaviour was preventing the effective operation of the custody suite.

[12]They had been asked to wait not in the custody suite but in the Doctors Room. They had insisted on entering the custody suite and then proceeded to disrupt its operation. In those circumstances Sergeant Eastwood was fully entitled to ask Mrs Bucher to leave the Custody Suite and, if she did not do so voluntarily, to use a "minimal" degree of "force" to persuade her to do so by placing his arm upon hers and guiding her to the exit.

[13]Since that is all that Sergeant Eastwood did, upon the Magistrates' findings of fact, it could not sensibly be described as a "detention" in any event. Escorting an unwilling party to a cell can be described as a detention, gently guiding them to the exit cannot. In essence, Miss Wolfe sought to persuade me that even if an individual entered a police station uninvited and acted in a disruptive manner, there was no power in the Custody Sergeant to ask them to leave and then to effectively guide them to the exit unless the Custody Sergeant formed the view that there was, or might be, a breach of the peace, and in effect arrested the troublemaker so as to prevent a breach of the peace.

[14]I have no hesitation in rejecting that submission and in accepting the submission made by Mr Weitzman on behalf of the Crown Prosecution Service that a Custody Sergeant is entitled to remove persons who are being obstructive or abusive from a custody suite so as to ensure that the operation and effectiveness of the police station is maintained, and that in so doing he is acting in the execution of his duty as a constable, provided of course that any force used is reasonable in all the circumstances. The cases relied upon by Miss Wolfe on behalf of the appellant can all be distinguished since they were concerned with attempts by constables to detain members of the public, however briefly, outside police stations, for example in the street.

[15]For the reasons that I have already given, Sergeant Eastwood was not seeking to detain Mrs Bucher at all. He was simply trying to remove her from the custody suite, by guiding her towards the exit using, as the Magistrates found, only a "trivial degree of force". He was not acting in a public place, he was attempting to remove a disruptive female lout from the custody suite in a police station. It would be extraordinary if such an attempt was outside his powers as a police constable on duty in the station.

[16]As Mr Weitzman observed in his skeleton argument, if the police were not able to take steps to ensure the proper working of a police station by requiring those who were being obstructive or abusive to leave it, that would cause a completely unworkable situation. He further submitted that, Mrs Bucher was in the same position as a visitor to any other premises. Having been disruptive she was asked to leave and given a reasonable opportunity to do so. Her permission to be on the premises having been revoked, there is no reason why the custody sergeant, as the effective occupier of the premises, should not have "shown her the door".

[17]For all of these reasons, I am satisfied that the only possible answer to the Magistrates' first question is "yes", and in the light of their conclusions as to the amount of "force" that was used, the only possible answer to question B is "no". The only surprise is that the question should have been asked in the first place. For these reasons this appeal is dismissed.