Bonner v Director of Public Prosecutions [2004] EWHC 2415 (Admin)

Case No CO/2809/2004[2004] EWHC 2415 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT
Venue Royal Courts of JusticeDate Thursday, 7 October 2004
Strand
London WC2
B E F O R E:
MR JUSTICE MCCOMBE
Between
ANDREW W BONNERClaimant-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 PETER BLAIR (instructed by NILE ARNALL, BRISTOL) appeared for CLAIMANTMR BRENDAN MOORHOUSE (instructed by CROWN PROSECUTION SERVICE, BRISTOL) appeared for DEFENDANT
J U D G M E N T
[1]MR JUSTICE MCCOMBE: This is an appeal by way of case stated by the justices for the Avon and Somerset Commission Area acting in and for the Petty Sessional Area of Bristol in respect of their adjudication as a magistrates' court sitting at Bristol on 22nd January 2004. The appeal is brought by the defendant to those proceedings before the justices, Mr Andrew Wayne Bonner. The result of the proceedings before the justices was that Mr Bonner was found guilty of an offence of assaulting a constable in the execution of his duty contrary to section 89(1) of the Police Act 1996. The case, as proved before the justices, was said to have occurred on 24th May 2003.[2]I can take the facts of the case from the case stated by quoting it directly. The learned justices said this:
"We heard the said information on the 22nd January 2004 and found the following facts: a) Police officers Marshall and King were patrolling in plain clothes and were targeting street crime and drug dealing in the Easton area of Bristol. Beneath their plain clothes jackets they were wearing police issued body armour. b) They had cause to approach the Appellant who they believed to be involved in a drugs deal. c) The Appellant was detained for the purpose of a drugs search. The officers were in plain clothes and unzipped their fleece tops on approach to reveal their police body armour displaying the Avon and Somerset Police badge. d) The police officers told the defendant they were police officers on close approach. e) The police officers did not produce documentary evidence that they were constables, give their names and stations, the object of the proposed search or grounds for proposing to make it, in accordance with the Police and Criminal Evidence Act 1984 sections 2(2) and 2(3) [PACE], nor were the Code A PACE requirements complied with. f) As the officers approached the Appellant he displayed no sign of aggression, said nothing and made no attempt to move. As the officers approached the defendant was standing still with his hands in his pockets in front of him. g) The first time the Appellant was informed that he was to be detained for the purpose of a drugs search was just before or as the first officer "laid hands" on the Appellant by holding his arm. Immediately thereafter the other officer took hold of the Defendant's other arm. Thereafter the officers requested that the defendant remove his hands from his pockets. h) The Appellant started to struggle after the officers had taken hold of him and as a result the Appellant and both officers rolled down a bank. The Appellant continued to struggle violently and during the course of this both officers and the Appellant received injuries. So far as the officers were concerned these injuries were consistent with common assault. i) The officers had a general understanding of the powers of stop and search which they characterised by mnemonic GO WISELY ... Both officers believed they were correct to apply the PACE provisions only provided they perceived there was no threat to their personal safety. j) The police officers had a genuine fear for their own personal safety. The officers felt unable to commence the search due to the Appellant's behaviour because he refused to take his hands out of his pockets. The following is a short statement of evidence: PC Marshall accepted in his evidence that he was not aware of the requirements to produce his warrant card as a preliminary step, nor was he aware of the requirements 3.1 & 3.2 & 3.8 - 3.10 Code A. He accepted that the conduct of this incident had breached both the statutory and code requirements. He accepted the purposes of the code and said he complied with them when there was no threat to his personal safety. He specifically accepted that with the benefit of hindsight that this defendant could have been asked to co-operate with the search prior to the officers "laying on hands"
. PC King accepted in her evidence that she had not complied with all PACE requirements. The officer justified her immediate use of force as follows: 1) The officer had reasonable grounds to justify a drugs search and noted the defendant had his hands in his pocket, the officer said she had a real concern about the possible loss of drugs evidence. 2) The officer had in the back of her mind the possibility that this defendant might have a weapon, this was clarified in cross-examination by evidence that the officer always had this in the back of her mind. 3) The officer stated that the use of force was required on the basis that the defendant had refused to take his hands out of his pockets (although accepted that he was not asked to take his hands out of his pockets until after the officers had "laid on hands".) The officer was unable to distinguish this drugs search from any other "normal" drugs search, and maintained that her conduct had been normal and proper."[3]On those facts the learned justices found, as stated at the end of their case, the following:
"6. We were of the opinion that under the Police and Criminal Evidence Act 1984, sections 2(2) and 2(3) and Code A it is not an essential requirement for a police officer to comply with these provisions where it must be obvious to the person being apprehended that the person is a police officer and where the officer has genuine concern for his or another officer's personal safety. We were further of the opinion that in this particular case the officers actions did not take them outside the execution of their duty. Accordingly we convicted the appellant."
[4]The justices thereupon stated the following question for the opinion of this court, which both parties appearing before me acknowledge is not an entirely satisfactory question to which we can return after I have delivered this judgment. The question is in the following terms:
"Accepting that an officer who fails to comply with the detail of 2(2) and 2(3) of the Police and Criminal Evidence Act 1984 and Code A does not necessarily render his actions outside the execution of his duty so as to provide a defence to a person subsequently charged with assaulting a police officer in contravention of section 89(1) of the Police Act 1996 were we correct in exercising our discretion in these circumstances to treat the officers actions as being 'in the execution of duty'?"
[5]In the light of those findings and the question that I have stated, it is argued by Mr Blair in an excellent and concise argument on the appellant's behalf that it is clear that the officers were intending and contemplating a search of Mr Bonner, accordingly the requirements of section 2 of the Police and Criminal Evidence Act 1984 apply. It is acknowledged and accepted that those requirements were not complied with and, accordingly, when the fracas ensued between the officers and the appellant they were not acting in execution of their duty.[6]The relevant statutory provisions are set out helpfully in both skeleton arguments, but I can take it from the skeleton argument produced, equally ably, by Mr Moorhouse who appeared for the respondent. He referred me to section 89(1) of the Police Act 1996 the section under which this appellant was charged and then to section 23 of the Misuse of Drugs Act 1971 which is in the following terms:
"(2) If a constable has reasonable grounds to suspect that any person is in possession of a controlled drug in contravention of this Act or of any regulations made thereunder, the constable may - (a) search that person, and detain him for the purpose of searching him;..."
[7]In section 2 of the Police and Criminal Evidence Act 1984 the following provisions are to be found:
"(2) If a constable contemplates a search, other than a search of an unattended vehicle, in the exercise (a) of the power conferred by section 1 above or (b) of any other power ... (i) to search a person without first arresting him; ... it shall be his duty, subject to subsection (4) below, to take reasonable steps before he commences the search to bring to the attention of the appropriate person - (i) if the constable is not in uniform, documentary evidence that he is a constable; and (ii) whether he is in uniform or not, the matter specified in subsection (3) below and the constable shall not commence to search until he has performed that duty. (3) The matters referred to in subsection 2(2) above are (a) the constable's name and the name of the police station to which he is attached (b) the object of the proposed search; (c) the constable's grounds for proposing to make it; and (d) the effect of section 3(7) or 3(8) below as may be appropriate."
[8]It is only necessary to read subsection (8) which provides:
"The time for which a person or vehicle may be detained for the purposes of such a search is such time as is reasonably required to permit a search to be carried out either at the place where the person or vehicle was first detained or nearby."
[9]Mr Moorhouse also referred me to section 117 of the 1984 Act which provides:
"Where any provision of this Act- (a) confers a power on a constable; and (b) does not provide that the power may only be exercised with the consent of some person, other than the police officer, the officer may use reasonable force, if necessary, in the exercise of the power."
[10]As already indicated, of relevance to these proceedings are the provisions of Code A made under statutory powers under the same Act by the Secretary of State, and I have been referred to section 67 of the Act which provides in subsection (11):
"In all criminal proceedings any such code shall be admissible in evidence and if any provision of such a code appears to the court to be relevant to any question arising in the proceedings it shall be taken into account in determining that question."
[11]The only relevant provision to which I have been referred is Code A, paragraph 3.2 which provides:
"The co-operation of the person to be searched must be sought in every case, even if the person initially objects to the search. A forcible search may be made only if it has been established that the person is unwilling to co-operate or resists. Reasonable force may be used as a last resort if necessary to conduct a search or to detain a person or vehicle for the purpose of a search."
[12]As already indicated, Mr Blair's short point on behalf of the appellant, on the facts as found by the justices was that the whole object of this exercise was a search by the officers pursuant to section 23 of the 1971 Act, the Misuse of Drugs Act, and therefore before going any further it was necessary for the officers to comply with section 2 of the 1984 Act. They failed to do so and, accordingly, the assault, such as it was, did not take place when the officers were acting in the execution of their duty.[13]Against that contention Mr Moorhouse submits that this was not a case in which a search was in truth being conducted. All that was happening was that the officers were detaining Mr Bonner for the purpose, in due course, if necessary, carrying out a search and that, accordingly, when the violence ensued they continued to be acting in the execution of their duty. In contrast to this, Mr Blair says in reply it is impermissible to divide up the process in this way. This was for all intents and purposes a "drugs search" and, therefore, the provisions of section 2 of the 1984 Act apply.[14]In support of his argument Mr Blair refers specifically to the finding of the justices in paragraph 2C, which I have already read, that the appellant was detained for the purpose of a drugs search. He relies on the finding that the officers did not produce the documentary evidence. He further relies upon the finding that the officers approached the appellant, that the appellant displayed no sign of aggression and made no attempt to move. In other words, no detention as such was required. There was also a finding that the appellant was informed that he was to be detained for the purposes of the search just before the officer took hold of him. One of the officers in evidence, stated she was unable to distinguish this particular incident from any other drugs search which no doubt she had the misfortune to have to carry out on the streets of Bristol on many occasions.[15]It seems to me, without overemphasising or elaborating the matter, that Mr Blair's submissions are correct. It seems, on the facts as found by the justices, that it is clear that these officers from the beginning contemplated a search of Mr Bonner within the meaning of subsection (2) of section 2 of the 1984 Act. Accordingly, before proceeding to take action to conduct that search they were required to comply with the provisions of subsection (3) of the Act; that, they accepted, they failed to do. So far as necessary, it seems also that they failed to comply with paragraph 3.2 of the Code since, as they accepted, there does not seem to have been any need for force to be used as all, let alone as a last resort, at the time when the appellant's hands were first seized in the circumstances described by the justices.[16]In essence, I find it impossible to make any material distinction from the facts of this case from those that appear in the case of Osman v DPP (1999) 163 JP 725, a decision of the Divisional Court of the Queens Bench Division consisting of Sedley LJ and Collins J.[17]It is Mr Moorhouse's submission that in Osman there was no dispute that a search had been started. In this case, he submits, no search had ever taken place. However, it seems to me quite clear Osman was a case where initially a defendant was quiescent with the officers and began to show dissent when a search was indicated. In this case too, as we know from the findings of the justices, immediately before or at the time that he was seized, the appellant was told that the purpose of the detention was a search and that a search was going to be carried out imminently. As I say, there seems to me to be a distinction without any material difference.[18]In the Osman case the Divisional Court decided that the failure to comply with section 2 of the 1984 Act rendered the search unlawful and that the officers were not therefore acting in the execution of their duty. In a similar way, therefore, it seems to me that the exercise by these officers in attempting to commence the search of Mr Bonner, prior to complying with the provisions of the Act, equally rendered those acts unlawful and that they were not, therefore, acting in the execution of their duty. While one has the very greatest sympathy with officers who have to confront day in and day out the realities of life rather than the black letter law which this court has to apply, that law does have to be applied. It seems to me, therefore, that this appeal must be allowed and the relevant conviction quashed. And, subject to any argument of counsel, I would suggest that I could adequately meet the requirements of the justices by adopting a question in the simple form proposed by Mr Moorhouse in these terms:
"The question for the opinion of the High Court is: were we correct in finding on the facts of the case that PC Michael Marshall was acting in the execution of his duty?"
And to that question, if it is approved, I would propose to answer no.[19]MR BLAIR: My Lord, with respect, that is the most neat way of the question being formulated and I accept that.[20]MR JUSTICE MCCOMBE: Yes. I will so reformulate the question with respect, thank the justices for their case and allow the appeal accordingly.[21]MR BLAIR: Thank you.

MR JUSTICE MCCOMBE: Does anything else arise?

[23]MR MOORHOUSE: No, thank you.[24]MR JUSTICE MCCOMBE: Save on my part to thank you both for your excellent submissions. They were most interesting. Send my compliments to those in Bristol.[25]MR BLAIR: We shall.