Wragg, R (on the application of) v Director of Public Prosecutions [2005] EWHC 1389 (Admin)

Case No CO/1578/2005[2005] EWHC 1389 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT
Venue Royal Courts of JusticeDate Wednesday, 15th June 2005
Strand
London WC2
B E F O R E:
MR JUSTICE NEWMAN
Between
THE QUEEN ON THE APPLICATION OFAppellantSHANE WRAGGAppellant-v-
Between
DIRECTOR OF PUBLIC PROSECUTIONSRespondent
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 HOWARD SHAW (instructed by the Max Gold Partnership, Hull) appeared for APPELLANTMISS JOHANNA SPINKS appeared for RESPONDENT
J U D G M E N TWednesday, 15th June 2005
[1]MR JUSTICE NEWMAN: This is an appeal by way of Case Stated from the Crown Court sitting at Hull. It was a hearing by way of an appeal from Magistrates. On 16th February 2004 the Justices, sitting at Beverly Magistrates, found the appellant was guilty of two offences, contrary to section 89(1) of the Police Act 1996. They sentenced the appellant to a fine of £200 in respect of each offence and the appellant was ordered to pay £100 compensation to each officer. The appeal against conviction was dismissed, thus giving rise to this Case Stated appeal. In fact, the sentence was varied to the extent that compensation awarded to one officer was reduced from £100 to £25.[2]The case was heard by Mr Recorder Gibson sitting with two Justices and the facts, as they appear from the Case Stated, can be summarised as follows:[3]The two police officers attended at the house occupied by Susan Carr and the appellant at about 12.20 am on 21st August 2003. Susan Carr's daughter, who at that time was serving in the Navy, was outside the house. She did not approach the police and she remained outside. The police formed the view that she appeared upset and frightened. Susan Carr and her son, who at the material time was serving in the Army, were in the house. The son was very quiet and appeared to the police to be in shock. Mrs Carr alleged to the police that there had been an extremely heated argument between the appellant and herself, which had caused her to be frightened. She alleged that the appellant had shouted at her and positioned his face close to hers during the course of the argument. She did not allege that she had been assaulted or threatened or that anything had been damaged or that threats had been made to damage anything. Neither the son nor the daughter made any allegations of violence or threats of violence, or damage or threats of damage. When the police arrived, such heated argument as had occurred was over in that everything was quiet. The appellant was watching television, but it was obvious that he was heavily in drink. The police assessed the situation, spoke to those present and formed the view that there was a possibility of violence if the appellant was allowed to remain at the house.[4]The account of their actions is as follows. The police asked the appellant to leave. He remained quiet and ignored the officers. They spoke to Mrs Carr, who said there would be a possibility of violence if Mr Wragg stayed. She was frightened of his behaviour. These concerns were confirmed by the son and the daughter. More than that, one police officer formed the view that the appellant's deliberate conduct in ignoring him was an attempt to intimidate the officer. It seemed impossible to reason with the appellant. On the basis of what they had been told had occurred, what they had been told by Mrs Carr and her son and daughter as to the possibility of violence if the appellant remained, that all of them were frightened, and since the police officer formed the view that the silence and quietness of the appellant to their reasonable requests was an attempt on his part to intimidate the police, they concluded that if he were allowed to remain in the house there the potentiality existed for the argument to restart and for violence to take place between the appellant and Mrs Carr.[5]The cause for arrest arose because the appellant went upstairs, indicating that he was going to go to bed. He was followed upstairs by the police. He was given a final warning and told that he would be arrested if he failed to leave. He said that he was going nowhere and, as a result, he was arrested to prevent a breach of the peace. It was at that stage that the struggle ensued, during which the officers sustained minor injury.[6]The essence of the submission advanced by Mr Shaw on behalf of the appellant today is that if one pays attention to the cases, and I shall mention some of them, it is plain that the power of a police officer to arrest in respect of an anticipated breach of the peace occurring in the future falls to be considered within certain clear principles.[7]As to the following cases, R v Howell [1982] 1 QB 416, Foulkes v Chief Constable of Merseyside Police [1998] 2 All ER 705, Redmond-Bate v Director of Public Prosecutions [1999] Crim LR 998, and the case of Jarrett v Chief Constable of West Midlands Police (The Times, 28th February 2003), the Recorder had considered and set out the material passages containing the test which had to be satisfied to justify an arrest in circumstances such as this.[8]First of all, in R v Howell, he referred to page 417 in a passage in subparagraph 2, which begins as follows:
" ... that the behaviour that caused a constable to believe that a breach of the peace had or would occur had to be related to violence and such a breach occurred whenever harm was actually done or likely to be done to a person or in his presence to his property or a person was put in fear of being so harmed through an assault, affray, riot, unlawful assembly or other disturbance."
[9]At page 426 of the judgment in the case another passage occurs:
"We hold that there is a power of arrest for breach of the peace where (1) a breach of the peace is committed in the presence of the person making the arrest ... (2) the arrestor reasonably believes that such a breach will be committed in the immediate future by the person arrested although he has not yet committed any breach ..."
[10]In the case of Foulkes, the following was said:
"The common law power of a police constable to arrest, where no actual breach of the peace has occurred but where he apprehended that such a breach might be caused by apparently lawful conduct, was exceptional and should be exercised by him only in the clearest circumstances when he was satisfied on reasonable grounds that a breach of the peace was about to occur or was imminent. There had to be a sufficiently real and present threat to the peace to justify the extreme step of depriving of his liberty the citizen who was not at the time acting unlawfully."
[11]Finally, in the case of Redmond-Bate:
"The test to determine whether the police officer's action was reasonable was an objective one, in the sense that it was for the courts to decide, not whether the view taken by that officer fell within the broad band of rational decisions but whether, in the light of what he knew and perceived at the time, the court was satisfied that it was reasonable to fear an imminent breach of the peace and that reasonableness had to be evaluated without the qualifications of hindsight."
[12]In the case of Jarrett, it was said:
" ... agitation or excitement, including hysterical waving of a handbag ... in front of a police officer interviewing a member of the public in the street did not constitute a breach of the peace to justify a lawful arrest."
[13]The essential factual submissions which Mr Shaw has advanced are, in summary, that in truth, the court could do no more than conclude that at its highest there had been a heated argument between the appellant and Mrs Carr. But it was a heated argument in which no threats had been made and no violence had occurred and no damage had been done. He submits it is not unlawful for people in a domestic setting or, indeed, he would probably add, in any other setting, to argue, even if they argue in a heated way. Thus, he submits that the conclusion reached by police that there was reason to believe there was a risk of imminent or immediate violence simply cannot be supported on the evidence and that the Crown Court should have concluded, looking at the matter objectively, that there was no breach of the peace because there was no evidence that a breach would be committed in the immediate future by the person arrested and therefore no basis for the officers to conclude that there was a risk.[14]As the court observed in the course of argument, the reference in the cases to immediacy and to imminence must, of course, be treated with a little caution because they are used in the context of situations where a police officer's powers are frequently exercised, namely in public, in the street. On such occasions, the test of immediacy or requirement of immediacy or imminence will be affected by the obvious availability of the two parties who have not yet come to blows, but where the officer is assessing whether or not they will exercise the freedom each of them has, or, indeed, the ability the police have to see that each of them exercise their freedom, to go their separate ways.[15]In this instance, we are concerned with domestic violence and what the police officers had to assess was whether or not, leaving the appellant in the house that night, it being after midnight, there was a risk that Mrs Carr would be subjected to violence by the appellant. In my judgment, the matters which Mr Shaw emphasises, whilst there to be emphasised, fail to take account of the other matters which were also for the police officer to consider and which were for the Crown Court to consider when looking at the matter objectively. The police officers were entitled to respond to the statement by Mrs Carr that it was her belief there would be a possibility of violence if the appellant stayed, which was supported by the son and the daughter. The police officers were also entitled to take into account the conduct of the appellant in ignoring the reasonable requests of the police to respond to the situation at hand. A police officer formed the view that he was attempting to intimidate the police. That being the finding which the court came to on the evidence which it has heard, in my judgment, it was a matter which was highly material to the overall conclusion to which the court was required to come.[16]As I indicated in the course of argument, not because it was particularly relevant to the disposal of this case, but since this matter has gained a certain momentum, so far as the appellant is concerned, it is worth emphasising that on this occasion the appellant was in drink, and he was not responding in a sensible way. It would have been the easiest thing in the world for him to have responded to the police by giving an assurance that there would be no violence that night and that the argument was over and he could, if he so wished, have volunteered an apology for having given rise to such concern on the part of everybody. The absence of such a response on his part, and what seemed to the police as a rather curmudgeonly intimidating silence, is something for which he alone is responsible.[17]In my judgment, the question which falls to be answered by this Case Stated can only be answered in one way. The question is as follows: Whether the court, namely the Crown Court, was entitled to conclude that(1) it was reasonable in the circumstances for the police to believe that a breach of the peace would be committed in the imminent future,(2) whether the arrest of the appellant was therefore lawful, and(3) the police officers were therefore acting the execution of their duty.[18]In my judgment, it was plainly open to the Crown Court to conclude, looking at the matter objectively, that it was reasonable in the circumstances for the police to believe that a breach of the peace could take place in that house after they departed that night and, so far as the immediacy or imminence test was concerned, that such assault could take place that night whilst the appellant was still in drink and thus Mrs Carr was at risk of immediate assault.[19]In my judgment, there can only be one answer. For the reasons I have given, the answer to the question is yes, yes and yes to (1), (2) and (3). The appeal is therefore dismissed.

Cited in 1 later judgment