Director of Public Prosecutions, R (on the application of) v Glendinning [2005] EWHC 2333 (Admin)

Case No CO/5312/2005[2005] EWHC 2333 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT
Venue Royal Courts of JusticeDate Thursday, 13th October 2005
Strand
London WC2
B E F O R E:
LORD JUSTICE SCOTT BAKER
MR JUSTICE OWEN
Between
THE QUEEN ON THE APPLICATION OFAppellantDIRECTOR OF PUBLIC PROSECUTIONSAppellant-v-
Between
CHARLES GLENDINNINGRespondent
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)
BEN TABINER (instructed by the Crown Prosecution Service) appeared for APPELLANTCHRISTOPHER GAIR (instructed by Messrs Jeffrey Bannister & Co) appeared for RESPONDENT
J U D G M E N TThursday, 13th October 2005
[1]MR JUSTICE OWEN: This is an appeal by way of Case Stated against a decision of the Crown Court at Taunton sitting on appeal from the South Somerset Magistrates' Court. The respondent to this appeal, the defendant below, is a lorry driver who appealed to the Crown Court at Taunton against his conviction at South Somerset Magistrates' Court for obstructing a constable in the execution of his duty by warning other motorists of the presence of a police speed trap on the A303 at Tinkers Hill, Stoke Trister, Somerset on 13th June 2004. On the hearing of the appeal, the Crown Court acceded to the submission made at the conclusion of the prosecution case that there was no case for the respondent to answer on the ground that there was no evidence that any motorist in the vicinity at whom any warning might have been directed, was committing, or was likely to commit, a speeding offence.[2]On 29th April 2005 the prosecutor, the appellant before this court, applied to the Crown Court to state a case for the opinion of the High Court. The question for this court was stated in the following terms:
"For there to be an obstruction of a police constable in the execution of his duty, by the giving of a warning of the presence of a speed trap, is it necessary for the prosecution to prove that those warned either were themselves exceeding the speed limit or were likely to do so at the location of the speed trap?"
[3]The facts were clearly and succinctly stated in the case stated by HHJ O'Malley, the court having had the advantage of seeing a video recording taken by the police speed camera of the events in question. "At about 11.20 am on 13th June 2004 a police car was parked in a lay-by on the north, or eastbound, side of the dual carriageway A303 near Tinkers Hill, Stoke Trister, Somerset. The road was subject to a speed limit for cars of 70 mph. The camera, in the rear of the police car, was pointing west and eastbound traffic was flowing towards it. The [respondent's] lorry appeared in the distance driving in the nearside lane, being overtaken by a volume of faster traffic in the offside lane. As the lorry approached the lay-by the [respondent] could be seen giving a slowing down signal with his right hand through the offside window of his cab. The police formed the view that he was giving a warning to motorists that were behind him that there was a police speed trap in the lay-by ahead. The [respondent] drove past the lay-by and was then followed by one of the officers in another police car. On being stopped later he was told that he wold be reported for obstructing police in the execution of their duty. The [respondent] told the police that he had been signalling because he had intended to drive into the lay-by but had changed his mind. It was apparent to the court, from the video evidence, that the lorry, which was limited to a speed of 50 mph, was approaching the lay-by at a moderate speed, and that at all material times the cars that were passing it were doing so also at a moderate speed and were proceeding only somewhat faster than the lorry. Accordingly none of the motorists seen in the video appeared to be exceeding any applicable speed limit. The police accepted that no vehicle could be seen to slow or swerve as a result of the [respondent's] signal. There was evidence that in the course of one hour's operation of the speed camera at that location on the day in question the police detected some 60 motorists exceeding the speed limit."[4]The essence of the decision by the Crown Court is to be found at paragraph 5 of the Case Stated:
"However we held that the persons at whom the hand signals were directed had to be persons who were either actually driving in excess of the speed limit or were likely so to drive at that place and time, and in respect of whom the warning could operate to prevent or obstruct the police in the performance of their duty to detect speeding motorists. Unless there was evidence that there were drivers who were driving in excess of the speed limit or who were likely to do so, there was no obstruction of the police. Here is was accepted that there was no evidence that anybody acted in response to the warning and nobody was detected speeding. Having seen the video we concluded that nobody was speeding. We likened the situation to that which would exist if there had been no other traffic in the vicinity of the [respondent]. Even if he had been trying to warn other motorists there was no offence known to the criminal law of attempting to obstruct the police in the execution of their duty. We distinguished the case of Green v Moore in which, but for the tip off, the police would have detected after hours drinking."
[5]The argument in the Crown Court was focused on three decisions of the Divisional Court: Bastable v Little [1907] 1 KB 59, Betts v Stevens [1910] 1 KB 1, and Green v Moore [1982] 1 All ER 428. The judgment of Donaldson LJ, as he then was, in Green v Moore contains a convenient summary of the earlier cases:
"Bastable v Little is the earliest in the relevant line of cases. It has elements which seem idiosyncratic today. Thus Lord Alverstone CJ said (at 62): 'Suppose a party of men are engaged in the offence of night poaching, and a person passing near warns them that the police are coming, I think it is clear that that could not be held to be an offence within this section. We must not allow ourselves to be warped by any prejudice against motor cars, and so to strain the law against them.' The offence charged was obstructing constables in the execution of their duty as such constables, contrary to s 2 of the Prevention of Crimes Amendment Act 1885. The police had set up a series of speed traps in London Road, Croydon. Mr Little occupied himself giving warning signals to drivers approaching the traps, thus ensuring that they did not exceed the speed limit. The ratio of the decision is without doubt that there was no evidence that the drivers were exceeding the speed limit at the time when they received Mr Little's signals, although all slowed down. Darling J made this point and added (at page 63): 'In my opinion it is quite easy to distinguish the cases where a warning is given with the object of preventing the commission of a crime from the cases in which the crime is being committed and the warning is given in order that the commission of the crime should be suspended while there is danger of detection, with the intention that the commission of the crime should be re-commenced as soon as the danger of detection is past. In Betts v Stevens the facts were indistinguishable from those in Bastable v Little, save that (a) the cars were exceeding the speed limit of 20 mph when they received the warning which was given by an Automobile Association patrolman, and (b) police officers were observing the cars at the place where the warning was given and the speed trap was intended to provide confirmatory evidence of their opinion that the speed limit had been exceeded. The patrolman was convicted. The court distinguished Bastable v Little on the ground that, contrary to the position in Bastable's case, the motorists were exceeding the speed limit before they entered the measured distance and that the action of the patrolman prevented the police from obtaining confirmatory evidence by timings over that distance. Both Darling and Bucknill JJ, the former expressly and the latter impliedly, stated that the gist of the offence lay in the intention with which the acts complained of were done. If the intention was simply to prevent the commission of crime, no offence was committed. It was otherwise if the intention was to prevent the commission of crime only at a time when there was a danger of detection."
[6]In Green v Moore itself the respondent was a probationer police constable. He frequented the bar of a hotel and knew that the licensee usually allowed drinking to continue after licensing hours. He heard that members of his police force intended that night to investigate the licensee's conduct of the premises, that a plain clothes constable would drink at the bar to observe if drinking was allowed after licensing hours, and let in uniformed constables who would be on patrol outside if that was the case. That same night the respondent warned the licensee of what was to happen and, consequently, the licensee adhered to the licensing hours. The respondent was convicted in a magistrates' court of wilfully obstructing constables in the execution of their duty, contrary to section 51(3) of the Police Act 1964. He appealed against the conviction to the Crown Court, which allowed the appeal on the grounds that in order to establish an offence under section 51(3), the prosecution was required to prove that the person aided by the alleged obstruction was at the time of the obstruction in the course of committing or had committed an offence, and since the alleged obstruction, namely, the warning, took place during licensing hours, no offence had been or could have been committed by the licensee at the time of the obstruction. The prosecutor therefore appealed. It was held by the Divisional Court that to give a warning to a person in order that he could postpone the commission of a crime until the danger of detection had past, was just as much an obstruction of a constable within section 51(3) of the 1964 Act as giving a warning in order that a crime already in the course of being committed could be suspended until the danger of detection had past.[7]In the course of his judgment Donaldson LJ was critical of the decision in Bastable. He said:
"If Bastable v Little has never yet been criticised, this is a situation which is capable of being remedied. It seems to us to be a very curious decision based on a highly eccentric view of the facts. The decision seems to have proceeded on the basis that prior to the warning the motorists concerned had not exceeded the speed limit and that the warning was intended to discourage them from ever so doing. If that were indeed the position, we would agree that no offence was committed. Far from obstructing the police in the execution of their duty, Mr Little would have been assisting them in one of their most important duties, namely, crime prevention. But a more realistic view of the facts is that the warning was based on a lively anticipation that even if the motorists were not then exceeding the speed limit, they were likely to do so over the measured distance and the warning was intended to discourage them from doing so until after they had passed out of the area of the police trap. However, the court never considered that hypothesis. We cannot see any distinction between a warning given in order that the commission of a crime may be suspended whilst there is danger of detection, which is an offence (see Betts v Stevens) and one which is given in order that the commission of a crime may be postponed until after the danger of detection has passed. We are, of course, bound by Bastable v Little and it must be left to others to consider overruling it. However, it is an authority which, in our judgment, should be strictly confined to the facts as the court found them."
[8]Mr Tabiner, in the course of his helpful submissions to us, sought to rely upon the judgment of Donaldson LJ in support of this appeal, arguing that his reasoning was to be preferred to that of the court in Bastable v Little. But in the passage from his judgment cited above, Donaldson LJ acknowledged that if it was the position that prior to the warning the motorist concerned had not exceeded the speed limit, then no offence would have been committed.[9]Mr Tabiner also sought to place reliance upon Betts v Stevens in which both Lord Alverstone CJ and Darling J were able to consider and to explain the judgments that they had given in Bastable. Thus, at page 6 of the judgment, Lord Alverstone said:
"In my opinion a man who, finding that a car is breaking the law, warns the driver, so that the speed of the car is slackened, and the police are thereby prevented from ascertaining the speed and so are prevented from obtaining the only evidence upon which, according to our experience, Courts will act with confidence, is obstructing the police in the execution of their duty."
[10]Similarly, Darling J, as he then was, said this:
"The appellant in effect advised the drivers of those cars which were proceeding at an unlawful speed not to go on committing an unlawful act. If that advice were given simply with a view to prevent the continuance of the unlawful act and procure observance of the law, I should say that there would not be an obstruction of the police in the execution of their duty of collecting evidence beyond the point at which the appellant intervened. The gist of the offence to my mind lies in the intention with which the thing is done. In my judgment in Bastable v Little I used these words: 'In my opinion it is quite easy to distinguish the cases where a warning is given with the object of preventing the commission of a crime from the cases in which the crime is being committed and the warning is given in order that the commission of the crime may be suspended while there is danger of detection.' I desire to repeat those words."
[11]In this case the facts as found by the Crown Court were that the hand signals given by the respondent were intended to warn motorists approaching from behind to reduce their speed because of the presence ahead of a police trap, but that there was no evidence that any such drivers were either driving in excess of the speed limit or were likely to do so. Hence, the Crown Court judge's conclusion that the situation was analogous to that which would obtain if there was no other traffic in the vicinity.[12]As Donaldson LJ observed in Green v Moore, when considering a charge of wilful obstruction of a police officer in the execution of his duty, the court must address the three questions propounded by Lord Parker CJ in Rice v Connolly [1966] 2 QB 414 at 419, namely:(1) Was there any obstruction of a constable?(2) Was the Constable acting lawfully in the execution of his duty?(3) Was the obstruction intended to obstruct the constable in the execution of his duty?[13]In this case, the officers in question were plainly acting lawfully in the execution of their duty. Secondly, the court found that the signals were intended to warn of the presence ahead of a police speed trap. But the court was not satisfied that there was any obstruction of the police officers in that there was no evidence of any vehicles that could have been affected by his signals, either being driven in excess of the speed limit or likely to be so. The court therefore distinguished the case from the interpretation of the facts in Bastable advanced by Donaldson LJ in Green v Moore, namely that there were motorists who were likely to exceed the speed limit over the measured distance. There could be no obstruction of the officers in the exercise of their duty unless there were vehicles that were speeding or were likely to speed. In my judgment that analysis was correct.[14]I would therefore answer the question posed for the consideration of this court in the affirmative and dismiss the appeal.

LORD JUSTICE SCOTT BAKER: I agree. On the Crown Court's finding, no driver to whom the hand signals were directed was either exceeding the speed limit or likely to do so at the location of the speed trap. In these circumstances, there was no actual obstruction of the police. On the authorities referred to by my Lord, going back to Bastable v Little [1907] 1 KB 59, no offence of obstructing the police in the course of their duty was committed. I, too, would answer the question posed in the affirmative and dismiss the appeal. The appeal is therefore dismissed.

[16]MR TABINER: Thank you, my Lord.

LORD JUSTICE SCOTT BAKER: Any other applications?

[18]MR GAIR: My Lord, I am publicly funded. I therefore assume the appropriate order would be no order for costs, save for public funding assessment of the respondent's costs.

LORD JUSTICE SCOTT BAKER: Very well. I am told you came here with a representation order and you do not necessarily need the order you just sought, but you can have it, in any event, in case you need it.

[20]MR GAIR: Thank you, my Lord.