Saliu, R (on the application of) v Department of Public Prosecutions [2005] EWHC 2689 (Admin)

Case No CO/3149/2005

[2005] EWHC 2689 (Admin)

IN THE HIGH COURT OF JUSTICE

QUEEN'S BENCH DIVISION

THE ADMINISTRATIVE COURT

Venue Royal Courts of Justice

Date Friday, 21st October 2005

Strand

London WC2

B E F O R E:

MR JUSTICE STANLEY BURNTON

Between

THE QUEEN ON THE APPLICATION OF MICHAEL SALIUClaimant

-v-

Between

DEPARTMENT OF PUBLIC PROSECUTIONSDefendant

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MR J MITCHELL (instructed by IAN PERSAUD) appeared for CLAIMANT

MR R SADD (instructed by CPS SUFFOLK) appeared for DEFENDANT

J U D G M E N T

[1]MR JUSTICE STANLEY BURNTON: This is an appeal by way of Case Stated by Mr Michael Saliu who was convicted by lay magistrates after a hearing occupying three days from 29th to 30th September and 1st December 2004 of assaulting Police Constable Blacker in the execution of his duty. He was found not guilty of a similar charge of assaulting Sergeant Ferguson.

[2]The case arises out of an incident clearly connected with a history of some domestic violence between the appellant and his partner who together had a baby son. I say that because the incident in question took place on 3rd May 2004 and there was an injunction at the time in force which prohibited the appellant from using or threatening violence against his partner and from visiting a specified address. That injunction was subject to a power of arrest in respect of any use or threat of violence against the applicant for that injunction. I am told, and I think it is common ground, that there was no such power of arrest in relation to the prohibition against visiting the specified address.

[3]On 3rd May 2004 the police were called to 49 Perkins Way in Ipswich. The evidence before the magistrates and the facts found by them are, of course, contained in the Case Stated. I said at the beginning of this appeal that the Case Stated was far from being the clearest Case Stated I have seen, and that impression has been confirmed by the submissions made by counsel. It seems to me, however, that the Case Stated is sufficient for me to come to a conclusion on this appeal.

[4]The appeal raises the question whether the appellant was rightly convicted, having regard to the fact that he was, during the course of the day in question, and in the course of the incident in question, arrested and, it is contended, following that arrest, he was not as soon as practicable informed of the ground for his arrest. It is submitted that his arrest was therefore unlawful by reason of section 28 of the Police and Criminal Evidence Act 1984 and therefore any assault, or the assault which followed his arrest of which he was found guilty, was not an assault on the officer in the execution of his duty, because there had been no lawful arrest. He was unlawfully detained and indeed if he was unlawfully detained he would be entitled to use reasonable force to free himself.

[5]There are other issues which the appellant sought to take before this Court. One is that his solicitor contended that having made a submission after the close of the prosecution case that there was no case to answer, on the basis that at the time of the assault the appellant was under unlawful arrest, and that submission having been rejected at that point, the solicitor was prevented by the magistrates from making submissions on that point again after the close of all the evidence, that is to say including the defence evidence, during his final submissions. That matter is not referred to in the Case Stated. If it were sought to raise it before this Court it would have been necessary for the Case Stated to have dealt with it. In the event of there being any refusal by the magistrates to state the necessary facts and question of law arising in such circumstances, the remedy of an appellant is to seek a direction from this Court that the case be amended appropriately. That was not done, and it needs to be emphasised that an appeal by way of Case Stated is restricted to the matters set out in the Case and the consequences for any conviction of the questions raised by the Case Stated. An appeal by way of Case Stated does not give rise to a general roving complaint by appellants as to the conduct of or the issues in the trial at first instance.

[6]The second matter, which is also not referred to in the Case Stated, and which it was sought to raise but only subsequent to the trial, was whether the injunction contained a relevant power of arrest. The scope of the injunction and the power of the arrest in the injunction were never raised before the magistrates. They therefore made no relevant finding in relation to it, it having been asserted before them without any issue having been raised, that at the relevant time the appellant was subject to an injunction prohibiting him from visiting the property in question which, although the magistrates do not mention it, contained a power of arrest. Had the issue been raised at the trial it would have been seen that there was indeed a power of arrest in relation to the use or threat of violence by the appellant. The magistrates might then have considered whether or not there was a good power of arrest in the circumstances based on the injunction itself. That was never done. It is far too late to raise such an issue on a Case Stated where(a) the relevant facts are not found in the case and

(b) the relevant question or questions is or are not raised in the case and

[7]I turn, therefore, to the real question that arises in this appeal. In the end, it seems to me the appeal raises a question of fact which is: when did the arrest take place and when the assault, if there was an assault, take place: was that after the arrest and at a time when it had not been practicable to inform the appellant of the reason for his arrest?

[8]The relevant findings of the magistrates are contained in paragraph 2 and in subsequent paragraphs. They recite the evidence as follows: three police officers attended the address in question where the appellant was inside with his partner and their baby son:

"b. The officers knew that the Appellant was subject to an injunction prohibiting him from visiting this property. Other police units were called because screaming and shouting could be heard coming from the property and officers believed there to be a possible hostage situation in progress. The control room had classified the situation as a 'Grade 1' incident and therefore another three or four units were told immediately to attend at the property. (c) CS gas was sprayed into the property by PC Ormes. The Appellant complained that his baby had been affected by this and demanded that an ambulance be called to take his son to hospital. The officers were conscious in this potential hostage situation of the need to get the baby to safety before arresting the Appellant for breach of an injunction. They used their knowledge of conflict resolution in order to deal with the incident. An ambulance arrived and the Appellant was permitted to take his son to it to be treated by paramedics. Charlene Bryan [who I take to be the partner or former partner of the appellant] accompanied her baby into the ambulance. (d) Inspector Lewis had arrived at the scene together with other officers. He ensured that the baby was not in danger and then turned his attention to the Appellant. He did not detain the Appellant at this time as he wished to keep the situation calm and for it not to get out of control. He asked the Appellant to go into the police vehicle."

Pausing there, it is accepted by Mr Mitchell who has said everything possible on behalf of the appellant and who I hasten to add did not appear on behalf of the appellant at the trial before the magistrates, that the last sentence of paragraph (d) refers to a request rather than an imposition of force. That follows from the second sentence in which the magistrates say that Inspector Lewis did not detain the appellant. "e. The Appellant became agitated when they were by the police car. He kept moving from foot to foot and was asked to sit in the rear of the police vehicle. He responded by saying 'It will take more of you to get me in the car'. The Appellant squared up to Inspector Lewis and crouched down raising his fist. Inspector Lewis thought he was going to be assaulted and took hold of the Appellant's left arm. Sergeant Ferguson took hold of his right arm but he lost his footing and fell over. The Appellant twisted and struggled and moved his feet around. Other officers assisted Inspector Lewis to restrain the Appellant. f. The Appellant was flailing and twisting and turning his arms with tense arms and clenched fists. At around at this time and during the ensuing struggle PC Blacker was struck by the Appellant on his right cheek causing reddening and swelling, and his lip was split. The Appellant was eventually taken to ground and said 'Okay you win'. We did not accept the Appellant's contention that he only struggled because he did not want his arm to be broken. It is also at this point in the incident that Sergeant Ferguson was struck in the head by the Appellant's knee. g. The Appellant, having been physically restrained, was placed in a police vehicle and it is at this point that we found that his arrest took place. The Appellant was not informed of the reason for his arrest at this time. h. We found that it had not been practicable at the time of arrest to inform the Appellant of the reasons for his arrest. Police Constable Carpenter was instructed to take the Appellant to the police van and to 'caution' him. i. The Appellant was placed in the cage in the police van, but continued to be violent and agitated. PC Carpenter informed the Appellant, while in the van that he was under arrest for breach of an injunction and for assaulting a constable, the Appellant was agitated at this point kicking and spitting. j. The Appellant was again informed of the reasons for his arrest while at the police station. k. Our finding with respect to evidence given by the Appellant that he was restrained after his son had been placed in the ambulance, and at a time when he indicated that he was approaching the ambulance to see if all was well with his son, is that this is consistent with the prosecution accounted. l. This finding is also based upon and consistent with the evidence of Mr Lopez, (a defence witness) who confirmed that things went wrong when the Appellant walked five feet towards the ambulance. Mr Lopez described Inspector Lewis calmly holding out his arm without making contact with the defendant in order to restrain him, but that the Appellant tried to go around the officer's arm. It was at this point that he was restrained, a number of officers became involved, and the Appellant was handcuffed and placed in a police van. m. We accepted the Appellant's description that he was angry prior to his detention and that he had shouted at the officers that he would make a complaint about them. We did not accept the Appellant's evidence that he was not being aggressive in any way, that he was grabbed and jumped upon by the officers, and that he did not fight or punch the officers. n. the Appellant stated that he could not remember being told that he was under arrest, or at what point he was arrested. He stated that he did not remember an officer speaking to him but that this was not whilst on the journey. These assertions are not inconsistent with the evidence of the police officers or our other findings in the matter." They referred to the submission being made at half-time, that is to say after the conclusion of the prosecution case, based on section 28, and they say:

"We considered the evidence at that time placed before us and found that there was a case to answer. We reached the conclusion that a reasonable tribunal might convict upon the evidence placed before the court on the basis that there was a lawful arrest, in that the Appellant was informed that he was under arrest as soon as practicable given the constraints created by his own behaviour."

Then finally in paragraph 6, they say:

"We were of the opinion that an arrest took place at the time handcuffs were applied to the Appellant. We found that this arrest was lawful because the Appellant was informed of the reasons for his arrest in the police van as soon as was practicable after his arrest. We were of the opinion that at the time of the arrest Inspector Lewis had control of one arm, the other was free and was flailing about. At this time the Appellant was twisting and turning his arms with tense arms and clenched fists. During this fracas contact was made initially with PC Blacker and later with Sgt Ferguson. We were of the opinion that the Appellant clearly resisted the officers, and realised that there was a risk that injury would be caused. We were of the opinion that the actions towards PC Blacker were reckless and constituted an assault. Sgt Ferguson in his evidence has stated that the contact which the Appellant had with him may have been an accident, even though the Appellant's knee was lifted. We took note of that evidence and dismissed the charge of assault by the Appellant upon him. We convicted the Appellant for an assault on Police Constable Blacker in execution of his duty. The questions for the High Court are. (a) Were we correct in rejecting a submission of no case to answer on the basis of an argument based upon s28 of the Police and Criminal Evidence Act 1984. (b) Were we correct to convict the Appellant of recklessly assaulting PC Blacker?"

[9]The first question which has to be determined on the basis of the facts found is: when did the assault take place and when did the arrest take place? So far as the evidence recited in paragraphs (d), (e) and (f) of paragraph 2 of the case are concerned, the position would seem to be straightforward. As I have already mentioned initially Inspector Lewis makes a request for the appellant to go into a police vehicle. At that stage there has been no arrest. According to subparagraph (e) of paragraph 2 there is then an altercation. At that stage no arrest has taken place. There is an altercation because the appellant squares up to Inspector Lewis and raises his fist. Inspector Lewis takes hold of the appellant's left arm and it is implicit in the case that it is not simply or at all by way of arrest but because he thought he was going to be assaulted. There is at that moment not a detention. There is then an altercation during the course of which, according to paragraph (f) PC Blacker is struck. It is thereafter that the arrest takes place, after there had been an assault on the police officer. On that basis, quite straightforwardly the officer was struck in the execution of his duty. There was an apprehended assault on Inspector Lewis quite apart from the fact that it had been thought that there might have been and certainly might have been thought that there were reasonable grounds for believing there had been a breach of the injunction. The assault on the officers had no good justification in law and on that basis the conviction was amply justified. The fact that there was an arrest thereafter would not mean that the assault was not an assault on the officer or officers in the execution of their duty.

[10]Matters are made rather less straightforward by subparagraph (l) of paragraph 2, however, because that refers to the evidence of Mr Lopez that things went wrong went the appellant walked quietly towards the ambulance. Mr Lopez described Inspector Lewis calmly holding out his arm without making contact with the defendant in order to restrain him, and that the appellant tried to go round the officer's arm. It was at that point that he was restrained and a number officers became involved and the appellant was handcuffed and placed in a police van.

[11]It may be that what the magistrates intended to say when they referred to the consistency with the evidence of Mr Lopez was that Mr Lopez would not have seen why Inspector Lewis held out his arm. He would not have necessarily seen that Inspector Lewis held out his arm because he apprehended an assault by the appellant. Be that as it may, even on that account the appellant was not restrained until after, or in the course of the altercation. It may be that Inspector Lewis sought to arrest the appellant, but even on Mr Lopez's evidence, he did not succeed in doing so and there was immediately an altercation during the course of which the appellant ultimately was handcuffed and placed in the police van. Certainly there could be no question of it being unreasonable or perverse for magistrates to find that during the course of that altercation when the officers were seeking to restrain the appellant it was not practicable to inform him why he was being detained.

[12]In my judgment, therefore, the altercation took place immediately before the arrest and, in those circumstances, there can be no good argument that there was not an assault on a police officer in the execution of his duty, having regard to what had happened at the address and having regard to what Inspector Lewis apprehended and the violent conduct of the appellant at the time.

[13]In those circumstances, it seems to me, on any basis the magistrates were entitled not only to reject the submission of no case, but to convict the appellant of recklessly assaulting PC Blacker. The magistrates explained why they did not convict him of assaulting Sergeant Ferguson in their reference to his acceptance that the contact with him may have been accidental, and therefore there is no inconsistency between the acquittal on the one charge and the conviction on the other.

[14]I would only add this: when magistrates have addressed themselves to the correct question of law and that is in this case whether it was reasonably practicable to inform the appellant of the reasons for his arrest before he was in fact so informed, the court will be slow to conclude that no reasonable Bench could have reached the conclusion they did given that, on this hypothesis, the Bench were apprised of and sought to apply the correct test in law.

[15]In those circumstances it seems to me that the answers to the questions for the opinion of the High Court are both affirmative and it follows that this appeal must be dismissed.