Fullard & Anor, R (on the application of) v Woking Magistrates' Court [2005] EWHC 2922 (Admin)

Case No CO/4538/2005[2005] EWHC 2922 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT
Venue Royal Courts of JusticeDate Wednesday, 16th November 2005
Strand
London WC2
B E F O R E:
MR JUSTICE CRANE
Between
THE QUEEN ON THE APPLICATION OFClaimantWAYNE FULLARD AND RYAN ROALFEClaimant-v-
Between
WOKING MAGISTRATES' COURTDefendant
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)
MISS E COOK (instructed by Edward Fail, Bradshaw Waterson, London E1 0LG) appeared for CLAIMANTMR R BENDALL (instructed by CPS Surrey, GU1 4YA) appeared for DEFENDANT
J U D G M E N T
[1]MR JUSTICE CRANE: This is a case stated by the Justices of the Petty Sessional Division of North West Surrey in respect of their adjudication as a Magistrates' Court sitting at Woking. They heard three informations that were relevant for present purposes, on a succession of days ending on 24th September 2004. The three relevant convictions were, first, that Mr Fullard had assaulted a police constable, Police Constable Griffiths, in the execution of his duty, contrary to section 89(1) of the Police Act 1996; and the second and third convictions were of Mr Roalfe, that on the same occasion he had assaulted Rachel Jordan, a police constable, in the execution of her duty and Natalie Smith, a police constable, in the execution of her duty.[2]The issues before the Justices in relation to those charges were in the case of Mr Fullard whether he had assaulted the constable at all and secondly, whether that constable, if he was assaulted, was acting in the execution of his duty at the time. Mr Roalfe accepted the assaults but challenged the proposition that the two constables had been acting in the execution of their duty. The issue before this court relates solely to the question of whether the officers, at the relevant time, were acting in the execution of their duty, since Mr Fullard's denial of the assault itself was rejected by the magistrates.[3]In paragraph 2 of the stated case the Justices found the following facts, in so far as they are relevant: (i):
"At approximately 1:00 AM on Friday, 1st January 2004, Police Constable 2889 Edward Griffiths, and Police Constable 3020 Rachael Jordan attended the house of the appellant Wayne Geoffrey Fullard to investigate a report of a damage only traffic accident. There the officers met the appellant, Wayne Geoffrey Fullard, and his partner, Miss Raphaella Sciacca by their car at the end of the driveway. (ii) The appellant, Wayne Geoffrey Fullard, was very drunk and aggressive. The appellant Mr Fullard told PC Griffiths to "fuck off you cunt" and walked towards his house followed by PC Griffiths. The appellant Fullard’s partner, Miss Raphaella Sciacca, was earlier willingly talking to the police. (iii) The appellant Wayne Geoffrey Fullard went into his house. PC Griffiths followed and at the doorstep the appellant Wayne Geoffrey Fullard turned and said "you can fucking get out of my house"
. Then immediately using his right clenched fist the appellant Geoffrey Fullard struck the officer in his upper chest area causing him to stumble back. PC Griffiths had not been afforded a reasonable opportunity to leave the premises before being struck. Prior to being assaulted, PC Griffiths had been acting in the execution of his duty in making reasonable enquiries about the driver of the vehicle in relation to the traffic accident. Circumstances had then changed and so later constables were under a duty to assist. (iv) The appellant Ryan Michael Roalfe then appeared in the hallway of the property with a female. He was drunk, aggressive and abusive to the police officers. Further police assistance was requested and additional officers attended. (v) PC Griffiths continued to attempt to reason with the appellant Wayne Geoffrey Fullard but he became more aggressive and again punched PC Griffiths in his chest area. Fearing for his own safety and that of his fellow officers, the officer deployed CS gas on the appellant Wayne Geoffrey Fullard. (vi) The appellant Ryan Michael Roalfe became very agitated. Two female officers, PC Jordan and PC Smith, told him to move back and then without warning he lunged forward and punched PC Jordan to the top of her head and then pushed PC Smith hard on her shoulder. PC Jordan deployed her CS gas on the appellant Ryan Michael Roalfe. As she did so the appellant again punched PC Jordan to the top of her head. Prior to the assault, PC Jordan and PC Smith had been acting in the execution of their duty."[4]In paragraph 3 of the stated case the Justices summarised the evidence and in view of the nature of the question that has been posed for this court, it is necessary for me to cite a number of the passages of evidence. I do so as follows:
"PC Edward Griffiths (Sworn) ... I had received a call regarding a damage only road traffic accident, and as a result of this I attended number 8 Upper Park Road, Camberley. ... I caused the [Jaguar] to stop in the driveway. The driver, who later identified herself, was Miss Raphaella Siaccaa. The front seat passenger was later identified as Wayne Geoffrey Fullard. Mr Fullard then attempted to get out of the car; I told him to stay in the car. He then responded by saying "fuck off you cunt"
. I was still attempting to speak to the lady driver, Miss Sciacca informed me that Mr Fullard was driving the vehicle at the time of the accident. After the collision she got back into the vehicle. I then told Mr Fullard that I needed to speak to him; by this time he was on the driveway. He was acting aggressively and I could smell intoxitants on his breath, his eyes were glazed and his speech was slurred and he was unsteady on his feet. I formed the opinion that he was drunk. He was acting aggressively and threatening me with his fists clenched. He again then told me to ‘fuck off you cunt.’ I followed him to his house at the doorstep, and he said can you 'fucking get out of my house.’ He then immediately struck me to the centre upper part of my chest. He went back in the house; another female then appeared. Both Miss Sciacca and this other female were tearful. Also another male appeared who I now know to be Ryan Michael Roalfe. Mr Roalfe was getting extremely aggressive and threatening; I called on my radio for the assistance of other police constables while I remained on the doorstep to try and reason with both men. Mr Fullard punched me again with his right hand on my chest. Then Police Constables Morgan and Smith also attended, and my colleague Police Constable Jordan was also present. Mr Fullard came out with his clenched fists. I was concerned about more assaults and then I deployed the CS spray into his face. He stepped back, covered his eyes and then went back into his house in what appeared to be the kitchen area and was washing his eyes in the water. It also calmed down the two females, who appeared to be less agitated. Mr Roalfe, by this stage, was getting more and more aggressive. He then lunged forward and struck the top of PC Jordan’s head with a clenched fist. At that point, PC Jordan deployed her CS gas spray. Eventually Mr Fullard and Mr Roalfe were handcuffed and on suspicion of assaulting police officers whilst in the execution of their duty."[5]In the course of cross-examination Police Constable Griffiths said that he had no recollection of Miss Sciacca saying that he should get out. He accepted that he was speaking to the lady on the doorstep, and that Mr Fullard was inside the house and told him to "fuck off". He said that the investigation regarding the road traffic accident was pointing to Mr Fullard, as a result of what he had been told. He said that Mr Fullard continued to say "fuck off" a few times and that Mr Fullard had struck him twice. He said that he had never stepped into the house.[6]When cross-examined on behalf of Mr Roalfe he repeated that Mr Fullard had told him to "fuck off" and that he did not want him there and that he was being abusive. He then described again how Mr Fullard had walked past him on the doorstep, turned and faced him and told him to get out of his house. He accepted that this was the third time he had been abusively told to go away and that he understood that he did not want him to be there. He said that Mr Roalfe appeared, also swore at him and told him to: "fuck off" but he decided that he had a right to be there. He accepted that he had the option of withdrawing but decided not to. It was a decision he made on the night. He was not going to run away just because of their swearing. He was not looking for an altercation. He was justified to remain there. He was trying to reason with them but to no effect.[7]The evidence of Police Constable Smith was that when she arrived in response to a request for assistance, both Mr Fullard and Mr Roalfe appeared drunk and very aggressive. She could smell a lot of intoxicating liquor. PC Griffiths was trying to speak to Mr Fullard and Mr Fullard was shouting to PC Griffiths for them to get off his property in an extremely aggressive and confrontational manner. Later she said that after PC Morgan had arrested Mr Fullard, Mr Roalfe was getting very aggressive. She and PC Jordan tried to calm him down but Mr Roalfe appeared very drunk and was swearing continuously. He was asked to stay back. He then punched PC Jordan on the shoulder and then pushed him back.[8]PC Jordan gave evidence that they saw on arrival the Jaguar reversing out of the drive with a female driving and a male in the passenger seat. She continued:
"PC Griffiths went to the passenger door, he spoke to the driver. At this point the male passenger said, ‘no fuck off you cunt.' I went to the passenger side of the car where a male was sitting who I now know to be Wayne Fullard. PC Griffiths said he wanted to speak to Mr Fullard, and Mr Fullard said ‘fuck off you cunt’. He left the vehicle, he was walking around with his fists clenched. Mr Fullard went into his front door and then turned and said, ‘you get out you fucking cunt"
. He then punched PC Griffiths in the chest. There were other males and females present. I remained outside. A person I now know to be Mr Roalfe came out and shouted for us to ‘fuck off’. I asked for further assistance as I was concerned for our safety." She then gave an account of the events that followed in relation to Mr Roalfe.[9]When cross-examined on behalf of Mr Fullard she said that Mr Fullard had told PC Griffiths to go away when he tried to get out of the vehicle and that PC Griffiths walked towards the front of the house following Mr Fullard. She remembered Mr Fullard telling PC Griffiths to get away. She saw Mr Fullard punch PC Griffiths.[10]PC Morgan, who was one of those who arrived later, described the events in relation to Mr Roalfe and also, (although, of course, this was at a later stage of the incident) in cross-examination he agreed that he heard words being shouted by Mr Fullard: "Get off my fucking property" addressed to PC Jordan and PC Griffiths.[11]The Justices summarised the evidence given on behalf of the respondent, particularly in relation to the interview. In relation to Mr Fullard's interview:
"He stated that the police were very aggressive and refused to let him get out of his car on his driveway. He then shut the car door on his leg. When he did get out they tried to follow him into his house, that they were accusing him of hitting a vehicle. This he said was his girlfriend, Ella, that they were going to sort it out as they drove back to pick up his other son. They said that things were difficult to recall as he was very drunk."
[12]Mr Roalfe in his first interview apparently said that he remembered very little of the incident in the house when the police attended as he was extremely drunk and unwell. However, the Justices recorded that he was remorseful and apologetic and said he could not believe his actions.[13]The evidence of Mr Fullard in part, as cited by the magistrates, was this: after they had got home he said:
"Then suddenly two coppers jumped out from behind the fence, I was in the passenger seat, Ella was driving, the car was still on my driveway. PC Griffiths spoke to Ella; she got out and was talking to him. Then the woman police constable stood by the passenger side, by the front wing. PC Griffiths said to get out of the car, then PC Griffiths walked around to the passenger side of the car. I started to get out and he said 'Hello Wayne, no need for you to get out.' His tone was as if he was pleased to see me. He was leaning against the car door trapping my leg on the drive, one leg out of the car. Ella walked around the back of the car. I told him to get off my property. I probably had used more colourful language. He walked up to the house. Miss Sciacca wanted to sort out the problem. PC Griffiths' attitude and manner was such that I wanted Griffiths as far as away as possible. Miss Sciacca stayed at the doorway to speak to the constables. I came back to the doorway and told them to 'get off my property’. ... Ella was trying to explain to the police constables that she doesn't need this stress because of her diabetes. It then got out of hand. Ryan then went into the kitchen telling them to go away. I told them to ‘get off my fucking property.’"
I had earlier expressed a desire for him to leave when I was getting out of the car. PC Griffiths then radioed for back-up." Then he described how the CS gas was used and he was arrested and Mr Roalfe was involved.[14]In cross-examination he confirmed his denial that he had ever punched PC Griffiths. He said this: "I was shouting from the kitchen for all the police to: ‘leave my property.’ I was angry and shouting, but I was in full control.’[15]Miss Raphaella Sciacca in her evidence said, in part, this:
"There were two police constables, male and female. The male police constable asked me to exit the car. Mr Fullard tried to get out of the car but the officers said: ‘you don't need to get out. I said I'll sort it out. I was asked who the driver of the vehicle was and I said 'I am'. He then spoke about a damage owned traffic accident and I said I’d been the driver. I told Wayne to get out of the car and get into the house. We went up to the house. Wayne was shouting ‘get off my property’. We went into the house. PC Griffiths was about five feet away from the front door. I then stepped back out and stood on the step. The police constable said ‘I want Wayne to come out'. I asked what the problem was. I said ‘I don't need this stress.’ They insisted on speaking to Wayne. I went to go back indoors, suddenly I saw all blue lights. I opened the door, my mouth was then dropped open. I couldn’t believe what I saw. There were eight police constables on my property. While I was at the doorway, Kate came up behind me. Wayne then came out and told them all to ‘get off’. Then Ryan came out of the bedroom. Wayne kept saying, ‘get off my fucking property'."
[16]She went on to describe the use of the CS spray and to say that she did not see Wayne strike the police constable and that he could not have done so.[17]The Justices then in paragraphs 4 and 5 set out the respective contentions of the parties and in paragraph 6 noted the case law to which they were referred. In paragraph 7 they said this:
"We were of the opinion that Wayne Fullard, Raphaella Sciacca, Ryan Roalfe and Kate Fullard drove from the party at Youlden Drive to 8 Upper Park Road. There Miss Fullard and Mr Roalfe remained while Miss Sciacca and Mr Fullard made to return to the party. Before they could leave the premises PC Griffiths and PC Jordan arrived. They were there to make enquiries about a minor accident about which information had been received a little earlier on. Mr Fullard agrees that he was very drunk and attempted to get out of the car. That attempt was stopped by PC Griffiths and at that point told him to "fuck off you cunt."
At this time Miss Sciacca was willingly talking to the police. We find that in all the circumstances as they were at the time the words uttered by Mr Fullard, who was clearly drunk, does not necessarily amount to a revocation of any licence to remain. When Mr Fullard and Miss Sciacca had reached the front door of the house, followed by PC Griffiths, Mr Fullard then said to him ‘you can get out of my house you cunt.’ We find that those words could not be misinterpreted and they revoked any implied licence to stay. However, PC Griffiths and PC Jordan had then to be allowed a reasonable opportunity to leave, but the prosecution evidence is that, at about the same instant as saying those words, Mr Fullard struck PC Griffiths. Mr Fullard says he does not remember what happened and Miss Sciacca did not see a strike. We find the evidence of PC Jordan and PC Griffiths to be consistent and credible. We have also heard and we accept further evidence that there was a second punch to the chest by Mr Fullard on PC Griffiths. Because PC Griffiths had not been allowed a reasonable time to leave the premises, we therefore find he was acting in the execution of his duty. At the point of the first assault circumstances changed and in view of this assault, PC Griffiths and PC Jordan were thereafter under a duty to deal with it. From now on there could be no question that those officers and the other officers later called to assist were all acting in the execution of their duty; those other officers being PC Morgan and PC Smith. Although Mr Roalfe chose not to give evidence at his trial we have drawn no adverse inference from his silence. Having heard from PC Jordan, PC Smith and PC Morgan that PC Jordan was punched by Mr Roalfe twice on the forehead and that he pushed PC Smith on her right shoulder, we find those assaults proved. We therefore find Mr Fallard guilty of the allegation of assaulting PC Griffiths and Mr Roalfe guilty of assaulting PC Jordan and PC Smith." Finally they pose the question:
"Was there sufficient evidence for us to conclude that PC 2889 Edward Griffiths was not afforded a reasonable opportunity to leave once his implied licence to enter had been revoked, and thereafter were he and his fellow officers continuing to act in accordance with their duty?"
[18]I turn to the law. It is common ground that the legal right of the police officers to be on the driveway of this house depended on the implied permission that they had to go on to the driveway of the house. That proposition is derived from Robson v Hallett [1967] 2 QB 939. It is accepted, on all sides, that initially the officers who first arrived had such permission and the respondent does not contend, at least now, that there were any statutory powers of entry that were relevant at that stage. It is also common ground that such implied permission can be withdrawn and there is no dispute that Mr Fullard was entitled to withdraw that permission if he chose.[19]The question has arisen whether the revocation of a licence depends on the understanding of the owner of the premises, or of the person who has come on to the premises, or whether the test is an objective one, that is whether an objective bystander would conclude that permission to be on the premises had been withdrawn.[20]The only authority which might bear on that, to which I have been referred, is Lambert v Roberts [1981] 72 Cr App R 223, which was a decision of the Divisional Court. In that case there had been repeated statements by the owner of the premises that the officers, who were on the driveway of his house, were on private property and that he believed the police had no right to administer a breath test in those circumstances. That statement was, in effect, repeated several times. At page 230 Donaldson LJ said this:
"But it is a licence which is revocable without prior notice. In the present case the justices have found that the defendant's statement that he was on private property and that the police officers were trespassing was such a notice. I am quite unable to say that this was wrong, although an alternative view of the defendant's conduct, taken as a whole, is that he was simply disputing the right of the police officers to require a breath test on private property but was not effectively revoking their licence."
[21]That is an illustration of the respect to be paid to the fact finding Tribunal, but by implication the court was saying that it was an objective view of the request made that is crucial. In the present case Mr Fullard had told the Justices, in evidence, that he was intending to withdraw any permission of the officers to remain and to tell them to go. The difficulty about his evidence, of course, is that the Justices did not accept his version of events where it differed from that of the officer, PC Griffiths.[22]On stronger ground, however, Miss Cooke, on behalf of Mr Fullard and Mr Roalfe, submits that the officer had conceded in evidence that he understood the words as a request to leave, but that he had decided that he was going to stay. In my view, however, the test must be an objective one. If there is a misunderstanding between the person making the request and the person to whom the request is directed, then it must be an objective question whether the request amounts to a request to leave. I leave on one side the situation where there is undoubtedly a request to leave that the trespasser does not understand, but that is not the present situation.[23]It is clear law, and accepted by all parties to the present proceedings, that if the implied permission to be on the driveway is revoked then the police officer, or other person concerned, must be given an opportunity to leave.[24]I go back to Robson and Hallett. In that case the owner of the house told an officer, who had there been explicitly invited to enter, to leave. The officer agreed and immediately began to leave but was assaulted as he left. At page 952 Lord Parker, CJ, said:
"It seems to me that when a licence is revoked as a result of which something has to be done by the licensee, a reasonable time must be implied in which he can do so, in this case to get off the premises; no doubt it will be a very short time, but he was doing here his best to leave the premises."
At page 954 Lord Diplock said: 25. "the sergeant had a reasonable time to leave the premises by the most appropriate route for doing so, namely, out of the front door, down the steps and out of the gate, and, provided that he did so with reasonable expedition, he would not be a trespasser while he was so doing." 26. The same principle appears on different facts in the case of Davis v Lisle [1936] 2 KB 434.[25]I then turn to the question in the present case. Consideration of it can be divided into two parts. The first question I have to decide is whether the Justices were entitled to decide that the initial two remarks: "fuck off" amounted to a clear withdrawal of permission to be on the premises. Two cases, not cited to the Justices, illustrate the court's approach to the use of such words. The two cases are Gilham v Breidenbach [1982] RTR 328 and Snook v Mannion [1982] RTR 321. In both those cases very similar remarks were made to the ones in the present case. In both cases the Divisional Court made it quite clear that interpreting words of that kind, in a situation such as the present, is very much a matter for the Justices who have heard the evidence and who have to assess the words in their context. The words "fuck off" in such a context may be simply. They may be an indication that the person speaking simply does not wish to co-operate with or talk to the officer. They may, in some situations, amount to a request to leave. I have to ask myself whether the Justices were entitled to decide, as they clearly did, that in this case those two first remarks did not amount to a request to leave and a withdrawal for the implied permission to be present.[26]As will be understood, I am not entitled to substitute my view of the evidence for that of the Justices, unless they went beyond a point that reasonable Justices were entitled to reach. I have not heard the evidence and this court must be careful not to substitute its own impressions of the meaning of words spoken in a fraught situation for that of those who have heard the evidence. As in the two cases which I have cited, it seems to me quite impossible to disagree with the Justices on this issue. It follows that everything depends, as far as Mr Fullard's case is concerned, on the circumstances in which the request at the doorway was spoken and the immediacy of the blow that the magistrates found had been struck.[27]It is to be noted that the words actually used were to get out of the house. It would have been open to the respondent to argue, as it seems to me, that this was, in the context, a prohibition on entering the house rather than necessarily a request to leave the driveway. That argument was not put forward and I mention it simply to illustrate further that I should not substitute my views for those of the magistrates on issues of fact, unless there is no reasonable basis for the Justices' decision.[28]In my view they were entitled to find that that was a clear request to leave and to leave the driveway, and that it was, subject to a reasonable opportunity to leave, effective in withdrawing the implied permission that PC Griffiths had. The question then becomes whether they were right to decide, as indeed the question stated for this court indicated, that PC Griffiths was not afforded a reasonable opportunity to leave. Miss Cooke argues that he cannot avail himself of that opportunity because he had decided that he was not going to leave, in any event. But my conclusion is that if the Justices were entitled to find, as indeed in my view they were, that there was no reasonable opportunity to obey the request or requirement that Mr Fullard had imposed, then the officer had not ceased to be acting in the execution of his duty. If events had turned out differently, if Mr Fullard had waited and the officer had waited, the legal situation may have been entirely different. The magistrates found that the blow was struck at virtually the same moment and immediately. They were entitled so to find, and, in my view, they were entitled in those circumstances to reach, the conclusion that PC Griffiths was not afforded a reasonable opportunity to leave once his implied licence to enter had been revoked. The answer to the first part of the question posed is therefore that there was sufficient evidence to reach the conclusion that the magistrates did.[29]It then becomes necessary to consider whether thereafter he and his fellow officers were continuing to act in accordance with their duty. The respondent cited to the Justices section 17(1)(h) of the Police and Criminal Evidence Act 1984 relating to a police power of entry to save life and limb and to prevent serious damage to property. It does not seem to me that power can be said, with any cogency, to have arisen and it was not specifically relied on by the officers. The potentially more relevant subsection, namely section 17(6) relating to entry in relation to breaches of the peace, was not in fact cited to the Justices.[30]In argument Miss Cooke, on behalf of Mr Roalfe, submits that whatever had happened in relation to PC Griffiths there were clear shouts from Mr Fullard that the police were to get off his property and that none of the other officers had a right to enter once that had been made clear. I agree with the Justices that however one analyses the situation, once PC Griffiths had been struck, and indeed on the evidence had arrested Mr Fullard for striking him, and once Mr Roalfe, as he did not challenge, was acting aggressively and appearing to be prepared to interfere with that arrest, it is quite impossible to argue that the officers were not entitled to assist PC Griffiths and, if necessary, to discourage Mr Roalfe. In that respect they were acting in the execution of their duty.[31]It may well be that although it was not submitted in this way to the Justices section 17(6) of the Police and Criminal Evidence Act 1984 would have been the correct legal analysis. However, quite apart from that the general power and indeed duty to prevent crime and to defend someone who was under attack would certainly cover the actions of those other officers in the circumstances that then arose.[32]In my view once it is decided that PC Griffiths was acting in the execution of his duty and that therefore Mr Fullard was in the wrong and was properly arrested and properly ultimately convicted, Mr Roalfe's contention that the officers had stepped outside the execution of their duty becomes unarguable.[33]For those reasons I answer the second part of the question posed:
"... were he and his fellow officers continuing to act in accordance with their duty?"
Yes. In the circumstances, therefore, the convictions of the three matters that this court has been considering were convictions that the magistrates were entitled to make and the appeal, by way of case stated, must therefore fail.

Cited in 1 later judgment