Burrell v Crown Prosecution Service [2005] EWHC 786 (Admin)

Case No CO/591/05[2005] EWHC 786 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
DIVISIONAL COURT
Venue Royal Courts of JusticeDate Wednesday, 13th April 2005
Strand
London WC2
B E F O R E:
LORD JUSTICE LAWS
MR JUSTICE STEEL
Between
ALISTAIR BURRELLClaimant-v-
Between
THE CROWN PROSECUTION SERVICEDefendant
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 Messrs Fabers, Harrogate) appeared for Claimant. for THE RESPONDENT did not appear and was not represented.
J U D G M E N T
[1]MR JUSTICE STEEL: This is an appeal by way of case stated from a decision of the Harrogate Magistrates' Court made on 11th August 2004, whereby the appellant was convicted of an offence of resisting a police constable in the execution of his duty contrary to section 89(2) of the Police Act 1996. A charge under section 5 of the Public Order 1986 arising from the same incident was dismissed following a trial. The essence of the appeal is that these decisions are inconsistent with one another.[2]The background is set out in a case stated. First, it is desirable to set out the provisions of section 5 of the 1986 Act as amended by the Public Order Amendment Act 1996. Section 5 reads: (1) "A person is guilty of an offence if he - (a) uses threatening, abusive or insulting words or behaviour, or disorderly behaviour or, within the hearing or sight of a person likely to be caused harassment, alarm or distress thereby." I need not read subsection (2). Subsection (3):
"It is a defence for the accused to prove - (a) that he had no reason to believe that there was any person within hearing or sight who was likely to be caused harassment, alarm or distress, or (c) that his conduct was reasonable"
. And then perhaps the most important subsection (4):
"A constable may arrest a person without warrant if (a) he engages in offensive conduct which a constable warns him to stop, and. (b) he engages in further offensive conduct immediately or shortly after the warning. (5) In subsection (4) 'offensive conduct' means conduct the constable reasonably suspects to constitute an offence under this section, and the conduct mentioned in paragraph (a) and the further conduct need not be of the same nature."
[3]The facts can be summarised as derived from the stated case as follows. On the evening of Saturday 24th April 2004 the appellant and his partner attended Harrogate Police Station to act as appropriate adults in relation to his stepson who had earlier been arrested. At the material time the appellant and his partner were in the custody suite of the police station where they spoke to Custody Sergeant Downham who was behind the custody desk. There were other people present in the custody suite. The conversation between the appellant and Sergeant Downham become heated and the appellant became agitated and swore, using the words "someone is fucking lying" at one stage. The raised voices caused another officer, PC Taylor-Richards, to leave an adjacent room and enter the area by the custody desk. Sergeant Downham came round to the front of the custody desk and told the appellant to leave the custody suite. Whilst being escorted from the custody suite the appellant continued to be abusive. Sergeant Downham then issued the appellant with a warning in accordance with section 5(4)(a) of the Public Order Act. Following this warning the appellant continued to act in an aggressive manner towards the sergeant and swore at him.[4]As they arrived in the public reception area, and as a result of the appellant's conduct, the sergeant arrested the appellant in accordance with section 5(4) of the 1986 Act. The sergeant informed the appellant of this arrest. Following his arrest the appellant struggled with the sergeant. PC Taylor-Richards went to assist with the arrest and attempted to place handcuffs on the appellant. The appellant lashed out with his arms and legs and continued to struggle, and in doing so resisted the officer in carrying out the arrest. The handcuffs were eventually placed on the appellant and the arrest was completed.[5]It is the legitimacy of the arrest which is the focus of the appeal, although the argument ranged further in the hearing before the magistrates. Indeed it was contended by the appellant that his arrest by Sergeant Downham was unlawful, in that the sergeant had not issued a warning under section 5(4(a) and that the police officers had overreacted to the situation and were themselves aggressive towards the appellant.[6]The opinion of the court is set out in paragraph 6 of the case stated: "We were of the opinion that.(a) Although no members of the public were present at the material time, the appellant's behaviour at the public counter of the police station was abusive and aggressive and justified the action taken by Sergeant Downham to issue a warning under section 5(4) of the 1986 Act;(b) the appellant's continued behaviour following the warning justified his arrest, in that it was reasonable for Sergeant Downham to suspect that an offence contrary to section 5 of the 1986 Act was being committed;(c) the absence of any evidence at the trial to the effect that any person was caused or was likely to be caused harassment, alarm or distress as a result of the appellant's behaviour was however fatal to the charge brought under section 5 of the 1986 Act;(d) the charge of resisting a constable in the execution of his duty, the factual basis for which we had established from the appellant's conduct after arrest, was established notwithstanding the failure of the prosecution to prove beyond reasonable doubt the offence under section 5 of the Public Order Act 1986 as the police officers concerned had acted both reasonably and lawfully at the time of the appellant's arrest. The appellant's argument, which has been attractively presented by Mr Shaw, can be summarised as follows: (1) The charge under section 5 was dismissed. (2) This was because, as recorded in the written reasons prepared by the magistrates, "the level of swearing had not been shown beyond reasonable doubt as likely to cause harassment, alarm or distress to those present", a conclusion repeated in a slightly different format in the stated case. (3) The requirement under the Act is that the abusive words are within the hearing of a person "likely" to be caused alarm or distress. (4) For the arrest to be lawful the activities of the appellant had to constitute "offensive conduct". (5) Thus the officer had "reasonably" to suspect that it constituted an offence under section 5. (6) That test was objective. (7) Since the court found that nobody present was likely to be caused alarm, it followed that it was not reasonable for the officers to suspect that there was any likelihood of alarm or distress.[7]This is an ingenious but in my judgment misconceived argument. The issue before the magistrates was whether, at the time of the arrest, it was reasonable for Sergeant Downham to suspect that it was likely that a person would be caused alarm or distress. The fact that at the trial the magistrates were not satisfied beyond reasonable doubt that the abuse was likely to cause harm is not determinative of that issue. It may be that it was clear that the two police officers were not alarmed but, for the purpose of the objective assessment of whether it was reasonable to suspect that the conduct constituted an offence under the Act, that would not be in point. It may be an unusual case where the prosecution fail to establish an offence under section 5 by reason of being unable to establish an actual likelihood of alarm but succeed in establishing the entitlement to arrest by reason of a reasonable suspicion of a likelihood, but the present case is clearly one. The fact remains that the relevant ingredients of the two offences are different, measured by reference to different evidential input. There is no question in my judgment of these two verdicts being mutually and logically inconsistent. Accordingly, in my judgment the appeal should be dismissed.

LORD JUSTICE LAWS: I agree. We ought to answer the questions in the case. It follows from my Lord's judgment, with which I agree, that the four questions put for the opinion of the court are answered in the affirmative.

Cited in 1 later judgment