Sekfali & Orsv The Department of Public Prosecutions [2006] EWHC 894 (Admin)

Case No CO/7602/2005[2006] EWHC 894 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
DIVISIONAL COURT
Venue Royal Courts of JusticeDate Monday, 27 th February 2006
Strand
London WC2
B E F O R E:
LORD JUSTICE AULD
MR JUSTICE NEWMAN
Between
MOURAD SEKFALI, AZZEDINE BANAMIRA & KARIM OUHAMClaimant-v-
Between
THE DEPARTMENT OF PUBLIC PROSECUTIONSDefendant
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 D O'REILLY (instructed by Messrs Daniel Burbridge) appeared for CLAIMANTMR C BADGER (instructed by The CPS) appeared for DEFENDANT
J U D G M E N T
[1]MR JUSTICE NEWMAN: The appellants in this case appeal by way of case stated against the decision of the magistrates, the City of London Magistrates' Court on 25 May 2005. Each of the appellants was convicted of wilfully obstructing police officers in the execution of their duty, contrary to section 89(2) of the Police Act 1996. The appellant, Ouhad, was also convicted of having with him an article, namely pliers, for use or in the course of or in connection with theft, contrary to section 25 of the Theft Act. Ouhad appeals against his conviction in respect of going equipped, as well as his conviction on the obstruction charge.[2]Each of the appellants, Sekfali, Banamira and Ouhad were convicted of obstruction of police officers in the execution of their duty by running away from the police officers when the officers were investigating criminal activity. The magistrates found the following facts, which are material to the charge of obstruction: a) the three appellants were in the Next store in Fenchurch Street at about 13.35 on 8 November 2004, trying on leather jackets before leaving the store; b) Officers Thorogood, White, Brown and kock were in plain clothes. They attended Next and obtained descriptions of the three men; c) at 13.40 hours, the three appellants were seen in Cornhill walking west. Two were on the south footway and one was on the north footway; d) the man on the north footway joined those on the south and, at that point, Officers Thorogood and White approached them; e) Officers Thorogood and White identified themselves as police officers and showed their warrant cards to the appellants; f) the appellants looked at the warrant cards; g) at that point, the men fled each in a different direction. The men were all subsequently apprehended separately.[3]PC Thorogood's evidence was that whilst all three of the men were together, he approached, identified himself, displayed his warrant card and said "police." The three men ran off. The Police Constable stated in evidence that he wanted to detain them to ask them questions and to see if they matched the descriptions which had been given to the police by the staff at the department store, Next. PC White gave evidence to the same effect, but he said nothing about his intentions.[4]The submission of law which was advanced to the magistrates and was rejected by them was that since there was no duty which the law imposed upon the appellants to remain and answer questions when asked to do so by police officers, since the police officers had not arrested them, each of them was entitled to run away and thus could not be guilty of having obstructed the police officers. More than that, it was also submitted that since the purpose and intention of the officers, or at least one of them, was to question them or detain them, there being no power to detain a suspect before questioning, the officers, by reason of their intention, were not acting in the execution of their duty.[5]Mr O'Reilly, who has appeared for the appellants, has, in his skeleton argument, and in his oral submissions, repeated those two fundamental steps in his arguments. The magistrates's reasons for rejecting the submission on the obstruction charge appear from the case stated at paragraph 6:
"We were of the opinion that the officers Thorogood and White did identify themselves adequately as police officers and that the defendants deliberately fled the scene in different directions to impede their apprehension. At the point at which the two officers approached they were certainly acting in the execution of their duty, having reasonable grounds to question the men based on their similarity to the descriptions given by the staff in Next of three men acting suspiciously."
[6]In my judgment, the challenge to the correctness of the magistrates's conclusion is misconceived. The police officers were entitled in the execution of their duty to approach these three men. They did not intend at that stage, having reached the men, to arrest them. So far as they were to be detained, they were not to be physically detained, but asked questions. The police officers were manifestly acting in the execution of their duty to that point and the issue in the case is whether, in running away, the three appellants obstructed them in the execution of the duty which they were intending to perform.[7]The proposition relied upon in the argument below and in this court, that the police officers had no power to detain for questioning or to see if they matched a description without arresting them simply does not have a bearing on the investigation which the officers wished to perform. It is true that the police, in the absence of an arrest, were limited in the steps which they could take to investigate, but they could investigate by questioning.[8]In my judgment, the real issue raised by Mr O'Reilly's argument, which was recognised as such by the magistrates was whether the law imposed any limitation upon the appellant's freedom of action at the time when they had been approached by police officers, who desired to question them about a crime which had been committed. Given that the officers were acting in the execution of their duty, the answer to this question lies with section 89(2) of the Police Act 1996 which makes it an offence to wilfully obstruct a constable in the execution of his duty.[9]The issue which the magistrates addressed was whether the appellants wilfully obstructed the officers. The magistrates found that the officers identified themselves, showed their warrant cards, which the appellants looked at, and the magistrates were entitled to infer, from the evidence that they had heard, that the appellants ran off in different directions with the intention of impeding their apprehension. As I have observed, there has been no challenge to that conclusion of the magistrates, nor, in my judgment, could there have been, it being a reasonable inference to draw from all the evidence in the case.[10]The position is that a citizen has no legal duty to assist the police. As it happens, probably most people would accept that they have a moral and social duty to do so; but it is clear that no legal duty to assist exists. That said, section 89(2) makes it an offence to willfully obstruct a police officer in the execution of his duty. The appellants would have been entitled to remain silent and not answer any questions put to them. They could have refused, if they had not been arrested, to accompany the police to any particular place to which they might have been requested by the police to go. They could have said that they had no intention of answering questions and they could, no doubt, have said that as a result they were intent on going on their way and have done so without giving rise to a case which would entitle the court to conclude that in departing they were intending to impede the police officers and obstruct the police officers in the execution of their duty. Had they responded in that way, then it would have been for the police to have decided whether to arrest them; but they ran off, as the magistrates found to avoid apprehension. That being a wilful act, taken so as to obstruct the police, was an act capable of constituting an offence contrary to section 89(2).[11]Mr O'Reilly, in his written argument, placed some reliance upon the case of Rice v Connolly [1966] 2 Q.B. 414. In my judgment, it supports the position taken by the magistrates and supports the decision of the magistrates. The appellant, Mr Rice, when seen by a constable acting suspiciously was asked for his full name and address, which he refused to give. When asked to accompany the officer to a police box, he declined to do so unless the police officer arrested him. In the judgment of the court, it was not doubted that the police constable, suspicious as he was of the conduct of Mr Rice, was acting in the execution of his duty which included a duty to detect crime and bring an offender to justice. PC Thorogood and White were doing exactly the same thing. In Mr Rice's case, the question was: was he guilty of wilful obstruction by adopting the attitude he did to the police constable?[12]It was accepted in that case that if, when he had been questioned, he had told a cock and bull story or given false information there would have been an obstruction. Between a) and b) on page 420, Lord Parker CJ said:
"In my judgment, there is all the difference in the world between deliberately telling a false story - something which on no view a citizen has a right to do - and preserving silence or refusing to answer - something which he has every right to do. Accordingly, in my judgment, looked upon in that perfectly general way, it was not shown that the refusal of the defendant to answer the questions or to accompany the police officer in the first instance to the police box was an obstruction without lawful excuse."
[13]In his skeleton argument for the respondent, Mr Badger has drawn the court's attention to the case of Dibble v Ingleton [1972] 1 Q.B. 480. The facts of that case are quite unlike the facts of the present case, but he has drawn the court's attention to a passage in the judgment of Bridge J, as he then was, at page 488C to F:
"For my part I would draw a clear distinction between a refusal to act, on the one hand, and the doing of some positive act on the other. In a case, as in Rice v Connolly [1966] 2 Q.B. 414, where the obstruction alleged consists of a refusal by the defendant to do the act which the police constable has asked him to do - to give information, it might be, or to give assistance to the police constable - one can see readily the soundness of the principle, if I may say so with respect, applied in Rice v Connolly, that such a refusal to act cannot amount to a wilful obstruction under section 51 unless the law imposes upon the person concerned some obligation in the circumstances to act in the manner requested by the police officer. "
On the other hand, I can see no basis in principle or in any authority which has been cited for saying that where the obstruction consists of a positive act, it must be unlawful independently of its operation as an obstruction of a police constable under section 51. If the act relied upon as an obstruction had to be shown to be an offence independently of its effect as an obstruction, it is difficult to see what use there would be in the provisions of section 51 of the Police Act 1964."[14]The argument of Mr O'Reilly, addressed in his skeleton argument and only touched upon in this court, paid some attention to the events which occurred after the appellants had run away from the police at the initial approach from the police. In my judgment, after the appellants had fled to avoid apprehension, a completely new state of affairs had occurred. As it happened by fleeing, they provided the police officers with grounds to stop and search them and arrest them. PC Thorogood chased the appellant, Banamira, apprehended him, he struggled and was pulled to the ground and he was then arrested for theft. PC White chased the appellant, Sekfali, searched him, found him in possession of a brown leather jacket and arrested him. The brown leather jacket had been stolen from Next and he pleaded guilty to that theft. The events which occurred after they had fled, in my judgment, have no bearing upon the issue as to whether or not they obstructed the police in fleeing as they did.[15]It leaves only the issue as far as the appellant, Ouhab, is concerned and his conviction by the magistrates for going equipped with the pliers. It was PC Brannan who went after him and searched him and found the pliers. Mr O'Reilly's principal point, as it appears from his skeleton argument at paragraph 20, is that there was insufficient evidence for the magistrates to find the appellant, Ouhab, guilty of going equipped for theft. Also in particular, he relies upon the fact that the magistrates stated that the jacket was removed from Next and that, without a tag, the alarm would not be activated. He says, in relation to that, that the magistrates had no evidence as to that and namely they did not know about the security system within the Next store. It was not a proper finding, therefore, for them and it was not a matter which was open to them to conclude by inference.[16]He also complains about evidence which was given by a police officer to the effect that it seemed odd that, having regard to Ouhab's explanation, he only had the pliers which, in the opinion of the police officer, were suitable and capable for removing the security tag from the clothing in a store.[17]In my judgment, the magistrates had sufficient evidence upon which to reach the conclusion they did. Essentially, the heart of the case which they had to decide was whether or not they accepted the explanation which the appellant, Ouhab, had given in evidence. His explanation was that he had the pliers because he was trying to repair his front door that morning and forgot he had it on him. They are very lightweight and were originally in his jacket, so he moved them into his trousers. He was tightening screws and making new holes using a screwdriver and pliers. The pliers were used to extract cross threaded screws and he had left the other tools in the kitchen at about 10.30 in the morning.[18]Having rejected that explanation which the magistrates were plainly entitled to do, in my judgment, common sense dictates that the magistrates were entitled, in the light of the circumstances which they had before them as prevailing at that time, to draw the inference which they did from his possession of the pliers. As Mr Badger, in his skeleton argument, observes even if the magistrates were wrong in so far as they reached their conclusion, based upon the fact that the jacket was removed from Next and that without a tag the alarm would not be activated, there was ample evidence upon which they could convict.[19]For myself, it may be that without evidence as to what the alarm system in Next was, the conclusion may have gone further than the evidence merited. But it was not the conclusion as to what the system in Next involved which was important, it was the question as to what intention the appellant, Ouhab, had when he had them in his possession. Whether or not security tags in Next can be removed with pliers of this sort it was certainly open to the magistrates to infer that, on that particular occasion, he went equipped with those pliers to use them in course of the theft as and when it suited his desire to do so.[20]For all those reasons, I would dismiss these appeals and as far as each of the questions in the case stated:
"1. Were we correct in finding that the officers were acting in the execution of their duty?"
In my judgment, the answer is yes:
"2. If the answer to question 1 above is yes, were we correct in finding that the officers were obstructed in the execution of that duty?"
The answer is yes:
"3. Was there sufficient evidence for us to find that the appellant Ouhab [was] guilty of going equipped to steal?"
The answer is yes. I would dismiss the appeals.

LORD JUSTICE AULD: I agree, the appeals are therefore dismissed.

[22]MR BADGER: My Lord, in the circumstances, could I ask for costs to be taxed in the normal course of events?

LORD JUSTICE AULD: You are entitled to that and is that all you ask for, is it?

[24]MR BADGER: Costs against.

LORD JUSTICE AULD: Yes. What do you say about that?

[26]MR O'REILLY: The applicants are legally aided. I would ask that the respondent is not given costs.

LORD JUSTICE AULD: The normal order would be for costs to be awarded and the matter would be for resolution as between the Legal Services Commission and your laid clients.

[28]MR O'REILLY: Indeed, my Lord, if that is the normal order, I would not seek to disturb that. I am instructed to seek your leave to appeal.

LORD JUSTICE AULD: Let us deal with that in a moment. We will make an order for costs against the appellants, each of them on the usual terms, they being legally aided in the proceedings.

[30]You say you want to appeal?[31]MR O'REILLY: My Lord, yes. I am instructed to seek your leave to appeal.

LORD JUSTICE AULD: You are seeking leave to appeal to the House of Lords?

[33]MR O'REILLY: That has not been decided yet.

LORD JUSTICE AULD: This being a Criminal Court matter ...

[35]MR O'REILLY: If that is where I am instructed to go.

LORD JUSTICE AULD: You ought to know where you go or what to ask the Tribunal before you make an application. What is the point of law you would seek to argue?

[37]MR O'REILLY: The point of law would be whether the appellants obstructed the officers in the execution of duty by moving away from them. Whether they should be convicted of obstructing a police officer for doing something they are entitled to do, in my submission.

LORD JUSTICE AULD: That is the point of law is it?

[39]MR O'REILLY: Yes, my Lord. Certainly I will ask your leave and indulgence to consider that suitable for the leave to appeal. That will be the general ground to appeal.

LORD JUSTICE AULD: My Lord is saying to me that you have to formulate a question which the court can then consider when it decides whether to certify the question and also whether to grant leave.

[41]MR O'REILLY: My Lord, do I have to do that today. Can I have leave?

LORD JUSTICE AULD: You can, if you go away and formulate a question. Have it copied for the court and we will then consider it. We are prepared to consider it in writing, unless you wish to come and make further submissions orally in support of it.

[43]MR O'REILLY: I would prefer to do it in writing, I am grateful for that.

MR JUSTICE NEWMAN: Do you have legal aid which extends to this stage of the exercise?

[45]MR O'REILLY: My Lord, no. There will be an application at some point to extend funding.

MR JUSTICE NEWMAN: You will either have to do it pro bono or ...

LORD JUSTICE AULD: Formulate your question, put it in writing, the court will consider a) the question of certification and b) whether to grant leave.

[48]MR O'REILLY: I am obliged.

LORD JUSTICE AULD: Mr Badger, is there anything you would like to say about this briefly?

[50]MR BADGER: Not at this stage, thank you, my Lord.

LORD JUSTICE AULD: What other stage do you have in mind?

[52]MR BADGER: There is nothing I would like to say.

LORD JUSTICE AULD: Thank you very much and thank you for your attendance. I would assume you are to do it today in writing before you leave the building, are you not?

[54]MR O'REILLY: My Lord, I would ask for a day or two.

LORD JUSTICE AULD: I thought you were going to go away and do it now, you may have seven days.

[56]MR O'REILLY: I am obliged, thank you.

Cited in 1 later judgment