“7. On approaching Yates Wine Bar a man fitting the description of “Fraser” emerged from the premises. 8. Sergeant Cannon took hold of the appellant by the arm and asked, “Are you Fraser?” 9. The appellant denied that he was Fraser whereupon PC Davies took hold of the appellant’s other arm. 10. Some seconds later, others emerged from Yates Wine Bar and spoke to the appellant referring to him as “Fraser”. 11. We accepted the un-contradicted evidence of Sergeant Cannon about his (the Officer’s) state of mind at this time when he said in cross examination, “I was looking for Fraser, who had been reported to me as having committed an offence of criminal damage by throwing an ashtray in another public house, and I had a vague description. I had not met him but I knew him by reputation. I could imagine which way it would go if we sought to arrest him. When he (the appellant) came out of the wine bar where he was ─ Yates Stevenage ─ I had a good idea it was him. I couldn’t arrest him as I was not sure who he was. I took hold of his arm, and asked, “Are you Fraser?” in order to detain him to confirm who he was. Thereafter, a very short time after, others came out of Yates and talked to him, referring to him as “Fraser”
“The reality of the situation is – although this is not, it seems to us, crucial on this point – that he was dealing with a man that he believed, from information he had, had hepatitis B; was violent; could be seen to be drunk; and who had in fact committed an arrestable offence, as well as the officer believing that he had. This is not a question of semantics. It is our clear view that whatever the officer says about detaining him to confirm who he was, and, “--only when others referred to him as “Fraser”, having put my arm on him to detain him, it crystallised and gave me reasonable grounds to arrest him”
“So one comes back to the question in the end, in the ultimate analysis: was this officer entitled in law to take hold of the first boy by the arm – of course the same situation arises with the other officer in regard to the second boy a little later – justified in committing that technical assault by the exercise of any power which he as a police constable in the precise circumstances prevailing at that exact moment possessed? I regret, really, that I feel myself compelled to say that the answer to that question must be in the negative. This officer might or might not in the particular circumstances have possessed a power to arrest these boys. I leave that question open, saying no more than I feel some doubt whether he would have had a power of arrest: but on the assumption that he had a power to arrest it is to my mind perfectly plain that neither of these officers purported to arrest either of these boys. What was done was not done as an integral step in the process of arresting, but was done in order to secure an opportunity, by detaining the boys from escape, to put to them or either of them the question that was regarded as the test question to satisfy the officers whether or not it would be right in the circumstances, and having regard to the answer obtained from that question, if any, to arrest them. I regret to say that I think there was a technical assault by the police officers.”