McMillan v Crown Prosecution Service [2008] EWHC 1457 (Admin)

Case No CO/1937/2008[2008] EWHC 1457 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
DIVISIONAL COURT
Venue Royal Courts of JusticeDate Monday, 12th May 2008
Strand
London WC2A 2LL
B e f o r e:
LORD JUSTICE MAURICE KAY
MR JUSTICE PENRY-DAVEY
Between
MCMILLANClaimantv
Between
CROWN PROSECUTION SERVICEDefendant
Computer-Aided Transcript of the Stenograph Notes ofWordWave International LimitedA Merrill Communications Company190 Fleet Street London EC4A 2AGTel No: 020 7404 1400 Fax No: 020 7831 8838(Official Shorthand Writers to the Court)
Miss Q Whitaker (instructed by Ben Hoare Bell) appeared for ClaimantMr R Spragg (instructed by CPS Northumbria) appeared for Defendant
J U D G M E N T (As Approved by the Court)

LORD JUSTICE MAURICE KAY:

This

[1]is an appeal by case stated by Justices for Sunderland in respect of a decision of the Magistrates' Court sitting in Sunderland. On 5th December 2007 the appellant Mary McMillan was convicted of an offence of being drunk and disorderly in a public place on 4th July 2007, the public place in question being Cheltenham Road, Hylton Castle in Sunderland.[2]The case stated records the following findings of fact:
"(a) On 4th July 2007, in the early hours of the morning, the appellant was in Cheltenham Road in a drunken state waving her arms around. PC 2541 Spackman and PC 526 Hempsall warned her of her behaviour and told her to go home which she did. (b) The officers returned to the street and found the appellant outside 109 Cheltenham Road, shouting at the front door of the house. (c) She was advised from the car to go home again which she did not immediately do. (d) PC Spackman went into the garden to the front door to ask her to leave. The officer noted the signs of intoxication. She was shouting and swearing, although not abusive towards the officer. He took hold of her arm and took her from the garden. (e) After being taken from the garden, the shouting and swearing continued on the path, therefore a public place, and as a result PC Spackman arrested her for drunk and disorderly."
[3]There follows in the case stated a summary of the evidence. It is clear from the final part of the case stated that, to the extent that there was a conflict in the evidence, the Magistrates accepted the evidence of the police officers, and in particular PC Spackman. The summary of his evidence augments the pre-stated findings of fact in the following ways. First, when the appellant was seen to be shouting and swearing at the front door of the house, she was "adamant she wanted to get back in the house". We are told that the occupant of the house is in fact the daughter of the appellant, although the appellant herself was not resident there.[4]Secondly, PC Spackman said that he had approached the appellant at the front door and had warned her of her behaviour, trying to calm her down. However, she was upset. The case stated then records that she "took no reasoning. Therefore, he took hold of her arm firmly to escort her out of the garden to speak to her in the street". He then added that he had asked her to come away from the door as she was causing a disturbance:
"He stated he wanted to sort the problem out without an arrest . . . he took firm hold of her arm, not against her will, he escorted her as there were steps in the garden which were steep, and he wanted to steady her for her own safety. She came away from the door with no force or struggle . . . she continued shouting and swearing on the path and was warned several times of her behaviour. He then arrested her for drunk and disorderly."
The evidence of the appellant included a passage to the effect that:
"She could not get away from him, but did not struggle and said nothing at the time. He took her down the steps and put her in the car. There was nothing said between them from the front door to the car."
The Magistrates finally state in their document that:
"Both officers gave evidence that Mrs McMillan was drunk as she was unsteady on her feet and she had slurred speech. At 4.05 am, which was the second time they had seen the appellant, she was shouting, swearing and arguing on the public footpath. She was warned of her behaviour and arrested at the car . . . . We accept the police officers' version of events and therefore find the matter proved beyond reasonable doubt."
The use of the word "arguing" in relation to events on the public footpath was the first use of that word in the case stated. The description deployed to describe the events in the garden and up until that point appears to have been limited to shouting and swearing.[5]The proceedings in the Magistrates' Court took a slightly unusual course. There was a submission of no case to answer at the conclusion of the prosecution case, but that failed. There was then an application made at that stage to exclude the evidence of PC Spackman pursuant to section 78 of the Police and Criminal Evidence Act 1984, but that too failed. In fact, both the submission of no case to answer and the application to exclude the evidence of PC Spackman turned on the same issue which was fundamental to the ultimate conviction of the appellant, namely whether or not she had been treated lawfully by PC Spackman when physically taking hold of her and leading her from the garden to the public footpath.[6]Although the case stated poses questions not just about the conviction but also about the submission of no case to answer and the application to exclude evidence and the rulings on those two matters, plainly if the legal analysis is as submitted by Mr Spragg on behalf of the respondent, all matters fall to be resolved in the same way.[7]Ultimately, this case turns on the lawfulness of PC Spackman's actions in physically leading the appellant from the garden to the public footpath. The disorderly behaviour upon which the conviction is founded is limited to the disorderly behaviour on the public footpath because the garden was of course a private place and could not give rise to the conviction for that offence, had the disorderly behaviour been confined to that area. The preservation of civil liberty requires that any interference by a police officer with the physical integrity of a citizen is lawfully justified. I keep that very much in mind.[8]On behalf of the appellant, Miss Whitaker submits that from the moment the police constable took the appellant by the arm and led her from the garden, he was, in law, assaulting her. Although the case stated does not say whether or not the officer relinquished his hold at any time before the arrest on the public footpath, Miss Whitaker says we should assume that he did not. On this basis she further submits that the disorderly behaviour upon which the conviction was based was the behaviour -- swearing, shouting and arguing -- of someone who was at the time the victim of a continuing assault, about which she was entitled to protest.[9]There is no dispute as to the law which applies in these circumstances. It is common ground that it is most appropriately set out in Collins v Willcock [1984] 1 WLR 1172, in which Robert Goff LJ said this at page 1177:
"[A] broader exception has been created to allow for the exigencies of everyday life. Generally speaking consent is a defence to battery; and most of the physical contacts of ordinary life are not actionable because they are impliedly consented to by all who move in society and so expose themselves to the risk of bodily contact . . . Although such cases are regarded as examples of implied consent, it is more common nowadays to treat them as falling within a general exception embracing all physical contact which is generally acceptable in the ordinary conduct of daily life . . . [We] think that nowadays it is more realistic, and indeed more accurate, to state the broad underlying principle, subject to the broad exception."
He later added at page 1178:
"In each case, the test must be whether the physical contact so persisted in has in the circumstances gone beyond generally acceptable standards of conduct; and the answer to that question will depend upon the facts of the particular case."
It is abundantly clear from the terms of the case stated that those passages were cited to the Justices and they well understood that to be the requisite approach.[10]Miss Whitaker is critical of some references in the case stated where there is resort to the language of what was "reasonable", but I am satisfied that having correctly set out the Collins test, the Justices were using "reasonable" as synonymous with "generally acceptable".[11]The question therefore becomes: were the Justices entitled to find that by taking the appellant by the arm and leading her from the garden to the public footpath, PC Spackman was acting within the bounds of what was "generally acceptable". In my view, common sense compels the answer that they were so entitled. It is important to place the events in their context. The appellant had been seen nearby an hour earlier by the officers behaving in a drunken manner and waving her arms around. On that occasion she appeared to have acceded to a warning about her behaviour and advice to go home. However, that appearance did not become reality, because it is evident that at about 4 o'clock in the morning she was discovered in the garden to 109 Cheltenham Road behaving as PC Spackman described. On this occasion she did not respond to the officer's warnings and attempts to calm her down. She "took no reasoning".[12]The Justices were plainly satisfied that the officer made the pragmatic decision not to arrest her from the garden, perhaps for an offence under section 5 of the Public Order Act, preferring what may be described as a negotiated conclusion, which would of course have been in the interests of the appellant. The Justices found that the officer took her by the arm "to escort her out of the garden to speak to her in the street". It is plain that they rejected any suggestion that she was being moved from a private place to a public place simply so as to justify an arrest outside the garden for an offence which had a public place requirement.[13]In my judgment, in acting as he did, the officer who had had in mind the steepness of the steps in the garden and had wanted "to steady her for her own safety" can properly be said to have acted in conformity with "generally acceptable standards of conduct". I am satisfied that the Justices were entitled to reach the conclusion that they did on that issue. It follows that, the central point of the case being resolved in favour of the respondent, I would dismiss the appeal.[14]As in all cases stated, the Justices have posed a number of questions for this court. In reality, it is the first that resolves all issues, but I set them out and provide the answers that I would give. The questions posed by the Magistrates are:
"(a) Whether we were correct to find that there was neither an assault nor an arrest when PC Spackman took hold of the appellant outside 109 Cheltenham Road? (b) If the answer to (a) is no, how should that have affected our verdict? (c) Having found that the appellant was on private property with when first approached by the police and that she was physically removed by the police from the private area, were we entitled to make a finding that she was committing the offence of being drunk and disorderly in a public place when she had been physically taken to the public area and there was no evidence that she was free to leave? (d) Were we entitled in finding a case to answer after a submission made by the defence of no case to answer after the close of the prosecution case? (e) Were we correct to find there were no grounds to exercise our discretion under section 78 of the Police and Criminal Evidence Act 1984 to exclude the evidence of the defendant's behaviour after she had been removed from the private area?"
[15]It follows from what I have said that I would answer the crucial question, question (a), in the affirmative. In that circumstance, question (b) does not arise. I would also answer questions (c), (d) and (e) in the affirmative and, as I have indicated, I would dismiss the appeal.

MR JUSTICE PENRY-DAVEY: I agree.

LORD JUSTICE MAURICE KAY: Thank you both very much.

Cited in 2 later judgments