B v Director of Public Prosecutions [2008] EWHC 1655 (Admin)

[2008] EWHC 1655 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
DIVISIONAL COURT
Venue Royal Courts of JusticeDate Thursday, 3 July 2008
Strand
London WC2A 2LL
B e f o r e:
LORD JUSTICE MOSES
MR JUSTICE BLAKE
Between
BClaimantv
Between
DIRECTOR OF PUBLIC PROSECUTIONSDefendant
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)
Mr A Rose (instructed by Lawrence & Co) appeared for ClaimantMiss H Stevens (instructed by CPS) appeared for Defendant
J U D G M E N T

LORD JUSTICE MOSES:

[1]I would ask Blake J to give the first judgment.[2]MR JUSTICE BLAKE: This appellant is a minor, and pursuant to the Children and Young Persons Act 1933 is not to be identified by name. In this judgment, he will be referred to as "B".[3]On 8 January 2008, B was convicted by the West London Youth Court of the offences of obstructing a police constable in the execution of his duty, and using threatening or abusive words or behaviour contrary to section 4 of the Public Order Act. He now appeals by way of case stated.[4]The justices found that on 5 May 2007 Police Constable Townsend was on plain clothed patrol in the company of two other police constables in the Shepherds Bush area, when he came across the appellant from whom there was a strong smell of cannabis and whose eyes were glazed. He had reasonable grounds to suspect that an offence under the Misuse of Drugs Act was being committed.[5]The justices found in their case stated that PC Townsend introduced himself and informed the appellant that a search under section 23 of the Misuse of Drugs Act would be carried out and the reason for so doing. It is common ground in this court that by "introduction" is meant the giving of his name and police station as required by statute. Equally, the justices found that he did not show the appellant, B, a warrant card or any other form of documentary evidence that he was a police constable. It is said that the appellant knew the police constable from previous experience.[6]The justices' findings continue that the appellant immediately put his hands into his pockets. PC Townsend then grabbed the appellant's hands, fearing he was reaching for a weapon or about to conceal drugs. He searched him and told him what he was doing, and that he would be entitled to a copy of the search record. The appellant resisted physically and verbally. The case records that the appellant was continually shouting and making threats of violence to the officers. His left wrist was handcuffed. Another officer told him to remove his hand from his pocket. The officer refused, and he threatened to stab the officers present. He was handcuffed, arrested, cautioned for both offences and taken to the police station. It is right to record that no knife was in fact found in his possession.[7]The magistrates found that the search of the appellant was lawful notwithstanding an admitted failure to comply with the Police and Criminal Evidence Act Code of Conduct. They concluded that PC Townsend had taken reasonable steps to comply with his duties under section 2(2)(b) of the Police and Criminal Evidence Act 1984. They did not specify what those steps were or why they had not resulted in the production of the warrant card. It is common ground the provisions of section 2(2)(b) apply to a Misuse of Drugs Act search.[8]Section 2(2)(b) reads as follows:
"If a constable contemplates a search ... ... it shall be his duty ... to take reasonable steps before he commences the search to bring to the attention of the appropriate person - (i) if the constable is not in uniform, documentary evidence that he is a constable; and (ii) whether he is in uniform or not, the matters specified in sub-section (3) below; and the constable shall not commence the search until he has performed that duty."
The matters spelt out in sub-section (3), which apply to constables in uniform, include his name and police station, as previously indicated.[9]It is therefore clear from the statute that it is the duty of the constable, if he is not in uniform, before he commences the search to take reasonable steps to bring to the attention of the appropriate person documentary evidence that he is a constable. A search conducted in breach of this duty cannot be a lawful search, and therefore resistance to such a search would be lawful and cannot constitute the offence of obstruction of a constable in the execution of his duty.[10]The justices found in their case that the search was lawful, but in their recitation of the evidence, they did not record any evidence of an attempt to produce evidence that was frustrated by the appellant's actions.[11]Miss Stevens, who appears for the respondent before us, but did not appear below, submitted that Parliament has not required that the warrant card, or indeed any other documentary evidence, be produced in every case, and it is sufficient if the officer has taken reasonable steps to produce it. I accept that submission. There may be cases when physical resistance from the appellant prevents the process of production of documentation being complete before there is a physical taking hold of a person in order to search them.[12]However, I reject(1) any submission that it can be inferred on the present facts that the officer was about to produce the warrant card but had been prevented from so doing, and(2) generally that performance of the duty for uniformed officers, namely informing a person to be searched of the name of the officer and police station concerned, was a sufficient part-performance of the separate and additional duty for plain clothed officers. In my judgment, that distinct duty is the more important duty when an officer is in plain clothes. The uniformed officer has his uniform to speak for him or her as the source of his or her authority and status as a constable. The plain clothed officer needs to produce the warrant card to start in the same position as the uniformed officer.[13]Although there is no reference in the statute to which order the duties are to be performed in, this consideration would lead me to believe that, in the normal case, the card should be produced before or at least at the same time as the verbal introduction in order to found a legitimate search. It is notable that the authors of the Codes of Practice, who are well experienced in the practical realities of policing, provide as follows:
"Code of Practice A 3.9. 3.9 Officers not in uniform must show their warrant cards ..."
[14]It is also notable that in the case of Mustapha Osman v Southwark Crown Court [1999] 163 JP 735 (1 July 1999) in the judgment of Sedley LJ there has been the suggestion that a convoluted oral explanation might take longer and might be more likely to interfere with the duties of preventing crime and searching, and that a convenient alternative would be the production of a piece of paper with the requisite information contained on it.[15]In the present case, there was no evidence, or certainly no evidence recited in the justices' case, as to the following matters:(1) why the card was never produced or attempted to be produced;(2) that PC Townsend ever intended to produce the card but was prevented from doing so;(3) that he explained at any time that he was intending to do so when his hands were free;(4) that he did so when the appellant had been restrained and handcuffed with the assistance of other officers. It was equally plain from the facts found that before and during the search the officer was able to give a lot of oral information about who he was and what he was intending to do.[16]It is clear from the line of authorities, beginning with the case of Osman and continuing through to the case of R v Christopher Bristol [2007] EWCA Crim 3214 (4 December 2007), as well as the plain words of the statute, that compliance with the statutory requirements is a precondition of a lawful search. It makes no difference that the constable is said to have been known to the person being searched. The earlier decision in the case of Forde [1985] 81 Crim App R 19, to which reference was made by Miss Stevens, preceded the statutory language with which we are concerned. It cannot assist in the kind of case that is concerned with whether those preconditions have been complied with. Of course, as already acknowledged, where the evidence demonstrates that the constable did take reasonable steps to produce the documentary evidence but was prevented from doing so, the duty may have been complied with, but there is no evidence to that effect in this case.[17]In my judgment, the justices have misunderstood the mandatory requirements for a lawful exercise of the power of search, and on the facts found by them, could not have concluded that the power had been lawfully exercised. The consequence is that the search was unlawful, the officer was not acting in the execution of his duty when conducting it, and the appellant was entitled to use reasonable force to resist the search.[18]The justices posed three questions for the opinion of the High Court:
"(1) Was the court entitled to find that notwithstanding the failure of PC Townsend to produce documentary evidence to the appellant, that he had taken all reasonable steps to comply with his duty as provided by section 2(2)(b)(i) of the Police and Criminal Evidence Act and the Code of Conduct?"
The answer is "no", in my judgment. "(2) If not, did that failure render the search unlawful?" In my judgment, the answer is "yes". "(3) If the search and use of force on the appellant were unlawful, can the appellant properly be convicted of an offence pursuant to section 4(1)(a) of the Public Order Act 1986?" In my judgment, the answer is "yes", but only if the conduct used in resisting any unlawful force was excessive.[19]Applying those answers to the facts of this case, it must follow that the conviction for obstruction of the police must be quashed and an acquittal substituted. The appellant was entitled to use reasonable force to resist the search, and conviction for threatening words or behaviour could be founded on reasonable force or threat of force to resist such a search. Since the justices appear to have included the appellant's resistance to the search as at least part of the basis of the conviction for threatening words, the conviction cannot stand. However, the case stated also recites that the justices found that the appellant threatened to stab the officer with a knife. It is strongly arguable that use of such words could be excessive force and constitute the offence of threatening words and behaviour, irrespective of whether the officer was acting in the execution of his duty or not. It is therefore common ground that we should quash the conviction of the public order offence as well, but in the case of that offence, and that offence only, remit the charge to the justices for further consideration of this issue. Of course, it will be open to the CPS to review whether this is a prosecution they would wish to pursue in all the circumstances of the case. But to this extent, this appeal is allowed.

LORD JUSTICE MOSES: I agree.

[21]MR ROSE: My Lord, I am very grateful for the verdict. There is this issue about legal aid. I have been raising it with the learned clerks that assist you today, and I am told there is no copy of the order on the file. It is not clear to me that it is actually been granted, which is of course a concern. There is an application for civil legal aid in this case. I believe that is all the solicitors have put before me.

LORD JUSTICE MOSES: What are you asking for? I mean, you can have your costs.

[23]MR ROSE: There are two options: one would be that you grant me a period of time for that application to be re-submitted --

LORD JUSTICE MOSES: Why are you not just asking for costs out of central funds?

[25]MR ROSE: That was my second alternative, and that may be more appropriate.

LORD JUSTICE MOSES: Yes. Thank you.

Cited in 2 later judgments