Baker v Crown Prosecution Service [2009] EWHC 299 (Admin)

[2009] EWHC 299 (Admin)CO/9639/2008
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
DIVISIONAL COURT
Venue Royal Courts of JusticeDate Tuesday, 27th January 2009
Strand
London WC2A 2LL
B e f o r e:
SIR ANTHONY MAY
(PRESIDENT OF THE QUEEN'S BENCH DIVISION)
MR JUSTICE SILBER
Between
MANDY BAKERClaimantv
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)
Peter Fortune (instructed by Rogers and Co) appeared for ClaimantKate Lumbers (instructed by Crown Prosecution Service) appeared for Defendant
J U D G M E N T

SIR ANTHONY MAY: Silber J will give the first judgment.

[2]MR JUSTICE SILBER: Ms Mandy Baker ("the appellant") appeals by way of case stated from a decision of Deputy District Judge Callender Smith sitting in the Magistrates' Court at Kidderminster of 7th April 2008. By that decision he found the appellant guilty of the offence of assaulting Police Constable Lee Anthony Horrocks, a constable in the course of his duty, on 10th April 2007, contrary to the provisions of section 89(1) of the Police Act 1996. For there to be a conviction of that offence, the prosecution had to prove that the police officer victim was assaulted in the execution of his duty.[3]The issues raised by the appellant in the hearing before us are that the police officer was not, at the relevant time, acting within the lawful execution of his duty at the time when the assault occurred, because, first, he had no right to search the appellant and, second, the appellant had not been informed about the reasons for entry into her house and the search by the police officers.[4]The case for the respondent is the police officers were entitled to enter the appellant's home and for that proposition they relied on the provisions of section 17(1) of the Police and Criminal Evidence Act 1984, which, insofar as is relevant to this appeal, state:
"Subject to the following provisions of this section, and without prejudice to any other enactment, a constable may enter and search any premises for the purpose... (e) of saving life or limb or preventing serious damage to property."
It is also noteworthy that section 17(4) provides that:
"The power of search conferred by this section is only a power to search to the extent that is reasonably required for the purpose for which the power of entry is exercised."
[5]Before proceeding to deal with the issues before the court, it is appropriate to set out the facts found by the Deputy District Judge. Evidence was given by a prosecution witness, Police Constable Horrocks, who explained that on 10th April 2007 he and Police Constable Baugh were directed to 120 Park Street, Kidderminster, following a report of a female who had gone berserk with a knife inside the house. He said he first spoke to Miss Sinead Lavelle outside the house and asked what was going on. His evidence was that her response was that her mother, who is the appellant in this case, was in the premises and that she was very upset, with the result that she had gone berserk and, in consequence, Miss Lavelle had climbed out of an upstairs window to escape.[6]The evidence of Police Constable Horrocks was that his priority was directed to the lady in the house and whether she was injured. He said that he needed to go into the house to make sure everyone in the house was safe. Police Constable Horrocks' evidence was that he did not ask for permission to enter the house, but he considered that he had to go into the house as soon as possible to preserve life and limb, especially as the information from the appellant's daughter was consistent with the evidence contained in the original call to the police, which was that the appellant had a knife.[7]According to Police Constable Horrocks, he went to the house and went upstairs, where he saw a woman at the top of the stairs who said everything was all right and that she was unharmed, but she was not the person for whom Police Constable Horrocks was looking. He described the situation as being highly charged and he felt that it was his duty to ensure that the house was safe. So Police Constable Horrocks said that he went past the person at the top of the stairs and entered a bedroom, where he saw a woman on the right on the floor, who was the appellant, and who was rocking backwards and forwards looking very upset.[8]Police Constable Horrocks said that at that point he did not know whether this person had a knife, but he saw blood on her head, on her pyjama bottoms and on her arms. His evidence was he needed to see if the appellant needed medical advice. When Police Constable Horrocks asked the appellant if she needed an ambulance, she became abusive. He kept asking if she was hurt, to which she did not respond. Police Constable Horrocks, in evidence, said that he still did not know if she had a knife, but he saw a rolling pin between her legs, which she did not threaten him with.[9]When Police Constable Horrocks asked the lady where the knife was, she did not respond, so he wanted to search her and the area to see if he could find the knife, which her daughter and the person who had telephoned the police had said the appellant was in possession of. By this time other officers had arrived and Police Constable Timmons, a female officer, was one of the people present in the appellant's bedroom. Police Constable Horrocks said that he asked the appellant to stand up and he approached her.[10]His evidence was that the appellant got to her knees and lunged up with both legs and that she was upset and shouting. Police Constable Horrocks' evidence was that Police Constable Timmons went to take hold of the appellant to stop her falling, at which point the appellant hit Police Constable Timmons on the arm. Police Constable Horrocks said that when he saw this he moved forward to take hold of the appellant's right arm, but before he could do so, she punched him in the stomach. Police Constable Horrocks' evidence was that he ceased to be concerned about the danger to life and limb when the appellant stood up so that he could be satisfied that she had no weapons.[11]Further evidence was given by the prosecution by Police Constable Baugh, who gave very similar evidence, and who explained that the appellant did not give her consent to a search taking place, but that he was concerned with protecting the life and limb of anyone who was in the building, whether it was the appellant or the police officers or any other members of the public. He said that when they saw the appellant with blood on her arms and trousers and head, it was clear that something had happened at this house. Police Constable Baugh's evidence was the appellant was flailing her arms around as she stood up and she hit Police Constable Horrocks in the face on the left-hand side. He said that no search of her had taken place and that they did not have a chance to confirm if she had a knife or not before the assault.[12]Police Constable Timmons said she had arrived at the premises after Police Officers Baugh and Horrocks had gone in. She was asked to see if the lady in the bedroom had a knife and possibly do a search. She said that both Constable Horrocks and Constable Baugh had shields and that the appellant was abusive to her. She said she did not get as far as complying with the request from her colleagues to search the appellant, but she said that as she was getting ready to do this the appellant hit her on the arm and then hit Police Constable Horrocks to the left side of his chin.[13]The appellant did not give any evidence or call any witnesses.[14]The decision of the magistrate, as set out in the case stated, was that:
"PC Horrocks and PC Baugh entered Ms Baker's property at around 0600 on 10th April 2007 because on information received they (reasonably in my view) believed there was a danger to life or limb within the meaning of Section 17 of the Police and Criminal Evidence Act 1984. Their entry to that property and all the events up until the time that Miss Baker was arrested for assaulting PC Horrocks were in pursuance of the powers given under Section 17. There was only no danger to life and limb when in assaulting PC Horrocks it became apparent that Ms Baker did not have a knife. The 'life and limb' provision in Section 17 does not require officers in such difficult and potentially dangerous situations to give a running commentary about what they are doing and why they are doing it. It is in the natureof such situations (hence the phrase used in the statute, 'life and limb') that officers have to act expeditiously, rapidly and effectively to resolve the issues of danger and safety. Accordingly Ms Baker was found guilty of the offence..."
[15]The questions for this court are:
"1. Whether the officers, having entered and remained on the premises at 120 Park Street, Kidderminster under section 17(1)(e) of the Police and Criminal Evidence Act 1984, without having the consent of the occupiers and without having given reasons to the occupiers, including the applicant, were acting lawfully and in the execution of their duty. 2. Whether on the facts as found by the Deputy district judge the police officers having located the applicant were entitled to remain in the premises pursuant to section 17(1)(e) of the Police and Criminal Evidence Act 1984. 3. Whether the officers were authorised or entitled under section 17(1)(e) of the Police and Criminal Evidence Act 1984 to search the applicant. 4. Whether the officers were authorised or entitled under section 17(1)(e) of the Police and Criminal Evidence Act 1984 to use force or the threat of force in order to search the applicant. 5. Whether on the facts as found by the learned Deputy District Judge, PC Horrocks was acting in the execution of his duty."
[16]The case for the appellant is that the police officers were not acting in the course of their duty when the appellant hit Police Constable Horrocks, as, first, the police officers had no authority to search her and, second, they had not informed the appellant why they had entered the premises.[17]It is clear to us that no search of the appellant had taken place before the assault occurred. As I explained, Police Constable Baugh, in cross-examination, said that a search would have involved a police constable touching the defendant, but a search did not take place. The appellant did not give any evidence. Therefore, the only possible finding was that no search of the appellant had taken place. There is nothing in the findings of the Deputy District Judge which showed that had occurred. For that reason, that ground has to be rejected.[18]So far as the second ground, which was that there was an obligation for the police officers to inform the occupant of the reasons for exercising their power under section 17(1), that point does not appear to have been relied upon by the appellant's legal representatives in front of the Deputy District Judge. Further, it is not the subject of any finding by the Deputy District Judge. Finally, it is not one of the matters covered by the case stated.[19]For those reasons, each of the grounds which have been relied on by the appellant have to be rejected.[20]We have heard submissions which have covered the scope of section 17(1)(e), when read together with section 17(4). They show that:(a) A constable entering and searching premises for the purpose of saving life or limb can enter premises for that purpose without the permission of the occupant. Indeed, the purpose of the provisions in section 17(1) is to empower constables to enter premises where permission has not been given. There would be no point in having the provisions in section 17(1) if the consent of the occupier was required.(b) The words "saving life or limb" in section 17(4) [17(1)(e)] are wide enough to cover saving a person from seriously harming himself or herself, as well as from seriously harming third parties.(c) Although it may be desirable in many cases for the officer exercising his power under section 17(1) to enter premises to give the occupant present the reason for his exercising that power, there is no hard and fast rule to that effect. Indeed, there is no need for the officer to give the occupant any such explanation where it was impossible, impracticable or undesirable to do so, such as when an emergency required the officers to enter the premises in question. That might well be the reason why this point was not taken in front of the magistrates, but as Miss Kate Lumbers, who appears on behalf of the respondent, says, the officers were faced with a swiftly changing event and they did not know what was in store for them when they entered the premises. Mr Fortune, counsel for the appellant, has referred us to two cases which he said indicate that a police officer is under an obligation to inform the occupant of premises which are being entered under section 17(1) of the reasons for entry. The first case on which he relies is Collins v Wilcock [1984] 1 WLR 1172. The facts of that case are very different from the present case, and it is dealing with a different statutory provision. Thus, what was said in that case is not of relevance to the issues raised under section 17(1). The second authority on which Mr Fortune relies is the decision of this court in Hobson, Hobson and Hobson v Chief Constable of the Cheshire Constabulary [2003] EWHC 3011 (Admin), in which the appellants had been convicted of an offence of obstructing a police officer in the execution of his duty. In that case the police officers had, according to the appellants, entered the house in pursuance of a power under section 17. In that case the judge had held that the police officers entered with the consent of the occupier. Thus, the issue in that case was very different from this case, but Mr Fortune seeks to derive assistance from a comment made by Newman J, who was agreeing with the main judgment given by Maurice Kay J (as he then was). Newman J said at paragraph 16:
"It seems to me plain that the law recognises a right of entry to arise in three circumstances: (1) by consent, (2) without consent, and (3) without consent and by force. In connection with (2) and (3) the law requires, since a coercive power is being used, a person should be fully informed as to why coercive power is being used; in these circumstances to gain entry to effect arrest."
It is clear from reading the arguments in that case that the court was not there considering the same issue as the one we are concerned with in this case, or whether there are any exceptions to any general duty to inform an occupier for the reasons for entry. In the present case, it is clear that the fear that the appellant would use a knife justified the decision not to explain to the appellant the reason why entry had been obtained to her premises. (d) Once the police officers had located the appellant, they were entitled to carry out searches, as it is stated in section 17(4) that such searches were permissible "to the extent that is reasonably required for the purpose for which the power of entry is exercised". As the purpose of entry in this case was because of "the dangers to life and limb" caused by the use, or possible use, of a knife, the powers given to police in section 74 [17(4)] included, in the circumstances of this case, the right to the search for a knife. In any event, the police would only have known the length of time for which they could remain in the premises by carrying out this search. (e) The police officers were entitled to use force or the threat of force in order to search the appellant for the knife as, on the facts of the case, as it was in the wording of section 17(4) "reasonably required for the purpose for which the power of entry is exercised", which was to search for the knife.[21]On the facts as found by the Deputy District Judge, Police Constable Horrocks was acting in the execution of his duties and, in respect of the questions which have been posed for this court, each of them must be answered in the affirmative.[22]For those reasons, I am of the view that this appeal must be dismissed.

SIR ANTHONY MAY: I agree that the appeal should be dismissed for the reasons which Silber J has given.

[24]Section 17(1)(e) of the Police and Criminal Evidence Act 1984 empowers a constable to enter and search premises without a warrant for the purpose of saving life or limb or preventing serious damage to property. By section 17(4), the power of search is only a power to search to the extent that it is reasonably required for the purpose for which the power of entry is exercised. Thus, a constable entering premises for the purposes of saving life and limb has power to search for any object, for example a gun or a knife, which he reasonably believes may be used to endanger life or limb, but he does not have a general power of search under this subsection, which extends beyond the matter of saving life or limb. I reject the submission that the power does not extend to searching a person on the premises, but emphasise that this is an intrusive power of search, limited to the object of saving life and limb, where the risk of danger to be prevented is properly regarded as imminent.[25]The expression "saving life or limb" is a colourful, slightly outmoded expression. It is here used in close proximity with the expression "preventing serious damage to property". That predicates a degree of apprehended serious bodily injury. Without implicitly limiting or excluding the possible types of serious bodily injury, apprehended knife injuries and gunshot injuries will obviously normally be capable of coming within the subsection.[26]A constable contemplating entering premises under section(17)(1)(e) may not, of course, know for certain that someone's life or limb may be in danger, or that serious damage to property will or may occur, but it is implicit that his entry will be lawful if he reasonably so believes. The subsection would be unworkable otherwise. He is lawfully entitled to remain on the premises until he is reasonably satisfied that life, limb or property are not or are no longer in danger. While he is thus lawfully on the premises, he is entitled to search for anything which he reasonably believes may be used to endanger life, limb or property.[27]The case stated in the present appeal does not raise any question whether the police were obliged to explain why they were there before exercising their power of search. I agree that the requirement, such as it is, to explain why they were there would not arise if the danger that they were there to prevent made that impracticable.[28]For the reasons given by Silber J, upon the facts found by the Deputy District Judge in this case, the entry of the police and their subsequent search for a knife were entirely lawful within section 17(1)(e) of the Police and Criminal Evidence Act 1984, and the appellant's assault on the constable was accordingly an assault on the constable in the execution of his duty.[29]The five questions in the case are all to be answered yes, with the rider to Question 4 that on the facts the question did not arise, because there was no search. So the question should be answered yes, the police would be so entitled, if the appellant had resisted a lawful search.[30]Thank you very much.[31]MR FORTUNE: I think the only matter is taxation of the appellant's publicly funded --

SIR ANTHONY MAY: We will make an order to that effect.

Cited in 3 later judgments