Semple v The Director of Public Prosecutions [2009] EWHC 3241 (Admin)

Case No CO/9419/2009[2009] EWHC 3241 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
DIVISIONAL COURT
Venue Royal Courts of JusticeDate Thursday, 26 November 2009
Strand
London WC2A 2LL
B e f o r e:
LORD JUSTICE MOSES
MR JUSTICE HICKINBOTTOM
Between
DUNCAN SEMPLEAppellantv
Between
THE DIRECTOR OF PUBLIC PROSECUTIONSRespondent
Computer-Aided Transcript of the Palantype Notes ofWordWave International LimitedA Merrill Communications Company165 Fleet Street London EC4A 2DYTel No: 020 7404 1400 Fax No: 020 7831 8838(Official Shorthand Writers to the Court)
Mr A Di Francesco (instructed by Smith Brown Spawson) appeared for AppellantMiss R Crane (instructed by Director of Public Prosecutions) appeared for Respondent
J U D G M E N T
[1]MR JUSTICE HICKINBOTTOM: This is an appeal by way of case stated by the Luton Justices who, on 28 May 2009, convicted the appellant Duncan Semple of assaulting a police constable in the execution of his duty.[2]The prosecution arose out of the following facts as set out in the case stated.[3]On 28 December 2008, the appellant visited the Wheatsheaf Public House in Luton to speak to the landlord. The previous day there had been an incident at the pub involving the appellant's father who had been barred. When the appellant arrived at the pub on 28 December he was drunk. Following a verbal exchange, the landlord called the police. They attended in the form of Acting Police Sergeant Dickson and Police Constable Simpson. The landlord told the police that he wanted the appellant to leave. However the appellant would not leave voluntarily, and the sergeant took hold of his arm to escort him from the premises. The appellant was thus ushered through a first set of double doors, but he refused to go through the second set. He pulled away from the sergeant, who placed his hands on the appellant's back and pushed him through the second set of doors to the outside. The case stated records that the sergeant's objective thus far was to move the appellant but without drama.[4]Once outside, the appellant threatened that he was going to go back into the pub and hit someone. APS Dickson took hold of the appellant's hooded top to prevent him doing so. The appellant then pushed the sergeant, who stumbled backwards; but he still managed to prevent the appellant from going back into the public house. However a scuffle ensued during which the appellant punched the sergeant to the face. Both the appellant and the policeman ended up on the floor until PC Simpson pulled the appellant off. The appellant was then handcuffed and taken to Luton Police Station.[5]An issue that arose before the justices was whether APS Dickson acted lawfully in manhandling the appellant out of the pub, and then physically preventing him from returning. It is trite to say that if the sergeant had no lawful excuse to hold or detain the appellant, the appellant's use of force to prevent that detention would not be an unlawful assault. The lawfulness of the sergeant's detention of, and use of force against, the appellant was the only issue before us, the question posed by the justices for our opinion being:
"On the facts found were the magistrates wrong in law to find that APS Dickson had acted lawfully in the execution if his duty?"
[6]Miss Crane, for the Crown, in her skeleton argument made two submissions relating to the ejection of the appellant and the prevention of his re-entry respectively.[7]The first submission was founded upon Section 143 (4) of the Licensing Act 2003 which provides:
"On being requested to do so by a person to whom sub-section (2) applies [which includes the landlord] a constable must - (a) help to expel from relevant premises a person who is drunk or disorderly; and (b) help to prevent such a person from entering relevant premises."
[8]Miss Crane submitted that APS Dickson (who fell within the definition of “constable” for these purposes), having been requested to assist with expelling the appellant from the public house, was bound to do so under that provision and could use reasonable force in doing so.[9]Mr Di Francesco, for the appellant, has responded this morning by submitting that Section 143 (4) requires a constable to help in the removal of a person who is drunk or disorderly from licensed premises, but it does not empower that officer to employ any force - reasonable or otherwise - outside the context of an arrest where the power to use force derives from outside the 2003 Act. He submitted that there is no reference to force in that sub-section, and other powers under the 2003 Act - e.g. in Sections 59, 179 and 180 - expressly provide for the use of reasonable force. Furthermore, Section 143 (4) is in part a re-enactment of Section 174 (3) of the Licensing Act 1964 which read as follows:
"Any constable shall, on the demand of the holder of a justices' licence or his agent or servant, help to expel from the licensed premises any person liable to be expelled from them under this section, and may use such force as may be required for the purpose."
[10]Mr Di Francesco submitted that the omission of the reference to force in Section 143(4) of the 2003 Act makes clear that Parliament intended that no force is permissible under this provision - although of course, if the constable decided to arrest the person, reasonable force could then be used to bring about that arrest so long as the arrest was lawful.[11]I do not agree with that analysis. The primary purpose behind Section 143, as appears from sub-section (1), is to make it a criminal offence not to leave a public house when drunk or disorderly and requested to leave by a landlord or a member of the bar staff (as particularly defined in sub-section (2)), or a police constable. The right of a licence holder to eject a customer whom he does not wish to remain on the premises arises at common law. At common law an occupier of premises - whether licensed or not - has the right to ask a person to leave and the right to eject him using reasonable force if he refuses. There was an exception in respect of inn-keepers who comprised a discrete group of holders of licensed premises who were - at common law - unable to choose their guests (R v Ivens (1835) 7 C & P 213). At common law, they were bound to offer hospitality; hence Section 174(1) of the Licensing Act 1964 and its predecessors which gave all holders of licensed premises (including inn-keepers) the right to eject someone on grounds of bad behaviour. That section was expressly “without prejudice to any other right to refuse a person admission to premises or to expel a person from premises...”, which of course includes any right at common law.[12]In exercising that common law right the licence holder may use at least reasonable force. I say "at least" because there is some very old authority suggesting that he may not be liable even for excessive force used (Sealey v Tandy [1902] 1 KB 296, and see also Halsbury’s Laws, Vol 24, Paragraph 138 especially footnote 14); but, for the purposes of this case, it is certainly unnecessary to consider whether that is still good law today.[13]In ejecting a customer the licence holder may of course use agents. Section 143(4) merely requires a constable to assist a landlord in an ejection as his agent if called upon to do so. Without such a statutory provision a constable is not under any duty to assist a premises owner to evict a trespasser absent a risk of a breach of the peace or risk of violence. The constable's power to use at least reasonable force therefore arises from that common law source, not from Section 143(4).[14]I do not know why the words referring to "such force as may be required" were thought to be necessary in the equivalent section of the 1964 Act, or why those words were omitted from the 2003 Act: but I am quite satisfied that a constable, when required to assist a licence holder under Section 143 (4), has the power to use reasonable force. Any other construction in my judgment would be absurd because a licence holder and his agents certainly do have such power in respect of any customer - whether misbehaving or not - and, if a constable's only power when he is required to act as a landlord’s agent in these circumstances is that of arrest, that would make no sense. However speculative one may be with regard to the final words of Section 174 (3) of the 1964 Act (and they may possibly have referred to the old authorities in relation to the use of excessive force), on a true construction of Section 143(4) I am quite satisfied that a constable may use reasonable force when ejecting a customer, when required to assist a licence holder under the provisions of the current Act.[15]Turning to the facts of this case, the landlord did request APS Dickson to assist. Under Section 143(4) he was bound to do so. For the reasons I have given, he was able to use reasonable force to do so. There is no suggestion that he used more than that level of force by taking the appellant's arms and pushing him through the second set of doors to the outside. Therefore up until the appellant was thrown outside the policeman was acting under lawful powers in the execution of his duty under Section 143(4)(a).[16]For my own part, I would say that implicit in a landlord's request to help in the ejection of a customer from a public house is a request to stop him immediately coming back into that public house, a situation covered by Section 143(4)(b).[17]However, the justices found that he had powers to restrain the appellant from a different source. The prosecution contended that, by grabbing the appellant's hood and preventing him from returning into the public house, APS Dickson was arresting the appellant to prevent an assault taking place. It was clear that the appellant was intent on re-entering the public house. The evidence was of course that he had indicated to the police officer that he intended to hit someone, presumably the landlord.[18]There is no doubt that the sergeant had sufficient grounds for believing that the appellant intended to commit an assault if he re-entered the public house, and he was therefore entitled to arrest him under Section 24 of the Police and Criminal Evidence Act 1984. The appellant does not suggest otherwise.[19]However, Mr Di Francesco contended on behalf of the appellant that, although entitled to arrest the appellant, APS Dickson neither purported to arrest him nor did he have the intention of doing so. Where a police officer restrains a person but does not at that time purport or intend to arrest him, then he is committing an assault even if an arrest would have been justified (Fraser Wood v Director of Public Prosecutions [2008] EWHC 1056 (Admin) at [7], to which we were referred by Mr Di Francesco).[20]As a principle, of course, I agree. But in this case the justices had Fraser Wood well in mind - it was raised before them in the parties' respective submissions, and the justices expressly refer to Fraser Wood in their case stated. While it may have been preferable for the magistrates to have made a clear, unambiguous finding that APS Dickson intended to arrest the appellant when grabbing him by the hood, in my view that finding is necessarily inferred in the case stated, at paragraph 8. That refers to "the arrest", a reference back to paragraph 6(c), i.e. the submission made on behalf of the Crown that the sergeant acted lawfully when he grabbed the hood because he was arresting the appellant to prevent an assault taking place. That finding with regard to intention was clearly open to the justices on the evidence before them, even though APS Dickson had not given direct evidence as to his intention at that moment. His intention could, quite properly, be inferred from his actions and the other circumstances of the case. He was clearly intent on restraining the appellant to prevent an assault or a breach of the peace occurring inside the public house. Given the circumstances, including the appellant's threat towards the landlord, the police officer's concerns were justified and his intent understandable. Also understandable in my view was his practical inability to tell the appellant that he was arresting him and the reasons for it given the violent nature of that part of the incident.[21]Therefore, leaving aside Section 143(4)(b), whilst outside, the sergeant was assaulted in the course his duty, namely in effecting the lawful arrest of the appellant.[22]For those reasons I would answer the question posed by the justices, “No” - the magistrates were not wrong in law to find that APS Dickson had acted lawfully in the execution if his duty. As a consequence, the appeal should be dismissed and the conviction stand.

LORD JUSTICE MOSES: I agree.