Cumberbatch v Crown Prosecution Service [2009] EWHC 3353 (Admin)

[2009] EWHC 3353 (Admin)Case No CO/6583/2009
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
DIVISIONAL COURT
Venue Royal Courts of JusticeDate Tuesday, 24 November 2009
Strand
London WC2A 2LL
B e f o r e:
LORD JUSTICE LAWS
MR JUSTICE LLOYD JONES
CUMBERBATCH v THE CROWN PROSECUTION SERVICE and: ALI v THE DEPARTMENT OF PUBLIC PROSECUTIONS
Computer-Aided Transcript of the Stenograph Notes ofWordWave International LimitedA Merrill Communications Company165 Fleet Street London EC4A 2DYTel No: 020 7404 1400 Fax No: 020 7404 1424(Official Shorthand Writers to the Court)
Between
CUMBERBATCHClaimantTHE CROWN PROSECUTION SERVICEDefendantandDefendantALIDefendantTHE DEPARTMENT OF PUBLIC PROSECUTIONSDefendantMS N EDWARDS (instructed by THOMPSON AND CO) appeared for CumberbatchMR A MORRIS (instructed by HINES) appeared for AliMR G CARRASCO appeared for Crown Prosecution Service in CumberbatchMR P RULE appeared for Crown Prosecution Service in Ali
J U D G M E N T
[1]MR JUSTICE LLOYD JONES: These two appeals by case stated raise similar but not identical questions in relation to when police officers are acting in the execution of their duty.[2]I will deal first with the case of Mohammed Usman Ali. Here, the appellant appeals against the decision of the Crown Court at Aylesbury, on 27 November 2008 and 1 December 2008, to dismiss his appeal against his conviction of two offences of resisting police officers in the execution of their duty.[3]The appellant was charged with three offences of resisting a constable in the execution of his duty, contrary to section 89(2), Police Act 1996. The police had been called to a shopping centre in High Wycombe following a reported assault. They arrested two men. The arrest of the second man attracted the attention of the appellant, Mr Ali. Mr Ali was asked to leave the scene. He refused. In due course, one of the officers, PC Kenney, arrested him. The appellant resisted arrest. Two other officers, PI Boddy and PC Faherty, came to their colleague's assistance. The case stated records that PI Boddy and PC Faherty then assisted PC Kenney to complete the arrest and that during this process the appellant was sprayed with captor spray.[4]The appellant was taken to High Wycombe Police Station. He was later charged with resisting each of the officers in the execution of his or her duty.[5]The appellant denied the allegations. After conviction in the Magistrates' Court the appellant appealed. By his appeal he argued that PI Boddy and PC Faherty could not have bee acting in the execution of their duty, because their colleague, PC Kenney, had carried out an unlawful arrest. The Crown Court agreed that the arrest by PC Kenney was unlawful on the basis that that officer did not have reasonable grounds to suspect the appellant of committing any offence. Section 24(2) and section 28(3) of the Police and Criminal Evidence Act 1984 had not been complied with and PC Kenney was not acting in the execution of his duty. However, in respect of the offences of resisting the other officers the Crown Court took the view that it was the duty of those other officers to go to their colleague's assistance, to subdue the appellant and to arrest or complete the arrest process. This they had done, the Crown Court found, using no more force than was reasonable in the circumstances. Accordingly, the appeal in respect of the offence of resisting PC Kenney was successful, but the appeal in respect of the offences of resisting each of the other two officers was dismissed.[6]The questions posed for the opinion of this court are: 1) Where the arrest of a person by a uniformed police officer is unlawful, are other police officers who see what is happening and go to assist their colleague in the arrest, acting in the execution of their duty? 2) Can the appellant still be guilty of resisting PI Boddy and PC Faherty in the execution of their duty when they were assisting PC Kenney in effecting an unlawful arrest? 3) If the answer to the above questions is no, should the Crown Court have allowed the appeal in the case of the charges in respect of PI Boddy and PC Faherty once the Crown Court had determined that the arrest by PC Kenney was unlawful?[7]The case stated further discloses that PC Kenney gave evidence of the reason for the appellant's arrest. He said that the person in the crowd had said that he had been punched in the face and an unknown female then pointed to the appellant as the attacker. PC Kenney said that was his reason for arresting the appellant, suspicion of a common assault on a person unknown. Some witnesses said that the reason for the arrest was given; some said no reason was given. PC Kenney said he later told the appellant that he had been arrested for assault and affray. The custody record shows that PC Kenney told the desk sergeant that he had arrested the appellant for assault, affray and actual bodily harm.[8]The appellant accepts that PC Kenney had acted speedily in what was obviously a difficult situation, but submits that that did not make his conduct lawful. In fact, the allegation of assault was abandoned almost immediately at the police station.[9]The Police and Criminal Evidence Act 1984 provides as follows:
"24(2) If a constable has reasonable grounds for suspecting that an offence has been committed, he may arrest without a warrant anyone whom he has reasonable grounds to suspect of being guilty of it. ... 28(3) Subject to subsection (5) below, no arrest is lawful unless the person arrested is informed of the ground for the arrest at the time of, or as soon as is practicable after, the arrest."
[10]The starting point for consideration of the submissions we have heard must be the Crown Court's finding that the appellant had not done anything that could be construed as assault or affray, and its conclusion that PC Kenney had no reasonable grounds to suspect Mr Ali of having committed any offence. Section 24(2), of the Police and Criminal Evidence Act 1984, had not been complied with. The arrest by PC Kenney was unlawful and it was not in the execution of his duty. Furthermore, as the Crown Court concluded, Mr Ali was entitled to defend himself against PC Kenney's attempts to arrest him.[11]The Crown Court found that when PI Boddy and PC Faherty arrived, they were faced by an ugly crowd who were being abusive to the police officers present. I should make clear that Mr Ali denied in the Crown Court that he had used any offensive words or behaviour. Indeed, he had been found not guilty of an offence contrary to section 5 of the Public Order Act at the High Wycombe Magistrates' Court. However, the Crown Court found that PC Kenney appeared to be attempting to arrest and restrain Mr Ali who was resisting him. It was in these circumstances that the Crown Court concluded that it was the duty of the two further officers to subdue the appellant and complete the arrest process.[12]I consider that the Crown Court erred in law in coming to that conclusion. Officers Boddy and Faherty were not involved in the investigation of any alleged offences. As a result they could not and did not assert that they had formed any view as to whether the person being arrested was guilty of any offence. They were simply coming to the assistance of a fellow constable. At common law, any person has the right to use reasonable force to resist an unlawful arrest, or to assist another to resist an unlawful arrest. In Christie v Leachinsky [1947] AC 573, Lord Simonds expressed the matter in the following way at page 591: "I would say that it is the right of every citizen to be free from arrest unless there is in some other citizen, whether a constable or not, the right to arrest him. And I would say next that it is the corollary of that right of every citizen to be thus free from arrest that he should be entitled to resist arrest unless that arrest is lawful".[13]The arrest by officer Kenney was unlawful and Mr Ali was entitled to resist it. He could not be in a position whereby he was entitled to resist one officer but not others who arrived to assist the first officer in the arrest. He could not be expected to distinguish between them; he could not possibly distinguish between the actual arresting officer and those officers who merely assisted in that arrest. In my judgement, he did not need to do so in the circumstances of this case. He was simply entitled to resist arrest. Were this not the case, the right of any citizen to resist an unlawful attempted arrest would be defeated.[14]To my mind this case is indistinguishable from Bentley v Brudzinski (1982) Cr App R 217.[15]It is then suggested, on behalf of the respondent, that the two further officers were under a duty to prevent a breach of the peace. This parallels a similar argument advanced in Cumberbatch, the other appeal which we have heard this morning.[16]In the case of Ali, the submission overlooks the fact that the situation involving Mr Ali which confronted these two officers was one of a citizen resisting an unlawful arrest, and had been brought about through the unlawful conduct of their colleague. There is no indication in the case stated that at the point of resisting the officers Mr Ali was posing a threat to anyone else.[17]Before us, Mr Rule, in the course of his submissions, has relied on the decision of the Divisional Court in Joyce v Hertfordshire Constabulary [1985] 80 Cr App R 298. To my mind, this case is readily distinguishable on the basis that there the court was prepared to assume that the first officer, who was subsequently assisted by another officer, was acting lawfully. In the present case, it is established that PC Kenney was acting unlawfully in his attempt to arrest Mr Ali. I accept that the situation would be different if Mr Ali had used unreasonable force. He would then be acting unlawfully and the consequence of that would be that officers acting to restrain and arrest him would be acting, once again, in the execution of their duties. However, there is no suggestion in this case that the degree of force used by Mr Ali was unreasonable.[18]For these reasons, I consider that the Crown Court erred in law in concluding that, in the particular circumstances of this case, Mr Ali could be guilty of an offence of resisting arrest by a constable in the execution of his duty. None of the three officers involved was acting in the exercise of his or her duty.[19]Accordingly, I would answer the questions posed as follows:[20]1. Where the arrest of a person by a uniformed police officer is unlawful, other police officers who see what is happening and go to assist their colleague in the arrest are not acting in the execution of their duty.[21]2. The appellant cannot be guilty of resisting PI Boddy and PC Faherty in the execution of their duty when they were assisting PC Kenney in effecting an unlawful arrest, provided the appellant did not use unreasonable force in resisting unlawful arrest.[22]3. The Crown Court should have allocated the appeal in the cases of the charges in respect of PI Boddy and PC Faherty once it had been determined that the arrest by PC Kenney was unlawful.[23]I turn to the appeal in Cumberbatch. This is also an appeal by case stated. The appellant appeals against the decision of the Inner London Crown Court on 20 February 2009, to dismiss her appeal against conviction for an offence of assaulting a police officer in the execution of her duty.[24]On 14 February 2008, the appellant's father was arrested under section 136, Mental Health Act 1983. The arrest took place in an area where the public did not have access. He was then taken to a public place where a police vehicle was waiting. At the vehicle the appellant's father was told, in crude terms by one of the officers, to lower his head. At that point the appellant became upset and started pushing at the policeman who was holding her father, and remonstrated with the officers for showing a lack of respect. PC Richardson, who was accompanying those carrying out the arrest, moved forward to restrain the appellant by taking hold of her arms and moving her away from the immediate vicinity. The appellant then lunged at her and inflicted a deep horizontal scratch across PC Richardson's throat, causing minor scarring.[25]On behalf of the appellant, it was submitted before the Crown Court that the prosecution had not proved that the arrest under section 136, Mental Health Act 1983 was lawful. In order to establish a prima facie case it had to be shown that PC Richardson was acting in the course of her duty. If she was acting in furtherance of an unlawful arrest she could not have been acting in the execution of her duty, and therefore an essential element of the offence had not been proved.[26]On behalf of the respondent, it was submitted that the appellant's behaviour in the circumstances existing at the time of the offence was such that a breach of the peace was likely, and PC Richardson was therefore under a clear duty to prevent this. She was, therefore, acting in the execution of her duty when assaulted.[27]The Crown Court concluded that the legality of the arrest of Mr Cumberbatch was not an essential element of the charge because PC Richardson was not solely assisting in the furtherance of Mr Cumberbatch's arrest when she was assaulted. Miss Cumberbatch had shown some violence towards the officer carrying out the arresting, and she was shouting and behaving aggressively in a public place. The court found that Miss Cumberbatch was behaving in such a way as to present a clear risk of violence being inflicted or a breach of the peace being occasioned. Had PC Richardson failed to restrain her, she would have been in breach of her duty.[28]The Crown Court further found that Miss Cumberbatch was not attempting to prevent or impede the arrest of her father, but was concerned about the lack of respect shown to him by the arresting officers. This, indeed, was her account when she gave evidence. The court therefore concluded that PC Richardson was acting in the execution of her duty when she was assaulted by the appellant.[29]The following question has been framed for the opinion this court: If the arrest of Mr Cumberbatch was unlawful, was PC Richardson acting in the execution of her duty?[30]The Crown Court did not decide whether the arrest of Mr Cumberbatch was unlawful. It considered that it did not need to do so. However, the question posed for the opinion of this court assumes that the arrest of Mr Cumberbatch was unlawful. Accordingly, I proceed on the basis that the arresting officers were not acting in the course of their duty in arresting Mr Cumberbatch.[31]There is an issue as to whether PC Richardson was part of the team arresting Mr Cumberbatch. Mr Carrasco, on behalf of the respondent, submits that she played no part in the arrest or facilitating it. He says that she was on duty to transport the detained person and that there was a clear break in time, role and causation between the arrest and the incident that followed. However, it should be borne in mind that if the arrest of Mr Cumberbatch was unlawful, so was his continuing detention. To the extent that PC Richardson was part of the team arresting or detaining Mr Cumberbatch, she was not acting in the course of her duty, because the arrest must be assumed to be unlawful.[32]To my mind, the reasoning in relation to the appeal of Ali applies equally to this situation. However, a further question arises here. The Crown Court considered that the legality of the arrest of Mr Cumberbatch was not an essential element of the charge because PC Richardson was not solely assisting in the furtherance of Mr Cumberbatch's arrest when she was assaulted. It concluded that Miss Cumberbatch was behaving in such a way as to present a clear risk of violence being inflicted, or a breach of the peace being occasioned, and that therefore PC Richardson was acting in the course of her duties in taking hold of her arm.[33]It is common ground before us that, as a general rule, a police officer reasonably believing that a breach of the peace is about to take place, is entitled to take such steps, including the reasonable use of force, to prevent it in circumstances which appear to him to be proper.[34]Here, any actual or threatened violence, or breach of the peace by Miss Cumberbatch, was indissolubly linked with her protest at the treatment of her father, which for present purposes must be taken to be unlawful, and not in the course of the duty of the police officers. Miss Cumberbatch's conduct was not directed at anyone else. There is no indication in the case stated that there was anyone else present who might be affected by it. Furthermore, in this case, PC Richardson's conduct is so bound up with the arrest and continuing detention of Mr Cumberbatch that it is not possible, in my judgement, to say that she was acting in the course of her duty for the distinct reason that she was preventing an actual or threatened act of breach of the peace. If Miss Cumberbatch had assaulted one of the officers who actually carried out the arrest, as opposed to PC Richardson, she would not have been guilty of an assault on an officer in the execution of his duty. I am unable see that the position is any different if she assaults an accompanying officer who tries to prevent her from interfering with or protesting against the unlawful arrest. I readily accept that if there had been an independent, free-standing breach of the peace, the position would be different, but that was not the case here.[35]Mr Carrasco, on behalf of the respondent, also relies on the finding of the Crown Court that Miss Cumberbatch's actions were not motivated or directed to preventing an illegal arrest, but were directed to the manner of the arrest. As such, he submits, she was not herself trying to prevent an illegal arrest. However, to my mind, the fact that Miss Cumberbatch's motive may have been to protest at the treatment of her father and not to prevent or impede his arrest could not effect the analysis. What matters is whether PC Richardson was acting in the course of her duty in restraining her. Indeed, it would be curious if Miss Cumberbatch were in a better position if attempting to prevent or impede her father's arrest than if simply protesting about it.[36]The position would have been different if Miss Cumberbatch had acted in a way which exceeded a reasonable response to the unlawful arrest of her father. In those circumstances it seems to me that PC Richardson would have been acting in the execution of her duties in restraining her. However there is no suggestion that that is what occurred in this case. Mr Carrasco is undoubtedly correct when he submits that the answer to the question posed turns on the particular facts.[37]For the reasons I have given, I would answer the question as follows: If the arrest of Mr Cumberbatch was unlawful, PC Richardson was not acting in the execution of her duty in restraining Miss Cumberbatch.

LORD JUSTICE LAWS: I agree that these appeals should be allowed for the reasons given by my Lord, and that the questions posed for the consideration of this court should be answered as he has proposed.

[39]I apprehend that, given the terms of my Lord's judgment, there is no question of sending either of these cases back to the lower court.[40]MR CARASCO: My Lord, I have no instructions on that.

LORD JUSTICE LAWS: Well there are no further findings to be made.

[42]MR CARASCO: There are not, my Lord.

LORD JUSTICE LAWS: No, very well.

[44]MR RULE: My Lord, I do not think it would achieve anything further. Your Lordships have made plain the law for the lower court and the finding of fact.

LORD JUSTICE LAWS: Thank you. Do we need to make any further orders then?

[46]MR RULE: My Lord, I was going to make an oral application if I may, as to whether your Lordship would consider whether a point of general public importance is raised.

LORD JUSTICE LAWS: Well, you would have to draft one.

[48]MR RULE: My Lord, I certainly can do. I did not know whether your Lordships would wish me to perhaps explain, very briefly, what the point is that I seek to be certified at this stage, or to do it later in writing?

LORD JUSTICE LAWS: I think it would be much more convenient, speaking for myself, if it were done in writing, shown to your opponents and friends at the Bar, and submitted to us if you decide to pursue it with a short argument as to why we should grant it. We will then deal with it one way or the other in writing.

[50]MR RULE: Very well. Thank you, my Lord.

LORD JUSTICE LAWS: Anything else?

[52]MS EDWARDS: My Lord, Miss Cumberbatch is legally aided, I do not know whether I can make an application for defence costs.

LORD JUSTICE LAWS: Against who?

[54]MS EDWARDS: In relation to, effectively, travelling expenses.

LORD JUSTICE LAWS: You are just asking for her personal expenses?

[56]MS EDWARDS: Indeed.

LORD JUSTICE LAWS: You are not asking for any order that would benefit the Legal Services Commission? Well, you are not, so what are you asking for, an order that the CPS pay her costs?

[58]MS EDWARDS: For the defendant's costs.

LORD JUSTICE LAWS: Out of central funds, or against the CPS?

[60]MS EDWARDS: I would assume that would come out of central funds.

LORD JUSTICE LAWS: It is not a matter of assumption Ms Edwards, it would be a matter for submission.

[62]MS EDWARDS: I understand that would come out of central funds.

LORD JUSTICE LAWS: You are asking for a defendant's costs order from central funds in relation to your client's personal costs?

[64]MS EDWARDS: Indeed, my Lord.

LORD JUSTICE LAWS: I think you had better look into this and we will deal with it again after lunch. You are not very clear as to the basis on which the application is made, and it maybe that you have a duty to the Legal Services Commission to make an application for the substantive costs.

[66]MS EDWARDS: Indeed, my Lord, I will look into it.[67]MR MORRIS: Your Lordships, perhaps I could briefly assist. The claim for a defendant's costs would be made out of central funds. I do not seek to make that application, the only application I seek to make, if I can, is that the money that has been made by Mr Ali, his fine, can then be claimed back as part of his defendant's costs.

LORD JUSTICE LAWS: That is the only order you seek?

[69]MR MORRIS: That is the order I seek, my Lord.

LORD JUSTICE LAWS: Well, that money is, what, in the hands of the collecting authority?

[71]MR MORRIS: The court, yes.

LORD JUSTICE LAWS: You are clearly entitled to that. We will direct that the money paid by way of fine by your client should be restored to him against his costs. My Lord is quite right if I may say so, we have not actually stated in terms, but it must follow from the judgment that the convictions recorded against these appellants are quashed.

[73]MS EDWARDS: My Lord, I would also be asking for costs in relation to the compensation paid. There was no fine in this matter, it was a community order imposed, but compensation was paid. Also costs were paid to the prosecution and would it would also be my application for those funds to be returned.

LORD JUSTICE LAWS: Mr Carrasco, do you have anything to say about all this?

[75]MR CARASCO: My Lord, in regard to the last two applications of my learned friend, that the compensation paid be returned, that is quite proper, I do not object to that.

LORD JUSTICE LAWS: Well, take one thing at a time, we have directed that the fine paid by Mr Ali be restored to him. The compensation money paid by Miss Cumberbatch will be restored to her.

[77]MR CARASCO: Yes.

LORD JUSTICE LAWS: Now, what remains?

MR JUSTICE LLOYD JONES: The costs below.

[80]MR CARASCO: Yes, the costs paid to the Magistrates' Court and/or the Crown Court, they can be returned as well.

LORD JUSTICE LAWS: The costs what which Miss Cumberbatch paid/

[82]MR CARASCO: She would have had costs orders against her, those obviously should be --

LORD JUSTICE LAWS: We will revoke the orders for costs made against your client in the courts below Miss Edwards, and the money paid by way of costs by her will be restored to her.

[84]MR MORRIS: My Lord, can I ask for the same direction.

LORD JUSTICE LAWS: Yes, and you may have it. But you still have a further application, Miss Edwards, do you not, in relation to the costs here?

[86]MS EDWARDS: My Lord, no, not in relation to that. If those are returned then I withdraw that application.

LORD JUSTICE LAWS: What about the Legal Services Commission, it has been put to the expense of running this appeal and the appeal has been successful. Is that not right?

[88]MS EDWARDS: That is correct.

LORD JUSTICE LAWS: Do you not have a duty to them?

[90]MS EDWARDS: Well, in that case I will make that application.

LORD JUSTICE LAWS: You look it up over lunch and come back at quarter past two, Miss Edwards, we are not going to do it on the hoof.

[92]We will sit again at 2.15pm. (Court rises at 1.14pm and sits again at 2.15pm)

LORD JUSTICE LAWS: Well, Ms Edwards?

[94]MS EDWARDS: My Lords, yes. My only application, further to those already granted, is for the expenses of the appellant in relation only to her travel expenses for the proceedings.

LORD JUSTICE LAWS: Are you asking for that out of central funds?

[96]MS EDWARDS: That would be out of central funds, indeed.

LORD JUSTICE LAWS: Have you looked into the position whether you have a duty to the Legal Services Commission?

[98]MS EDWARDS: Not in relation to criminal legal aid.

LORD JUSTICE LAWS: You do not?

[100]MS EDWARDS: I am not under any obligation, so there is no application.

LORD JUSTICE LAWS: All right. I do not imagine you have anything to say have you Mr Carrasco?

[102]MR CARASCO: No, my Lord.

LORD JUSTICE LAWS: We will make the order for your client's personal expenses to come out of central funds by way of a defendant's costs order.

[104]Thank you very much indeed.

Cited in 2 later judgments