D v Director of Public Prosecutions [2010] EWHC 3400 (Admin)

Case No CO/5434/2010[2010] EWHC 3400 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT
Venue Royal Courts of JusticeDate Wednesday, 1 December 2010
Strand
London WC2A 2LL
B e f o r e:
MR JUSTICE OUSELEY
Between
DAppellantv
Between
DIRECTOR OF PUBLIC PROSECUTIONSRespondent
Computer-Aided Transcript of the Stenograph Notes ofWordWave International LimitedA Merrill Communications Company165 Fleet Street London EC4A 2DYTel No: 020 7404 1400 Fax No: 0207 404 1424(Official Shorthand Writers to the Court)
Mr S Natas (instructed by Irvine Thanvi Natas) appeared for Appellant for The Respondent did not attend and was not represented
J U D G M E N T
[1]MR JUSTICE OUSELEY: This appeal by case stated raises a short point in relation to whether a Community Support Officer ("CSO") was acting in the course of her duty when the appellant, D, pushed her, causing minor injuries. The Barking Magistrates' Youth Court convicted D of assaulting CSO Bonfield, acting in the execution of her duty contrary to section 46(1) of the Police Reform Act 2002.[2]The brief facts were that in March 2009, she (with another CSO) was on patrol in uniform when they received a call to attend a block of flats in Chadwell Heath to investigate a disturbance involving youths in a stairwell. They entered the building via the rear door and, on arrival, could hear the sounds of people snorting, spitting, giggling and chatting higher up the stairwell. No one could be seen, and CSO Bonfield's colleague called out for whoever was up there to come down.[3]There was further giggling, followed by silence. The other CSO called out a second time for whoever was upstairs to come down. Eventually, the appellant, D, came down the stairs and walked quickly past the other CSO in order to leave the building.[4]I now turn to the specific findings of fact on a crucial issue made by the magistrates:
"h. CSO Hampton told the youth to 'Stand over there' but he carried on walking. i. CSO Bonfield asked the youth to stop, she said 'Stop there, please' and put her hand out, indicating him to stop."
[5]What then happened was that the appellant ignored her request to stop so she was unable to ask him any questions. In pushing past her quickly to leave the building, he pushed CSO Bonfield's arm, causing her to stumble and fall backwards. It was that which was alleged to constitute the assault. As a result of being pushed aside and stumbling backwards, CSO Bonfield was caused pain and tenderness to her hand and shoulder, but she did not require medical attention.[6]It was contended by the appellant that CSO Bonfield was not acting in the course of her duty at the time when she was pushed by him. The basis for that contention was what CSO Bonfield said she was intending to do. She gave evidence that she understood that she had the power to require the appellant to remain at the scene. She said in cross-examination that she had told the appellant to remain where he was without telling him the reason, but she told the court that the reason why she wanted the appellant to remain was for him to be searched because there had been previous complaints by residents of youths in the stairwell taking drugs.[7]The magistrates found as a fact that, in requiring the appellant to stay at the scene, it was her intention to seek the attendance of a police constable to conduct a search of the youth for drugs.[8]The powers which a Community Support Officer has to detain someone are set out in Part 1 of Schedule 4 to the Police Reform Act 2002. A Community Support Officer is a designated person for the purposes of section 38 of the Act. The powers in Part 1 of Schedule 4 include the power in paragraph 1A(3) to require a person to give to the CSO his name and address. That power arises where the officer "has reason to believe that another person has committed a relevant offence".[9]A "relevant offence" is defined in sub-paragraph (6) as being either a relevant fixed penalty offence (which could not apply here), or an offence the commission of which appears to the officer to have caused either injury, alarm or distress to any other person, or the loss of or damage to another person's property. That power might have arisen here so as to enable the CSO to require the name and address of the appellant.[10]There is also a power in paragraph 3(1) to require the name and address of a person reasonably believed to be acting in an anti-social manner; that is, in a manner that causes or is likely to cause harassment, alarm or distress to one or more persons in a different household.[11]Mr Natas submitted to the magistrates, and submitted to this court, that a Community Support Officer had no power to detain a person unless, so far as material here, he reasonably believed that that person had committed an offence which appears to have caused injury, alarm or distress to another person, or to have caused loss or damage to another person's property, or was likely to cause harassment to someone in a different household, and, having required that person in those circumstances to provide his name and address, that person had either failed to comply with the request, or gave a name and address which the officer reasonably suspected is false or inaccurate.[12]Mr Natas rightly points out that a Community Support Officer has no power to detain a person on the grounds that she reasonably believes him to be in possession of controlled drugs in order for a search to be carried out by a police constable. It is only a police constable and not a Community Support Officer who lawfully can search a member of the public for prohibited drugs. There is no power for a Community Support Officer to detain a member of the public in order that a constable can arrive later on and carry out the search.[13]I reject that approach. On the evidence, Mr Natas submitted that the clear purpose behind the request to stop and the putting out of a hand, after which the appellant pushed past her and caused her to stumble, was to detain him for an unlawful purpose. He submitted that the Community Support Officer had, by the time she issued that request with the intention of unlawfully detaining the appellant, ceased to act in the execution of her duty and so no offence had been committed.[14]The magistrates asked three questions in the case stated. The first question was:
"Were we right to conclude on the evidence presented to us that by verbally requiring the appellant to remain with her in the stairwell and putting her hand out indicating him to stop that CSO Bonfield had not detained the appellant?"
[15]The question of what acts constitute a detention is primarily a question of fact and degree, rather than a question of law, provided that the legal framework within which the facts have to be assessed is properly understood.[16]Mr Natas has referred me helpfully to the decision of the Divisional Court in Collins v Wilcock [1984] 3 All ER 374. This case concerned a police officer who wished to caution a known prostitute soliciting in a public street. The prostitute refused the request by the officers that she get into the car to be questioned, and walked away. Following that, a police officer got out of the car to ask the defendant why she had refused to talk to the police. But the police officer took hold of the defendant's arm to restrain her. She was not proceeding to arrest her at that time, and the Divisional Court held that her action in taking hold of the defendant's arm went beyond the generally accepted conduct of touching a person to engage his or her attention. Accordingly, the action of the police constable was unlawful, and the reaction of the defendant, which involved scratching the officer's arm with her nails, did not constitute an assault on the officer in the execution of her duty.[17]Robert Goff LJ said at page 237 that if physical conduct went beyond what was allowed by law, the mere fact that the officer had a laudable intention of carrying out a cautioning procedure in accordance with established practice could not render her action lawful. The magistrates were bound to conclude on the facts that the action of taking hold of the defendant by the arm to restrain her, but in which she was not proceeding to arrest the defendant, went beyond what was appropriate to engage attention and was unlawful.[18]The Divisional Court then turned to the question posed by the magistrates in general terms. It concerned whether the defendant had been detained. The following observations were made:
"Furthermore, the word "detaining" can be used in more than one sense. For example, it is a commonplace of ordinary life that one person may request another to stop and speak to him; if the latter complies with the request, he may be said to do so willingly or unwillingly, and in either event the first person may be said to be "stopping and detaining" the latter. There is nothing unlawful in such an act. If a police officer so "stops and detains" another person, he in our opinion commits no unlawful act, despite the fact that his uniform may give his request a certain authority and so render it more likely to be complied with. But if a police officer, not exercising his power of arrest, nevertheless reinforces his request with the actual use of force, or with the threat, actual or implicit, to use force if the other person does not comply, then his act in thereby detaining the other person will be unlawful. In the former event, his action will constitute a battery; in the latter event, detention of the other person will amount to false imprisonment. Whether the action of a police officer in any particular case is to be regarded as lawful or unlawful must be a question to be decided on the facts of the case."
[19]Mr Natas submitted that the magistrates' first question should be answered in the negative on the grounds that the CSO's act, in telling the appellant to stop and putting out her hand, was preparatory to what would turn out to be an unlawful detention, if the officer's ultimate intention had been carried into effect. The quality of the Act could not be judged without recognising the ultimate intention which lay behind it.[20]On the evidence, the CSO in uniform was acting in the execution of her duty when she went to the stairwell and with her colleague made enquiries of those whom they could not see as to what they were doing and told them to come down. A Community Support Officer engaged in those activities is acting in the execution of her duty. The duty does not simply commence at the moment when some specific act, such as detention for questioning, comes into the mind of the officer. That proposition was not disputed by Mr Natas. It is perfectly clear that the power to require a person whom a Community Support Officer reasonably believes to have committed either of those sets of offences, or a relevant fixed penalty offence, to give his name and address will most often be initiated by a more or less authoritative request to stop. It is difficult to see that, without a request to stop, such a power to request a name and address will generally be effective, as Mr Natas accepted.[21]It is also plain that the implicit finding of fact that there had been no detention, means that there had been no actual physical force used or threatened in the request to stop, coupled with the putting out of the hand. The precise details of how the hand was put out are not known, but it is not suggested that it made contact with the appellant.[22]At the moment when the appellant pushed the CSO, there had been no detention, and the CSO was continuing to act, and would have continued so to act, in the execution of her duty up until the point at which there was an unlawful detention. That point had not yet arisen on the findings of fact by the magistrates, even though it might do so imminently.[23]The authorities do not directly bear on the point. But what was critical in Collins v Wilcock was what was actually said and done, and not at all the ultimate purpose behind what was done.[24]I note what Robert Goff LJ said about the purpose of the officer in that case, namely that a laudable intention of carrying out a cautioning procedure could not make the grabbing of the defendant's arm lawful. Conversely, I conclude, a request to stop, which involved no detention and no threat of force, cannot be rendered unlawful by the fact that the CSO intended to detain him in a mistaken belief as to the extent of her powers and in a relatively short while, might have detained the appellant unlawfully.[25]I also consider it important that when the public and police consider their powers, and when a court decides whether an action has been lawful or unlawful, the means whereby the lawfulness is judged should be simpler rather than more complex. It is always possible that, in the course of CSO operations, a CSO may change his or her mind about the powers to be used, or realise their true limits. If two are on operations together (which is by no means uncommon), they might each make the same request with the same gestures falling short of a threat of force, but do so with a quite different purpose and awareness of their powers. In this instance, it might be that a request to stop from the other CSO was made with full awareness of what the limits on their powers were and for a proper purpose. This supports my view that the focus should be on what was said and done, not the eventual purpose.[26]I have come to the clear conclusion that the question of the point at which an officer acting in the execution of a duty ceases to do so is the point at which she actually acts unlawfully and not the point at which she does something which is not unlawful, but which is intended to lead to an act which is unlawful.[27]There was nothing unlawful in what the CSO did in requesting the appellant to stop and putting out her hand to reinforce that request. The finding of fact by the magistrates that there was at that point no detention is one which, on the facts thus approached, they were fully entitled to reach.[28]Accordingly, at the point at which the appellant pushed the CSO, she was still acting in the execution of her duty and the appellant was rightly convicted. It is, in my judgment, irrelevant that at some point in the not too distant future she would have ceased, on her evidence, to have been acting in the execution of her duty. It is irrelevant to the position as at the moment when the push took place.[29]I now turn, in the light of that, to answer the questions set out by the magistrates. I have already set out question 1. The answer to that is "yes". The second question is:
"Were we right to conclude on the evidence presented to us that CSO Bonfield had the necessary power to detain the appellant in order for a police constable to attend to search him for prohibited drugs?"
The answer to that question is "no".[30]The third question is:
"Were we right, therefore, to conclude that by declining to remain with the CSO and by pushing quickly past her causing her to stumble backwards the appellant assaulted the CSO in the execution of her duty?"
That question cannot simply be answered "yes" or "no" in view of the fact that an apparent postulate is the incorrect conclusion reached by the magistrates on the second question. But they were right to conclude that, by declining to remain with the CSO and pushing quickly past her, causing her to stumble backwards, the appellant assaulted her at a time when she was still acting in the execution of her duty. Accordingly, subject to deleting the word "therefore" from question 3, the answer to that question is "yes".[31]Accordingly, this appeal is dismissed.