James v Director of Public Prosecutions [2012] EWHC 1317 (Admin)

Case No CO/6864/2010[2012] EWHC 1317 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT
Venue Royal Courts of JusticeDate Friday, 27 April 2012
Strand
London WC2A 2LL
B e f o r e:
MR JUSTICE MITTING
Between
JAMESAppellantv
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: 020 7404 1424(Official Shorthand Writers to the Court)
Mr R Ellison (instructed by Hodge Jones & Allen LLP) appeared for AppellantMr A Chalk (instructed by the Crown Prosecution Service) appeared for Respondent
J U D G M E N T
[1]MR JUSTICE MITTING: This is an appeal by way of case stated from the conviction of the appellant by District Judge Henderson at Highbury Magistrates' Court of an offence of obstructing PC Clasper in the exercise of his powers under section 23 of the Misuse of Drugs Act 1971. The offence was said to have occurred on 30 December 2009. On the facts found in the commendably clear case, what happened was as follows: two police officers, PC Clasper and PC Wood, stopped the appellant to speak to him. They identified themselves to him. They were in uniform and they gave reasons for requiring to search him under section 23 of the 1971 Act. The defendant, the appellant, submitted to a pat down search, but, as is now acknowledged, he had one or more packets of drugs concealed in his mouth. The police officers asked him to open his mouth and lift his tongue. One of them said that he lifted his tongue a little and revealed packets underneath it; the other said he did not at all. The district judge found that he did his best to conceal the drugs under his tongue.[2]There was then a difference in the evidence of the two police officers. PC Wood said that, while the appellant lifted the tip of his tongue, he attempted to conceal something in his mouth. He then saw the wraps under the tongue, wherein he said PC Clasper immediately grabbed the defendant's throat and simultaneously requested that he spit the contents of his mouth out. PC Clasper said that he put his hands around the appellant's throat, but did not apply any force until he tried to swallow. When he did so, the request to spit out the drugs was immediately made. PC Clasper said that he applied pressure to the appellant's throat in an attempt to prevent him from swallowing the drugs.[3]The district judge's findings about that marginally different evidence were as follows:
"When PC Clasper put his hand on the defendant's neck he did not apply force until the defendant tried to swallow the drugs. I accepted the evidence of PC Clasper over PC Wood as PC Clasper was in a better position to say when and how he applied force in what was a fast moving incident. His recollection was better than PC Wood's."
[4]He went on to find that the appellant made a concerted effort to swallow the drugs, despite a repeated request by PC Clasper to spit them out. He also found that PC Clasper used no more than reasonable force to prevent the appellant from swallowing the drugs.[5]In a attractively succinct and clear submission, Mr Ellison submits that on those facts the police officers, in particular PC Clasper, although obstructed by the appellant were not obstructed in the exercise of PC Clasper's powers under section 23 of the Misuse of Drugs Act 1971. The point is a simple one: a forcible search is only permissible if Code A of the Statutory Codes of Practice is followed. Paragraph 3.2 of Code A requires that:
"The co-operation of the person to be searched must be sought in every case, even if the person initially objects to the search. A forcible search may be made only if it has been established that the person is unwilling to co-operate or resists. Reasonable force may be used as a last resort if necessary to conduct a search or to detain a person or vehicle for the purposes of a search."
[6]Mr Ellison submits that, simply by placing his hand on the neck or throat of the appellant, PC Clasper was applying force to him so that he was at that point, and before he applied pressure to the appellant's throat, conducting a forcible search contrary to paragraph 3.2 of Code A. Mr Ellison submits that what was required first before he put his hand on the neck or throat of the appellant was a request by him to spit out the drugs in his mouth.[7]Mr Chalk for the prosecutor responds with two submissions, the first of which is that the placing of the hand on the neck or throat of an individual without applying pressure does not amount to the application of force, or at least does not constitute "a forcible search", for the purposes of paragraph 3.2. His alternative submission is that if it does amount to the application of force or is "a forcible search", it was justified given the lack of co-operation of the appellant, and indeed his determination to avoid the search revealing the drugs in his mouth.[8]In my judgment, Mr Chalk's first submission is correct. A pat down search as was conducted in this case is not "a forcible search", nor is the placing of a hand on the body of the individual, except perhaps in sensitive parts, the application of force or "a forcible search". This forcible search began when the appellant attempted to swallow the drugs. On the findings of fact made by the district judge, the police officer who applied the force, PC Clasper, had no opportunity to conduct the search without applying force around the appellant's neck because the appellant swallowed and refused the request to spit out the drugs in his mouth. The question posed by the district

judge are as follows:

"1. Did I err in law to in finding that there was sufficient evidence to conclude that there had been compliance at paragraph 3.2 of the Code A of the Codes of Practice to the Police and Criminal Evidence Act 1984? 2. Did I err in law in finding that there was sufficient evidence to justify a finding that an offence had been committed under section 23(4) of the Misuse of Drugs Act 1971?"
[9]To both questions the answer is "no". The district judge's findings were findings that he was entitled to make. On those findings, he was right to convict the appellant of an offence under section 23(4). Accordingly, this appeal is dismissed.[10]MR ELLISON: Thank you, my Lord.

MR JUSTICE MITTING: Do you require a public funding assessment or anything of that kind?

[12]MR ELLISON: No, there is a representation order.