Sobczak v Director of Public Prosecutions [2012] EWHC 1319 (Admin)

Case No CO/5629/2011[2012] EWHC 1319 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT
Venue Royal Courts of JusticeDate Tuesday, 1 May 2012
Strand
London WC2A 2LL
B e f o r e:
MR JUSTICE MITTING
Between
PAWEL SOBCZAKAppellantv
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 Arash Abzarian (instructed by Gerard Maye & Co) appeared for AppellantMr Benedict Leonard (instructed by the CPS) appeared for Respondent
J U D G M E N T
[1]MR JUSTICE MITTING: On 12 October 2010 two police officers, PCs Howe and Taylor, were summoned urgently to 1 The Cliffe, Roedean, Brighton to the scene of a serious incident of violence involving the use of a hammer by a man believed still to be on the premises.[2]Police officers entered a poorly lit building in which there were many people. Some were covered in blood and some verbally aggressive. One man called Dimmick, believed to be the wielder of the hammer, whose clothing was covered in blood and was behaving aggressively, made a getaway up a landing, and when followed by PC Howe, produced a screwdriver. He then backed into the bedroom. Lying on the floor in the bedroom injured was the appellant. He got up and emerged from the room in an angry state, with his fists clenched and his head down. He was told by PC Howe to calm down repeatedly and eventually he did so. He was pulled out of the entrance to the room forcibly and then subjected to a cursory pat-down search by PC Howe. He then slumped to the floor. Dimmick reappeared, still aggressive and shouting.[3]Two females were also in the vicinity. They were struggling. A police dog was ordered by its handler (not by PC Howe) to bite one of them. It did so. While the dog had the woman's leg in its jaws, PC Howe attempted to release her leg. The appellant then got up and walked quickly towards PC Howe with his fists clenched. Despite a number of warnings from PC Howe (and it seems other officers) to stay where he was, he continued to advance towards PC Howe. He caused him to fear that he was about to be struck and so, anticipating that, he struck the appellant twice with his baton and discharged a Captor spray.[4]The appellant continued to advance and PC Howe struck him three times more with the baton, whereupon he fell to the floor. At no stage did the appellant make forcible contact with PC Howe.[5]On 10 January 2011 the appellant was charged with an assault on PC Howe in the execution of his duty, contrary to section 89(1) of the Police Act 1996. The assault was of the traditional kind; that is to say, putting someone in fear of immediate unlawful violence, and not, as in more common circumstance, including battery.[6]The appellant's case was that PC Howe had no power to search him, therefore once he had unlawfully searched him, PC Howe became a trespasser. The appellant was or may have been one of the squatters in the house and so had a superior right to be there than any other person other than the lawful owner or any person deriving title under him, or any policeman exercising statutory powers. But because PC Howe had conducted an unlawful search and so become a trespasser, when the appellant moved towards him aggressively and put him in immediate fear of violence, PC Howe was not acting in the course of his duty. Accordingly, the offence under section 89 was not made out.[7]The statutory powers of police officers to undertake searches were investigated before the Brighton Bench which heard the case. It was common ground that there was no power to search under section 1 of the Police and Criminal Evidence Act 1984 because that power does not operate in a dwelling. Section 2 was extensively considered. Section 2 provides by sub-section (2) that- "(2) If a constable contemplates a search, other than a search of an unattended vehicle, in the exercise— ... (b) of any other power ...(i) to search a person without first arresting him ... it shall be his duty, subject to subsection (4) below, to take reasonable steps before he commences the search to bring to the attention of the appropriate person— (i) if the constable is not in uniform, documentary evidence that he is a constable; and(ii) whether he is in uniform or not, the matters specified in subsection (3) below; and the constable shall not commence the search until he has performed that duty. (3) The matters referred to in subsection (2)(ii) above are— (a) the constable’s name and the name of the police station to which he is attached; (b) the object of the proposed search; (c) the constable’s grounds for proposing to make it ..."[8]The justices concluded that PC Howe did not formally comply with section 2(3) of the 1984 Act, but nevertheless his actions were justified. The court went on to observe that it was not reasonable to expect him to have fully complied with section 2(2) by reason of the circumstances which I have briefly described.[9]It found expressly that his "primary focus was that no further injuries occurred to any party", and that the motive for the pat-down search was "the situation needed to be controlled and weapons identified and secured".[10]In those circumstances, the prosecutor invited the court to look elsewhere for the statutory power to do that which PC Howe did. The court found it in section 3(1) of the Criminal Law Act 1967, which provides:
"Use of force in making arrest, etc. (1) A person may use such force as is reasonable in the circumstances in the prevention of crime, or in effecting or assisting in the lawful arrest of offenders or suspected offenders ..."
[11]The prosecution argued that PC Howe, by conducting a cursory pat-down search in the circumstances described, was doing so in the prevention of crime. The justices found that he was authorised by section 3 to conduct that search, and posed as a question for this court whether they were entitled to reach that conclusion.[12]On the findings made by the justices, which were justified by the evidence which they considered and the anterior findings which they made, PC Howe's purpose in conducting the pat-down search was to prevent crime by finding out whether the appellant had on him a weapon or not. Accordingly, the pat-down search was authorised by section 3 of the 1967 Act.[13]That does not, however, fully answer the question whether or not PC Howe's conduct was lawful. What he did undertake was a search. Accordingly, section 2 applied to it. Section 2 is mandatory. It requires an officer conducting a search to take reasonable steps to bring certain matters to the attention of the appropriate person. They include his name and police station, the object of the search and his grounds for proposing to make it. Those things could easily have been said, even in the circumstances described by PC Howe, to the appellant. Because PC Howe was conducting a search in the exercise of a power other than that provided in sub-section (1) of section 2 of the 1984 Act, so section 2(2) applied to him. Unattractive a conclusion though it is, it follows that the search conducted by PC Howe of the appellant was not a lawful search.[14]Mr Abzarian goes on to submit that the consequence of that finding was, and should have been, that PC Howe became a trespasser in the premises. To the man in the street, the proposition that a police officer doing his honest and sensible best to prevent further violence in a house occupied by squatters, as this house was, becomes a trespasser in the house as a result of a technically unlawful search would be surprising. Ancient authority suggests that, nevertheless, that conclusion might need to be drawn.[15]I propose to put that issue to one side for the moment and to proceed on the assumption that, as against anyone with a superior title to him, PC Howe became a trespasser in that dwelling at that point in time.[16]The justices then went on to make further significant findings. In paragraph 11 of the case stated, they expressed the following conclusion:
"We were further of the opinion that, there was a sufficient gap in time and events between the search of the defendant and the assault by the defendant on PC Howe to make the events separate and distinct. The assault by the defendant did not occur during the search."
[17]No question in the case is expressly raised about that conclusion, but it arises by necessary implication. An alternative finding of the justices was that because the events were sufficiently separated in point of time, so PC Howe was nevertheless acting in the course of his duty when he was assaulted by the appellant.[18]It is necessary to consider precisely what he was doing. His own evidence was that he was attempting to remove the female's leg from the dog's mouth and to restrain her when the appellant moved aggressively towards him. The justices made no express finding upon precisely what he was doing, but because the court made no criticism of PC Howe's conduct, it can reasonably be inferred that they accepted his evidence on that question. Certainly there was no suggestion that PC Howe was acting in an unlawful manner towards the female.[19]If, one asks rhetorically, what was the duty of PC Howe at that point in time of this incident, it surely included a duty to attempt to ensure that there was no further violence. Further, because the dog had been caused to bite the female by the command of the dog handler, any police officer in that building able to do so was under a common law duty to attempt to minimise the harm caused to the person bit by, as PC Howe was doing, attempting to get the jaws of the dog away from her leg. It was the police officers who had caused the dog to bite the woman. Accordingly, they were not mere bystanders under no obligation to help her. PC Howe rightly considered it to be his duty to do so. Was he acting in the course of his duty in doing that? That was the critical question for the justices to decide.[20]Leaving aside for one moment the question of whether or not he was a trespasser when he did so, my answer unequivocally is that it was his duty to do that. While attempting to release the dog and to restrain the woman, he was acting in the course of his duty. It follows, leaving the question of whether he was a trespasser to one side for one moment, that anyone who went to assault him would be assaulting him in the execution of his duty.[21]Would it matter that he was a trespasser? My answer to that question is, no, it would not. Take a more extreme circumstance: if having put himself technically in the wrong by conducting an unlawful search, PC Howe had seen another man about to stab, possibly fatally, another person, could he have stood aside or, on the more extreme proposition, was he required to stand aside and let that occur; or would he, in attempting to restrain the stabber, be acting in the course of his duty when doing so?[22]I have no doubt what the answer of the law to that question is. He would have been acting in the course of his duty in restraining the stabber and he would have been in breach of his duty so as to be guilty of the offence of misfeasance in public office if he had not attempted to do so. That is so whether he was a trespasser or lawfully present on the occasion.[23]Does it make any difference that the harm on this occasion potentially to the female was less than that? The answer which commonsense gives, and law in this instance follows commonsense, is no. What PC Howe was doing was to prevent harm in accordance with his duty to another person and to prevent her from further contributing to violence herself.[24]It is therefore unnecessary for me to answer the question posed by the ancient cases as to whether or not PC Howe became a trespasser ab initio and remained a trespasser throughout as a result of his technically unlawful search of the appellant. Because it is not necessary for me to decide that difficult question, I do not do so. The answer which I give is that which was given by the justices: that because what PC Howe was doing at the stage at which he was assaulted was lawful and in the execution of his duty, so an assault on him by the appellant was itself an assault on a police officer in the execution of his duty.[25]Mr Abzarian submits that, on the facts, it was not open to the justices to find that the two incidents - the search and the subsequent assault - were separate. The answer is that that was a question for the judgment of the court below and it made a clear and unequivocal finding that there was a sufficient gap in time to make the events separate and distinct. On the facts stated in the case, that was a conclusion which the justices were entitled to come. Indeed, it is one which they were clearly right to reach.[26]Mr Abzarian submits that the dividing line between incidents is insufficiently clear, and in future incidents when lawyers are called upon to advise their clients may also not be clear. I accept that a dividing line in an incident such as this will not always be obvious. It is for the judgment of the court, as in many other instances in the law where a dividing line is not clear, the court must decide where it lies. This court was entitled to do so. Its conclusion that the assault on PC Howe was in the execution of his duty was not wrong, and this appeal is for that reason dismissed.[27]The answer to the final question posed by the case, were we entitled to find that PC Howe was acting in the execution of his duty when he was assaulted by the defendant? is yes.[28]MR ABZARIAN: My Lord, two requests. Firstly, Mr Sobczak has the benefit of a public funding certificate. Could I ask for a detailed assessment?[29]MR JUSTICE MITTING: This is a criminal matter. He has a representation order, does he not?[30]MR ABZARIAN: He does.

MR JUSTICE MITTING: Accordingly, I do not think you need one.

[32]MR ABZARIAN: I just wanted to clarify that.[33]MR JUSTICE MITTING: If you do, you can have it. You have thoroughly earned your reasonable remuneration, but I do not think you need it.[34]MR ABZARIAN: Secondly, I have tried to take a note, but in view of the somewhat complicated nature of the reasoning, could I ask for a transcript of your judgment to be prepared at public experience?[35]MR JUSTICE MITTING: Because this is an appeal a transcript of my judgment will in any event be submitted to me for approval. I think if you want a copy of it and it does not appear on any of the websites, which it is likely to, then you will have to pay for it, but I think you will find it appears on Bailii or Casetrack or one of the other websites in due course.[36]MR ABZARIAN: I am grateful.

MR JUSTICE MITTING: Thank you for your submissions.

[38]MR LEONARD: There is no application, my Lord.