Adler v Crown Prosecution Service [2013] EWHC 1968 (Admin)

Case No CO/1246/2013

[2013] EWHC 1968 (Admin)

IN THE HIGH COURT OF JUSTICE

QUEEN'S BENCH DIVISION

ADMINISTRATIVE COURT

Venue Royal Courts of Justice, Strand, London, WC2A 2LL

Date 09/07/2013

Before

PRESIDENT OF THE QUEEN'S BENCH DIVISION

MR JUSTICE CRANSTON

Between

Moses AdlerAppellant

Crown Prosecution ServiceDefendant

Mr Neil Corre (instructed by Sonn Macmillan Walker) for appellant

Mr Simon Heptonstall for CPS

Hearing Hearing dates: 18 June 2013

Judgment

President of the Queen's Bench Division :

[1]On 16 and 17 October 2012 the appellant was tried by District Judge Brennan at the Willesden Magistrates’ Court for an assault on Mr Brian Moore, the then Chief Constable of Wiltshire contrary to s.39 of the Criminal Justice Act 1988. The judge found the case proved. He imposed a conditional discharge of two years, a contribution to costs of £250 and compensation to Mr Moore of £250. The appellant appeals by way of case stated to the High Court on the question of whether there was sufficient evidence for the judge to find that Mr Moore had lawfully arrested his friend JC whom the appellant had tried to free by assaulting Mr Moore.

[2]In the present case the principles of law were not in dispute. Nor were the majority of the facts. The point arose in the context of the hearing before the judge where the question had arisen as to whether Mr Moore, who was out jogging in plain clothes, had arrested JC. There was no doubt that Mr Moore had seen JC break a window of a car. There was no doubt that he had told JC he had seen him do that and had taken hold of him. The sole issue turned on whether there was sufficient evidence for the judge to find that Mr Moore had made clear by the use of the appropriate language to JC in those circumstances that he was under arrest, as is required by s.28(1) of the Police and Criminal Evidence Act 1984 (PACE).

Stating cases for the Divisional Court

[3]As the Criminal Procedure Rules make clear there is a fundamental distinction between a case stated where the issue is a question of law on the facts found and a case stated where the issue is whether there is sufficient evidence for a finding which underpinned a conclusion.

[4]In the former case, as Part 64.5 (1) and (5) make clear, the facts as found by the first instance court must be set out, but the evidence must not. In Tuthill v DPP

[2011] EWHC 3760 (Admin)

this court emphasised at paragraphs 19-20 the importance of complying with the rules, as the evidence had been set out in the case stated when the only issue for the court was a question of law. In a postscript to the judgment at paragraphs 31-33 the court made clear that it would consider making an order for costs against the Justices Clerk or HMCTS if unnecessary costs were incurred because the evidence had been set out.

[5]In the latter case, where the issue is the sufficiency of the evidence for the findings made which underpinned the decision, Part 64.5 (2) makes clear that the evidence shall be specified in the case. In the present appeal the District Judge did not do that. The case was stated as if there was a question of law; the facts were found, but the evidence was not set out. This meant that expense had to be incurred by an application to this court. The single judge ordered that the case stated be amended by the addition of a transcript of the evidence of Mr Moore. It was on the basis of the transcript that the appeal was conducted.

[6]We would urge again that those requesting that a case be stated make clear what the issue is and those drafting the case comply with Part 64.5 of the Criminal Procedure Rules.

The facts as found which are undisputed on the appeal

[7]The facts, save on the one issue to which we have referred, are largely undisputed. They can be summarised as follows: i) On 22 May 2012 the appellant, then aged 19, and a friend, JC, who was 17 years old, had participated at a demonstration in relation to the attendance of Israeli politicians at a nearby local hotel. The appellant was a man of good character and evidence of good character was given by his rabbi. ii) Mr Moore, the then Chief Constable of the Wiltshire Constabulary, was in London on a secondment as Head of the UK Border Force. On 22 May 2012 he was out jogging, off duty in jogger’s clothing. Mr Moore was 53 years old and 6’1” high. iii) When he was jogging he saw JC break the front passenger window of a Mercedes in his full and clear view. Mr Moore called out to JC to stop. JC did not stop but instead entered another car, a BMW. Mr Moore grabbed JC by the arm, pulling him from the car and saying, “I am a police officer and I have just seen you smash the car window. Out.” iv) Mr Moore took JC, holding on to his arm, back towards the damaged motor car, hoping to get a uniformed officer involved. However, he had no mobile phone to call the police himself. He thought he had the attention of an adult who was nearby and said, “Call the police. I am a police officer and I have just seen him break a window of the Mercedes car.” v) JC then began to struggle. Over the course of the next two and a half minutes, Mr Moore repeatedly told JC and the gathering crowd that he was a police officer, that he needed help and that he wanted the police to be called. vi) The appellant, recognising JC, came over and, having asked what was going on, was properly told by Mr Moore that Mr Moore was a police officer and that he had detained JC for breaking the window of the Mercedes car. He explained clearly to the appellant that he had no identification on him as he was out jogging. vii) The appellant then laid hands on Mr Moore who was still holding the struggling JC. A struggle involving all three ensued, culminating in Mr Moore taking JC to the ground and the appellant continuing to try to help JC escape. viii) It was clear to the appellant that the window of the Mercedes car had been broken and both the appellant and JC were repeatedly told by Mr Moore that he was a police officer and why he needed help. ix) JC and the appellant were arrested formally by uniformed officers.

The decisions made by the CPS and the judge

[8]JC was charged with assaulting Mr Moore and causing criminal damage to the car to the value of £700. At the outset of the trial the prosecution offered no evidence against JC on the criminal damage allegation and that was dismissed. We asked for an explanation of this. We were told that the owner of the Mercedes had not attended court. We then asked why the prosecution had not relied on the evidence of Mr Moore who had seen JC smash the window. We were given no explanation as to why this had not been done, as counsel representing the CPS before us had not been at the hearing and did not know why the CPS had not pursued the case. At the end of the prosecution case the judge accepted the submission of no case against JC. It was again unclear why the judge had reached this conclusion.

[9]In relation to the arrest of JC the judge found that: i) It was Mr Moore’s belief that he was detaining JC for uniformed officers to arrest him, although once JC struggled, he believed he was arresting him. At no stage did Mr Moore use the word “arrest” or “I am arresting you”. He had told him he was detaining him. Mr Moore’s evidence was that he was unsure of the difference between “detain” and “arrest”. ii) Mr Moore was entitled to arrest JC under s.24 PACE (applicable to police officers) and under s.24A PACE (as an ordinary citizen). The judge concluded that what Mr Moore said to JC satisfied the conditions in s.28 and he had therefore lawfully arrested JC. The reasons were: a) Mr Moore saw JC break the car window and try to escape from the scene. b) Mr Moore made it clear by his words, by holding on to JC and marching him back to the damaged car, that JC was not free to leave. He also made it clear to JC that he had seen him break the car window. c) By calling out for help, for the police to be called and holding JC throughout he was ensuring JC did not escape before a constable in uniform could take him to the police station. d) Mr Moore made it clear to JC that he was a police officer and had arrested him for criminal damage and JC knew that.

[10]In relation to the appellant the judge found: i) As between the appellant’s account and Mr Moore’s account of what had happened, he accepted Mr Moore’s. He rejected the appellant’s account that he was punched by Mr Moore. Mr Moore had made clear to the appellant that he was a police officer and why he needed help. ii) The appellant did not genuinely believe he was trying to free JC from a racist or other attack. iii) The appellant had no defence to the charge of assault on Mr Moore.

The issue that was not raised

[11]There was no dispute that the appellant had struck Mr Moore. The judge had rejected the evidence of the appellant that he was trying to free JC from a racist or other attack. There was no evidence that the appellant thought that JC was being wrongfully detained or arrested. At the outset of the hearing we therefore raised the question as to why the issue before the judge had not turned on s.3 of the Criminal Law Act 1967 – whether the appellant had been using force in the prevention of a crime – and why in the light of the findings of the judge the case could not simply be resolved by us on that basis; see for example the recent decision of the Court of Appeal Criminal Division in R v Morris

[2013] EWCA Crim 436

[12]It was, however, clear that the issue under s.3 had not been raised before the judge. Counsel for the CPS did not know why as he had not been present at the hearing before the judge; he had not raised the issue with the CPS before attending the hearing of the appeal. As for understandable reasons no one was present from the CPS, it was not in the interests of justice to adjourn the matter to make enquiries. We therefore decided that it would not be right or fair summarily to determine the appeal on the basis of s.3; the appeal had been brought and had proceeded solely on the basis of the issue of the sufficiency of the evidence. We therefore decided that we should determine the appeal on the ground on which it was brought - the sufficiency of evidence on the basis of the findings set out in the case stated and the transcript of Mr Moore’s evidence.

Was there sufficient evidence?

(a) The legal position

[13]An arrest can be made either by seizure or the touching of a person’s body with a view to that person’s restraint. Words may also amount to an arrest if in the circumstances they are calculated to bring and do in fact bring to a person’s notice that he is under a compulsion and he submits to it. Under s.28 of the Police and Criminal Evidence Act 1984, two formalities are generally required – telling the person he is under arrest and the grounds for that arrest:

“(1) Subject to subsection (5) below, where a person is arrested, otherwise than by being informed that he is under arrest, the arrest is not lawful unless the person arrested is informed that he is under arrest as soon as is practicable after his arrest. (2) Where a person is arrested by a constable, subsection (1) above applies regardless of whether the fact of the arrest is obvious. (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. (4) Where a person is arrested by a constable, subsection (3) above applies regardless of whether the ground for the arrest is obvious. (5) Nothing in this section is to be taken to require a person to be informed— (a) that he is under arrest; or (b) of the ground for the arrest, if it was not reasonably practicable for him to be so informed by reason of his having escaped from arrest before the information could be given.”

[14]It was accepted on the appellant’s behalf that it was not necessary for Mr Moore as an arresting officer to use the words “I am arresting you”. It was sufficient that the officer made clear to the person being arrested that he was under arrest as well as being given the reason for the arrest.

[15]Before the Act it was made clear in Alderson v Booth

[1969] 2 QB 216

that it was ordinarily sensible for the officer effecting the arrest to use the word “arrest”. In that case a police constable had told a driver "I shall have to ask you to come to the police station for further tests,"; the driver had thought that he was going voluntarily. The magistrates held that the driver had not been arrested. Dismissing the appeal Lord Parker CJ said at p 220: “There are a number of cases, both ancient and modern, as to what constitutes an arrest, and whereas there was a time when it was held that there could be no lawful arrest unless there was an actual seizing or touching, it is quite clear that that is no longer the law. There may be an arrest by mere words, by saying "I arrest you" without any touching, provided, of course, that the defendant submits and goes with the police officer. Equally it is clear, as it seems to me, that an arrest is constituted when any form of words is used which in the circumstances of the case were calculated to bring to the defendant's notice, and did bring to the defendant's notice, that he was under compulsion and thereafter he submitted to that compulsion. …... I would only say this, that if what I have said is correct in law, it is advisable that police officers should use some very clear words to bring home to a person that he is under compulsion. It certainly must not be left in the state that a defendant can go into the witness-box and merely say "I did not think I was under compulsion." If difficulties for the future are to be avoided, it seems to me that by far and away the simplest thing is for a police officer to say "I arrest you." If the defendant goes to the police station after hearing those words, it seems to me that he simply could not be believed if he thereafter said "I did not think there was any compulsion, I was only going voluntarily."

[16]Although it is plainly a matter of obvious common sense that a police officer should follow the advice of the then Chief Justice, as Sedley LJ observed in Clarke v Chief Constable of North Wales (transcript 5 April 2000), even the vernacular will do: “I have no difficulty with the proposition that technical or formal words are unnecessary.

(b) The evidence of Mr Moore

[17]We turn therefore to consider whether there was a sufficient evidential basis for the judge to find what was said by Mr Moore was sufficient to inform JC of the fact that he was under arrest before the appellant intervened; it was not necessary for the judge to have found the precise point of time at which Mr Moore informed JC he was under arrest, provided that was done before the appellant intervened. It is only necessary to refer to the evidence of Mr Moore, as the judge accepted his account and not that of the appellant.

[18]The evidence of Mr Moore in his examination in chief was that he first told JC that he was a police officer and that he had seen him smash a car window. He said “Out”, meaning JC should get out of the BMW. He then took hold of JC’s arm and removed him from the BMW. He took JC back to where the Mercedes was. JC’s attitude and demeanour then began to change quite rapidly. JC started to resist him, his muscles tensed up and his experience of arresting people led him to believe that JC would try to escape. He told him to keep calm, he was a police officer and the police had been called. JC then struggled with him to get free, but he held on. He then pinned JC to the boot of another vehicle when the appellant intervened. He thought that the appellant looked aggressive and was not going to help him. He told the appellant that he was a police officer and that he had “detained” JC for breaking the window of the Mercedes. The appellant then tried to free JC. It is not necessary for us to set out that part of the evidence in any detail, as on the way the case was conducted, the issue was whether by that time Mr Moore had made clear to JC that JC was under arrest.

[19]At the conclusion of the examination in chief, the prosecutor asked Mr Moore:

“Q: During the course of the incident did you get an opportunity to arrest or caution either of the two males. A: No.”

[20]The judge then intervened to point out there were two aspects – arrest and caution and he asked Mr Moore to explain the position. Mr Moore then responded:

“…I had no mobile phone, when I took hold of [JC] and pulled him out of the car, the first thing on my mind was “Right, how am I going to get some assistance here?”

Within a few seconds of that, being able to call to the man to call the police, form that point onwards when [JC] began to resist, I did not have any chance to do anything other than just to try and hold on to him and call out for help.” When asked if there was any doubt whether the men were arrested he replied that he saw JC being put in handcuffs.

[21]The first question to him in cross-examination was whether it was correct that, from the moment that he pulled JC from the car until the uniformed officers arrived, he at no point had arrested JC. Mr Moore replied “Correct”. The judge then intervened to say he did not understand the question. Mr Moore was then asked by the advocate for JC, having accepted that he had had a power of arrest as a police officer:

“Q: Did you exercise that power and arrest [JC] at any time from the point at which you removed him from the car to the point at which the uniformed officers arrived? A: Thank you for clarifying your question, I did not tell him he was under arrest. However, I detained him such that he would be held to account for damaging the window. I did not permit him to leave my presence. I detained him which arguably is an arrest.”

[22]In answer to a further question as to whether he had arrested JC, Mr Moore replied:

“Well, what I did, if he had remained compliant, if he had not tired to escape and the police had been called, I would have told my colleague that this is what I have seen and one of my colleagues, locally based officers, could make the arrest based on my evidence. From the point where he elected to get away from me, I was detaining him. I was arresting him from that point so he was not going to get away from me.”

[23]After being pressed further on what he had said and what he thought, he answered:

“I did not know whether or when the officers were going to arrive so I could have neatly handed over to them, in which case I wasn’t going to arrest him. Let’s be clear about that: others would have done that for me, but the point in this melée came when I was just a police officer detaining and arresting him, I am not sure what the difference is. Perhaps there is a difference between restraining somebody’s liberty so that they can’t get away from you and actually arresting them”

[24]In answers to series of further questions, Mr Moore accepted that he had not arrested JC when he pulled him from the car, but he had made clear that when JC tried to get away, although he did not say he was arresting him, he had arrested him; he said he was detaining him. He had made clear that he was a police officer. In answers to further questions Mr Moore said that he had called out on at least six occasions that he had detained him, but had never said he was arresting him.

(c) Our conclusion

[25]It is clear on the evidence that Mr Moore did not use the words “I am arresting you”. However, the tenor of his evidence was that what he had said to JC was that he was detaining him and he had made clear that he was doing that because JC had broken the window of the Mercedes. In the circumstances we are under no doubt at all that this was sufficient evidence for the judge to find that it was made clear to JC that he was under arrest for criminal damage. Although the term “you are under arrest” was not used, it was obvious in the circumstances that Mr Moore was telling JC that he was under arrest.