Marsden v Crown Prosecution Service [2014] EWHC 3359 (Admin)

[2014] EWHC 3359 (Admin)Case No CO/1581/2014
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Venue Leeds Administrative Court, The Court House, 1 Oxford Row, Leeds LS1 3BGDate 16/10/2014
Before
MR JUSTICE STEWART
Between
John Henry MarsdenAppellantCrown Prosecution ServiceRespondent
Richard Thomas (instructed by C.W.Booth & Co) for AppellantJames Boyd (instructed by Appeals and Review Unit of the Crown Prosecution Service) for RespondentHearing Hearing dates: 08 October 2014
JudgmentMr Justice Stewart :Introduction
[1]On 13 December 2013 the Appellant, John Henry Marsden, was convicted by the Newton Aycliffe Magistrates of the following offence: On 26 July 2013 at Shildon in the County of Durham resisted PC 1340 Lowe a constable in the execution of his duty, contrary to section 89(2) of the Police Act 1996.[2]Mr Marsden appealed against that conviction by way of Case Stated. His daughter Linda Louise Marsden was convicted of the same offence and of a similar offence involving the obstruction of PC 2283 Littlefair in the execution of his duty. She has not appealed her convictions, although she is described in the Case Stated by the Justices as the 2nd Appellant.

The Case Stated by the Justices

[3]The Case Stated runs to a number of pages. The extracts which need to be fully set out are the following:
“2. We heard the said information on the 16th day of December and the 13th day of December 2013 and found the following facts:” a) PC Lowe, Act SSgt Littlefair, and PCSO Robson were flagged down whilst on routine patrol in Dent Street on 26th July, 2013, by Ms Hopper, (the partner of the 1st Appellant). The 2nd Appellant arrived shortly after. b) Ms Hopper was demanding the Police remove the 1st Appellant from their home and was relaying partial details relating to a domestic dispute. c) PC Lowe entered the premises with the consent of Ms Hopper to speak with the 1st Appellant but was unable to rouse him from the couch upon which he slept. d) PC Lowe left the property and resumed speaking with Ms Hopper. He recommended that Ms Hopper sleep at her daughter’s house, (the 2nd Appellant) who lived nearby. Ms Hopper refused to leave and continued to demand the removal of the 1st Appellant. The 2nd Appellant became agitated, used obscenities towards Act SSgt Littlefair and supported her mother in the desire to have the 1st Appellant removed. Both Ms Hopper and the 2nd Appellant were under the influence of alcohol. e) PC Brown, who was on plain clothes duty in the area, entered the street from the back alley having heard raised voices. He approached and realised Ms Hopper and the 2nd Appellant were shouting and screaming at PC Lowe, Acting SSgt Littlefair and PCSO Robson, to get the 1st Appellant out of the house. f) The 1st Appellant woke up and from within the property shouted towards PC Lowe, who was stood directly outside the front window to the house, “what do you want you daft cunt”
. The shouting of these words did not amount to a breach of the peace in accordance with the test of Friswell v Chief Constable Essex Police [2004] EWHC 3009 (QB) 2004 WL 3050477. However, this did not make PC Lowe’s entry unlawful as he had enduring consent to enter from Ms Hopper. Therefore, PC Lowe was within the execution of his duty when re-entering the property to investigate the domestic incident. g) The 1st Appellant was intoxicated and aggressive in language and demeanour. Upon seeing PC Lowe, he squared up to the officer puffed out his chest and told him to “fuck off”. The 1st Appellant lunged at the officer. The circumstances amounted to reasonable apprehension of a breach of the peace and PC Lowe, accordingly attempted to arrest the 1st Appellant who struggled violently and had to be restrained. This course of conduct amounted to resisting PC Lowe in the execution of his duty. h) Whilst PC Lowe was carrying out the arrest the 2nd Appellant interfered by pulling and grabbing at the officer’s left arm. The officer broke free so the 2nd Appellant grabbed hold of the 1st Appellant in an effort to stop the officer arresting him. Act SSgt Littlefair took hold of the 2nd Appellant and removed her. This course of conduct amounted to the obstruction of PC Lowe and PC Littlefair in the execution of their duty. …… 8. We were of opinion that: 8.1 In relation to the 1st Appellant: the offence of obstructing PC Lowe in the execution of his duty, with the benefit of hindsight and time, we can scrutinise and assess the officer’s decision to enter private premises., a luxury the officer would not have had when assessing the situation before him. The decision made by the officer that the words spoken then by the 1st Appellant through the window, amounted to a breach of the peace is not upheld by this Court. These words do not satisfy the criteria in Friswell to amount to a breach of the peace and justify entry. However, 8.2 Consent to enter the premises existed as it was expressly given by Ms Hopper and confirmed by the 2nd Appellant in interview. That consent was reiterated after the officer’s initial exiting of the house. The consent was enduring enabling the officer to re-enter the premises to continue enquiries. The 1st Appellant’s demeanour at that stage was such that the police officer would believe that a breach of the peace was imminent. The 1st Appellant did resist arrest in the officer’s lawful execution of his duty and therefore we find him guilty. 8.3 The 2nd Appellant did attempt to prevent the arrest of the 1st Appellant by obstructing PC Lowe and PC Littlefair in the execution of their duty. We came to these conclusions because of the officer’s evidence, which was clear, credible and consistent and was a lawful execution of their duty. We therefore find the 2nd Appellant guilty in the obstructing of PC Lowe and PC Littlefair in the execution of their duty. QUESTION 9. The question for the opinion of the High Court are:- 9.1 Was there sufficient evidence for the court to find that consent was given for PC Lowe to enter the property on the first occasion? 9.2 If so was that consent still effective when the officer re-entered the premises. 9.3 If so was that consent terminated by the 1st Appellant when he told PC Lowe “it was nothing to do with him fuck off”” QUESTION

Questions 1 & 2: Analysis

[4]The Justices found that Mr Marsden’s shouting from within the property towards PC Lowe who was standing outside the front window to the house did not amount to a breach of the peace justifying entry to the premises. Nevertheless, Ms Hopper’s consent to PC Lowe entering the premises was still “enduring” and enabled the officer to re-enter the premises to continue enquiries Case Stated paragraphs 2(f), paragraphs8.1 and8.2 .[5]The Appellant’s primary case is that it is not appropriate for the court to formulate for the officer an alternative purpose for his entry, namely entering to investigate the alleged incident of domestic violence, this being contrary to the officer’s stated purpose and therefore the manner in which he was executing his duty. My attention was drawn to Hillen and Pettigrew v I.C.I. (Alkali) Limited [1936] A.C. 65@p69 where Lord Atkin made it clear, in a civil context, that an invitee’s invitation to premises extends only so far as the invitee is making ordinary and reasonable use of that premises for the purpose for which he has been invited. In the alternative it is submitted that there was insufficient evidence for the Justices to be satisfied so that they were sure that the consent given by Ms Hopper to enter the premises was “enduring”.[6]It is necessary to consider not only question 1 but also the scope of any original consent given for PC Lowe to enter the property on the first occasion. According to the Justices’ finding “Ms Hopper was demanding the police remove the 1st Appellant from their home.” Case Stated paragraph 2(b) PC Lowe’s evidence Case Stated paragraph 3.1 is that he went into the premises at Ms Hopper’s request to attempt to arouse Mr Marsden to get his side of the story. Before the Justices Mr Marsden’s legal representative contended Case Stated paragraph 4.2 that Ms Hopper’s consent was given conditionally upon the purpose of entry being the removal of Mr Marsden and not to investigate the dispute. Therefore PC Lowe, it was said, entered the premises with a different purpose to that intended by Ms Hopper rendering him a trespasser. This point was not expressly dealt with in the Skeleton Argument of Mr Thomas, Counsel for the Appellant before me. In the Skeleton Argument he said that the first question was not directly relevant to the appeal. I do not agree with this since the basis of the Justices’ finding was that it was the initial consent that was enduring and authorised PC Lowe’s re-entry. When questioned in argument, Mr Thomas accepted that PC Lowe’s permission was not restricted to going in to remove Mr Marsden but to assess whether that was appropriate. He submitted, however, that the court has to be careful not to draw the “hinterland” of the consent too broadly.[7]It is always necessary to look as a matter of common sense at the terms of a licence given by an occupier to enter the premises cfR v Thornley [1981] 72Cr. App. R. 302 at page 306 . In my judgment the Justices were entitled to conclude Case Stated paragraph 2(c) that PC Lowe entered the premises with the consent of Ms Hopper to speak with Mr Marsden. The common sense terms of the licence permitted PC Lowe, in the light of Ms Hopper’s request for him to remove Mr Marsden, to enter the premises in order to speak to Mr Marsden to “get his side of the story”, as PC Lowe put it in Evidence in Chief Case Stated paragraph 3.1 . Therefore the answer to question 1 posed by the Justices is that there was sufficient evidence for the court to find that consent was given for PC Lowe to enter the property on the first occasion.[8]I now turn to whether the consent was still effective when PC Lowe re-entered the premises. Mr Marsden’s first submission on appeal is that PC Lowe re-entered the premises as he considered Mr Marsden swearing at him through the window to be a breach of the peace; given that the Justices found that the swearing was not a breach of the peace, the submission is that the Justices were not entitled to formulate for PC Lowe an alternative reason for entry, namely continuing to investigate the complaint of domestic violence.[9]The Justices were referred to the case of Friswell v Chief Constable of Essex Police [2004] EWHC 3009 (QB) . In that case Cox J found that the officer had not been invited into the property by an occupier (paragraph 28). After a review of numerous authorities she determined (paragraphs 41 and 42) that a police officer may lawfully enter a private dwelling to prevent a breach of the peace only to deal with emergencies and where the officer is satisfied on reasonable grounds that there is a real and imminent risk of a breach of the peace; further, a police constable does not have the power to enter a private house merely to carry out an investigation as to whether there might in the future be a breach of the peace.[10]It seems to me that the initial question again is whether PC Lowe had the consent of Ms Hopper to re-enter the premises. Apart from the passages which I have cited from the Case Stated, the only relevant section as to PC Lowe’s motivation is in paragraph 3.2 of the Case Stated where it says:
“Despite this Ms Hopper continued to demand he remove the 1st Appellant. His view of the situation changed once the 1st Appellant woke up and swore at him through the window and he considered this to be a breach of the peace so he re-entered the house. Once in the house the 1st Appellant said fuck off this is nothing to do with you. Whilst this could be interpreted as asking him to leave the premises, he was not about to as he considered there was a breach of the peace. It was his job to keep the peace and not walk.”
Taken together with the findings in paragraph 2(f) and 8.1 and 8.2 of the Case Stated, it is clear that the Justices found that PC Lowe re-entered within the enduring consent of Ms Hopper, albeit the factor which motivated him to go back in was a mistaken view that a breach of the peace had been committed. It is important to note that it was no part of the evidence, or of the Justices’ finding, that PC Lowe entered to make an arrest for the (mistaken) breach of the peace pursuant to the power preserved by s17(6) of the Police and Criminal Evidence Act 1996. The first question is whether Ms Hopper’s consent was “still effective”, this being the matter which question 2 of the Case Stated requires this court to answer. The second is whether PC Lowe entered to deal with what he considered to be a breach of the peace. The third question is, if he did not enter for that purpose, did he enter within the scope of Ms Hopper’s enduring consent?[11]Mr Marsden submits there is insufficient evidence for the Justices to be satisfied so that they were sure that the consent given by Ms Hopper was enduring. It appears that she did not give evidence.[12]This court must be cautious when considering the challenge to a factual finding. Such a finding can only be overturned if no tribunal acting reasonably could possibly have reached the conclusion based on the evidence before it.[13]The Case Stated shows that the Justices received evidence from PC Lowe that before he re-entered Ms Hopper “wanted the 1st Appellant out of the property pretty much demanding he was removed. The 2nd Appellant shared the view that her mother should not have to leave and the 1st Appellant should be removed from the house” Case Stated paragraph3.1 ; in cross-examination PC Lowe is recorded as saying that Ms Hopper continued to demand he remove the 1st Appellant Case Stated paragraph3.2 . PC Brown said that when he approached, half way through the incident, he remembered Ms Hopper insisting they went in and get the 1st Appellant out. He and PC Lowe tried to calm Ms Hopper and her daughter down and suggested Ms Hopper spent the night with her daughter. At this point the daughter became more agitated and also wanted the 1st Appellant out. He could not recall specifically what she said just that she was siding with her mother. Case Stated paragraph3.3 [14]The evidence before the Justices clearly justified them in making a finding that the consent given by Ms Hopper “was reiterated after the officer’s initial exiting of the house.” Case Stated paragraph 8.2 In my judgment, therefore, Ms Hopper’s consent was enduring.[15]As to the second question, the Appellant says that the officer entered to deal with what he considered to be a breach of the peace, relying on the passage cited at paragraph at paragraph 10 above. I do not agree with this. The Justices did not so find. For reasons given in the next paragraph he entered for purposes within the scope of the consent given by Ms Hopper. The final factor which motivated him to re-enter for those purposes was Mr Marsden’s shouting which PC Lowe (wrongly) considered to be a breach of the peace.[16]I then turn to the third question. The Justices found that Ms Hopper’s consent was not only enduring but was a consent enabling the officer to re-enter the premises to continue enquiries. Case Stated paragraph 8.2 Mr Marsden’s submission is that it is too broad an interpretation of Ms Hopper’s consent to say that the officer could re-enter to continue enquiries and by that stage the only permission was for PC Lowe to re-enter so as to remove Mr Marsden. I reject this submission. When PC Lowe had first entered the house Mr Marsden was apparently asleep and the officer was unable to rouse him. In that context, the officer left the premises and spoke to Ms Hopper recommending that she sleep elsewhere that evening. Thereafter Mr Marsden not only woke up but swore at the officer through the window. The situation had therefore changed. It seems to me to be a perfectly proper common sense construction of the licence given (and continuing to be given) by Ms Hopper that PC Lowe could re-enter for exactly the same purposes as he had previously entered, namely trying to establish the nature and extent of the problem in the new circumstances which obtained. Although one must be careful not to broaden too far the scope of any licence, it cannot have been limited, even on re-entry, to the officer going in to remove Mr Marsden when, without more, that would have been unlawful.[17]Therefore, this court’s answer to question 2 is that Ms Hopper’s consent was still effective when the officer re-entered the premises. Further, PC Lowe re-entered pursuant to and within the scope of that permission.

Question 3: Analysis

[18]Although not expressly stated by the Justices, it is clear that they implicitly found that the licence to enter the property given by Ms Hopper was not revoked by the Appellant. Apart from the findings in paragraph 2(g) and paragraph 9.3 of the Case Stated, the evidence recorded by the Justices Case Stated paragraph 3.2 was that PC Lowe said in cross-examination “once in the house the 1st Appellant said “fuck off this is nothing to do with you”. Whilst this could be interpreted as asking him to leave the premises, he was not about to as he considered there was a breach of the peace.” In paragraph 4.3 of the Case Stated it is said under the Appellant’s contentions “when PC Lowe re-entered the property any consent he had to enter,… was revoked at the point the 1st Appellant uttered the words “get out and fuck off”.” However there was no finding by the Justices that Mr Marsden said “get out”; nor are the words “get out” referred to at any other place in the Case Stated. They were not relied upon by the Appellant. That was, in my judgment, a correct approach in the circumstances. It appears to have been the Appellant’s Advocate assertion and is not to be found in the evidence and findings. Mr Thomas did not contend otherwise before me.[19]Mr Marsden relies substantially on the fact that in cross-examination PC Lowe accepted that the words “fuck off this is nothing to do with you” could be interpreted as asking him to leave the premises. However: a) There is no finding that PC Lowe did so interpret the words b) More particularly there is no finding that PC Lowe did so interpret the words at the relevant time. c) The words are perfectly capable of other constructions, such as merely being a term of abuse.[20]In R (Fullard and others) v Woking Magistrate’s Court [2005] EWHC 2922 (Admin) Mr

Justice Crane said:

“…the test must be an objective one. If there is a misunderstanding between the person making the request and the person to whom the request is directed, then it must be an objective question whether the request amounts to a request to leave.”
[21]In my judgment the Justices were properly entitled to conclude that the words used were not calculated to revoke PC Lowe’s licence to remain on the property. Therefore, the answer to question 3 must be that the consent was not terminated by Mr Marsden when using the words that he did.[22]In the circumstances I do not deal with the alternative submission of the Respondent that on the authority of R v Thornley [1981] 72Cr. App. R.302 a licence to enter premises granted by a wife in a domestic dispute cannot be unilaterally revoked by the husband so as to render a police officer a trespasser from the moment he is entitled to go, or as soon thereafter as he can with reasonable despatch leave the premises.

Conclusion

[23]In view of the answers I have given to the three questions posed by the Justices this appeal must be dismissed.