Metcalf v Crown Prosecution Service (Rev 1) [2015] EWHC 1091 (Admin)

[2015] EWHC 1091 (Admin)Case No CO/6073/2014
IN THE HIGH COURT OF JUSTICE
DIVISIONAL COURT
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate 22/04/2015
Before
THE RT. HON. LORD JUSTICE BURNETT&THE HON. MR. JUSTICE STEWART
Between
Timothy MetcalfAppellantCrown Prosecution ServiceRespondent
Stephen Wood, Counsel (instructed by Lumb and Macgill Solicitors) for ClaimantPaul Lodato (instructed by Crown Prosecution Service) for DefendantHearing Hearing dates: 16 April 2015
Judgment
[1]This is an appeal by case stated from the appellant’s conviction at the Bradford and Keighley Magistrates’ Court on 4 November 2014 for an offence of wilfully obstructing a police officer in the execution of his duty contrary to section 89(2) of the Police Act 1996 [“the 1996 Act”]. At the conclusion of the argument we dismissed the appeal. These are my reasons for doing so.[2]The officer concerned was Police Constable Upshon. Evidence was given by P.C. Upshon which was uncontradicted. A statement from another officer present at the scene, Police Constable Mahmood, was read.[3]There was no dispute about the facts. In the early evening of 17 May 2014 police officers were sent on two occasions to an address in Bradford following telephone calls from the public about a domestic disturbance between two men. On the second visit, the police officers who attended arrested both of them. The scene was volatile and it was clear to the officers that the two individuals concerned could not be transported to a police station in the same vehicle. It was in those circumstances that P.C. Upshon and P.C. Mahmood attended in a police car to assist. They placed one of the arrested individuals into their police car. The appellant objected. He got in the way of P.C. Upshon and P.C. Mahmood. He was told repeatedly to stop interfering and to move away. He challenged the police officers repeatedly, including saying things like “make me go”. He tried to open the rear door of the police car in which the arrested man had been placed. He attempted to stick his head into the police vehicle. At one point P.C. Mahmood attempted to stop the appellant speaking to the arrested man in the back of the police car by barring his way. Later in the course of the event, P.C. Upshon pushed the appellant out of the way.[4]A submission of no case to answer was made at the close of the prosecution case. The submission was that when P.C. Upshon pushed the appellant he assaulted him. At that time, P.C. Upshon had not formed any intention to arrest the appellant (that came later after he continued to interfere). Relying upon the decision of this court in Fraser Wood v Director of Public Prosecution [2008] EWHC 1056 (Admin), it was submitted that the officer’s alleged unlawful conduct meant that he was not acting in the execution of his duty with the consequence that the appellant’s conduct could not amount to obstruction. It was implicit in that submission not only that any interfering conduct of the appellant following the alleged assault could not amount to wilful obstruction of P.C. Upshon in the execution of his duty, but also that an assault in these circumstances would somehow free the appellant from criminal responsibility for what had already occurred.[5]The magistrates rejected the submission of no case. The appellant neither called nor gave evidence. He was convicted after the same submission was made.[6]The appellant is represented by Stephen Wood in this appeal, who did not appear below. He readily recognised that the factual findings made by the magistrates, which it is unnecessary to set out in detail, make it clear that before he was pushed the appellant wilfully obstructed P.C. Upshon in the execution of his duty in dealing with the arrested man. He also recognised that the findings of the magistrates make clear that the appellant’s conduct after the push similarly amounted to wilful obstruction, unless the push in some way immunised the appellant from the consequences of his action. Mr Wood explained that the case of Fraser Wood is cited in Magistrates’ Courts, and indeed in Crown Courts on appeal, in support of the proposition that immunisation of that nature would follow both as regards conduct before an assault and after it.[7]In my judgment such an approach misunderstands the reach of Fraser Wood.[8]In Fraser Wood the defendant was convicted of assaulting police officers in the execution of their duty. It was thus necessary for the prosecution to prove that at the time he resisted the officers concerned, they were acting in the course of their duty. It was not a case which concerned wilful obstruction of police officers in the execution of their duty. It confirmed earlier authority, in particular Kenlin v Gardiner [1967] 2 Q.B. 510, that an officer does not act in the course of his duty if he lays hands on someone merely to detain him or otherwise restrain him, unless he has lawful authority to do so. The lawful authority often relied upon in such circumstances is the power to arrest. The facts in that case were that the defendant was physically restrained simply for the purpose of asking him who he was. There was no intention at the time to arrest him nor was there any other lawful basis available to the officer concerned for laying hands upon him. A person who is subject to unlawful restraint, whether by a police office or member of the public, is entitled to use reasonable force to free himself: Ludlow v Burgess 75 Cr App R 227. In those circumstances, when the defendant resisted the officers, they were not acting in the course of their duty. He could not be guilty of the offence of assaulting a police constable in the execution of his duty.[9]It may be that the basis of the submission made to the magistrates focussed on the words of Latham LJ in paragraph [7] of his judgment who, after quoting extensively from the judgment of Winn LJ in Kenlin, said:
“It seems to me that the inexorable logic of this passage is that where a police officer restrains a person, but does not at that time intend or purport to arrest him, then he is committing an assault, even if an arrest would have been justified. In the present case, Sergeant Cannon did not intend or purport to arrest the appellant when he restrained him and at no stage in the course of the fracas which resulted, did he assert that he was arresting the appellant. If he had done so or either of the constables had done so, before the appellant struggled in order to obtain his release, the position would have been different. But the facts found do not support such a conclusion. It follows that the appeal is allowed, and the convictions must be quashed.”
[10]It is important not to take these words out of their context. They do not support the proposition that the only circumstance in which a police officer can lay hands on a citizen is in the course of an arrest. The question was whether when the defendant resisted the officers they were acting in the course of their duty. The crucial context was that the defendant was convicted of assaulting police officers in the execution of their duty. On the facts of that case, when the officers restrained the defendant, they were not acting in the execution of their duty. They were committing an assault. In resisting them, the defendant could not be guilty of the offence of assaulting a police officer in the execution of his duty. On those facts, the question whether the force used by the defendant was reasonable did not arise.[11]Furthermore, those words do not support the proposition that an assault by a police officer takes him for all purposes out side scope of the execution of his duty.[12]Section 89(2) of the 2006 Act provides “Any person who resists or wilfully obstructs a constable in the execution of his duty, or a person assisting a constable in the execution of his duty, shall be guilty of an offence and liable on summary conviction to imprisonment for a term not exceeding one month or to a fine not exceeding level 5 on the standard scale, or to both.” (a). that at the time of the obstruction the officer was in the process of executing his duty; (b). that there was a wilful obstruction in the sense identified in the authorities, namely preventing or making it more difficult for the officer to do his job with the necessary intent: Lewis v Cox [1985] Q.B 509).[13]The task upon which P.C. Upshon was engaged, both before and after the push, was in securing one of the arrested men by placing and keeping him in the police car with a view to transporting him to a police station. The officer and his colleague were also engaged in a more general sense in seeking to keep the peace. These aspects encompass the “duty” P.C. Upshon was in the process of executing.[14]In my judgment it matters not whether the push was lawful or unlawful in determining the answer to the question whether the appellant was wilfully obstructing P.C. Upshon in the execution of his duty. The push clearly had no bearing on the question whether the appellant’s conduct before that time amounted to wilful obstruction. On the findings of the magistrates it did. I am unable to see how an unlawful push could retrospectively render conduct lawful, which was otherwise criminal. But equally, if the push were unlawful it does not follow that P.C. Upshon was any the less acting in the course of the execution of his duty thereafter in dealing with the arrested man in the car. Even on that hypothesis, a person who has been assaulted by a police officer is not liberated from the application of the criminal law prohibiting wilful obstruction of a constable (including that constable) in the execution of his duty. The assault itself could not be characterised as being part of the execution of the officer’s duty. That is why Fraser Wood was entitled to resist when he was restrained. But he would not, for example, have been entitled to block the officers with a view to preventing them making a lawful arrest, dealing with an incident of disorder or executing a search warrant. That would have amounted to wilful obstruction of the officers in the execution of their duty. So too here, even if the appellant was the victim of an assault it provides him with no defence to a charge of obstructing the officer in the execution of his duty regarding the arrested man in the car.[15]That said, I am entirely satisfied that the push given by P.C. Upshon to the appellant was lawful. It is a fundamental principle of law that police officers may only use force if there is a common law or statutory power to do so. It might be thought strange if a police officer was not entitled to use reasonable force to stop someone who was obstructing him in the course of his duty, short of arresting him. The officer, after all, is already likely to be engaged on another task, for example arresting someone else, dealing with an incident etc., from which he would be diverted were it necessary to effect an arrest in such circumstances.[16]Mr Lodato, who appears for the DPP in this appeal, submits that two statutory provisions entitle police officers to use reasonable force in the circumstances of this case. The first is section 3 of the Criminal Law Act 1967 [“the 1967 Act”] and the second, section 117 of the Police and Criminal Evidence Act 1984 [“PACE”].[17]Section 3 of the 1967 Act provides:
“(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 or of persons unlawfully at large. (2) Subsection (1) above shall replace the rules of the common law on the question when force used for a purpose mentioned in the subsection is justified by that purpose.”
Section 117 of PACE provides: “Where any provision of this Act— (a) confers a power on a constable; and (b) does not provide that the power may only be exercised with the consent of some person, other than a police officer, the officer may use reasonable force, if necessary, in the exercise of the power.” (a) confers a power on a constable; and (b) does not provide that the power may only be exercised with the consent of some person, other than a police officer,[18]It is unnecessary to examine the reach of section 117 of PACE in the context of the facts in this case and, in particular, whether P.C. Upshon was exercising a power under PACE at the material time. That is because, in my judgment, it is clear that section 3 of the 1967 Act authorised the use of reasonable force by P.C. Upshon. Wilfully obstructing a police officer in the execution of his duty is a crime. In this case the appellant, before P.C. Upshon pushed him, had been obstructing both him and P.C. Mahmood in the execution of their duty. The facts found by the magistrates show that the appellant had made it clear that, both by his actions and by his words, his fixed intention was to continue to do so. Section 3 of the 1967 Act entitled P.C. Upshon to use reasonable force to prevent the continuing crime of wilful obstruction. There could be no suggestion that the push was other than reasonable in the circumstances described by the magistrates in the case. The magistrates were correct to conclude that there was, in any event, no assault upon the appellant.[19]The magistrates were right to reject the submission of no case and then, in the light of the evidence of the appellant’s conduct, convict him of wilful obstruction of a constable in the execution of his duty.[20]I agree.

Cited in 2 later judgments