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1. MR JUSTICE MAURICE KAY:This is an appeal by way of case stated, the appellant being Mr Anthony Collman. The case stated by the justices for the County of Hertfordshire, acting for the Petty Sessional Division of North Hertfordshire in respect of an adjudication at a magistrates court sitting at Hertford and Stevenage.

2. Mr Collman was prosecuted pursuant to an information which alleged that on 13 February 2002 he assaulted Mark Logan, a constable, in the execution of his duty contrary to section 89(1) of the Police Act 1996. The information was heard by the justices on 1 and 17 July 2002.

3. The case stated recites the following findings of fact:

“2.1. On 13 February 2002 PCs Logan, Tribble, Jones and Bolton, attended the appellant's address at 4 Broom Walk, Stevenage. They attended in order to arrest the appellant for an alleged offence of assault occasioning actual bodily harm to a shop assistant on the preceding day. Prior to attending the address, the officers had checked the police national computer records in respect of the appellant. The records showed that he had 'markers' for being violent and using weapons and drugs;

2.2. PCs Logan and Tribble went to the front door of the premises, where they spoke to the appellant. The alleged offence was put to the appellant. He was arrested and cautioned;

2.3. PC Logan followed the appellant into the house whilst he collected his coat and shoes. Both officers then walked the appellant to the police vehicle where they met the other two officers;

2.4. PC Logan observed that the appellant was becoming more agitated as they walked to the vehicle;

2.5 PC Tribble decided that the appellant should be given an 'empty pockets and pat-down' search before he was placed in the police vehicle. The police officers had reasonable grounds for believing that the appellant may present a danger to himself or others, thus satisfying the requirements of section 32(1) of the Police and Criminal Evidence Act 1984. There were 'reasonable grounds' because of the nature of the offence for which the appellant was being arrested, and due to the markers on the police national computer;

2.6 The appellant initially refused to be searched as he was in a public place. The appellant was moved by the officers to the rear of the police vehicle as this afforded some shielding from public view;

2.7. PC Tribble asked the appellant to empty his pockets. The appellant took some items from his pockets and gave them to PC Tribble, but then tried to snatch items back whilst the search was on-going. The appellant removed a folded piece of paper from his pocket, and tried to return it to his pocket immediately, without handing it to the officers. PC Tribble took hold of the appellant's wrists in order to get the folded paper and explain that he would have to open the paper to make sure that a blade was not concealed inside;

2.8 The officers intended to keep all of the items handed to them until the search had been concluded and then return them to the appellant;

2.9 The appellant was getting increasingly agitated throughout the search. He was shouting, clenching his fists and making unpredictable movements. The officers believed the situation was getting out of hand and that the appellant would not co-operate with the search any further;

2.10. PC Bolton decided that the appellant would have to be handcuffed before being placed in the police vehicle. He was concerned that officers may be injured because the appellant was becoming increasingly volatile and aggressive in his manner. Further, the officers could not be satisfied that the appellant did not have concealed items, as their attempts to search him had been frustrated;

2.11. PC Logan attempted to take hold of the appellant's right arm in order to apply the handcuffs. The appellant began lashing out towards the officers' faces with both hands. He flung his arms upwards in order to prevent the handcuffs being applied and struck PC Logan in the face. PC Logan was caused soreness and reddening, as a result of the blow;

2.12. All four officers tried to retrain the appellant, as he was flailing about violently and kicking out with his feet. The appellant was eventually restrained after CS spray was administered;

2.13. The appellant was conveyed to Stevenage Police Station, where he was detained and questioned for the offence for which he had been arrested;

2.14. The appellant did not intend to strike PC Logan in the face, but in flinging his arms upwards to avoid the use of handcuffs, the appellant was reckless as to whether the officer would be struck. Further, the appellant would have foreseen that his actions involved the possibility of the officer being subjected to unlawful force, but went on to take this risk regardless;

2.15 The force used by the officers to both carry out the search on the appellant and then apply handcuffs, was reasonable and appropriate in the circumstances.

2.16. PC Logan and the other officers were acted in the lawful execution of their duties in their dealings with the appellant;

Those then were the findings of fact. The stated case in its amended form then recites the evidence that was heard by the justices.

As to the moments before the alleged assault, the magistrates refer to the evidence as follows:

“All four officers gave evidence that PC Tribble attempted to put the handcuffs on Mr Collman's wrists. PC Logan, Tribble and Jones gave evidence that Mr Collman lashed out and flung his arms up. PC Jones said that Mr Collman began lashing out with both hands towards the officers' faces. She said that Mr Collman's fists were clenched and his hands were above his head;

2.24 PC Logan gave evidence that he was attempting to get hold of Mr Collman's right arm when PC Tribble was trying to apply the handcuffs. PC Logan said that Mr Collman lashed out to free himself, flinging his arm upwards hitting in him the face. The other officers did not see PC Logan being struck in the face”.

4. The magistrates also set out the evidence that was given by Mr Collman and the evidence of Mr Glennon, a neighbour, who was called as a defence witness.

5. The case for Mr Collman before the magistrates -- and again I take this from the case stated -- was that the police did not have reasonable grounds for believing that he may present a danger to himself or to others as required by section 32(1) of the Police and Criminal Evidence Act, and as a result, the officers were not acting in the lawful execution of their duties.

6. Secondly, it was said that the officers themselves used unreasonable and an excessive level of force, and as a result, were not acting in the lawful execution of their duties. Thirdly, the officers unlawfully retained items taken from the appellant whilst the search was taking place, it being Mr Collman's case that, save for any item which might reasonably be thought to be capable to cause physical injury, other items should be returned to the searched person immediately in the course of the search. It was suggested that in keeping the items taken from him for the duration of the search, the officers were not acting in the lawful execution of their duties.

7. The case stated goes on to recite that the officers did have reasonable grounds for searching the appellant. The justices concluded that the degree of force used in attempting to search and then restrain him when the search was frustrated was reasonable and appropriate in the circumstances, and that they were not under an obligation as a result of section 32(8) of the Police and Criminal Evidence Act to return items which were not released while the search was still on going. The justices were satisfied that it was the intention of the officers to return all the items taken from the appellant after the search.

8. They found Mr Collman guilty and by way of sentence conditionally discharged him for a period of 12 months, ordering him to pay compensation of £100 to Police Constable Logan and £50 as a contribution towards the prosecution's costs.

9. The amended case stated poses two questions. One: were the justices in error in finding on the evidence that the appellant was reckless?

10. Two, were the justices in error in finding on the evidence that the police acted lawfully in retaining the appellant's lawful possessions for the duration of the search?

11. At the commencement of today's hearing, Mr Collman -- who has represented himself throughout in an articulate, intelligent and in an occasionally entertaining way -- invited me to remit the matter to the magistrates for a further amendment of the case stated.

12. I have read the material which was attached to the application notice in that respect. I decline to remit the matter for the further amendment of the case stated, but I am going to approach the appeal in a broad way which, in my belief, takes account of Mr Collman's view of the evidence.

13. I turn first to the question that was actually posed second: the one about the lawfulness of retaining Mr Collman's possessions for the duration of the search, rather than handing them to him one at a time during the search. His submission about that is essentially a simple one. He says that this is a matter of the parameters of police powers, and that the police have no authority to retain innocent items which emerge in the course of a search such as the one that was taking place. He says that there is no statutory authority for such retention, and that the court should not imply such authority.

14. I refer now to the way in which the justices approached this issue, it having been clearly placed before them by Mr Collman at the trial. Plainly the justices took the view that what was taking place was a “empty pockets and pat-down search.” I have no doubt whatsoever that the search was lawfully commenced. Indeed, the contrary is not suggested.

15. The justices said this:

“It was the intention of the police officers to return all items taken from the appellant after the search had been carried out. If items were returned one by one immediately following the pockets inspection by the officer, as the appellant contends they should, the search would become wholly impractical. The returned items would presumably be placed by the searched person in his pockets, and so when the officers carry out the 'pat-down' part of the search, the pockets would not be empty. As a result the officers would not know if the all items had been removed from the pockets and inspected. We are of the opinion that the officers were acting lawfully in requiring the appellant to empty all of his pockets and then retaining items, so a 'pat-down' search could take place, as long as it was the officers' intention to return all items which would not be legitimately seized at the end of the search.”

16. They re-visited the subject in the stated reasons for their decision in these terms:

“We find that the officers only intended to retain items taken from Mr Collman until the end of the search. To return individual items during the search would clearly make the search much more difficult to administer. We find the officers were acting lawfully in searching in this manner.”

17. As I have recited, it was in issue before the justices as to whether this aspect of the case was covered by section 32(1) of the Police and Criminal Evidence Act.

18. Section 32(1) provides:

“A constable may search an arrested person, in any case where the person to be searched has been arrested at a place other than a police station, if the constable has reasonable grounds for believing that the arrested person may present a danger to himself or others.”

19. So far as that is concerned, although Mr Collman maintains that the search took place with his consent, it seems to me that upon the findings of the justices, section 32(1) was clearly satisfied. I do not believe there to be any issue as to that.

20. Section 32(8) provides:

“A constable searching a person in the exercise of the power conferred by subsection (1) above may seize and retain anything he finds, if he has reasonable grounds for believing that the person searched might use to it cause physical injury to himself or to any other person.”

21. It does not seem to me that the police were seeking to justify retention of the items by reference to section 32(8).

22. In my judgment, when a search such as the one that was lawfully taking place on this day occurs, the precise methodology of the search is not a matter of statutory prescription. Of necessity, a degree of judgment has to be left to those carrying out the search, although, of course, always constrained within the bounds of what is reasonable in all the circumstances.

23. I take the view that on the basis of the justices' findings of an intention to return all items at the conclusion of the search, it was open to the justices to conclude that the method employed was lawful. I find persuasive what they say about their reasons for coming to that conclusion; namely, that, absent the short period of retention, the search itself would not effectively have served the purpose which the officers lawfully had in mind, and that they were therefore justified, as a reasonable way of conducting the search, in retaining individual items but, of course, only until the search had concluded.

24. In the event, it never did conclude in the way that had been intended because of the events which gave rise to the charge under the Police Act.

25. Accordingly, as to the question of whether the justices were in error of law in finding on the evidence that the police acted lawfully in retaining the appellant's lawful possessions for the duration of the search, I answer in the negative.

26. I therefore turn to the question of recklessness. As Mr Collman correctly states, this ultimately is a question of sufficiency of evidence. He is very critical of the quality of the evidence which led to his conviction; and because of that, he seeks to attack the finding of the justices. Although the question posed by the justices in the case stated is confined to the issue of recklessness, it is apparent that Mr Collman harbours grievances about all the findings of lawful conduct on the part of the police officers.

27. It seems to me that the position is abundantly clear from the case stated. There is no doubt that the case stated discloses a proper basis upon which the justices were entitled to find that Mr Collman was lawfully arrested, was lawfully being searched and that the police ultimately lawfully decided that he ought to be handcuffed. I have referred to what the justices have said about all that. In my judgment, it is clearly founded in the evidence.

28. I turn to the issue of recklessness. In one sense, the recklessness was a finding favourable to Mr Collman in that it amounted to a rejection of the alternative allegation of intentional assault. Nevertheless, Mr Collman says that there was not an evidential basis for a finding of recklessness. It is common ground that recklessness in this context is what is sometimes referred to as Cunningham recklessness, following the case of that name [1957] 2 QB 396. I summarize from the current edition of Archbold at paragraph 19-167.

“Recklessness in common assault, therefore, involves foresight of the possibility that the complainant would apprehend immediate and unlawful violence in taken and taking that risk; in battery, it involves foresight of the possibility that the complainant will be subjected to unlawful force, however slight, in taking that risk.”

29. I accept that in this, as in almost all cases, recklessness is ultimately a matter of inference. Reference has been made to the judgment of Harrison J in Cooper V Director of Public Prosecutions Neutral Citation [2002] EWCA Crim, decided on 31 July 2002. Harrison J allowed an appeal by case stated in that case. Each case, of course, turns on its own facts.

30. The decision there can be summarized from its final paragraph where Harrison J said:

“In the absence of any findings of fact or any other way in which one can identify from the case stated the bodily movements and the actual foresight, or inference of foresight, I feel bound to come to the conclusion that there was not, on the basis of the information before me in the case stated, any evidence upon which the justices could have convicted the appellant on the basis of recklessness.”

31. The question which Harrison J posed was undoubtedly the correct one. However, this case could not be more different. There is copious evidence -- albeit in the confused form that one invariably gets in relation to these types of cases -- of the bodily movements and of circumstances from which an inference of the Cunningham foresight could be drawn by the magistrates. The assessment of that evidence was for them and not for me.

32. It is entirely clear that Mr Collman's appeal comes nowhere near establishing the insufficiency of evidence which he seeks to make good.

33. In answer to the question: were the justices in error of law in finding on the evidence that the appellant was reckless? Again, I reply in the negative: no, they did not make any error of law in that or in any other respect in the course of their consideration of this case.

34. It follows from what I have said that the answer to both questions -- and indeed my wider appraisal of the case undertaken in deference to Mr Collman's concern -- lead to the dismissal of his appeal. Notwithstanding his vigorous submissions, that is what must now happen.

35. MR BAILIN: My Lord, I am instructed not to seek any order for costs, perhaps generously. I am told Mr Collman is of limited means.

36. MR JUSTICE MAURICE KAY: Yes. They are not asking for any costs, so that is the end of the matter.

37. MR COLLMAN: Then I won't pay any then.