J U D G M E N T

Wednesday, 19th November 2003

1. MR JUSTICE MAURICE KAY: This is an appeal by case stated against the decision of the Halton Justices sitting at Runcorn on 27th March 2003. There are three Appellants, members of the same family: Eric and Irene Hobson are husband and wife. They are the parents of Steven Hobson. Lynsey Hobson is the daughter of Eric and Irene, and therefore Steven's sister. The Appellants are Eric, Irene and Lynsey.

2. After a trial in the Magistrates' Court, Eric Hobson was convicted of wilfully obstructing Police Constable Deponeo in the execution of his duty, contrary to the s.89(2) Police Act 1986. Irene Hobson was convicted of two similar offences, one in relation to PC Deponeo and the other in respect of PC Rice. Lynsey Hobson was convicted of obstructing Police Constable Rice in the execution of her duty.

3. The events giving rise to the case in the Magistrates' Court occurred on 26th June 2002 when the two officers attended the Hobson family home at 82 Canal Reach, Runcorn in order to arrest Steven Hobson on suspected offences of criminal damage and taking a vehicle without authority. At the time, the three Appellants and Steven were present in the house.

4. The case stated summarises the evidence given by the police officers. That evidence described how they had attended at 82 Canal Reach in order to arrest Steven Hobson. The case stated proceeds:

"The door was opened by Eric Hobson. PC Deponeo was in uniform and told Eric Hobson that he was there to speak to his son and PC Deponeo was allowed to enter whilst Eric Hobson asked PC Rice to wait outside. The allegations of obstructing the police were said to have occurred after PC Deponeo told Steven Hobson he was being arrested for an offence of criminal damage.

"PC Rice in her evidence confirmed that she and her colleague attended at the property to arrest Steven Hobson and that she initially waited on the step as Eric Hobson would not let her in. She stated that she had previous dealings with the family. She stated that she later arrested Steven Hobson for unlawfully taking a motor vehicle without consent."

5. It is common ground that officers had grounds upon which to arrest Steven Hobson in respect of the two allegations against him. It is not disputed that after PC Deponeo told Steven Hobson that he was being arrested for criminal damage, the three Appellants did acts which amounted to obstruction of the officers. The issue is whether at the time the officers were acting in the execution of their duty.

6. The case for the Appellants was that when PC Deponeo entered the house he did so in pursuance of a power under s.17 Police and Criminal Evidence Act 1984, that it was insufficient for him to have told Eric Hobson that they had come to speak to Steven if the real reason was that they had come to arrest him and that Eric Hobson had not given informed consent to entry because he had not been told of the intention to arrest. The relevant parts of section 17 are as follows:

"(1) Subject to the following provisions of this section ... Constable may enter and search any premises for the purpose ... (b) of arresting a person for an arrestable offence.

(2) The powers of entry or search conferred by this section (a) are only exercisable if the Constable has reasonable grounds for believing that the person whom he is seeking is on the premises ... (4) the power of search conferred by this section is only a power to search to the extent that it is reasonably required for the purpose for which the entry is exercised ... ".

7. Section 117 of the said Act permits an officer to use reasonable force, if necessary, in the exercise of the power conferred by section 17.

8. The magistrates rejected the arguments advanced on behalf of the Appellants in support of a submission of no case to answer and they proceeded to convict the Appellants. Their reasoning is apparent from the following passage in the case stated:

"We were of the opinion that PC Deponeo was invited into the premises by Eric Hobson and there was no need for the officers to enter the premises without consent under section 17 and/or section 117 of PACE ... In our opinion there was no need for us to scrutinise the sufficiency of the reason for entry given by PC Deponeo given that the entry was by consent. We do not believe that the officers' actions were in any way covert and that Eric Hobson was able to make an informed decision whether to allow PC Deponeo into the premises. Given previous dealings between the Hobson family and police we believe it would have been self-evident to Eric Hobson why they wished to speak to his son."

9. There seems to be an inadvertent error in part of that in that it is plain that what the magistrates were saying was that they did believe that Eric Hobson was able to make an informed decision.

10. Before this Court, Miss Jones, on behalf of the Appellants, advances essentially the same submission which she had addressed to the magistrates. It is encapsulated in her skeleton argument in these terms:

" ... to comply with the requirements of s.17 of PACE the Police Officers in this case should, when exercising their power to enter premises under s.17 (and s.117 if forced entry is subsequently required), unless the circumstance make it impossible, impracticable or undesirable, give any occupant present the reason for his exercising that power of entry."

11. She seeks to support that submission by reference to the case of O'Loughlin v Chief Constable of Essex [1998] 1 WLR 374, a decision of the Court of Appeal (Civil Division) in a civil action against the police. In that case the officers had sought to rely on sections 17 and 117. The majority of the Court of Appeal, Roch LJ, LJ Buxton, Thorpe LJ (dissenting) approved the ruling of the trial judge which had been in these terms:

"But where the occupiers are present and are actually in some sort of conversation with the police even when, as here, it was irrational and abusive on the part of the plaintiff and his wife, it seems to me that the basic law applies to that situation. The police, who have a right of entry, must announce what that right is before they attempt to use force. To act otherwise in these circumstances it seems to me is unreasonable ... I am not saying that necessarily the word 'arrest' should have been used, some other wording in current usage, such as 'nicked' would have been sufficient, but in my judgment to say that they wanted to come to talk to the O'Loughlins was not sufficient to indicate that they were exercising a right to enter his house."

12. In my judgment, it is clear from the judge's ruling and the Court of Appeal's consideration of it that what was being addressed was the statutory power of entry under section 17, coupled with the use of force under section 117. That was simply not the case here. Although it is common ground that the officers would have been able to avail themselves of the statutory power under section 17 and in appropriate circumstances to deploy reasonable force pursuant to section 117, it was not necessary for them to resort to those powers and they did not do so. They chose to proceed on the basis of entry by consent, if that were to be forthcoming. In the event it was, at least as far as PC Deponeo was concerned, and, significantly, PC Rice stayed outside when consent to her entry was expressly repelled. In these circumstances, PC Deponeo did not enter pursuant to the statutory power but with the consent of the occupier.

13. Miss Jones seeks to draw some comfort from the case of Riley v Director of Public Prosecutions 1991 Criminal Appeal Reports 14, a decision of the Divisional Court. However, that case turned on what was or was not said to the suspect at the point of arrest rather than the unlawfulness of the entry to the premises. In my judgment it does not assist the Appellants in the present case.

14. Finally, I refer to the question of whether the consent given by Eric Hobson was an informed consent. I take the view that in seeking to obtain consent it was unnecessary for PC Deponeo to say more than he did. The magistrates expressly acquitted the officers of acting covertly or deviously. There is a specific finding of informed consent. I consider it to be an unassailable finding, with or without the additional finding that, given the previous dealings between the Hobsons and the police, it would have been self-evident to Eric Hobson why the officers wished to speak to Steven.

15. It follows from all that I have said that I would answer the three questions posed by the case stated in the affirmative and I would dismiss this appeal.

16. MR JUSTICE NEWMAN: I agree. It seems to me plain that the law recognises a right of entry to arise in three circumstances: (1) by consent, (2) without consent, and (3) without consent and by force. In connection with (2) and (3) the law requires, since a coercive power is being used, a person should be fully informed as to why coercive power is being used; in these circumstances to gain entry to effect arrest. I agree with my Lord. There is no basis in authority or sound principle for limiting a right of entry by consent by engrafting a section 17 requirement for notice upon a non-statutory set of circumstances as they arose in this case.