Blench v DPP

MR JUSTICE FULFORD:

This is an appeal by way of case stated against a decision of the Luton and South Bedfordshire justices on 8 April 2004 convicting the appellant of an offence of assaulting a police constable in the execution of his duty contrary to section 89 of the Police Act 1996.

The applicant did not give or call evidence during the trial and the submissions on his behalf before the court below were directed at the sufficiency of the prosecution evidence. A submission was made at the conclusion of the prosecution evidence that there was no case to answer: it was argued that the evidence was insufficient to found a proper conviction. This argument was broadly repeated in the different context of the defence closing submissions prior to the justices retiring to consider their verdict: it was argued that the evidence was such that the justices should not be satisfied to the criminal standard of the applicant's guilt.

The prosecution witnesses naturally did not give wholly identical accounts and the following summary is a distillation of the key evidence of the four main witnesses. We are bound by the findings of fact made by the justices and accordingly any differences between the prosecution witnesses is essentially immaterial, given that this court, in determining this appeal, does not have a fact-finding role.

On 16th March 2003 four police officers, responding to a 999 emergency telephone call, went to the appellant's home. They were aware that there had been a report from a woman, who had identified herself, as we now know, as a Miss McGowan, that a drunken man was attempting or had attempted to remove her child from 66 Holly Bush Road, Luton.

The contents of that emergency call are of high significance, given the arguments advanced in support of this appeal. The caller said, inter alia:

The call was interrupted and when contact was re-established, the caller said that the man had gone but had not taken the child. However, during this second part of the conversation it was clear the caller was being prompted or interrupted by someone in the background. Moreover, it was not clear whether the man referred to was the appellant or another man, or how many people either had been or were at the premises. At the end of the call Miss McGowan, on being informed officers were on their way, said:

When the officers were approaching the house via the footpath, the appellant, who the officers knew lived at the address or had done so in the past and who had a reputation for aggression, threw open the door and came towards them in an extremely aggressive manner with his arms spread wide open, making a pushing motion away from the house and telling them they had 30 seconds to get off his property. Police Sergeant Nouch described how he found this behaviour and statement quite intimidating and he took what was said as a threat. Police Sergeant Millar said he was in fear at the time and that the appellants behaviour was very loud and tending towards violence. Mr Millar said that they were told twice that they should:

Any attempts by the officers to explain that they were there for the welfare of the child or children were met by shouts of abuse and aggressive actions on the appellant's part.

As the appellant returned to his house, he was followed by the officers, who, out of concern for the child or children they believed to be inside the house, attempted to force an entry. They acted pursuant to their powers under section 17(1)(e) Police and Criminal Evidence Act 1984, which enables them to enter and search any premises for the purpose of saving life or limb. Police Sergeant Nouch pushed up against the front door with his body and tried to get an arm inside the door. The appellant apparently pushed the door against him and the officer's arm thereby became stuck. The officers called out to the appellant why they wished to enter the premises and the appellant was warned he was committing a breach of the peace. Police Sergeant Nouch, whose arm was still stuck and who feared he might be injured as a result, then warned the appellant that CS gas spray would be used if he persisted. When the officer heard further shouting inside the house, CS gas was sprayed through the gap in the door, which hit the appellant. The door then opened and the appellant, who was found in the front room with his hands over his face, no doubt because of the spray, was removed from the house. He struggled during this and continued to be abusive to the officers and, whilst so behaving, he was handcuffed. The appellant resisted while the handcuffs were being placed on him. He said to Police Constable Parsons:

Mr Nouch described that these things were said aggressively and with venom.

Prior to that the officers had been unable formally to arrest the appellant. However, before he was placed in a police vehicle, Police Constable Parsons informed the appellant that he had been arrested in order to prevent a breach of the peace, and thereafter, as the officer opened the door of the police vehicle in order to place the appellant inside, the latter spat at PC Parsons, hitting him on the chin area to the right side of his face. The appellant continued to struggle and was eventually placed in a van. Mr Blench was not formally arrested for the assault until the following day.

The justices identified the question they had to answer in the case was whether the appellant was guilty of assaulting a police constable in the execution of his duty on 16 March 2003. They found that he did assault the officer by spitting at him. The two further questions they considered fell for determination were, first, whether the officer had been acting in the execution of his duty at the time of the assault and, second, whether what happened between the arrival of the officers at the scene and the assault was lawful and particularly whether the appellant's arrest for a breach of the peace was lawful.

The justices explained their conclusions as follows:

The questions posed for this court by the justices are:

Mr Speed, on behalf of the appellant, has advanced, both orally and in writing, a number of diverse arguments, which have been clearly set out before us, certainly in part, in helpful submissions today. Without, I hope, doing injustice to the matters he has raised, the four principal submissions that underpin the appellant's case, as I understand them, were, in outline, as follows:

In amplification of those arguments, it is suggested that, prior to attempting to enter the premises, none of the officers had been injured and there had been no threat of injury or any other sufficient unlawful threat to the officers. In the premises it is contended that the appellant's conduct alone did not found a reasonable apprehension that a breach of the peace was likely. Further, Mr Speed argues that the appellant had terminated any short-lived right that the officers may have had to be on the property.

In the recent case of R (on the application of Laporte) v Chief Constable of Gloucestershire [2004] 2 All ER 874; [2004] EWHC 253 Admin May LJ confirmed the now long-accepted definition of breach of the peace together with the arrest powers for such a breach as follows:

In Albert v Lavin [1982] AC 546 Lord Diplock, at page 565, said:

Although, as I have observed, a significant number of issues have been advanced by Mr Speed, with various authorities cited in support of his submissions, in my judgment the answers to the justices' questions are straightforward and they are most conveniently revealed by considering this incident chronologically, together with the lawfulness or otherwise of the appellant's and the officers' actions at each stage, on the evidence before the justices.

Section 17(1)(e) Police and Criminal Evidence Act 1984 provides a complete answer to the submission that the officers were trespassers, either ab initio or when they attempted to enter the house. An emergency call had been made, in which it was stated that a drunken man was trying to take a woman's child. Although at the end of the report to the police Miss McGowan claimed the man had gone without removing the child, and she did not want the police to attend, the original account by her was on any view a highly worrying one and, given there was a voice in the background during the second part of the call interrupting or prompting Miss McGowan, the police were fully entitled, as an exercise of their discretion under the section, to enter on to the premises without a warrant to investigate. This entitlement was in addition to the implied licence that all subjects, including police officers, have to approach the front door to a house: Snook v Mannion [1982] Crim LR 601. I would observe, however, that whether or not Miss McGowan’s statement “I do not want you here” was sufficient in the circumstances to terminate that licence is not an issue which needs to be resolved on this appeal given my conclusions as to s.17 (1) (e).

Moreover, once they arrived, they were met by the appellant, who behaved in an extremely aggressive, intimidating and threatening manner. If he had been the man referred to during the emergency call, contrary to what Miss McGowan had said, he had not left the premises and accordingly the police were fully entitled to be concerned that a child may be at risk, either from him or from someone else. Indeed, if on these extreme facts the police had meekly turned on their heels and walked away, they would, in my judgment, have been in grave dereliction of their duty, given both the worrying terms of the first part of the 999 call and the power already referred to under s. 17(1)(e) that enables officers to enter and search any premises for the purpose of saving life or limb.

Accordingly, I unhesitatingly conclude that the officers were acting lawfully in approaching the front door of the house and, once they had been met by the bizarre and aggressive behaviour of the appellant, who tried to exclude them from the property, they were fully entitled, as an exercise of discretion, to attempt to enter the house for the purpose of securing (saving) the child who had been the subject of the original call to the police.

The appellant has submitted that the officers should at the very least have left the premises when ordered to do so by Mr Blench and, once they failed to do so, they became trespassers and all their actions thereafter were both unlawful and outside of their duty. For this proposition he relies on Davis v Lisle [1936] 2 KB 435; however, that authority goes no further than confirming that permission to be on private property can be revoked. On the facts of this case, that undoubtedly correct statement of the law does not assist the appellant because the officers were acting under the powers expressly conferred on them by s.17 (1) (e), which rendered their presence on the property lawful.

Bearing in mind the definition of breach of the peace set out above, there was abundant evidence in my view on which the police could reasonably determine that there had been a breach of the peace and for them reasonably to apprehend that in the immediate future this may be repeated whilst they lawfully attempted to secure (save) the child. The appellant's words and actions outside the house, together with the trapping of the officers' arm in the door, led to a reasonable conclusion both that harm had been done and was likely to be done to a person; as regards that latter possibility, the appellant's behaviour overall demonstrated the risk of harm to one or more of the officers in the immediate future.

Turning to the power of arrest, there were sustainable reasons, therefore, to conclude that an arrest was necessary both because a breach of the peace had occurred and in order to prevent a recurrence, since it was reasonably apprehended it was likely imminently to be repeated.

If follows that Police Constable Parsons was acting, in my judgment, in the execution of his duty and, having arrested the appellant, he was then assaulted. The argument that he was acting unlawfully at that stage is unsustainable: the prosecution had led evidence during the trial establishing that at each stage the officers had acted lawfully and within the execution of their duty (see Riley v DPP (1990) 91 Cr App R 14).

One consequence of those conclusions is that Lesley Edward Bibby v Chief Constable of Essex Police (ibid) and the six conditions identified by Schiemann LJ during the course of his judgment in that case that should be met before this common law power of arrest is exercised, relied on by the appellant, is irrelevant to the present appeal. That case involved the risk of a breach of the peace following, and being provoked by, lawful behaviour on the part of the person who was arrested. In those circumstances, as the Court of Appeal indicated in Bibby, it was critical that pre-detention criteria needed to be satisfied that protected, insofar as is possible, the position of the person who, though responsible for the apprehended breach of the peace, had not committed any unlawful act. Here, in my judgment, the appellant had acted unlawfully, both by a clear and serious breach of the peace and by obstructing the officers in the execution of their duty. Accordingly, the six-point test identified in Bibby did not arise.

Against that analysis I would answer the questions as follows:

An outstanding argument of Mr Speed that falls for consideration is whether the officers, in arresting Mr Blench, contravened the provisions of section 28(3) Police and Criminal Evidence Act 1984. The relevant parts of that section provide as follows:

The short answer to the submission is that where it is not practicable for an officer to inform someone who is being arrested of the reason for his arrest, the arrest should be maintained until it is possible to inform the detained person of the reason. If, later, the officer failed to inform the prisoner timeously of the ground of arrest, although that would constitute a breach of section 28(3), it would not invalidate or otherwise have an effect on what had gone before: DPP v Hawkins [1989] 88 Cr App R 166. The officers, on the evidence before the justices, attempted to inform Mr Blench that their detention of him in the house was for a breach of the peace, but they were prevented from communicating this properly or at all because of the appellant's aggression and violence. Having been taken outside, Police Constable Parsons told the appellant he was under arrest in order to prevent a further breach of the peace, thereby complying fully with the provisions of section 28(3).

The failure formally to arrest Mr Blench for the assault on Police Constable Parsons until the following day does not impact on the answers to any of the questions posed by the justices in this case. That delay in giving reasons cannot retrospectively render unlawful the detention of the appellant by the officer, not least because he had been arrested correctly and lawfully for breach of the peace. The detention of the appellant was, accordingly, wholly lawful and this delay could not affect, certainly not in any material way, the decision of the justices as to whether there was a case to answer; at most, it went marginally to the officer’s credit.

Having reached the conclusions I have explained and having answered the four questions against the appellant, it follows I would dismiss this appeal.

LORD JUSTICE THOMAS: I agree. Mr Speed, Miss de Silva, thank you both.