Reda, R (on the application of) v Director of Public Prosecutions

1. MR JUSTICE DAVIS: This is an appeal by way of case stated in respect of a decision given in the Crown Court at Basildon on 11th June 2010 whereby it was adjudged that an arrest undertaken by a Police Constable McCausland of the appellant was lawful. The context was that the defendant in the case, the appellant in this matter, had initially been charged with an offence under section 5 of the Public Order Act 1986 and had also been charged under section 89 of the Police Act 1996.

2. The result to which the Magistrates had come was to acquit the appellant on the section 5 matter on the basis of the one of the statutory defences available but to convict on the section 89 matter. The appeal to the Crown Court, of course, was by reference to the conviction on the section 89 matter.

3. The case stated has (as really the argument before me confirmed, it has to be said) not been drafted in an entirely clear way. What it says is this:

"On 13th August 2009, charges were brought by the respondent against the appellant that on 13th March 2009 at Brentwood, the appellant had assaulted Police Constable McCausland in the execution of his duty contrary to section 89(1) of the Police Act 1996.

2. At the same time, the appellant was charged with a further offence that on 13th March 2009 in Brentwood he used threatening, abusive or insulting words or behaviour or disorderly behaviour within the hearing or sight of a person likely to be caused harassment, alarm or distress, thereby, contrary to sections 5(1) and 6 of the Public Order Act 1986.

3. On 26th February 2010 [subsequently giving the correct date], Magistrates acting for the Grays Youth Court found that the appellant was guilty of an offence contrary to section 89(1) of the Police Act 1996 and sentenced the appellant by way of conditional discharge for 12 months. The appellant was also ordered to pay £25 compensation to Police Constable McCausland and £500 costs. The Magistrates found the appellant not guilty of an offence contrary to section 5(1) and 6 of the Public Order Act 1986.

4. The appellant appealed against the decision of the Magistrates to the Crown Court at Basildon, which appeal was heard on 11th June 2010.

5. We heard the said appeal on 11th June 2010 and we found the following facts:

a. That, on 13th March 2009, the appellant was walking with other youths past an empty police van;

b. The appellant raised his voice and used the words 'fuck the police'.

c. Police Constable McCausland, who was emerging from nearby flats, heard the words and decided to arrest the appellant.

d. During the course of the arrest and transportation to the station, the appellant kicked Police Constable McCausland.

6. We heard the following evidence when we reached the above findings of fact.

a. Police Constable McCausland gave evidence that there were no other members of the public nearby, just the group of boys. The man was parked on the side road which led on to a road, where there were a few cars driving towards the High Street. The appellant used the words twice. The words were not said aggressively. They were not directed towards anyone and Police Constable McCausland was not caused distress as a result. When the appellant was being searched in the rear coach of the vehicle, he kicked Police Constable McCausland in the right leg.

b. Police Constable Richardson gave the evidence that he followed Police Constable McCausland from the block of flats. Police Constable Richardson heard shouting but did not hear the actual words used. He did not see any other people in the area save for the small group of youths.

c. The appellant gave evidence that he used an American accent to sing those words, which feature in a well known rap song as he passed the empty police van. He was with three of his friends. The appellant did not see anyone else around. He did not see the police officers.

That is the relevant evidence for the purposes of this case."

4. The case stated then goes on to summarise the detailed submissions that have been made to the court at half time and at paragraph 10 the case stated says this:

"We were of the opinion that:

a. The test is whether there was reasonable cause to suspect an offence had been committed or was about to be committed in accordance to section 24(1)(c) and (d) of PACE. Therefore the question was whether the behaviour by PC McCausland fell within subsection (1)(c) or (d).

b. In this case the youths went by and one shouted 'fuck the police'. It is sufficient that there are reasonable grounds to suspect that an offence had been or was about to be committed. There may not have been others present and/or the officer was not affected himself, but it may have emerged later on that there were persons present.

(c) PC McCausland heard the words used by the appellant and we were satisfied that gave him reasonable grounds to suspect an offence had been or was about to be committed. For that reason, we found that at the time he was acting in the course of his duty.

(d) A consequence of the findings above, we found that the appellant was guilty of an offence contrary to section 89 of the Police Act 1989. We did not alter the sentence imposed by the lower court but ordered the appellant should pay £260 towards the costs of the appeal."

11. The questions for the opinion of the High Court are:

A. Whether the Crown Court was entitled to find that PC McCausland did have reasonable grounds to suspect that an offence under section 5 had been committed even though he was aware that the words spoken by the appellant were not within the hearing or sight of a person likely to cause harassment alarm or distress thereby ..."

5. Pausing, there it may be noted that this question as posed does not accurately or precisely reflect the actual findings of fact made in paragraph 6. Then, going back to the questions:

"B. Whether the court was entitled to find that the prospect of information emerging later on that there were persons present is sufficient to satisfy the test of reasonable cause to suspect under section 24 of PACE; and

C. Whether there was sufficient evidence to entitle the Crown Court to convict the appellant of an offence contrary to section 89 of the Police Act 1996."

I have to say that these questions are posed in a very convoluted way, with all respect, and in reality the essential question is that posed in C.

6. Ms Hemingway, in the course of her excellent argument before me, has drawn my attention to the statutory provisions, including section 5 of the Public Order Act 1986, section 89 of the Police Act 1996 and section 24 of the Police and Criminal Evidence Act 1984. So far as the latter section is concerned, that, amongst other things, by subsection (1) provides:

"A constable may arrest without a warrant-

...

(c) anyone whom he has reasonable grounds for suspecting to be about to commit an offence.

(d) anyone whom he has reasonable grounds for suspecting to be committing an offence."

7. The question is important because, for the purposes of section 89 of the Police Act 1996, one has to ask oneself whether or not the constable was acting in the execution of his duty when he was assaulted. It is important to bear in mind that there is a distinction between establishing an offence under section 5 on the one hand and establishing an offence under section 89 on the other hand.

8. Ms Hemingway has then taken me to a number of authorities in this field. She referred me, amongst other things, to the case of Director of Public Prosecutions v Oram [1989] 1 WLR 88. That case established, amongst other things, that it is possible for a police officer to be a person who is capable of being likely to be caused harassment, alarm or distress. However, in the course of giving his judgment, Glidewell LJ said this at page 93:

"Mr Jones, for the prosecution, poses for our consideration a second question: if in fact a police officer is not likely to be caused harassment etc., does he then have any power to arrest under section 5(4)? Theoretically, the answer to that question may be 'Yes', but in practice, in my view, it must almost invariably be 'No.' The reason is this. If an officer is not caused harassment, alarm or distress, it is difficult to see how he can reasonably suspect, if he is the only person present, that an offence against section 5(1) has been committed since such causation is a necessary element in the offence. If he does not reasonably suspect that such an offence has been committed, then he has no power of arrest under section 5(4)."

It is to be noted that those remarks of Glidewell LJ are qualified by the words "if he is the only person present".

9. Then Ms Hemingway referred me to the decision of the Divisional Court in the case of Holloway v Director of Public Protections [2004] EWHC 2621 (Admin). That was a case in which it had to be decided whether an offence under section 5 of the 1986 Act had been made out in, it has to be said, very unusual factual circumstances. In the course of giving his judgment, Silber J stated:

"These words [that is to say in section 5] mean that some person must have actually seen the abusive or insulting words or behaviour. It is not enough that somebody merely might have seen or could possibly have seen that behaviour."

Collins J, in his judgment in the same case, approached the matter with a slightly different emphasis. He stated that he entirely agreed that it was not sufficient to establish that someone might have come on to the scene and therefore might have seen what the individual who was charged was doing. However, he went on to stress that inferences were capable of being drawn and towards the end of his judgment he said this:

"I see no reason, in a proper case, why a charge of this nature should not be established where the evidence makes it clear that the court can properly and safely draw the inference that there were people who could see what was going on or could hear what was going on. The fact that they may not have done, for whatever reason, seems to me to be immaterial."

10. That case was considered further by the Divisional Court in the case of Taylor v Director of Public Prosecutions [2006] EWHC 1202 (Admin). In that case, which was also a section 5 case, the Divisional Court in effect followed and indeed expanded upon the observations made by Collins J in the Holloway case. In the course of his judgment, Keene LJ said this:

"It seems to me that Collins J was right in saying that there must be evidence that there was someone able to hear or see the defendant's conduct, and that the prosecution does not have to call evidence that he or she did actually hear the words spoken or see the behaviour. ... Both judges rightly stressed that it was not enough that someone might come on the scene and observe what was going on. In the present case the District Judge arrived at what I regard as a finding that a number of people were on the scene and were near enough to hear the racially abusive language."

11. A case rather closer to the present one, although of course a case on its own facts, is the case of Burrell v Crown Prosecution Service [2005] EWHC 786 (Admin), and that indeed raised head on the question of whether or not a police constable had lawfully arrested someone and then been assaulted in the execution of his duty contrary to section 89(2) of the Police Act 1996. In that particular case, the substantive charge under section 5 had been dismissed by the Magistrates but the charge under section 89 was upheld. In discussing the arguments, David Steel J said this:

"The issue before the magistrates was whether, at the time of the arrest, it was reasonable for Sergeant Downham to suspect that it was likely that a person would be caused alarm or distress. The fact that at the trial the magistrates were not satisfied beyond reasonable doubt that the abuse was likely to cause harm is not determinative of that issue. It may be that it was clear that the two police officers were not alarmed but, for the purpose of the objective assessment of whether it was reasonable to suspect that the conduct constituted an offence under the Act, that would not be in point. It may be an unusual case where the prosecution fail to establish an offence under section 5 by reason of being unable to establish an actual likelihood of alarm but succeed in establishing the entitlement to arrest by reason of a reasonable suspicion of a likelihood, but the present case is clearly one. The fact remains that the relevant ingredients of the two offences are different, measured by reference to different evidential input..."

Those comments do have some broad relationship to the issue arising in the present case.

12. Ms Hemingway is entitled to focus on the words set out in paragraph 6(b) of the case stated: "There may not have been others present and/or the officer was not affected himself, but it may have emerged later on that there were persons present". Put like that, that would seem to go against the approach indicated as appropriate in a section 5 context by the Divisional Court in the case of Holloway and in the case of Taylor . But, as I see it, one must remember that what is being considered here is an offence under section 89. One has to put oneself in the position of the arresting constable at the time he is arresting and whether he may reasonably have suspected that an offence was being committed.

13. Ms Hemingway stated that, on the evidence, there simply were no other members of the public nearby. I do not think, though, that that can be promoted into saying that there was a finding that no-one was around who was able to hear or see what was being said or done such as to be likely to cause harassment, alarm or distress. The findings of fact make quite clear that what happened here and what was said here was in a public place. It was in a residential street not too far away from a high road. Furthermore, there was a police van there. Furthermore, Police Constable McCausland's colleague, Police Constable Richardson, was himself coming out of the flats and did hear words being said, even if he could not identify what actually was being said. Yet further, there self evidently were other members of the public around, namely the other boys present. I think it is unrealistic to think that a police officer could have sought to have made a careful check to find out whether or not other people in adjoining flats and houses had or had not actually been in a position to hear what was being said.

14. I appreciate that the findings of fact recorded in this case stated are not very specific in this regard, but it seems to me that their lack of specificity, if anything, tells more against the argument of Ms Hemingway than it tells against the argument of Ms Hay on behalf of the respondent. It seems to me that (although perhaps it is not very well phrased) the court was coming to the conclusion that this was a public order offence as could be reasonably suspected by the police officer: in that this was said in a public place and, whilst it could not be established that the police officer had himself seen other people present at the time, nevertheless he could reasonably proceed on the footing that there were or may have been. And, as I have said, it is in fact the case that there were, in that, at the very least, the colleague, Police Constable Richardson, was in hearing distance of what was said and further the other boys were present. The police arresting officer could not necessarily have taken it that the other boys would not themselves have been insulted or alarmed by what this appellant was shouting or saying.

15. Consequently, whilst I repeat that the language in which this case is stated is not altogether satisfactory, I do think that, on the facts of this case, the court was entitled to conclude that there were reasonable grounds for Police Constable McCausland to suspect that an offence had been or was about to be committed; although it would have been much better if they had not made reference to the prospect of members of the public emerging later. I also repeat that the way in which the question is phrased in paragraph 11A does not correspond accurately to the actual findings in paragraph 6a.

16. I appreciate that for a young man of this age to be the subject of any conviction is a serious matter. One may regret that a case which, on some view, may be regarded as trifling has ended up first in the Magistrates' Court, then in the Crown Court and now in the High Court. But that should not deflect me away from deciding in favour of Ms Hemingway if her points are in law good. But, as it seems to me, the actual conclusions that the Crown Court reached were conclusions properly open to them on the evidence that was before them. Indeed, I think Ms Hay had a point when she stressed that, if Ms Hemingway's arguments are right, it could raise a particularly onerous and unreal obligation on police in contexts such as the present when sometimes they do need to act swiftly.

17. In all the circumstances, I dismiss this appeal. It simply is not appropriate to answer the questions set out in A and B of the case stated, which do not reflect the reality of what was found. It is appropriate to address question C, that is to say whether there was sufficient evidence to entitle the Crown Court to convict the appellants of an offence contrary to section 89 of the Police Act 1996 and the answer to that question is in the affirmative.

18. MS HAY: My Lord, may I briefly raise the question of costs, simply because I am instructed to, and, in the light Mr Reda's appeal being dismissed, I am instructed to apply for costs or a contribution thereto.

19. MR JUSTICE DAVIS: How old is he?

20. MS HAY: Well, I think he is now 18.

21. MS HEMINGWAY: He is now 18. He turned 18 in January.

22. MR JUSTICE DAVIS: What is he doing, studying?

23. MS HEMINGWAY: Yes, at the moment, he is. He does not have a full time job.

24. MS HAY: My Lord, I do no more than make the application.

25. MR JUSTICE DAVIS: You have made it and I refuse it.

26. MS HAY: I am obliged to you.

27. MS HEMINGWAY: My Lord, I do not have any instructions, but, in terms of permission to appeal, may I ask that --

28. MR JUSTICE DAVIS: Well, you need to, first of all, seek to certify a point of general public importance and then you want to go to the Supreme Court. You cannot go to the Court of Appeal, you realise, on this?

29. MS HEMINGWAY: I --

30. MR JUSTICE DAVIS: What is the point of law of general public importance that arises out of this case?

31. MS HEMINGWAY: If I may have 14 days to put the point of law to the court, if that becomes relevant. I do not have instructions on that at the moment.

32. MR JUSTICE DAVIS: I will give you 14 days but I do not want to give you any false encouragement. It has to be a point of general public importance.

33. MS HEMINGWAY: I am grateful, my Lord.

34. MR JUSTICE DAVIS: Thank you. I think you both put the matter very well. Thank you.