Royal Courts of Justice
Strand
London WC2A 2LL
B e f o r e:
PRESIDENT OF THE QUEEN’S BENCH DIVISION
(SIR JOHN THOMAS)
and
MR JUSTICE WYN WILLIAMS
Between:
BARNABY JAMES TUTHILL
Claimant
v
THE DIRECTOR OF PUBLIC PROSECUTIONS
Defendant
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Mr J Fichlin (instructed by Bindmans) appeared on behalf of the Claimant
Mr T Little (instructed by the Crown Prosecution Service) appeared on behalf of the Defendant
J U D G M E N T
PRESIDENT OF THE QUEEN’S BENCH DIVISION: On 6 December 2010, the appellant was convicted by the North Yorkshire Magistrates of using threatening words or behaviour, contrary to section 5 of the Public Order Act 1986, and resisting a police constable in the execution of his duty. He appeals by way of what is meant to be a case stated on the issue of whether the police officer in question had proper grounds for searching the appellant. If the appellant were to succeed on that particular issue then it might well follow that the convictions should be set aside and the case be remitted for the justices to do that.
The issue
This case was listed on the basis that an important issue of principle arose. However, this court 12 days ago in Howarth v Commission of Police of the Metropolis [2011] EWHC 2818 (QB) dealt with the issue which arises in this case, namely the relationship between the intelligence the police obtain about a group and the use that can be made of that in connection with the conduct and behaviour of an individual, or a group, to justify the search. As the principles established by this court in Howarth are not in issue, this case involves merely the application of the principles in that case to the facts. The only issue that this appeal raises, which is of more general importance, is an issue relating to the form in which the case stated was put before the court.
The facts
The facts can be briefly described. The appellant was acting on 25 September 2010 as a “hunt monitor”, keeping observations on the Byram Park Fox Hunt in North Yorkshire. He was one of a group of about 15 to 20 other “monitors” dressed in camouflage clothing, which was following the Byram Park Fox Hunt across farmland in Yorkshire. The purpose of “monitoring” was to see if the hunt was being conducted within the terms of the recent legislation. The group was in two vehicles and being monitored by the police. There was police intelligence that had marked one of the vehicles as containing weapons.
One of the farmers, who was neither a supporter of the hunt nor one of those who opposed it, saw the group on his fields. He had fertilised those the previous day with what is described as "sewage cake". Sewage cake is, the justices found, in part derived from human excrement. They set out the farmer's evidence that he did not consider it safe to anyone to be on the field. He therefore asked the group to leave. Two policemen, PC Astin and PC Brook, asked the group to leave. The farmer also used his vehicle to try and herd them off his land.
The evidence of the farmer was that the group became more vocal and aggressive. I shall have to set that evidence out in a moment. He said he felt threatened. When the two officers asked the group to leave they refused. One said, "There are 20 of us against two of you". PC Astin called for help. It was at that point the appellant responded, "We've got to go." The evidence of PC Astin, to which I shall have to return in more detail, was the following: he saw another police vehicle come. He then took hold of the appellant intending to carry out a search. The appellant asked the officer for the grounds for the search. PC Astin pushed his emergency button. PC Brook approached and took his other arm. There was then an argument, which it is not necessary to set out, and a scuttle ensued during which the police handcuffed the appellant, took him to the ground and sprayed him.
It is not necessary to set out the further facts.
At the conclusion of the prosecution case the Justices found that there was a case to answer. The appellant called evidence and the Justices at the conclusion of the case found, as I have stated, that the case was proved on both offences.
What will be necessary to set out is the evidence of the farmer, of PC Astin and one short conclusion of the Justices, which I shall do in a moment for reasons that will become apparent.
The question of law and the applicable principles
It is only necessary to set out one question that is asked. It is the first question:
"Could a reasonable bench properly directing itself have concluded that, in the circumstances as we have found them to be, that PC Astin lawfully detained the Appellant for the purposes of a search under section 1(3) of the Police and Criminal Evidence Act 1984 (PACE)?"
The statutory regime is conveniently summarised in Howarth at paragraphs 17 and following. It is not necessary to set it out again. It is only necessary to set out two paragraphs of the PACE Code of Practice A, which are relevant to the decision the court has to make. Paragraph 2.3 provides:
"Reasonable suspicion can sometimes exist without specific information or intelligence and on the basis of the behaviour of a person. For example, if an officer encounters someone on the street at night who is obviously trying to hide something, the officer may (depending on the other surrounding circumstances) base such suspicion on the fact that this kind of behaviour is often linked to stolen or prohibited articles being carried. Similarly, for the purposes of section 43 of the Terrorism Act 2000, suspicion that a person is a terrorist may arise from the person's behaviour at or near a location which has been identified as a potential target for terrorists."
Paragraph 2.6 provides:
"Where there is reliable information or intelligence that members of a group or gang habitually carry knives unlawfully or weapons or controlled drugs, and wear a distinctive item of clothing or other means of identification to indicate their membership of the group or gang, that distinctive item of clothing or other means of identification may provide reasonable grounds to stop and search a person."
I have curtailed the statement of the relevant statutory provisions to that as there is no point in this court setting out again what it has only recently set out within the last few days. It is accepted, and is common ground, that we have to answer the three questions set out by Woolf LJ, as he then was, in Castorina v the Chief Constable of Surrey (10 June 1988, unreported). Those three questions are repeated at paragraph 26 of the judgment in Howarth. They are as follows:
Did the arresting officer suspect that the person who was arrested was guilty of the offence? The answer to this question depends entirely on the findings of fact as to the officer's state of mind.
Assuming the officer had the necessary suspicion, was there reasonable cause for suspicion? This is a purely objective requirement to be determined by the judge if necessary on the facts found by a jury.
If the answer to the two previous questions is in the affirmative, then the officer has a discretion which entitles him to make an arrest and in relation to that discretion has been exercised in accordance with the principles laid down by Lord Greene MR in Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223."
The application of the principles to the facts
I turn to those three questions. Mr Fichlin, who has appeared for the appellant and has made his submissions very succinctly, has accepted that there is no dispute on the facts and evidence, as set out in the case, that PC Astin had the necessary subjective suspicion. We therefore turn to the second question as to whether there were, objectively speaking, the reasonable grounds for that suspicion.
It is accepted, as it was accepted by counsel Helen Mountfield QC for Mr Howarth, that searches of groups of persons can be conducted on the basis of intelligence received, provided there is sufficient linkage between the intelligence received in relation to the group and those persons who are going to be searched. An example of a circumstance where there would be insufficient linkage was raised by counsel for the appellant, who said that if the police had intelligence that a van outside a large football stadium contained knives or other weapons, that would not be grounds that would entitle the police to say there was a sufficient link between the van and 40,000 or 50,000 police in a stadium to justify the search of the entire stadium. It is hardly surprising Mr Little, who has appeared for the Crown Prosecution Service, does not seek to say that that example would be wrong, however far-fetched that example might be.
What this case therefore concerns is whether taking the intelligence that existed in relation to one van, which was one of two in which the group had arrived, and the second matter, namely the conduct and behaviour of the group, could it be said that there was sufficient linkage to justify objective grounds for the search? Two arguments were presented.
The requirements of the Criminal Procedure Rules
These depend upon the interpretation of the case stated. It therefore became necessary for us to construe the case.
The Criminal Procedure Rules state in terms that could not possibly be ambiguous what the duty is in stating a case. Part 64.5 says:
A case stated by the magistrates’ court shall state the facts found by the court and the question or questions of law or jurisdiction on which the opinion of the High Court is sought.
Where one of the questions on which the opinion of the High Court is sought is whether there was evidence on which the magistrates’ court could come to its decision, the particular finding of fact which it is claimed cannot be supported by the evidence before the magistrates’ court shall be specified in the case.
Unless one of the questions on which the opinion of the High Court is sought is whether there was evidence on which the magistrates’ court could come to its decision, the case shall not contain a statement of evidence.
The draftsman of that rule cannot have stated the matter with greater clarity or precision. Save in the cases mentioned in Part 64.5(2), a case must not contain a statement of the evidence. It is my experience that Justices' Clerks, who have general responsibility for the way in which legal advisers advise within the justice areas, are familiar with that rule. However, this case demonstrates that there has been a deficiency in making plain to legal advisers responsible for drafting cases that that rule exists. I say this not because it is the court's desire that people should follow rules simply for the sake of following rules, but because the argument has centred on what this case stated means. That has happened because the legal adviser in drafting the case for the Justices set out the evidence rather than making findings of fact. I shall therefore have to refer to the evidence having pointed to the issue to which it gives rise.
The meaning of the case stated
In setting out the evidence the justices at subparagraph (j) of the case stated set out the evidence of PC Astin. It is recorded he said that the intelligence, coupled with the appellant's behaviour, gave him grounds to search for prohibited weapons. The arguments that have been advanced to us have depended upon what is meant by the appellant’s behaviour.
The first argument advanced was that the behaviour referred to what was subsequently set out in the case stated, namely the appellant moving away. The alternative argument was that it referred to the appellant's behaviour as part of the behaviour of the group.
The reason that problem arises is because of the way the Justices set about stating the case. The case began by identifying the fact that the appellant was convicted. Then at paragraph 3 the Justices proceeded to say:
"We tried the Appellant on the said charges, and the following is a short statement of the evidence called on behalf of the Respondent."
The case then sets out in a large number of subparagraphs the evidence called; at subparagraph (n) the conclusion is stated. The first relevant part of the evidence set out is subparagraph (e) (which sets out the farmer's evidence as to the behaviour of the group) is as follows:
"At this point [the farmer] described events as becoming more confrontational, with the group of monitors (described by him as being dressed as if in the SAS) now becoming more vocal and threatening both with him and with the police officers. He said that he could hear them swearing and that in his view the group were getting too aggressive. He confirmed that in response to this swearing from the trespassers he told the group 'I don't care a fucking shit'. He felt that the situation was getting out of control and that he felt under threat, such that he did not feel able to leave the safety of his teleporter."
That is, apart from a conclusion at paragraph 6b, the real description of the behaviour. All that is at paragraph 6b is the following:
"We felt sure that, as a result of the Appellant's confrontational and aggressive behaviour, he had made PC Astin's job more difficult..."
The case also contains at paragraph (j) the evidence of PC Astin's state of mind. It is necessary to set this out at length:
"When challenged about the grounds for the search, PC Astin said that there had been police intelligence which he had received via his personal radio earlier that morning, though he couldn't remember exactly when, that one of the vehicles in which the hunt monitors had travelled to the location had a 'marker' on PNC for 'weapons'. He said that this intelligence, coupled with the Appellant's behaviour, gave him grounds to search for prohibited weapons."
That it appears, and we interpose here, was his evidence-in-chief. The case then sets out the cross-examination in the following terms:
"When asked in cross-examination what behaviour the Appellant had engaged in that had led PC Astin to search him first PC Astin responded, 'moving away from me'. He said that his intention was to search the entire group and that simply the Defendant, being closest, had been the person he had chosen to search first. PC Astin confirmed that none of the intelligence received was specifically related to the Appellant; PC Astin did not know whether the Appellant had arrived in the vehicle to which the intelligence related; PC Astin did not know the Appellant's identity; and that the other hunt monitors were also moving away from him. PC Astin confirmed that he believed that the intelligence received constituted reasonable grounds to search any member of the hunt monitor group."
The reference to "moving away" was moving away to the estate, which it is common ground refers to moving towards the area of the fox hunt that was crossing the Byram Park land. From that passage the submission has been made that what the behaviour was that PC Astin had in his mind was the behaviour of moving away. That comes from the passage we have set out. It is submitted that if all the behaviour encompassed within PC Astin's mind was moving away, that was not sufficient behaviour to create the necessary link. If that was what this case stated meant I would see considerable force in their argument.
However, I cannot accept that that is what this case stated meant. It seems to me clear from reading the case, and in particular one passage, to which it is necessary to refer, that the behaviour was the behaviour of the entire group of which the appellant was part. I say that because in subparagraph (n) of paragraph 3 the Justices state:
"We concluded that the search of the Appellant was lawful, based on the behaviour of the group as a whole."
If that sentence is read together with the other subparagraphs, and the description the farmer gave at subparagraph (e) (which I have set out earlier), it seems to me clear that the behaviour that PC Astin had in his mind was the behaviour of the group as a whole, including the aggressive behaviour described by the farmer. Where the case refers to PC Astin being asked in cross-examination what had led him to search and he had responded "moving away from me", that must be read as what led him to search the appellant first out of the group and not what led him to conduct the search. It was dealing with the identification of the appellant as the first person to be searched and not the decision to search him at all.
Conclusion
Having reached that conclusion as to the facts by the process of construing the case stated it seems to me clear on those facts of the case, and applying the principles that are not seriously in issue, that the behaviour of the group as a whole, including the appellant, taken with the intelligence was, objectively speaking, sufficient to provide grounds for a search. If a group arrives in two vehicles, as this group did in this case, and there were only 15 to 20 of them and they engaged in aggressive behaviour, it seems to me the search, objectively speaking, was justified.
If, as I have said, the issue in this case has been resolved by looking carefully at the evidence as set out in the case, and if the justices had set out the facts (and not the evidence) as the rules require, we have little doubt that the case could have been dealt with much more quickly, the judgment would have been vastly shorter, and it would have enabled the appellant in this case, in the light of the decision in Howarth, to have considered whether it was worthwhile pursuing the matter. The fact he has been able to make an argument at all has been derived solely from the deficiencies in the way in which the Justices stated the case.
For those reasons, therefore, I would answer the question that has been posed by the Justices that there were reasonable grounds. The convictions therefore must stand.
MR JUSTICE WYN WILLIAMS: I agree.
POSTSCRIPT
PRESIDENT OF THE QUEEN’S BENCH DIVISION: It is clear from the terms of the judgment I have given that there were serious deficiencies in the case. It is also clear that the draftsman, who drafts the rules for the Criminal Procedure Rule Committee and the Rule Committee itself, could not have stated the rules in clearer or more elegant terms.
It has been the experience of the civil courts that one means of ensuring people comply with rules is to make costs consequences follow. There therefore may be an argument that the court should, using its powers under section 51 of the Senior Courts Act, and under Part 48 of the Civil Procedure Rules, consider in the future making Justices' Clerks, or their employers (Her Majesty's Courts and Tribunal Service), pay costs incurred where the case stated is not in compliance with the rules. It is difficult to see what other means this court has of ensuring that the rules are followed in a respect that is important to the proper and cost effective administration of justice.
As there are fewer and fewer Justices' Clerks it becomes the more important to ensure that they make sure that, when a case is stated for the opinion of this court, it is stated in compliance with the rules. It is not much to ask. The consequences of not complying in a future case, where this has caused unnecessary expense or delay, will be an occasion where this court can consider whether it should exercise the powers to which I have referred. We hope the situation will never arise in the future, but that what we have just said will concentrate the minds of those concerned in following a rule that could not be more clearly stated.
In this particular case, as the appellant is legally aided, we shall make the usual order that although he is to pay the costs, the order shall not be enforced without the permission of the court.
PRESIDENT OF THE QUEEN’S BENCH DIVISION: May we thank you very much indeed for the assistance both of you have given in this case.