Barnaby James Tuthill v DPP
| Jurisdiction | England & Wales |
| Judge | PRESIDENT OF THE QUEEN'S BENCH DIVISION,MR JUSTICE WYN WILLIAMS |
| Judgment Date | 15 November 2011 |
| Neutral Citation | [2011] EWHC 3760 (Admin) |
| Docket Number | CO/1774/2011 |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 15 November 2011 |
[2011] EWHC 3760 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
DIVISIONAL COURT
Royal Courts of Justice
Strand
London WC2A 2LL
President of the Queen's Bench Division
(Sir John Thomas)
and
Mr Justice Wyn Williams
CO/1774/2011
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
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.
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:
"1. 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.
2. 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.
3. 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...
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