Blackburn and Others v Bowering and Another
| Jurisdiction | England & Wales |
| Judge | THE MASTER OF THE ROLLS,LORD JUSTICE LEGGATT,LORD JUSTICE ROCH |
| Judgment Date | 26 October 1993 |
| Judgment citation (vLex) | [1993] EWCA Civ J1026-9 |
| Docket Number | No. CCRTF 93/0254/F |
| Court | Court of Appeal (Civil Division) |
| Date | 26 October 1993 |
[1993] EWCA Civ J1026-9
IN THE SUPREME COURT OF JUDICATURE
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE BRISTOL COUNTY COURT
(His Honour Judge McCarraher)
Before: The Master of the Rolls (Sir Thomas Bingham) Lord Justice Leggatt and Lord Justice Roch
No. CCRTF 93/0254/F
MR. B. WATSON (instructed by Messrs.Trump & Partners, Bristol) appeared on behalf of the Plaintiffs (Respondents).
MR. M. STEEN (instructed by Messrs. Rodney King, Bristol) appeared on behalf of the Defendants (Appellants)
)
Tuesday, 26th October, 1993.
THE MASTER OF THE ROLLSThis appeal raises a short but interesting and important question : is a party liable under section 14(1) of the County Courts Act 1984 if at the time of the alleged assault he honestly but mistakenly believed (or may have believed) either that the person allegedly assaulted was not an officer of the Court or that such person was not acting in the execution of his duty ?
Section 14(1) of the Act provides :
"If any person assaults an officer of a court while in the execution of his duty, he shall be liable -
(a)on summary conviction, to imprisonment for a term not exceeding 3 months or to a fine of an amount not exceeding level 5 on the standard scale, or both; or
(b)on an order made by the judge in that behalf, to be committed for a specified period not exceeding 3 months to prison or to such a fine as aforesaid, or to be so committed and to such a fine,
and a bailiff of the court may take the offender into custody, with or without warrant, and bring him before the judge."
The object of the section is, plainly, to protect officers of the court against assault or intimidation by members of the public with whom they are required to deal in the course of their duties. The analogy with police officers is obvious. Both have to deal with people who may be hostile, aggressive or violent. The law recognises that such public servants require special protection.
It is also, I think, clear that section 14(1)(b) enables the County Court to exercise what is in effect a contempt jurisdiction. It was so described in Southam v Smout [1964] 1 QB 308 at 319. That is why an appeal lies to the Civil Division of the Court of Appeal under section 13 of the Administration of Justice Act 1960. As has been repeatedly stated, the purpose of the court's contempt jurisdiction is not to vindicate the dignity or standing of the judges but to ensure that the court's orders are obeyed and its processes protected against prejudicial interference or obstruction.
Although section 14 provides two procedures, one by way of summary prosecution, the other on application to the County Court judge, the choice of procedure cannot affect the nature of the conduct which must be proved to establish liability. It was argued below that the ingredients of the criminal offence differ from those of the proscribed contempt. The judge rejected that argument. He was right to do so. A party must be liable in law under both heads or neither. The contrary submission was not pressed before us. It was because, on the authorities cited to him, he held a defendant's state of mind to be irrelevant to his criminal liability under section 14(1)(a) that the judge held such state of mind to be irrelevant also on an application under section 14(1)(b).
Before considering the authorities which led the judge to his conclusion, brief (and necessarily tentative) reference should be made to the facts.
In August 1990 a creditor obtained a judgment for £248.02 in the Bristol County Court against the first defendant, who did not pay. An order for his oral examination was made and served. He did not attend on the date fixed for the examination or on an adjourned date. A warrant for his committal for failure to attend was issued in May 1992. He was warned of the possible consequences and invited to attend at the Court office but failed to do so. Visits were paid to his home by Court officers during the summer and autumn of 1992, but no contact was made with him. It is said that oral warnings of the consequences if he continued to fail to attend were left with members of his family.
Matters came to a head on 9 November 1992 when the first defendant and his son (the second defendant) were seen by three County Court bailiffs in a cafe near the first defendant's address. A fracas ensued, of which very different accounts were given by the bailiffs on one side and the defendants on the other. One of the issues was whether the defendants or either of them were, or could have been, unaware of the bailiffs' official capacity. The outcome was that summonses under section 14(1)(b) of the Act were issued against both defendants, charging them with assault on officers of the Court in the execution of their duty.
These came before His Honour Judge McCarraher on 27 January 1993. Both parties were represented by counsel, and it was agreed that before any factual enquiry was undertaken the learned judge should be invited to rule on the applicable law. For purposes of his ruling the judge was asked to assume (although these facts were not proved, or accepted on behalf of the bailiffs)
(1)that there had been intentional assaults by both defendants upon one or more of the bailiffs; and
(2)that the defendants did not know
(i)that the bailiffs were such, or any other officer of the Court; or
(ii) that the bailiffs were acting in the execution of their duty.
The judge was accordingly invited to rule whether it was a good defence to proceedings under section 14(1)(b) to show either that the defendants did not know that the bailiffs were such, or any other officer of the court, or that the bailiffs were acting in the execution of their duty.
The judge held that the offence was absolute. If the defendants' conduct was deliberate, it made no difference what their knowledge or belief or state of mind was. Admissions then having been made on the defendants' behalf, the judge proceeded to make orders on the basis that the defendants had not at the time appreciated that they were attacking officers of the Court. He made committal orders in the case of each defendant, but suspended them, indicating that the orders would have been more severe but for the defendants' ignorance of their victims' capacity.
The defendants now appeal against the judge's legal ruling.
Holding that the ingredients of the summary offence under section 14(1)(a) and the contempt under section 14(1)(b) must be the same, the judge regarded himself as bound to follow the construction laid down in R v Forbes and Webb (1865) 10 Cox 362 and later authority. In R v Forbes and Webb the defendants were charged under section 38 of the Offences against the Person Act 1861, which made it an offence to assault any peace officer in the execution of his duty. It was submitted for the defendant that there was no evidence to go to the jury because the policemen were in plain clothes and the defendants did not know them to be constables but the Recorder of London (Mr Russell Gurney) ruled against this submission, holding that the offence was not assaulting the policemen knowing them to be in execution of their duty but assaulting them being in the execution of their duty.
This ruling was accepted by 8 out of 16 judges in R v Prince (1875) LR2 CCR 154 and in other cases up to the present day : R v Maxwell and Clanchy (1909) 2 Cr App Rep 26; McBride v Turnock [1964] Crim L.R. 456. It has sometimes led to surprising results (as in McBride v. Tunnock), and has not been immune from academic criticism (see, for example, Smith & Hogan, Criminal Law, 7th edn at p.417) but a similar view (despite very powerful dissents) has prevailed in Australia (see R v Reynhoudt (1962) 36 ALJR 26) and there is no directly contrary authority. It is therefore clear that in a prosecution under section 51 of the Police Act 1964 or a prosecution or complaint under section 14 of the County Courts Act 1984 it is not incumbent on the prosecutor or complainant to establish as part of his case that the defendant knew or believed that the victim of the alleged assault was (as the case may be) a police or court officer. This makes good sense, given the public policy of giving such officers special protection when carrying out their difficult and sometimes dangerous duties.
Counsel for the defendants did not make any frontal challenge to this line of authority. His argument was more indirect, and I think involved these steps :
(1)It is not every contact between one person and another which amounts to an assault or battery. To be criminal, the show or application of force must be unlawful. It is not tautologous to define assault as an unlawful offer or application of force.
(2)In deciding whether a defendant exerted reasonable force in defending himself, a court must judge him on the basis of what (reasonably or unreasonably) he believed to be the facts and not on the basis of what the facts actually were.
(3)If a defendant applies force to a police or court officer which would be reasonable if that person were not a police or court officer, and the defendant believes that he is not, then even if his belief is unreasonable he has a good plea of self-defence.
(4)Since the state of belief of these defendants was, accordingly, relevant to their liability, the learned judge was wrong to rule as he did.
The first of these steps is, in my judgment, established by R v Kimber [1983] 1 WLR 1118 and R v Williams [1987] 3 All ER 411. The...
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