Blench v DPP
| Jurisdiction | England & Wales |
| Judge | MR JUSTICE FULFORD,LORD JUSTICE THOMAS |
| Judgment Date | 05 November 2004 |
| Neutral Citation | [2004] EWHC 2717 (Admin) |
| Docket Number | CO/2525/2004 |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 05 November 2004 |
[2004] EWHC 2717 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
DIVISIONAL COURT
Royal Courts of Justice
Strand London WC2A 2LL
Lord Justice Thomas
Mr Justice Fulford
CO/2525/2004
MR G SPEED (instructed by Austin Allen) appeared on behalf of the Appellant
MISS C DE SILVA (instructed by the Crown Prosecution Service) appeared on behalf of the Respondent
Introduction
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.
Evidence
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:
"He is taking my baby out of the house drunk."
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:
"No, I do not want you up here."
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:
"Fuck off this property. You have 30 seconds."
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:
"You do not know what you done. You wait,"
in a way that the officer took as a personal threat. Mr Nouch heard him say:
"I am going to get you. Do you know I have found out where Ken Hughes lived."
And:
"1251, I'll find you."
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 Findings of the Justices
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:
"We … heard that officers attended Mr Blench's address as they were concerned that a violent domestic incident had occurred, or was occurring, involving Miss McGowan and, possibly, another male, and that children were known to be present at the address.
"We are satisfied the officers had statutory powers to make an entry to the premises pursuant to s. 17 Police and Criminal Evidence Act 1984 [and at this point the justices referred to the provisions of s.17(1)(e) in full]. We are satisfied the power was being used appropriately in this case.
"We have heard that Mr Blench made it clear that he did not wish the officers to remain on or in his property. We find that Mr Blench was hostile in an obvious way towards the police, to such an extent that the police felt that a breach of the peace was about to be committed.
"It seems to us that the police were entitled to seek entry to the premises, not only to save life and limb, but to investigate an arrestable offence.
"The question is, was the officer entitled to arrest Mr Blench for a breach of the peace, or would it have been more appropriate to arrest him for obstructing a police officer in the execution of his duty?
"It is clear from the evidence that Mr Blench was arrested for breach of the peace.
"At the submission of no case to answer we were asked to consider the common law power of arrest of a person who is acting lawfully —the case of ( Lesley Edward Bibby v Chief Constable of Essex Police (2000) 164 JP 297, CA; judgment 6th April 2000) was cited. In that case it was said that six conditions must be met in relation to the person who is to be arrested and to his conduct.
"We have been asked to revisit our finding that all six of those conditions have been met, in particular condition 4 (the submission was that there was no consequence of violence from anywhere other than the police or any third party). We do find that condition and the other five conditions have been met. It is quite conceivable that once Mr Blench had retreated into his house, Miss McGowan or another male may have been present. Bearing in mind what was in the transcript of the 999 call, they may have been involved in further potential violence.
"It seems to us the situation was highly volatile and the police had to make a quick decision as to what action to take. We find the police acted lawfully in arresting Mr Blench and in attempting to gain entry to the premises.
"We note that CS gas was used and that Mr Blench would have been affected but we are sure the spit was [a] deliberate act, which amounted to an assault of PC Parsons.
"We do not draw any adverse inferences regarding Mr Blench's failure to give evidence.
"We find...
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