Corey Dixon v Crown Prosecution Service
| Jurisdiction | England & Wales |
| Judge | Lord Justice Leggatt |
| Judgment Date | 20 November 2018 |
| Neutral Citation | [2018] EWHC 3154 (Admin) |
| Court | Queen's Bench Division (Administrative Court) |
| Docket Number | Case No: CO/2592/2018 |
| Date | 20 November 2018 |
[2018] EWHC 3154 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
DIVISIONAL COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
Lord Justice Leggatt
and
Mr Justice Dingemans
Case No: CO/2592/2018
Mr James Davis (instructed by Hollingsworth Edwards Solicitors) for the Appellant
Mr Simon Heptonstall (instructed by the CPS Appeals and Review Unit) for the Respondent
Hearing date: 13 November 2018
Lord Justice Leggatt (giving the judgment of the court):
This appeal by case stated from the Crown Court raises a question about whether a police constable was acting in the execution of his duty when he was assaulted by the appellant.
Findings of fact
The relevant findings of fact made by the Crown Court are that the appellant was cycling in the early hours of 26 March 2017 in Willesden, when he was spotted by three police constables who were on patrol in an unmarked vehicle. The appellant fitted the description of persons who, according to an earlier intelligence briefing, might be carrying drugs or weapons. PC Haroon got out of the vehicle and asked the appellant to stop. When the appellant failed to do so, PC Haroon took hold of his arm. He was not arresting the appellant nor exercising powers of stop and search.
A fight ensued, and PC Haroon was joined by PC Bailey, who struggled to restrain the appellant. They were then joined by PC Dolling. PC Dolling went to restrain the appellant's arm because he believed that the appellant might be reaching for a weapon, or something to use as a weapon, in his waistband. PC Dolling understood that PC Haroon and PC Bailey were trying to detain the appellant.
The appellant bit PC Dolling on the arm. He knew when doing so that he was biting a police officer.
The proceedings below
The appellant was charged with offences under section 89(1) of the Police Act 1996 of assaulting each of the three constables in the execution of his duty. Before the Willesden magistrates, the appellant was acquitted of the offences charged in relation to PC Haroon and PC Bailey but convicted of the offence in relation to PC Dolling.
He appealed against his conviction to the Crown Court at Harrow. The appeal was heard on 8 March 2018 by Mr Recorder Hall QC sitting with two justices. They dismissed the appeal. They found it proved, first, that the appellant had bitten PC Dolling on the arm and, second, that in doing so the appellant had not been acting in lawful self-defence. When asked by the court to indicate whether he was submitting that PC Dolling was not acting in the execution of his duty, the appellant's representative said that he was not making that submission. The court concluded that, although PC Haroon had not been acting lawfully when he attempted to detain the appellant, PC Dolling was nevertheless acting in the execution of his duty because he thought that the appellant might be reaching for a weapon in his waistband.
The Crown Court subsequently posed the following question for the opinion of this court:
“Given that the grabbing of the appellant by PC Haroon was an unlawful use of force, were we nonetheless entitled to find on the facts found that PC Dolling was acting in the execution of his duty when he was bitten by the appellant?”
Two preliminary issues
Two preliminary issues have been raised. The first is that the appellant's notice was filed with the court and served on the respondent 19 and 24 days respectively after the time for doing so had expired and (at least in relation to the late filing) the appellant requires relief from sanctions as well as an extension of time before the appeal can proceed. The second issue is whether the appeal should be entertained in circumstances where the point that the appellant is seeking to raise (that PC Dolling was not acting in the execution of his duty) was not taken below.
Where an appeal is made by way of case stated the appellant is required by Practice Direction 52E, para 2.2, to file the notice of appeal at the appeal court within 10 days of the date of the case stated by the lower court. In this case the Crown Court stated the case on 4 June 2018. However, the appellant's solicitors requested two amendments to it, which the Crown Court notified them on 15 June 2018 that it was not prepared to make. There was then a delay before the appellant's solicitors succeeded in contacting the appellant on 25 June 2018 to obtain his instructions to lodge the appeal. The notice of appeal was filed on 3 July 2018 and an application was also made for an extension of time. Although there is no good excuse for this delay (nor for the further delay in serving the notice of appeal and the appellant's skeleton argument), there is no suggestion that the delay caused any significant inconvenience to the respondent (which did not actively oppose the application for an extension of time) nor that it had any significant effect on the overall progress of the appeal. In the circumstances we consider that it is appropriate to grant the necessary extensions of time.
As for the fact that the appellant did not dispute in the Crown Court that PC Dolling was acting in the execution of his duty, that was nevertheless an element of the offence which the prosecution had to establish in order to justify the appellant's conviction. In principle and as confirmed by the case of Kates v Jeffery [1914] 3 KB 160, the correct approach in our view is this. If this court were to conclude that, on the facts found by the Crown Court and stated in the case, the Crown Court was not as a matter of law entitled to find that PC Dolling was acting in the execution of his duty when he was bitten by the appellant, then the appellant's conviction ought not to stand. It would not be right to leave in place a conviction which can be seen to be wrong in law because the point of law was overlooked by the defendant's representative in the Crown Court. If on the other hand this court does not so conclude, then the appeal must be dismissed. In particular, it would not be right to remit the case in order for further findings of fact to be made which could have been made if the point now taken had been raised below.
Elements of the offence
Turning to the substance of the appeal, the offence of assaulting a constable in the execution of his duty has two elements. First, it must be established that there was an assault and, second, it must be proved that the victim of the assault was a constable acting in the execution of his duty.
The conclusion of the Crown Court that the appellant committed an assault by biting PC Dolling is not challenged on this appeal. The issue is whether the Crown Court was entitled to find that the second element of the offence was made out in that PC Dolling was acting in the execution of his duty at the time of the assault.
In Rice v Connolly [1966] 2 QB 414 at 419 Lord Parker CJ observed that, although there is no exhaustive definition of the powers and obligations of the police:
“it is part of the obligations and duties of a police constable to take all steps which appear to him necessary for keeping the peace, for preventing crime or for protecting property from criminal injury.”
In McCann v Director of Pubic Prosecutions [2015] EWHC 2461 (Admin); [2016] 1 Cr App R 6, paras 14 and 15, it was accepted by counsel and agreed by the Divisional Court that in modern times the word “reasonably” should be inserted in this statement before the word “appear”. That is consistent with the decision of the House of Lords in Albert v Lavin [1982] AC 546, 564, which endorsed the proposition that:
“a constable who reasonably believes that a breach of the peace is about to take place is entitled to detain any person without arrest to prevent that breach of the peace in circumstances which reasonably appear to him to be proper.”
In another leading case, R v Waterfield [1964] 1 QB 164 at 170, the Court of Appeal (Criminal Division) said:
“In the judgment of this court it would be difficult … to reduce within specific limits the general terms in which the duties of police constables have been expressed. In most cases it is probably more convenient to consider what the police constable was actually doing and in particular whether such conduct was prima facie an unlawful interference with a person's liberty or property. If so, it is then relevant to consider whether (a) such conduct falls within the general scope of any duty imposed by statute or recognised at common law and (b) whether such conduct, albeit within the general scope of the duty, involved an unjustifiable use of the powers associated with the duty.”
In McCann, at paras 19 and 26, Treacy LJ (who gave the judgment of the court) considered that “what needs to be examined is the actions and intentions of the officer actually involved” and, in particular, whether she was acting in a way which she reasonably believed would further a proper policing purpose of the kind described by Lord Parker CJ in Rice v Connolly. In addition, as indicated in Waterfield, the conduct of the officer must be a lawful exercise of the officer's powers. Where the conduct involves the use of force for the prevention of crime, the use of force will be lawful only if it is reasonable: see section 3 of the Criminal Law Act 1967.
Initial analysis of this case
Applying these principles to the present case, it is common ground that PC Haroon was acting unlawfully in seeking to detain the appellant and that PC Bailey was likewise acting unlawfully in assisting PC Haroon. A police officer who uses force to detain someone in circumstances where the act of detention is unlawful prima faciecommits an assault and in assaulting the person whom he is seeking to detain is plainly not acting in the execution of...
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