Cumberbatch The Crown Prosecution Service Ali The Department of Public Prosecutions
| Jurisdiction | England & Wales |
| Judge | MR JUSTICE LLOYD JONES,LORD JUSTICE LAWS |
| Judgment Date | 24 November 2009 |
| Neutral Citation | [2009] EWHC 3353 (Admin) |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 24 November 2009 |
| Docket Number | CO/6583/2009 |
[2009] EWHC 3353 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
DIVISIONAL COURT
Lord Justice Laws
Mr Justice Lloyd Jones
CO/6583/2009
CO/5704/2009
MS N EDWARDS (instructed by THOMPSON AND CO) appeared on behalf of Cumberbatch
MR A MORRIS (instructed by HINES) appeared on behalf of Ali
MR G CARRASCO appeared on behalf of The Crown Prosecution Service in Cumberbatch
MR P RULE appeared on behalf of The Crown Prosecution Service in Ali
These two appeals by case stated raise similar but not identical questions in relation to when police officers are acting in the execution of their duty.
I will deal first with the case of Mohammed Usman Ali. Here, the appellant appeals against the decision of the Crown Court at Aylesbury, on 27 November 2008 and 1 December 2008, to dismiss his appeal against his conviction of two offences of resisting police officers in the execution of their duty.
The appellant was charged with three offences of resisting a constable in the execution of his duty, contrary to section 89(2), Police Act 1996. The police had been called to a shopping centre in High Wycombe following a reported assault. They arrested two men. The arrest of the second man attracted the attention of the appellant, Mr Ali. Mr Ali was asked to leave the scene. He refused. In due course, one of the officers, PC Kenney, arrested him. The appellant resisted arrest. Two other officers, PI Boddy and PC Faherty, came to their colleague's assistance. The case stated records that PI Boddy and PC Faherty then assisted PC Kenney to complete the arrest and that during this process the appellant was sprayed with captor spray.
The appellant was taken to High Wycombe Police Station. He was later charged with resisting each of the officers in the execution of his or her duty.
The appellant denied the allegations. After conviction in the Magistrates' Court the appellant appealed. By his appeal he argued that PI Boddy and PC Faherty could not have bee acting in the execution of their duty, because their colleague, PC Kenney, had carried out an unlawful arrest. The Crown Court agreed that the arrest by PC Kenney was unlawful on the basis that that officer did not have reasonable grounds to suspect the appellant of committing any offence. Section 24(2) and section 28(3) of the Police and Criminal Evidence Act 1984 had not been complied with and PC Kenney was not acting in the execution of his duty. However, in respect of the offences of resisting the other officers the Crown Court took the view that it was the duty of those other officers to go to their colleague's assistance, to subdue the appellant and to arrest or complete the arrest process. This they had done, the Crown Court found, using no more force than was reasonable in the circumstances. Accordingly, the appeal in respect of the offence of resisting PC Kenney was successful, but the appeal in respect of the offences of resisting each of the other two officers was dismissed.
The questions posed for the opinion of this court are:
) Where the arrest of a person by a uniformed police officer is unlawful, are other police officers who see what is happening and go to assist their colleague in the arrest, acting in the execution of their duty?
) Can the appellant still be guilty of resisting PI Boddy and PC Faherty in the execution of their duty when they were assisting PC Kenney in effecting an unlawful arrest?
) If the answer to the above questions is no, should the Crown Court have allowed the appeal in the case of the charges in respect of PI Boddy and PC Faherty once the Crown Court had determined that the arrest by PC Kenney was unlawful?
The case stated further discloses that PC Kenney gave evidence of the reason for the appellant's arrest. He said that the person in the crowd had said that he had been punched in the face and an unknown female then pointed to the appellant as the attacker. PC Kenney said that was his reason for arresting the appellant, suspicion of a common assault on a person unknown. Some witnesses said that the reason for the arrest was given; some said no reason was given. PC Kenney said he later told the appellant that he had been arrested for assault and affray. The custody record shows that PC Kenney told the desk sergeant that he had arrested the appellant for assault, affray and actual bodily harm.
The appellant accepts that PC Kenney had acted speedily in what was obviously a difficult situation, but submits that that did not make his conduct lawful. In fact, the allegation of assault was abandoned almost immediately at the police station.
The Police and Criminal Evidence Act 1984 provides as follows:
“24(2) If a constable has reasonable grounds for suspecting that an offence has been committed, he may arrest without a warrant anyone whom he has reasonable grounds to suspect of being guilty of it.
…
28(3) Subject to subsection (5) below, no arrest is lawful unless the person arrested is informed of the ground for the arrest at the time of, or as soon as is practicable after, the arrest.”
The starting point for consideration of the submissions we have heard must be the Crown Court's finding that the appellant had not done anything that could be construed as assault or affray, and its conclusion that PC Kenney had no reasonable grounds to suspect Mr Ali of having committed any offence. Section 24(2), of the Police and Criminal Evidence Act 1984, had not been complied with. The arrest by PC Kenney was unlawful and it was not in the execution of his duty. Furthermore, as the Crown Court concluded, Mr Ali was entitled to defend himself against PC Kenney's attempts to arrest him.
The Crown Court found that when PI Boddy and PC Faherty arrived, they were faced by an ugly crowd who were being abusive to the police officers present. I should make clear that Mr Ali denied in the Crown Court that he had used any offensive words or behaviour. Indeed, he had been found not guilty of an offence contrary to section 5 of the Public Order Act at the High Wycombe Magistrates' Court. However, the Crown Court found that PC Kenney appeared to be attempting to arrest and restrain Mr Ali who was resisting him. It was in these circumstances that the Crown Court concluded that it was the duty of the two further officers to subdue the appellant and complete the arrest process.
I consider that the Crown Court erred in law in coming to that conclusion. Officers Boddy and Faherty were not involved in the investigation of any alleged offences. As a result they could not and did not assert that they had formed any view as to whether the person being arrested was guilty of any offence. They were simply coming to the assistance of a fellow constable. At common law, any person has the right to use reasonable force to resist an unlawful arrest, or to assist another to resist an unlawful arrest. In Christie v Leachinsky [1947] AC 573, Lord Simonds expressed the matter in the following way at page 591:
“I would say that it is the right of every citizen to be free from arrest unless there is in some other citizen, whether a constable or not, the right to arrest him. And I would say next that it is the corollary of that right of every citizen to be thus free from arrest that he should be entitled to resist arrest unless that arrest is lawful”.
The arrest by officer Kenney was unlawful and Mr Ali was entitled to resist it. He could not be in a position whereby he was entitled to resist one officer but not others who arrived to assist the first officer in the arrest. He could not be expected to distinguish between them; he could not possibly distinguish between the actual arresting officer and those officers who merely assisted in that arrest. In my judgement, he did not need to do so in the circumstances of this case. He was simply entitled to resist arrest. Were this not the case, the right of any citizen to resist an unlawful attempted arrest would be defeated.
To my mind this case is indistinguishable from Bentley v Brudzinski (1982) Cr App R 217.
It is then suggested, on behalf of the respondent, that the two further officers were under a duty to prevent a breach of the peace. This parallels a similar argument advanced in Cumberbatch, the other appeal which we have heard this morning.
In the case of Ali, the submission overlooks the fact that the situation involving Mr Ali which confronted these two officers was one of a citizen resisting an unlawful arrest, and had been brought about through the unlawful conduct of their colleague. There is no indication in the case stated that at the point of resisting the officers Mr Ali was posing a threat to anyone else.
Before us, Mr Rule, in the course of his submissions, has relied on the decision of the Divisional Court in Joyce v Hertfordshire Constabulary [1985] 80 Cr App R 298. To my mind, this case is readily distinguishable on the basis that there the court was prepared to assume that the first officer, who was subsequently assisted by another officer, was acting lawfully. In the present case, it is established that PC Kenney was acting unlawfully in his attempt to arrest Mr Ali. I accept that the situation would be different if Mr Ali had used unreasonable force. He would then be acting unlawfully and the consequence of that would be that officers acting to restrain and arrest him would be acting, once again, in the execution of their duties. However,...
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