Cumberbatch v CPS; Ali v DPP [Administrative Court]
| Jurisdiction | England & Wales |
| Judgment Date | 24 November 2009 |
| Date | 24 November 2009 |
| Court | Queen's Bench Division (Administrative Court) |
Administrative Court, CO/6583/2009, CO/5704/2009
Laws LJ, Lloyd Jones J
N Edwards (instructed by Thompson and Co) for C; A Morris (instructed by Hines) for A; G Carrasco (instructed by the CPS) for the prosecution in C; P Rule (instructed by the CPS) for the prosecution in A.
Whether police officers were acting in the execution of their duty such that offences of resisting or assaulting them in the execution of their duties were made out, including a situation involving a purported arrest under s136 Mental Health Act 1983.
Under s89 Police Act 1996, it is an offence to assault or resist a police officer in the execution of his or her duty. MUA was convicted of 3 instances of the resisting police (though acquitted of a public order offence): 1 charge related to an officer purporting to arrest him for assault, the other 2 related to his failure to abide by the instructions of officers called to assist. He appealed to the Crown Court: it allowed the appeal in relation to the first officer as the arrest was unlawful, because there was no reasonable suspicion that MUA had committed an offence, and as the arresting officer was not acting in the execution of his duty that essential element was not made out; however, it upheld the convictions in relation to the other 2 officers on the basis that they had been duty-bound to assist their colleague. MUA appealed to the High Court by case stated.
C's father was arrested under s136 Mental Health Act 1983 in a private place and taken to the police van in a public place: C became upset at police conduct there, and pushed an officer; she was restrained and lunged at the restraining officer, causing a deep scratch. She was convicted of assaulting a police officer in the execution of her duty. On appeal to the Crown Court, she submitted that the officer was assisting an unlawful arrest and so was not acting in
the execution of her duty; the prosecution submitted that C was breaching the peace at the time of arrest or threatening further violence, and so the officer was bound to stop this. The court accepted the prosecution contention, and also found that C had not been concerned to stop an unlawful arrest but had protested at the way her father was being treated. She appealed by case stated.
Lloyd Jones J:
1. These 2 appeals by case stated raise similar but not identical questions in relation to when police officers are acting in the execution of their duty.
2. 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 2 offences of resisting police officers in the execution of their duty.
3. The appellant was charged with 3 offences of resisting a constable in the execution of his duty, contrary to s89(2), Police Act 1996. The police had been called to a shopping centre in High Wycombe following a reported assault. They arrested 2 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.
4. 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.
5. 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 been 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 s28(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...
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Appeal By Rebecca Mccallum Against Procurator Fiscal Edinburgh
...the force used by the defendant was: “of a reasonable magnitude to secure his release” [35] In Cumberbatch v Crown Prosecution Service [2010] MHLR 9 the Queen’s Bench Divisional Court (Laws LJ, Lloyd Jones J) noted that the appellant could not be guilty of resisting police officers in the e......