D'Souza (A.P.) v DPP
| Jurisdiction | England & Wales |
| Judge | Lord Templeman,Lord Ackner,Lord Jauncey of Tullichettle,Lord Browne-Wilkinson,Lord Mustill,Lord Keith of Kinkel,Lord Roskill,Lord Lowry |
| Judgment Date | 15 October 1992 |
| Judgment citation (vLex) | [1992] UKHL J1015-1 |
| Date | 15 October 1992 |
| Court | House of Lords |
[1992] EWHC J1015-1
Lord Keith of Kinkel
Lord Roskill
Lord Jauncey of Tullichettle
Lord Lowry
Lord Browne-Wilkinson
House of Lords
My Lords,
For the reasons given in the speech to be delivered by my noble and learned friend Lord Lowry, which I have read in draft and with which I agree, I would allow this appeal and make the order which he proposes.
My Lords,
I have had the advantage of reading in draft the speech of my noble and learned friend Lord Lowry. I agree with him. For the reasons he gives I would allow this appeal and remit the case stated to the Crown Court with the directions which my noble and learned friend proposes.
My Lords,
I have read the speech of my noble and learned friend Lord Lowry and, for the reasons which he gives, would remit the case stated to the Crown Court with the directions which he proposes.
My Lords,
On 13 March 1989 the appellant was convicted and conditionally discharged by the Sutton Justices for assaulting three police officers in the execution of their duty contrary to section 51(1) of the Police Act 1964. Her father, Edwin D'Souza, was at the same time convicted and conditionally discharged for similarly assaulting one constable. Both defendants were ordered to pay compensation and costs and both appealed to the Crown Court at Croydon, which on 20 March 1990 dismissed their appeals. The appellant appealed by case stated to the Divisional Court of the Queen's Bench Division (Nolan L.J. and Otton J.), which dismissed her appeal but certified two questions as being of general public importance. They were:
"1. Is a person who is lawfully detained pursuant to section 2 and Part II of the Mental Health Act 1983 deemed to be in legal custody by virtue of section 137 of that Act, or otherwise?
2. Does the power to enter premises by force without a warrant conferred by section 17(1)( d) of the Police and Criminal Evidence Act 1984 require that the person exercising that power is in hot pursuit of the person who is unlawfully at large, and if so, what does 'hot pursuit' mean?"
The appellant, who appeals by leave of your Lordships' House, had indeed assaulted the police officers and the propriety of convicting her depended on whether at the time of the assaults the police were acting in the execution of their duty. The answer to that question depended in turn on whether the police were entitled to enter by force without a warrant the premises in which the assaults occurred.
The facts, as found by the Crown Court, were that Edwin D'Souza, his wife Clara ("the patient") and the appellant lived at 28a Hampton Road Worcester Park ("the house"). The patient had a history of mental illness. A social worker approved under the Mental Health Act 1983 ("the Act"), who had seen the patient's hospital notes and had been in touch with local residents and police, was concerned about her welfare and on 21 July 1988 went to the house to speak to the occupants. He was told to go away. On 13 October 1988 the social worker pursuant to section 135 of the Act obtained warrants to enter the house, went there with police officers and two medical practitioners and gained entry. The patient was examined by the doctors and taken to Sutton Hospital, of which the Chiltern Wing is a psychiatric unit covering the area in which the house is situated. According to section 135, detention of the patient was lawful for 72 hours after her arrival. Pursuant to section 13(2) of the Act, the social worker interviewed the patient and applied for her to be admitted to the hospital for assessment, and she was so admitted at 1 p.m. on 13 October 1988 on the recommendation in writing of two approved medical practitioners. The Crown Court resolved against the appellant an issue concerning the lawfulness of the patient's admission to and detention in hospital. The Divisional Court affirmed the Crown Court's view on that question and it has not been reopened in this appeal.
The further facts relevant to the questions for decision by your Lordships are set out in the case stated:
"The appellant Edwin D'Souza applied for the discharge of the patient, his wife, from hospital.
On 16 October, 1988, he went to see the patient at the hospital, leaving at 3.30 p.m. By 3.55 p.m. the patient was at the house.
That day P.C. Pollard went to the Chiltern Wing of the hospital, was shown documents and believed that the patient was unlawfully at large. Later, with P.C. Beavan, P.C. Robbins and two nurses he went to the house, arriving at about 7 p.m. intending to return the patient to the hospital.
The officers all reasonably believed (as was the fact) that the patient was in the house, and that she was unlawfully at large.
The officers were in uniform. There was no response when the door was knocked. They made it known they wanted to speak to the patient, they were there to take her back to hospital. Clarissa D'Souza said they would not open the door, she screamed 'don't open the door' and declined to open it although the officers threatened to force entry.
The glass panel of the door was broken and entry effected. The appellants had been told that the officers were there to take the patient back to hospital.
We accepted the evidence of the officers. Where there was a conflict we preferred the evidence called on behalf of the respondents in the appeal (in the Crown Court) to that of the appellants.
We found the officers were attacked by the appellants. We disbelieved the first apellant's evidence that he first became involved in violence when he remonstrated with police for manhandling his daughter and was, for no reason, kicked by a police officer. We disbelieved the second appellant when in evidence she denied biting.
The personal violence was initiated by Clarissa D'Souza who had taken up an umbrella as a weapon and used it to strike P.C. Pollard above the eye. She struck P.C. Beavan in the cheek and bit his arm when he took hold of her arm.
Edwin D'Souza grabbed P.C. Beavan from behind. When P.C. Beavan turned, Edwin D'Souza punched him in the stomach.
When P.C. Robbins, who had been at the back of the house, went in and took Clarissa D'Souza's arm after she struck P.C. Beavan with the umbrella, she bit him and tried to hit him with the umbrella. At the time of the hearing P.C. Robbins had a scar on his arm which we accepted resulted from that bite. Evidence of Dr. Chan was read, unchallenged."
(In the fourth paragraph of the foregoing findings the words "as was the fact" must refer to the belief that the patient was in the house, since it was partly a question of law whether the patient was unlawfully at large.)
The justification for entering the house must be sought in s. 17 of the Police and Criminal Evidence Act 1984 ("P.A.C.E."), which provides:
"17(1) Subject to the following provisions of this section, and without prejudice to any other enactment, a constable may enter and search any premises for the purpose -
( a) of executing - (i) a warrant of arrest issued in connection with or arising out of criminal proceedings; or (ii) a warrant of commitment issued under section 76 of the Magistrates' Courts Act 1980; ( b) of arresting a person for an arrestable offence; ( c) of arresting a person for an offence under - (i) section 1 (prohibition of uniforms in connection with political objects), 4 (prohibition of offensive weapons at public meetings and processions) or 5 (prohibition of offensive conduct conducive to breaches of the peace) of the Public Order Act 1936; (ii) any enactment contained in sections 6 to 8 or 10 of the Criminal Law Act 1977 (offences relating to entering and remaining on property); ( d) of recapturing a person who is unlawfully at large and whom he is pursuing; or ( e) of saving life or limb or preventing serious damage to property.
(2) Except for the purpose specified in paragraph ( e) of subsection (1) above, the powers of entry and search conferred by this section — ( a) are only exercisable if the constable has reasonable grounds for believing that the person whom he is seeking is on the premises; and ( b) are limited, in relation to premises consisting of two or more separate dwellings, to powers to enter and search - (i) any parts of the premises which the occupiers of any dwelling comprised in the premises use in common with the occupiers of any other such dwelling; and (ii) any such dwelling in which the constable has reasonable grounds for believing that the person whom he is seeking may be.
(3) The powers of entry and search conferred by this section are only exercisable for the purposes specified in subsection (1)( c)(ii) above by a constable in uniform.
(4) The power of search conferred by this section is only a power to search to the extent that is reasonably required for the purpose for which the power of entry is exercised.
(5) Subject to subsection (6) below, all the rules of common law under which a constable has power to enter premises without a warrant are hereby abolished.
(6) Nothing in subsection (5) above affects any power of entry to deal with or prevent a breach of the peace."
It will be noted that, except for the power of entry to deal with or prevent a breach of the peace, subsection (5) abolished all the common law rules relating to a constable's power of entry without a warrant. (The power to use reasonable force is found in section 117(1)).
The statutory provision relied on by the police in this case was, of course, section 17(1)( d), and therefore, to justify entry for the purpose of recapturing the patient, she has to be a person (1) who was unlawfully at large and (2) whom the police were pursuing.
The first requirement takes me to the circumstances, already mentioned, in which the patient was admitted to the...
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