Director of Public Prosecutions v Hassan Ahmed
| Jurisdiction | England & Wales |
| Judge | Dame Victoria Sharp P. |
| Judgment Date | 29 July 2021 |
| Neutral Citation | [2021] EWHC 2122 (Admin) |
| Court | Queen's Bench Division (Administrative Court) |
| Docket Number | Case No: CO/4395/2020 |
[2021] EWHC 2122 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
DIVISIONAL COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
PRESIDENT OF THE QUEEN'S BENCH DIVISION
and
Mr Justice Saini
Case No: CO/4395/2020
and
Louis Mably QC (instructed by Crown Prosecution Service) for the Appellant
Tom Parker (instructed by TV Edwards Solicitors) for the Respondent
The Interested Party was not represented and did not appear
Hearing dates: 8 July 2021
Introduction
This is the judgment of the court.
The appellant, the Director of Public Prosecutions, appeals by way of case stated against a decision of the justices sitting in the Thames Magistrates Court on 10 August 2020. The justices tried Hassan Ahmed, the respondent, on two charges of assaulting an emergency worker acting in the exercise of her functions, contrary to section 39 of the Criminal Justice Act 1988 (the CJA 1988) and section 1 of the Assaults on Emergency Workers (Offences) Act 2018 (the 2018 Act). The relevant emergency workers were two police officers who were called to attend a report of anti-social behaviour by the respondent.
The justices dismissed the charges against the respondent on the ground that there was no case to answer. The justices stated a case dated 17 November 2020. Paragraph 9 of the Statement of Case sets out two questions for the opinion of the Divisional Court: (i) were we correct in finding that there was no case to answer, having concluded that the officers were not acting in the execution of their duty; and (ii) were we correct in finding “functions” of a police officer to mean “duties of a police officer”?
The Facts
The facts found, as recorded in the Statement of Case, were as follows.
On 19 June 2020, PC Bordun and PC Quinn attended 52 Mortimer Road, London N1 following reports of anti-social behaviour. The respondent was found lying in the communal hallway, clearly very drunk. The respondent subsequently fell down the communal stairs and rolled out onto the front porch, at the front of the property. Whilst the respondent was on the floor, the two officers tried to keep him still by holding him down to the floor whilst waiting for an ambulance. The respondent was restrained by officers, whilst on the floor, by twisting his arm behind his back and pushing his head down on the floor. Whilst being restrained, the respondent resisted by spitting on the left leg of PC Quinn and he kicked and punched both officers. He was subsequently arrested for assault.
The justices heard live evidence from PC Quinn and PC Bordun. The officers each confirmed that they had no intention of arresting the respondent whilst he was being restrained on the floor. PC Quinn gave evidence that they restrained the respondent whilst waiting for an ambulance to arrive and because they were concerned that he could fall down a gap near the property and injure himself, but accepted in cross-examination that no mention was made of this gap in his written statement. PC Bordun gave evidence that the respondent posed an imminent danger to himself due to his intoxicated state. She thought he may run into the road. PC Bordun stated that she believed his life was in danger and restrained him in the belief that it would protect his life. Her main concern was his wellbeing and safety, she wanted to make sure he was safe and well and get him any medical attention he may need. Both officers were clear that they restrained the respondent to protect him from harming himself and to await the arrival of an ambulance. The justices also viewed the video of the incident captured on the body worn camera of PC Bordun, which had been exhibited to her witness statement.
The justices' decision
At the trial before the Magistrates, the respondent argued at the close of the prosecution case, that the appellant's evidence on whether the officers were acting in the execution of their duty was insufficient for any reasonable court properly to convict in that: (a) at no point before the respondent's arrest for assault on a police officer did either officer arrest or purport to arrest the respondent; (b) PC Bordun said in her evidence that she was restraining the respondent on the floor “Whilst we were waiting for an ambulance” and that is not a lawful use of force; (c) the restraint used went beyond a trivial or acceptable use of force – the respondent had his arms twisted behind his back and his face pushed against the ground; (d) the use of force was therefore unlawful and took the officers outside the exercise of their functions; and (e) the alleged assaults by beating happened after the application of unlawful force, and therefore whilst the officers were no longer acting in the exercise of their functions.
The appellant however contended that there was a case to answer and the officers were merely trying to assist the respondent by preventing him from harming himself or others; the court should find that the officers were acting in execution of their duty; the court can treat the ‘duties’ of a police officer as being distinct from the ‘functions’ of a police officer and if the court found the officers were not acting in the execution of their duties, it was open to the court to find the officers were acting in the execution of their functions as police officers.
The justices held: (a) that the officers were not executing their duty, and were therefore not exercising their functions as police officers; (b) that there was no distinction between the “duties” and “functions” of a police officer. “Consequently” they found there was no case to answer and they dismissed both charges. The justices did not therefore independently address the question as to whether on the facts the officers were at the material time exercising their “functions” within the 2018 Act, presumably because of their finding that words “duty” and “function” were synonymous.
The justices' conclusion that there was no distinction between the duty of a police officer (for the purposes of section 89(1) of the Police Act 1996 (the 1996 Act) and the functions of a police officer (for the purposes of section 1(1) of the 2018 Act) was erroneous: see Campbell v DPP [2020] EWHC 3868 (Admin), a decision of the Divisional Court (Popplewell LJ and William Davis J) handed down on 18 November 2020, after therefore, the justices' decision in this case. Mr Tom Parker for the respondent rightly concedes in those circumstances, that the justices' decision in this case was based on an error of law.
However Mr Parker seeks nevertheless to distinguish Campbell on the facts. He argues that even if the justices were in error in making no distinction between the “duty” and “function” questions, their decision can be upheld on the facts as found, because, albeit he expressly accepts that the officers acted throughout in good faith and without any malice, what the the officers did during the incident was outside the exercise of their functions. For his part, Mr. Louis Mably QC for the appellant says that in attending this specific incident and seeking to control the respondent to ensure he did not harm himself until emergency services arrived, the officers were performing everyday police functions. These acts fall within the broad activities of a constable as described in Campbell at [17]: see further, para 18 below. He accepts that the nature and degree of the restraint applied can, in principle, be relevant to a factual assessment of whether an officer was carrying out a function, but he submits that on the facts, no reasonable Bench of Magistrates could find anything other than that the officers were performing the normal and daily activities of a police constable and we can therefore determine the “functions” issue in favour of the prosecution now.
It follows that though the Statement of Case does not include any question for this Court as to whether the relevant officers were exercising “functions” within the 2018 Act at the time the respondent was restrained, and nor did the Magistrates apply their minds to that issue, the parties each invited us to decide it, though to opposite effect.
Legal framework
Common assault is committed where a person does an act by which he intentionally or recklessly causes another to apprehend the immediate application of unlawful force. Battery is committed where a person intentionally or recklessly applies unlawful force to another. Section 39(1) of the CJA 1988 provides that the offences of common assault and battery are summary offences, punishable with six months' imprisonment.
Section 39(2) of the CJA 1988 provides that subsection (1) is subject to section 1 of the 2018 Act. Section 1 of the 2018 Act came into force on 18 November 2018. It applies where an offence of common assault or battery is committed against “…an emergency worker acting in the exercise of functions as such a worker.” In such a case, section 1 provides that common assault and battery are either-way offences, punishable with 12 months' imprisonment. These are therefore an aggravated form of the common assault and battery offences, where the maximum sentence is 12 months, rather than 6 months, where the offences are committed against emergency workers as defined.
Sections 1 and 3 of the 2018 Act provide as follows:
“1(1) This section applies to an offence of common assault, or battery, that is committed against an emergency worker acting in the exercise of functions as such a worker. (2) A person guilty of an offence to which this section applies is liable— (a) on summary conviction, to imprisonment for a term not exceeding [six] months, or to a fine, or to both; (b) on conviction on indictment, to imprisonment for a...
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...the proper exercise of the functions of a constable”. The Defendant referred to the judgment of the Divisional Court in DPP v Ahmed [2021] EWHC 2122 (Admin) where Dame Victoria Sharp P. held, at [25(iv)]: “When considering the broad functions of a constable, and although arising in a diffe......