DPP v Meaden
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE ROSE |
| Judgment Date | 01 December 2003 |
| Neutral Citation | [2003] EWHC 3005 (Admin) |
| Docket Number | C0/2250/2003 |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 01 December 2003 |
[2003] EWHC 3005 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
DIVISIONAL COURT
Royal Courts of Justice
Strand
London WC2
Lord Justice Rose
(vice President Of The Court Of Appeal, Criminal Division)
Mr Justice Jackson
C0/2250/2003
MR HUGH DAVIES (instructed by CPS, Criminal Justice Unit, Northgate Avenue, Crawley, West Sussex RH10 8BF) appeared on behalf of the CLAIMANT
MR FRANCIS FITZGIBBON (instructed by Hamnett &Osborne Tisshaw, 48–52 South Road, Haywards Heath, West Sussex, RH16 4LA) appeared on behalf of the DEFENDANT
This is an appeal by way of case stated against a decision of the Sussex Justices for the Petty Sessional Division of Mid-Sussex who, sitting at Horsham, on 11th February 2003, concluded that there was in relation to the defendant (as I shall call him) no case for him to answer. Two questions were posed at the conclusion of the case stated to which, in due course, I shall come.
The circumstances were that, on 3rd October 2002, informations were preferred against the defendant for assaulting Police Constable Convery while in the execution of his duty, contrary to section 89(1) of the Police Act 1996, and wilfully obstructing PC Pinyoun in the execution of his duty, contrary to section 89(2) of the same Act.
The case stated in paragraph 2 identifies the facts found by the justices, and then rehearses the evidence given.
In the present case, no difficulty arises from that because the recital of facts, helpfully set out by Mr Davis, for the appellant, the Director of Public Prosecutions, in his skeleton argument are accepted by Mr Fitzgibbon for the defence.
The facts were these. On 3rd October 2002 a number of police officers, between 7 and 14 of them, executed a search warrant issued by magistrates on 1st October 2002, under section 23 of the Misuse of Drugs Act 1971 and section 15 of the Police and Criminal Evidence Act 1984. That warrant identified the premises to be searched as 68 Washington Road, Haywards Heath, and associated outbuildings and vehicles, on the basis of a suspicion that controlled drugs, or documents which might be connected with offences under the Misuse of Drugs Act, might be found in those premises, or in the possession of persons at those premises. It is pertinent to note, particularly having regard to the terms of the warrant in the Court of Appeal's decision in Hepburn v Chief Constable of Thames Valley, to which the justices were referred, that the warrant extended not only to the premises but also to searching any persons found therein.
The premises in question were on two floors. Constables Pinyoun and Convery were ordered to search and contain the upper floor. That was occupied by the defendant and two relations of his, Sheila Meaden and Christine Meaden. The defendant was immediately abusive to the officers. The procedure for searching the property was to search one room and, when it was ascertained that that was sterile in the sense that there was nothing of interest to those searching within it, the occupants of the premises were then, having themselves been searched, moved into that room, in order to enable the other rooms in the premises to be properly searched; thereby, of course, the disposal of drugs by any of the occupants, and the contamination of other rooms which had already been searched, could be avoided.
The defendant, in accordance with that procedure, was searched and then went into the bathroom. There was no evidence as to whether the bathroom had been searched at that time, but a bedroom was searched. It was Mrs Meaden's bedroom. The defendant was detained in the bathroom while the bedroom was being searched. He asked to go downstairs to get himself a drink. Constable Pinyoun refused. The defendant said it was his house and he could do whatever he liked. His language was robust, and he was warned about swearing. Once the bedroom had been searched, the defendant was asked to move into it. He repeatedly refused. He was warned that he might be arrested for obstructing a police officer, although, as will emerge, there are conspicuous limitations on the power of the police in that respect.
Constable Pinyoun sought to guide the defendant. He resisted. He held out both his arms to block the doorway, and he tensed his body and shouted abuse towards the officer. Eventually, however, although still angry, he was persuaded to leave the bathroom and was guided to the searched bedroom. There was no question at that stage of him being under arrest. But that conduct was the basis of the first of the charges against him, namely wilfully obstructing Constable Pinyoun in the execution of his duty, contrary to section 89(2), by resisting the officer's attempt to remove him from the bathroom and put him in the bedroom.
Once he was in the bedroom, Constable Convery was ordered to keep an eye on the defendant to ensure he did not leave it. The officer stood in the doorway to achieve this. The defendant now swore at this officer. He asked if he could go downstairs. He was refused permission and he pushed the officer. He was told to stay in the bedroom. He became more abusive and ran at Constable Convery with arms raised and fists clenched. The officer pushed him away. The defendant threw a cigarette lighter at the officer. He was, thereupon, arrested for assaulting Constable Convery in the execution of his duty.
The case stated indicates that the justices were referred to three authorities: Donnelly v Jackman (1970) 1 WLR 562; Rahman (1985) 81 Cr App R 349 21, and Hepburn v Chief Constable of Thames Valley Police (as reported in the Time Law Report of 19th December 2002). They were also referred to certain passage in Blackstone's Criminal Practice. Their conclusions are set out in paragraph 6 of the case:
"We were of the opinion that the police officers had stepped outside their duty by not allowing the Respondent to move about the premises. The police had no express power to detain the Respondent and he was therefore falsely imprisoned. When the Respondent obstructed the search the officers' remedy was to arrest him in accordance with the case of Hepburn. The police on failing to arrest the Respondent detained him unlawfully and therefore acted outside their duty. An essential element of both of the offences was missing and therefore there was no case to answer and the case was dismissed."
The case concludes by posing these questions for the consideration of this court:
"Are police officers that are executing a search warrant of a property acting within the execution of their duty if they ask individuals within the property to go into and remain in certain rooms whilst they are searching other rooms in the property? Further, are they entitled to prevent individuals from leaving the property altogether?"
It is to be noted that in posing those questions the justices refer to the search warrant in relation to the property. They do not refer to the material aspect of this search warrant, which related to persons within the premises as well as the premises. To those questions, in due course, I shall return.
The submission which is made on behalf of the Director, by Mr Davis, is that police officers are acting in the execution of their duty in requiring those within premises, the subject to lawful search, to remain in sterile rooms within the premises during the search, or at least to refrain from visiting non-sterile areas of the premises subject to the search. It is further submitted that the present case is distinguishable from Hepburn because the search warrants in Hepburn simply authorised a search of the premises, rather than extending also to persons within them. Furthermore, whereas Mr Hepburn was seeking to leave the premises subject to search completely, the defendant was seeking to "move freely" within the premises during the search. Mr Davies submits that the reasoning of Hepburn should be reviewed because the judgment of Sedley LJ, with which the other members of the court agreed, appears to proceed on the basis that the offence of obstructing a police officer in the execution of his duty under section 89(2) of the Police Act 1996 is an arrestable offence.
So far as that aspect of the matter is concerned, it is common ground that there is no express power of arrest for wilful obstruction of a police officer in the execution of his duty contrary to section 89(2) of the Police Act 1996. It is an offence triable only summarily, and section 26 of the Police and Criminal Evidence Act 1984 repealed, subject to express exemptions within Schedule 2, any Act enabling a constable to arrest a person for an offence without warrant. Neither section 23(4) of the Misuse of Drugs Act 1971, nor section 89 of the Police Act 1996 is specified among the exceptions listed in Schedule 2. By paragraph 22, Schedule 1(a), an offence under section 89(1) of the Police Act is specified but not an offence under section 89(2). And so, it is common ground, the only power of arrest that the officers carrying out this search would have had, in relation to obstruction of their conduct, would be if the criteria identified in section 5 of the Police and Criminal Evidence Act 1984, by way of general arrest conditions, were fulfilled. Those general arrest conditions, as identified in section 25(3), are for present purposes:
"(d) that the constable has reasonable grounds for believing that arrest is necessary to prevent the relevant person:
(i) causing physical injury to himself or any other person;
(ii) suffering physical injury;
(iii) causing loss of, or damage to, property."
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