DPP v Morrison
| Jurisdiction | England & Wales |
| Judge | Mr Justice Hooper,LORD JUSTICE KENNEDY |
| Judgment Date | 04 April 2003 |
| Neutral Citation | [2003] EWHC 683 (Admin) |
| Court | Queen's Bench Division (Administrative Court) |
| Docket Number | Case No: CO/218/2003 |
| Date | 04 April 2003 |
[2003] EWHC 683 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEENS BENCH DIVISION
Administrative (Divisonal) Court
Royal Courts of Justice
Strand,
London, WC2A 2LL
Lord Justice Kennedy
Mr Justice Hooper
Case No: CO/218/2003
Stephen John (instructed by the Crown Prosecution Service) for the Claimant
Patrick Roche (instructed by Deighton Guedalla) for the Defendant
This is the judgment of the Court
1) The appellant appeals by way of case stated against the decision of Wood Green Crown Court (HH Judge Latham and lay justices) allowing the respondent's appeal against conviction by Enfield Magistrates' Court for an offence of disorderly conduct (section 5 Public Order Act 1986) and an offence of wilful obstruction of a police constable (section 89(2) Police Act 1996). The appeal succeeded when, at the close of the prosecution's case, the court ruled that the respondent had no case to answer.
2) The way in which this matter was dealt with in the Crown Court causes us some concern. As is clear from paragraph 2 of the case stated the hearing extended over six working days, yet there were only two parties and the evidence was limited to seven witnesses, not all of that evidence being controversial.
3) Following the hearing, the appellant asked for a case to be stated for the opinion of this court. We were told that, in accordance with common and approved practice, a draft case stated was prepared by counsel for the appellant, submitted to counsel for the respondent, and then submitted to the court, which made substantial alterations, including annexing extensive notes of the judgment and of the evidence. The result is voluminous, but not helpful. Useful assistance as to what a case stated should contain can be obtained from Stone's Justices' Manual, Volume 1 paragraph 1–768. The stated case should, itself, state clearly and succinctly all that is necessary to enable this court to resolve the issues of law. In the present case there was no need for a separate note of the judgment, and the summary of evidence should have been restricted to evidence relevant in relation to the second question posed for our consideration. Had the matter been dealt with in that way it would have been necessary for the court to focus its mind on precisely what was (1) the disorderly behaviour relied upon by the prosecution in relation to the alleged breach of section 5 of the Public Order Act 1986, and (2) the act or acts of obstruction relied upon in relation to the alleged contravention of section 89(2) of the Police Act 1996. Those are matters which are not easy to discern from the documentation before us, and we had to seek the assistance of counsel as to the precise factual basis of the prosecution case, including at what time and in what order acts which were alleged to be critical were said to have taken place. Those are matters which should have been apparent upon the face of the case stated.
4) The questions for the opinion of the High Court are:
" 1. Was the Wood Green Crown Court wrong in law to hold that the Metropolitan Police on the evidence in this case had no lawful power or authority to close the public right of way over private premises by a cordon and forcibly prohibit the Defendant from using that right of way on foot against his will?
2. Was the court wrong in law to hold that the Defendant had no case to answer on both the charge of disorderly behaviour within the hearing or sight of a person likely to be caused harassment, alarm or distress contrary to section 5 of the Public Order Act 1986; and of wilfully obstructing a constable in the execution of his duty contrary to section 89(2) of the Police Act 1996?
5) Question 1 raises an issue of public importance, namely whether to preserve and examine the scene where a crime is alleged to have been committed, the police may temporarily close off a public right of way over private premises and prevent unauthorised persons from entering therein. The area in question was a mall in a shopping centre in Edmonton Green London N9. The mall is private but there is a public right of way through it. This point was raised by the judge during the hearing and then "adopted" by counsel for the defendant.
6) The respondent was charged with two offences:
" (i) On 14.05.2001 at North Mall, Edmonton Green, N9, used threatening, abusive or insulting words or behaviour or disorderly behaviour within the hearing or sight of a person likely to be caused harassment, alarm or distress thereby, contrary to Section 5 (1) and (6) of the Public Order Act 1986.
(ii) On 14.05.2001 at North Mall, Edmonton Green, London N9 wilfully obstructed PC 204 YE Peter Sandell, a constable in the execution of his duty, contrary to Section 89 (2) of the Police Act 1996."
7) On the prosecution's case the alleged disorderly conduct related to words spoken/shouted by the respondent after he had been told not to enter the cordoned off area and his general demeanour. It was PC Sandell's evidence that he was arresting the respondent for disorderly conduct whilst, according to that officer and other officers, the respondent was within the cordoned off area. The Court made no finding as to whether the respondent had or had not stepped into the cordoned off area.
8) It appears that the prosecution's case on the obstruction charge related to the conduct of the respondent after he had been arrested by PC Sandell. He was alleged to have locked his arms around a railing. If the obstruction charge had related to the respondent's alleged conduct before his arrest, then one would have expected the charge of obstruction to have related to the other officers involved.
9) On 14 May 2001 at about 5.00 pm the police received a report of a fight which involved a stabbing between two groups of males in the mall. Ten police cars attended and found in the mall two sticks, possible weapons. Police Inspector Hunt, who was not called as a witness, gave instructions that four areas should be cordoned off as "crime scenes" to preserve evidence until the scenes of crimes officers arrived. Officers then put up tapes across areas in the mall labelled "Police: Do not Cross".
10) At about 7.45 pm the same evening, the respondent was seen by Police Sergeant Barden approaching the cordoned off area. The notes of the judgment show that, on the prosecution's case, the respondent first encountered PS Barden who told him that he could not go through. A few moments later the respondent was spoken to by PS Power and then PS Collin to the same effect and the respondent was arrested by PC Sandell. The prosecution's case was that, having been told by Police Sergeant Barden that he was not permitted to enter the cordoned area, the respondent made it clear to her that he challenged the police right to prohibit him from entering the area. There was a dispute as to what was said and done by both the respondent and the police officers, as to whether or not the respondent did cross the tape and as to whether he was arrested only after having been warned about his conduct (paragraphs 8 and 9 of the stated case).
11) Paragraph 11 of the stated case reads as follows:
" i) There is no statutory power or authority for the setting up of a police cordon so as to close off an area otherwise open to the public other than under S.33 of the Terrorism Act 2000 which came into force on 19 February 2001.
ii) There is no known express power to cordon and exclude people from a public place under Sections 1 and 8 of the Police and Criminal Evidence Act 1984 even if a magistrates' court warrant were obtained. There is no suggestion that such a warrant was sought or obtained in this case.
iii) There is no evidence that any local bye-law applied to the Edmonton Green shopping centre, for example a market bye-law."
12) The competing arguments of counsel are set out in the stated case, followed by the following conclusions of the court in paragraph 14:
"1. The only specific authority that can be found in English law for the setting up a cordon is under the Terrorism Act 2000. That does not apply to the present case. It is significant that that came into force just 3 months before the events in this case.
2.The police both at the time they set up the cordon and at this hearing have worked on the assumption that there is a lawful power to set up and maintain a cordon. From that assumption it followed that the police officers' attitude and language was the language of command not the language of request. For the purpose of this submission we take the Prosecution evidence at face value. On that basis there was a problem of "attitude" on both sides. The police attitude was the language of command. Mr Morrison's language and attitude was that of challenge.
3. On the evidence before us about the nature and extent of the public right of way along the walkway, it has been established that there was a public right of way over the land shown in photograph 9. There is no evidence that that public right of way was lawfully closed or excluded.
4. There is no evidence before us from Inspector Hunt who authorised the cordon. All we have is hearsay evidence about his reasons. We have no direct evidence as to what, if anything, he had reasonable cause to suspect. Similarly there is no direct evidence as to Inspector Hunt's reasoning or what he thought to be the legal basis for any power or duty to set up a cordon.
5. We conclude that if Inspector Hunt believed that he had the power to authorise and set up a police cordon he was mistaken....
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