John Henry Marsden v Crown Prosecution Service
| Jurisdiction | England & Wales |
| Judge | Mr Justice Stewart |
| Judgment Date | 16 October 2014 |
| Neutral Citation | [2014] EWHC 3359 (Admin) |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 16 October 2014 |
| Docket Number | Case No: CO/1581/2014 |
[2014] EWHC 3359 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Leeds Administrative Court
The Court House, 1 Oxford Row, Leeds LS1 3BG
Mr Justice Stewart
Case No: CO/1581/2014
Richard Thomas (instructed by C.W. Booth & Co) for the Appellant
James Boyd (instructed by Appeals and Review Unit of the Crown Prosecution Service) for the Respondent
Hearing dates: 08 October 2014
Introduction
On 13 December 2013 the Appellant, John Henry Marsden, was convicted by the Newton Aycliffe Magistrates of the following offence:
On 26 July 2013 at Shildon in the County of Durham resisted PC 1340 Lowe a constable in the execution of his duty, contrary to section 89(2) of the Police Act 1996.
Mr Marsden appealed against that conviction by way of Case Stated. His daughter Linda Louise Marsden was convicted of the same offence and of a similar offence involving the obstruction of PC 2283 Littlefair in the execution of his duty. She has not appealed her convictions, although she is described in the Case Stated by the Justices as the 2 nd Appellant.
The Case Stated by the Justices
The Case Stated runs to a number of pages. The extracts which need to be fully set out are the following:
"2. We heard the said information on the 16 th day of December and the 13 th day of December 2013 and found the following facts:"
a) PC Lowe, Act SSgt Littlefair, and PCSO Robson were flagged down whilst on routine patrol in Dent Street on 26 th July, 2013, by Ms Hopper, (the partner of the 1 st Appellant). The 2 nd Appellant arrived shortly after.
b) Ms Hopper was demanding the Police remove the 1 st Appellant from their home and was relaying partial details relating to a domestic dispute.
c) PC Lowe entered the premises with the consent of Ms Hopper to speak with the 1 st Appellant but was unable to rouse him from the couch upon which he slept.
d) PC Lowe left the property and resumed speaking with Ms Hopper. He recommended that Ms Hopper sleep at her daughter's house, (the 2 nd Appellant) who lived nearby. Ms Hopper refused to leave and continued to demand the removal of the 1 st Appellant. The 2 nd Appellant became agitated, used obscenities towards Act SSgt Littlefair and supported her mother in the desire to have the 1 st Appellant removed. Both Ms Hopper and the 2 nd Appellant were under the influence of alcohol.
e) PC Brown, who was on plain clothes duty in the area, entered the street from the back alley having heard raised voices. He approached and realised Ms Hopper and the 2 nd Appellant were shouting and screaming at PC Lowe, Acting SSgt Littlefair and PCSO Robson, to get the 1 st Appellant out of the house.
f) The 1 st Appellant woke up and from within the property shouted towards PC Lowe, who was stood directly outside the front window to the house, "what do you want you daft cunt". The shouting of these words did not amount to a breach of the peace in accordance with the test of Friswell v Chief Constable Essex Police [2004] EWHC 3009 (QB) 2004 WL 3050477. However, this did not make PC Lowe's entry unlawful as he had enduring consent to enter from Ms Hopper. Therefore, PC Lowe was within the execution of his duty when re-entering the property to investigate the domestic incident.
g) The 1 st Appellant was intoxicated and aggressive in language and demeanour. Upon seeing PC Lowe, he squared up to the officer puffed out his chest and told him to "fuck off". The 1 st Appellant lunged at the officer. The circumstances amounted to reasonable apprehension of a breach of the peace and PC Lowe, accordingly attempted to arrest the 1 st Appellant who struggled violently and had to be restrained. This course of conduct amounted to resisting PC Lowe in the execution of his duty.
h) Whilst PC Lowe was carrying out the arrest the 2 nd Appellant interfered by pulling and grabbing at the officer's left arm. The officer broke free so the 2 nd Appellant grabbed hold of the 1 st Appellant in an effort to stop the officer arresting him. Act SSgt Littlefair took hold of the 2 nd Appellant and removed her. This course of conduct amounted to the obstruction of PC Lowe and PC Littlefair in the execution of their duty.
……
8. We were of opinion that:
8.1 In relation to the 1 st Appellant: the offence of obstructing PC Lowe in the execution of his duty, with the benefit of hindsight and time, we can scrutinise and assess the officer's decision to enter private premises., a luxury the officer would not have had when assessing the situation before him. The decision made by the officer that the words spoken then by the 1 st Appellant through the window, amounted to a breach of the peace is not upheld by this Court. These words do not satisfy the criteria in Friswell to amount to a breach of the peace and justify entry. However,
8.2 Consent to enter the premises existed as it was expressly given by Ms Hopper and confirmed by the 2 nd Appellant in interview. That consent was reiterated after the officer's initial exiting of the house. The consent was enduring enabling the officer to re-enter the premises to continue enquiries. The 1 st Appellant's demeanour at that stage was such that the police officer would believe that a breach of the peace was imminent. The 1 st Appellant did resist arrest in the officer's lawful execution of his duty and therefore we find him guilty.
8.3 The 2 nd Appellant did attempt to prevent the arrest of the 1 st Appellant by obstructing PC Lowe and PC Littlefair in the execution of their duty. We came to these conclusions because of the officer's evidence, which was clear, credible and consistent and was a lawful execution of their duty. We therefore find the 2 nd Appellant guilty in the obstructing of PC Lowe and PC Littlefair in the execution of their duty.
QUESTION
9. The question for the opinion of the High Court are:-
9.1 Was there sufficient evidence for the court to find that consent was given for PC Lowe to enter the property on the first occasion?
9.2 If so was that consent still effective when the officer re-entered the premises.
9.3 If so was that consent terminated by the 1 st Appellant when he told PC Lowe "it was nothing to do with him fuck off""
Questions 1 & 2: Analysis
The Justices found that Mr Marsden's shouting from within the property towards PC Lowe who was standing outside the front window to the house did not amount to a breach of the peace justifying entry to the premises. Nevertheless, Ms Hopper's consent to PC Lowe entering the premises was still "enduring" and enabled the officer to re-enter the premises to continue enquiries 1.
The Appellant's primary case is that it is not appropriate for the court to formulate for the officer an alternative purpose for his entry, namely entering to investigate the alleged incident of domestic violence, this being contrary to the officer's stated purpose and therefore the manner in which he was executing his duty. My attention was drawn to Hillen and Pettigrew v I.C.I. (Alkali) Limited2 where Lord Atkin made
it clear, in a civil context, that an invitee's invitation to premises extends only so far as the invitee is making ordinary and reasonable use of that premises for the purpose for which he has been invited.In the alternative it is submitted that there was insufficient evidence for the Justices to be satisfied so that they were sure that the consent given by Ms Hopper to enter the premises was "enduring".
It is necessary to consider not only question 1 but also the scope of any original consent given for PC Lowe to enter the property on the first occasion. According to the Justices' finding "Ms Hopper was demanding the police remove the 1 st Appellant from their home." 3 PC Lowe's evidence 4 is that he went into the premises at Ms Hopper's request to attempt to arouse Mr Marsden to get his side of the story. Before the Justices Mr Marsden's legal representative contended 5 that Ms Hopper's consent was given conditionally upon the purpose of entry being the removal of Mr Marsden and not to investigate the dispute. Therefore PC Lowe, it was said, entered the premises with a different purpose to that intended by Ms Hopper rendering him a trespasser. This point was not expressly dealt with in the Skeleton Argument of Mr Thomas, Counsel for the Appellant before me. In the Skeleton Argument he said that the first question was not directly relevant to the appeal. I do not agree with this since the basis of the Justices' finding was that it was the initial consent that was enduring and authorised PC Lowe's re-entry. When questioned in argument, Mr Thomas accepted that PC Lowe's permission was not restricted to going in to remove Mr Marsden but to assess whether that was appropriate. He submitted, however, that the court has to be careful not to draw the "hinterland" of the consent too broadly.
It is always necessary to look as a matter of common sense at the terms of a licence given by an occupier to enter the premises 6. In my judgment the Justices were...
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