John Pegram v Director of Public Prosecutions
| Jurisdiction | England & Wales |
| Judge | Mr Justice Kerr |
| Judgment Date | 17 October 2019 |
| Neutral Citation | [2019] EWHC 2673 (Admin) |
| Court | Queen's Bench Division (Administrative Court) |
| Docket Number | Case No: CO/2269/2019 |
| Date | 17 October 2019 |
[2019] EWHC 2673 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Bristol Civil Justice Centre
2 Redcliff St, Bristol BS1 6GR
Judgment handed down at:
Rolls House, 7 Rolls Buildings,
Holborn, London EC4A 7NL
THE HONOURABLE Mr Justice Kerr
Case No: CO/2269/2019
Jessica Jones (instructed by Kellys Solicitors) for the Appellant
Benjamin Douglas-Jones QC (instructed by Crown Prosecution Service Appeals and Review Unit) for the Respondent
Hearing date: 8 th October 2019
Approved Judgment
Introduction
In this appeal by case stated, the appellant challenges the upholding by the Crown Court at Bristol of his conviction for an offence of assaulting a police officer, PC Millett, in the execution of his duty. The appellant was originally convicted of the offence on 22 February 2018 before the Bristol Magistrates' Court. The Crown Court (Mr Recorder Atkinson QC, sitting with two lay justices) dismissed his appeal and upheld the conviction on 25 May 2018.
The appellant asked the Crown Court to state a case for the opinion of this court. The learned recorder declined and provided reasons for refusing to state a case. The appellant successfully challenged that refusal by judicial review. On 27 March 2019 Andrew Baker J quashed the decision not to state a case and directed that a case be stated raising the following three points of law to be considered by this court:
(1) Whether, on the facts found in the Crown Court, PC Millett was acting in the execution of his duty when taking hold of the defendant;
(2) whether, upon the evidence before the Crown Court, a prima facie case of self-defence was raised and, if so, whether the Crown Court erred in law (a) by not considering self-defence or (b) by dismissing the appeal; and
(3) whether the approach adopted in the Crown Court at page 80E-F in the transcript of the appeal proceedings constituted or involved a misdirection of law as to character.
In accordance with Andrew Baker J's order, the recorder then stated a case for this opinion of this court. It was sent to the parties on 10 June 2019. In the case stated, the recorder set out the Crown Court's findings of fact, cross-referred to the transcript of the hearing. He then duly raised the three questions above, as directed by Andrew Baker J. It is those three questions which I address in this judgment.
Swift J directed that the hearing of the appeal should be listed before a single judge of the Administrative Court in Bristol. The parties agreed at the oral hearing before me that the case stated should be treated as annexing, or incorporating by reference, the transcript of the hearing, including the recorder's judgment delivered orally on 25 May 2018, which appears at the end of the transcript.
The Facts
On 10 September 2017 two opposing demonstrations took place in Bristol. The appellant took part in one of them. He was with a small group of counter-demonstrators opposed to the other demonstration, which had been advertised. The police were concerned to keep the two sets of protestors apart and separated from each other, to avoid trouble.
The appellant came into contact with PC Millett, who was on duty that day. It is common ground that PC Millett took hold of the appellant's arm and spoke to him and that the appellant then moved his arm and made contact with PC Millett's face, leading to the appellant later being arrested by another officer and charged with assaulting PC Millett in the execution of his duty. The issue arose in the subsequent proceedings whether the officer had been acting in the execution of his duty when his face was struck.
The Crown Court heard evidence from PC Millett and the appellant. The appellant volunteered that he had been convicted of offences which were “mainly drugs related”. The convictions were when he was in his late teens and early twenties. The last conviction was in 2003. He had pleaded guilty on each occasion. None of the convictions was for an offence involving violence or public disorder.
The case stated (quoted below except where indicated) shows that the Crown Court made the following findings. The appellant was with a small group of protestors who had departed from the agreed route. He told police officers to “fuck off” a couple of times. He was wearing a hoodie, a black mask and sunglasses. Members of the public were close by, were moving away and appeared shocked.
PC Millett decided to warn the appellant that he may commit an offence under the Public Order Act 1986. He did not intend to arrest the appellant. The appellant was facing away from the officer. There was noise and shouting in the background. The officer “decided to grab his arm to get his attention, deliver the warning and tell him once more to join his group of demonstrators”.
The Crown Court preferred PC Millett's evidence to the appellant's where they differed. The officer took the appellant's arm “using such force he judged just enough to get the [appellant's] attention”. The officer agreed that “having gained the [appellant's] attention he continued to hold his arm for a split second”. The appellant said the grip was firm but did not hurt.
The giving of the warning was found appropriate in the circumstances. The Crown Court accepted that it was “necessary for the [appellant's] attention to be drawn to the giving of a warning and accordingly there was a short physical contact to attract his attention so as to ensure that [he] was made aware of the [warning]”.
The transcript of PC Millett's cross-examination includes the following:
Q. So you're … continuing to hold on to his arm even after the point at which it's clear you have got his attention, is that fair?
A. It's really a split second but yes.
Q. I would suggest Officer that your … purpose in holding his arm wasn't just to get his attention to make yourself known to him but also to make sure he stayed there and listened to what you had to say.
A. … it may well have been but it was more, my decision making was to get his attention, if I held on to him to say it then it was more to just keep him in the place to listen to what I had to say.
Q. There was an element, wasn't there, of hold on to him [while] you're saying it so that he doesn't just ignore you because he had been ignoring the police to an extent, hadn't he?
A. It was a very short amount of time, half way through a public warning however long that is.
The appellant then “turned and swung his arm round and his hand made contact with the officer's face”. The officer's grip was not displaced by the appellant turning round. The appellant swore at the officer, his arm still gripped. The officer began to deliver the warning. About half way through the warning the appellant swung his arm and his hand made contact with the officer's face.
The officer thought the swing of the arm was intended to free the appellant from the grip on his arm and not calculated to hit the officer in the face. The appellant did not recall making contact with the officer's face, had not intended to strike the officer and said that any contact was accidental.
The appellant's counsel sought a good character direction comprising both limbs, covering propensity and credibility. The Crown Court declined. In the case stated, the recorder explained that “the stale bad character played no part in the Court's consideration of the evidence … the decision of the Court … was reached without regard to either good or indeed bad character but simply upon … the evidence”.
The Crown Court found that “[n]o prima facie case of self defence was raised”. The appellant disavowed any such defence and confirmed through counsel that he had not run that defence before the magistrates. The Crown Court decided that PC Millett had been acting in the execution of his duty, that the appellant's arm had struck the officer's face and that the appellant's conduct had been reckless. He was therefore guilty of the offence.
Relevant Law: Execution of Duty
By section 89(1) Police Act 1996 any person “who assaults a constable in the execution of his duty” commits an offence. Blackstone's Criminal Practice (2019 edition) states (at B2.40) that the meaning of the expression “in the execution of his duty” “has never been the subject of precise judicial scrutiny”. The source of that observation is said to be Ahmed v. CPS [2017] EWHC 1272 (Admin).
What Sir Wyn Williams (sitting as a judge of the High Court) actually said there was that somewhat to his surprise, the phrase “has not been the subject of much judicial scrutiny as to its ambit” (see the transcript, at [7]). However, only two of many cases on the point were cited to him, not including those cited to me, some of which I now mention though briefly since there was no dispute about the law before me.
The expression “in the execution of his duty” reappeared in section 89(1) of the 1996 Act in the same words as in its predecessor, section 51(1) of the Police Act 1964. The earlier case law discussing the latter provision remains good law.
It is a technical assault for a police officer physically to detain a person without violence and without any intention to arrest the person: Kenlin v. Gardiner [1967] 2 QB 510, per Winn LJ at 519A-C. However, it is lawful for a police officer or any other person to make moderate and generally acceptable physical contact with another person for the purpose of attracting their attention.
This proposition qualifies the principle that every person's body is inviolate; see the famous exposition of Goff LJ (as he then was) giving the judgment of the court in Collins v. Wilcock at 1177A–1179H. It is a question of fact whether “the physical contact so persisted in has in the circumstances gone...
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