Kate McCann v Crown Prosecution Service
| Jurisdiction | England & Wales |
| Judge | Lord Justice Treacy,Mr Justice Edis |
| Judgment Date | 21 August 2015 |
| Neutral Citation | [2015] EWHC 2461 (Admin) |
| Docket Number | Case No: CO/813/2015 |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 21 August 2015 |
[2015] EWHC 2461 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
DIVISIONAL COURT
Manchester Civil Justice Centre
1 Bridge Street, West Manchester, M60 9DJ
Lord Justice Treacy
Mr Justice Edis
Case No: CO/813/2015
Richard Brigden (instructed by Robert Lizar Solicitors) for the Appellant
Peter Ratliff (instructed by Crown Prosecution Service) for the Respondent
Hearing date: 2 July 2015
Introduction
This is an appeal by way of Case Stated against the decision of District Judge Clarke in the Manchester and Salford City Magistrates Court on 23 September 2014 to convict the appellant of obstructing a police officer in the execution of her duty contrary to section 89(2) of the Police Act 1996. The appellant received an absolute discharge with no order as to costs.
The Case Stated is as follows:
In the High Court of Justice
Queen's Bench Division
Between
Kate McCann
and
The Crown Prosecution Service
Case stated by James Clarke District Judge (Magistrates' Court) acting in and for the Local Justice Area of Greater Manchester in respect of his adjudication as a Magistrates' Court sitting at Manchester and Salford.
CASE
1. On the ….… day of …………..… 2015, an information was preferred by the respondent against the appellant that the appellant had on 6 th February 2014 wilfully obstructed Inspector Chatterton a constable acting in the execution of her duty contrary to sec 89(2) Police Act 1996
2. I heard the said information on the 23 rd day of September 2014 and found the following facts:
a. The charge arose from the appellant's presence on 6 th February 2014 on Barton Moss Road, Greater Manchester; an access road to a site where test drilling commonly known as "fracking" was being carried out.
b. The appellant had, together with another man Tricky of the Clan Cairns (who does not appeal the conviction) and Ms Tammy Samede and Mr James Alden (both of whom initially did join this appeal but who have since withdrawn) attended with others at the road in order to protest at what they believe to be environmental damage consequential to the drilling.
c. The appellant, Ms Samede, Mr Alden and Tricky of the Clan Cairns had placed themselves in the middle of the access road, were seated and had locked themselves together by the arms, using a combination of chains, locks and drainpipes in a practise known as a "lock on". Other protesters fed them in an apparent picnic.
d. A number of lorries heading for the drilling site were unable to pass because of the obstruction to the route.
e. Inspector Chatterton of Greater Manchester Police was the officer on site in charge of public order. At a morning briefing by senior officers, she had been misinformed about the classification of the road but acted upon what she believed to be the case: that Barton Moss Road was a public highway.
f. She instructed the appellant and others to move on the basis that they were obstructing a public highway, an offence contrary to section 137 Highways Act 1980.
g. The group refused to move. The appellant's refusal was based upon a belief (as it happens correct) that the passageway was a private road with a public footpath. The appellant and others stated this to the officers at the time.
h. The Inspector did not become involved in discussions about the protestors' claims that the road was a private one. I accepted her evidence that she had been fully briefed on the location at the start of the day and told that it was a public highway. By the manner in which the protestors were disputing the classification of the road (shouting, cheering, waving placards and laughing) she did not consider it to be reasonable to accept this as a clear statement of law (her words). Further, there was a supervising Bronze Commander at the scene as a tactical adviser and who would have been aware of the statements about the road. As such, the inspector would have expected any change in her orders to come from him.
i. The appellant and others refused to move and were arrested as a consequence. Kate McCann was initially arrested for the section 137 Highways Act 1980 offence but shortly afterwards for obstruction contrary to section 89(2) Police Act 1996. Only the Police Act charge was pursued at trial.
j. The classification of the road as public or private had been the subject of significant dispute before and after the events of 6 th February 2014. Due to a large number of related prosecutions in which the issue was raised, the Crown Prosecution Service had taken counsel's advice on the point. At trial, a formal admission was made by the prosecution that the access road was a private road with a public footpath and therefore not a road to which the Highways Act 1980 applied. Vehicular access required permission of the landowner.
k. In a dramatic turn of events during the trial, it became clear that Inspector Chatterton had not been told that, since 6 th February 2014, the road had been confirmed to be a private road. Nevertheless, her evidence was that had she been aware it was a private road, she "would have used different powers" to require the appellant and others to move and stop obstructing the route. I accepted this as a truthful statement by the officer, made spontaneously at a point she was confronted with this new information about the status of the road.
l. Inspector Chatterton was not asked to specify what powers she would have used. She made no reference to sec 68 Criminal Justice & Public Order Act 1994 at this point in her evidence or when relating her discussions with the appellant and others. She did state that she was aware that the lorry drivers had permission from the landowner to drive along the path and pass stating that this was a lawful activity. She therefore demonstrated knowledge of at least some elements of the provision upon which the prosecution were relying namely section 68 Criminal Justice and Public Order Act 1994. She said would have done the same thing, that is instructed the protestors to move, had she been aware of the correct classification of the route as a private road.
3. It was contended by the appellant that:
Inspector Chatterton was wrong in law in her belief that the protestors were committing an offence under the Highways Act 1980.
She had no power to require the appellant to move to prevent obstruction of a public highway because it was not a public highway.
This rendered the officer's request outside her powers and she was not therefore acting in the execution of her duty.
Any actions by the appellant to frustrate the officer's aim could not therefore be obstructing the execution of her duty.
It was wrong for the respondent to contend that the inspector had that power to prevent an offence contrary to section 68 Criminal Justice and Public Order Act 1994 because it had not been proven that such an offence had been committed
A submission was made on behalf of a co-defendant that the fact that the officer was acting in good faith or that her error was reasonable did not mean she made a lawful request. The appellant, though his advocate Miss Andrews, adopted that submission in full but made no further comment on the question of reasonableness.
4. It was contended by the respondent that:
Inspector Chatterton had a lawful right to ask the defendants in this case to stop causing an obstruction.
She acted at all times in good faith.
The fact that she thought the power was under the Highways Act 1980 as opposed to the Criminal Justice and Public Order Act 1994 was a mistake of fact not law.
The error did not place the officer outside the execution of her duty because there was a corresponding power under the 1994 Act.
The appellant had by his behaviour wilfully obstructed the officer by refusing to move and frustrating her efforts to prevent a continuation of the aggravated trespass offence.
5. I was referred to the following cases
Tynan v Balmer (1967) 1QBD 91
Rice v Connolly (1966) 2 QB 414
Cumberbatch v Crown Prosecution Service: Ali v Department of Public Prosecutions [2009] EWHC 3353 (Admin)
Fitzpatrick v Metropolitan Police Commissioner
Christie v Leachinsky [1947] A.C. 573
Elkington v Director of Public Prosecutions [2012]
6. I was of the opinion that:
a. The actions of the appellants were wilful and intentional. Their presence at the scene may have been to raise awareness about and protest about the drilling, but their actions in locking themselves together and refusing to move had been intended to obstruct the police officers by making it more difficult to remove them.
b. Inspector Chatterton made a mistake of fact about the status of the road and therefore the offence she believed was being committed.
c. The issue over the road being public or private had in fact itself been the subject of considered advice. This was referred to within the prosecution skeleton argument. It had not, apparently, been a simple question to resolve.
d. Section 68 Criminal Justice and Public Order Act 1994 could well have applied to the situation but I did not have to be satisfied that an offence under that section had in fact been committed, merely that the officer had reasonable grounds to suspect an offence was being committed.
e. The mischief that the officer was addressing was the obstruction of the route to lorries. She was aware that other powers could be available to her and her attempts to prevent a continuing offence meant she was acting in the execution of her duty.
f. The Appellant's actions did obstruct the police duties as it caused a backlog of traffic on...
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