Kurt Wheeldon v Crown Prosecution Service
| Jurisdiction | England & Wales |
| Judge | Mr Justice Males,Lord Justice Holroyde |
| Judgment Date | 31 January 2018 |
| Neutral Citation | [2018] EWHC 249 (Admin) |
| Court | Queen's Bench Division (Administrative Court) |
| Docket Number | CO/4186/2017 |
| Date | 31 January 2018 |
[2018] EWHC 249 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT
Royal Courts of Justice
Lord Justice Holroyde
and
Mr Justice Males
CO/4186/2017
APPEARANCES
Mr R De Mello (instructed by McGrath Solicitors) appeared on behalf of the Appellant.
Mr B Lloyd (instructed by the Crown Prosecution Service) appeared on behalf of the Respondent.
Introduction
This is an appeal by way of case stated from the West Midlands Magistrates' Court, sitting at Dudley, where on 22 nd February 2017 the appellant, Kurt Wheeldon, was convicted of assaulting a police constable in the execution of his duty, contrary to s.89 of the Police Act 1996. He was conditionally discharged for a period of 12 months.
The case is concerned with the events following a football match between Wolverhampton Wanderers and Birmingham City on 13 th March 2016. The appellant, a Birmingham supporter, had attended the match with his father. They were part of a crowd of supporters goading opposing fans and refusing to respond to requests made by police officers with a view to avoiding the risk of public disorder.
There came a time when one officer, PC Turton, pushed the appellant, who responded by squaring up to him, adopting a confrontational stance and pushing back at the officer by grabbing his vest. A struggle then ensued which led to the appellant being restrained and arrested.
Three question are stated for the opinion of the court, as follows:
(i) Were the justices right in law to find that PC Turton was acting in the execution of his duty when he pushed the appellant?
(ii) Were the justices right in law, having found the officer's actions to be lawful, to state that self-defence could therefore not arise when the appellant used physical (and verbal) abuse to the officer?
(iii) Were the justices right in their finding that s.28 of the Police and Evidence Act 1984 had been complied with and therefore there was no breach?
It is worth recalling that on an appeal by way of case stated, this court can only consider the facts stated in the case. Neither party may assert facts which have not been found by the justices, or rely on evidence which is not referred to in the case, even if such evidence was undisputed before the lower court.
In more detail, the facts found by the justices were as follows:
(a) On 13 th March 2016, a regulated Football League Championship match took place at Molineux Stadium between Wolverhampton Wanderers Football Club and Birmingham City Football Club.
(b) Following the match, police officers were deployed with responsibility to escort Birmingham City Football Club supporters away from Molineux Stadium along Stafford Street, Wolverhampton.
(c) The appellant, Kurt Christopher Wheeldon, is a Birmingham City supporter, and had attended the football match with his father, Raymond Wheeldon.
(d) The appellant and his father were part of a crowd of Birmingham City supporters making their way along Stafford Street after exiting the Molineux football ground at full time. The group in general were refusing to respond to requests made by police officers committed to ensuring that the risk of public disorder was avoided.
(e) Officers made these verbal requests by utilising loud hailers. The appellant accepted hearing these requests.
(f) Police cordons had been put in place along Stafford Street to ensure that rival supporters from Wolverhampton Wanderers Football Club and Birmingham City Football Club remained separate.
(g) Police officers received instructions to clear the street and return all fans to the footpath. In general, the crowd failed to respond to this request by police officers. The officers began to push the crowd.
(h) PC Turton gave several verbal warnings to the group that they should move back. The appellant admitted hearing this.
(i) The appellant's father, Raymond Wheeldon, fell to the ground as a result of being pushed by a police officer, but the officer responsible could not be identified.
(j) The appellant was part of a large group who were goading opposing fans. PC Turton pushed the appellant to prevent an imminent breach of the peace. The appellant responded by “squaring up” to PC Turton, adopting a confrontational stance and, at the same time, raised his hands towards the officer. The appellant told PC Turton to “fuck off” and pushed back at PC Turton by grabbing the officer's vest. PC Turton did not launch a punch at the appellant's jaw.
(k) A struggle ensued whereby the appellant was restrained by PC Turton, PC Clarke and PC Guild. The appellant was then taken to the ground by the officers in a controlled manner without the use of unnecessary force. The defendant continued to “fight” whilst on the floor and was then handcuffed.
(l) A smoke bomb was thrown at the officers while the appellant was being arrested.
(m) PC Clarke then arrested the appellant.
(n) PC Turton was not injured.
In addition, the justices recorded that they heard evidence from PC Turton that not everyone in the group was behaving in a disorderly way, and from PC Clarke that the appellant was arrested once he had been taken back to the police van. Although these are not expressly stated to be findings of fact, we can proceed on the basis that they are.
Was PC Turton acting in the execution of this duty when he pushed the appellant?
Section 89 of the Police Act 1996 provides:
“(1) Any person who assaults a constable in the execution of his duty, or a person assisting a constable in the execution of his duty, shall be guilty of an offence and liable on summary conviction to imprisonment for a term not exceeding six months or to a fine not exceeding level 5 on the standard scale, or to both.
(2) Any person who resists or wilfully obstructs a constable in the execution of his duty, or a person assisting a constable in the execution of his duty, shall be guilty of an offence and liable on summary conviction to imprisonment for a term not exceeding one month or to a fine not exceeding level 3 on the standard scale, or to both.”
In Rice v Connolly [1996] 2 QB 414 the Divisional Court described the duties of a police constable in the following terms:
“It is part of the obligations and duties of a police constable to take all steps which appear to him necessary for keeping the peace, for preventing crime or for protecting property from criminal injury. There is no exhaustive definition of the powers and obligations of the police, but they are at least those, and they would further include the duty to detect crime and to bring an offender to justice.”
More recently, in McCann v DPP [2015] EWHC 2461 (Admin) this court said that this summary should be understood as including the word “reasonably” so that the relevant sentence reads:
“It is part of the obligations and duties of a police constable to take all steps which reasonably appear to him necessary for keeping the peace…”
Mr Ramby de Mello, for the appellant, submits:
(1) that the justices were wrong in concluding that a breach of the peace was imminent and that the evidence presented to them was insufficient for such a conclusion;
(2) that the force used by PC Turton to prevent an imminent breach of the peace was unreasonable because the appellant, unlike others in the crowd, was acting lawfully; and.
(3) that, in any event, the pushing of the appellant by PC Turton was disproportionate.
These submissions cannot stand with the findings expressly made by the justices. As to the first submission, the justices said that:
“PC Turton had given several verbal warnings to the group (which the appellant admitted hearing) and when the crowd spilled out onto the highway, the police were presented with a situation that threatened the safety of members of the public. PC Turton was correct in his belief that a breach of the peace was imminent and in such circumstances, both PC Turton and his colleagues were entitled to use reasonable force to physically restrain individuals who were part of the crowd, in an attempt to defuse the incident.”
This is an explicit finding that a breach of the peace was imminent. The justices were not asked to state a case on the question of whether there was evidence to support this finding of fact. There is, accordingly, no basis on which it can be challenged.
As to the second submission, the justices said that:
“Having found PC Turton had not punched the appellant, his actions in pushing the appellant back to the pavement were both lawful, reasonable and proportionate in these circumstances.”
Once again, this is an explicit finding which the justices were entitled to make. Although there is no finding that the appellant, as distinct from other members of the group, had himself been acting in a disorderly way, it would make no difference if there were. He was part of a group, not merely incidentally present, which was not responding to the police requests to move back, which he admitted hearing. Those were...
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