Maynard v Osmond
| Jurisdiction | England & Wales |
| Judge | THE MASTER OF THE ROLLS,LORD JUSTICE ORR,LORD JUSTICE WALLER |
| Judgment Date | 13 July 1976 |
| Judgment citation (vLex) | [1976] EWCA Civ J0713-2 |
| Date | 13 July 1976 |
| Court | Court of Appeal (Civil Division) |
[1976] EWCA Civ J0713-2
In The Supreme Court of Judicature
Court of Appeal
On Appeal From The High Court of Justice Queen'S Bench Divison (Mr. Justice Griffiths)
The Master of the Rolls
Lord Justice Orr and
Lord Justice Waller
MR. ROSS-MUNRO, Q. C. and MR. S. LEVY (instructed by Messrs, Bernard, Sheridan & Co., Solicitors, London) appeared on behalf of the Plaintiff (Appellant).
MR. M. KENNEDY, Q. C. and MR. M. BROOKE (instructed by Messrs. Theodore Goddard & Co, Solicitors, London, agents for R. A. Leyland, Esq., Solicitor, Winchester) appeared on behalf of the Defendant (Respondent).
The question in this case is whether a police officer, who is accused of a disciplinary offence, is entitled to be represented by counsel or solicitor. It is, no doubt, a point of law, but so much depends on the background that I propose to state the circumstances which give rise to it.
Alton is a quiet Hampshire town. Most people sleep well. But at twenty past two one morning they were awakened. It was the night of 12th/13th November, 1975. According to the police, three young men were staggering about the road. They had their arms round each other and were singing and shouting loudly. A police van came along. The constable got out and tried to calm them. They took no notice. They kept on shouting. Lights appeared in the upstairs windows. The three young men abused the constable. They used most offensive language to him such as, "You are a third-class citizen. You are the scum of the earth". They smelled strongly of drink. He told them; "You are all drunk and have had a good time. Now go home and don't spoil things". Time and again he told them. But they continued shouting loudly, disturbing the peace. The constable did his best to arrest one of them. He actually got him into the van. But the other two fought to release him. The constable was in such difficulty that he called for assistance over his radio set. He struggled with them until a police car arrived with two other constables. Together the three police arrested the three young men. They were taken to the police station. Now, at the station there was a young police constable called Jeremy Maynard. He had only been a couple of years in the force, and most of that time in training. On this night he was duty officer at the station. He had not gone out. He says that he was wide awake at the time, but, as you will see, another officer says that he was asleep in the radio room.At any rate, taking his story for the moment, Jeremy Maynard says that he knew the three young men. They were three brothers called O'Connor. They belonged to the Youth Club attached to St. Mary's Roman Catholic Church. So did Constable Maynard. They called him by his Christian name "Jeremy". Constable Maynard says that on this morning they had been drinking, but he did not think they were drunk. It was not, of course, for him to interfere with the arrest. That was left to the three constables who had brought them in. The three young men were put into the cells. Each in a separate cell by himself. They then started shouting and banging the cell doors and making a great deal of noise. The constables felt they ought to get the Police Sergeant to handle the situation. One of them went in a car to fetch him. He was Sergeant Hewitson. He was at home in bed. He got up and was soon there. He went to the cell block. In cell No. 1 was David O'Connor. Now we come to an acute point of controversy. Beyond doubt, David O'Connor received a cut on his lip which bled. How did he receive it? There are two different accounts. David O'Connor, supported by the young constable Maynard, says that the police sergeant struck David O'Connor in the face and made his lip bleed, so much that the blood went on to his sweater and shoes and on to the floor of the cell, and on the door: and that afterwards the sergeant pulled off the sweater and shoes and washed them out, and mopped the blood off the floor. But the police sergeant, supported by the other constables, says that he did not strike David O'Connor at all: and that the blood was on the door because they had to push it open: and he was lying on the floor behind it: and got struck by the door as they opened it. Whilst all this was happening, the other two O'Connors were still banging on theircell doors and shouting. One of them was sick on the floor, and had to clear it up. But eventually everything was sorted out and they became quiet.
Next morning David O'Connor made a complaint to the Chief Inspector. He said that he had been assaulted in the cells. The Chief Inspector told him the procedure for making complaint. He went and inspected the cells. In cell No. 1 he found smears of blood on the lower half of the inside of the door, but no traces of blood anywhere else.
So it was a very disturbed night at the Alton police station. But that is as nothing to the allegations that arose out of it. Constable Maynard says that he saw what happened and was minded to report it to the Inspector: but that Sergeant Hewitson tried to stop him. He says that Sergeant Hewitson threatened him, saying such things as: "If you know what is good for you, keep your mouth shut": and, "If you do not like what you have seen, you are better out of the force". Constable Maynard says that it did not stop at threats. Sergeant Hewitson, he says, concocted a false story. It was to the effect that, on the next night after the O'Connors were brought in, that is, the night of 13th/14th November, Constable Maynard was asleep in the radio room. Constable Maynard says that in order to support this false story Sergeant Hewitson procured another constable to say he was asleep. Constable Maynard says that this charge of being asleep was an after-thought. It was not made by the Sergeant until the night of the 14th/15th November. On that night Constable Maynard was due to go off duty at midnight. But Sergeant Hewitson did not let him go. He ordered him to remain on duty, and said that he would not be paid overtime as he had been sleeping on duty the night before. Constable Maynard resented this. Hedisobeyed the order. He went home and telephoned the Chief Inspector.
Both sides then made written accounts. On Tuesday, 18th November, 1975, Constable Maynard handed his statement to the Chief Inspector, saying: "I have put my head on the chopping-block". Sergeant Hewitson and the other officers made their statements, giving their accounts. Each side accused the other of fabricating the charges made against them. Whoever did the fabrication, it was far more serious than the original incident. The events have given rise to several proceedings, which I will describe.
First, the O'Connor proceedings. On 19th December, 1975, the three O'Connor brothers were brought before the Alton magistrates. They were represented by a solicitor. The only issue investigated was whether they were drunk and disorderly. Maynard did not give evidence. The magistrates found them all three guilty and fined them £10 apiece.
Two of them appealed to the Crown Court at Winchester. The appeal was heard by Judge Stock and magistrates on 18th February, 1976. It took two days. Evidence was given by Maynard. The appeal was allowed on the ground that, although the two O'Connors were disorderly, it was not proved that they were drunk. The Court did not award them any costs.
On 12th May, 1976, David O'Connor issued a writ against Sergeant Hewitson and the Chief Constable of Hampshire claiming damages for assault. He claims, not merely compensation for his cut lips but also exemplary damages on the footing that the sergeant deserves to be punished. Pleadings have been exchanged. And by arrangement the action is expected to be tried in October by a High Court Judge.
Seeing that David O'Connor had complained of an assaulton him by Sergeant Hewitson, the matter was investigated in accordance with Section 50 of the Police Act, 1964. On 9th December, 1975, it was referred to the Director of Public Prosecutions. On 8th March, 1976, the Director decided that there was not sufficient evidence against Sergeant Hewitson to warrant a prosecution against him for assault.
Disciplinary proceedings against Constable Maynard. On 3rd December, 1975, two charges were made against Constable Maynard. (i) That during the night of 13th/14th November, 1975, he was asleep in the communications room; (ii) that during the night of 14th/15th November, 1975, he was ordered to remain on duty but refused to do so. On 18th January, 1976, a further charge was made against him. (iii) That on 18th November, 1975, he handed to Chief Inspector White a false written statement alleging that Sergeant Hewitson had made threats to him whereas no such threats had been made.
These charges have not yet been heard The reason is because Constable Maynard has asked that he may be legally represented at the hearing of the charges. His request has been refused. Now Constable Maynard's solicitors have obtained legal aid. On his behalf they have brought this action against the Chief Constable, claiming a declaration that Maynard is entitled to be represented by solicitors and counsel of his choice: and an injunction to stay the disciplinary proceedings until the civil action by David O'Connor has come to a final conclusion. The Judge has rejected his claim. He appeals to this Court.
Now the issues. At one time the principal issue was whether the three O'Connor brothers were drunk and disorderly and obstructed the police in the execution of their duty.
That issue has now paled into insignificance. In the civilaction by David O'Connor, the big issue is whether Sergeant Hewitson assaulted David O'Connor in cell No. 1 by striking him in the face and making his lip bleed profusely: or whether his lip was...
To continue reading
Request your trial
-
R v Hampshire County Council, ex parte Ellerton
...does apply to disciplinary charges. This seems to follow from cases such as Bhandari v. Advocates Committee (1956) 1 W.L.R. 1442 and Maynard v. Osmond (1977) Q.B. 240 and from the wording of the Police (Discipline) Regulations 1977 ( S.I. 1977 No. 580), which reflects a 'criminal style' a......
-
Prendergast v Commissioner of Police
...applied. (2) Enderby Town F.C. Ltd. v. Football Assn. Ltd., [1971] Ch. 591, dicta of Lord Denning, M.R. applied. (3) Maynard v. Osmond, [1977] Q.B. 240; [1977] 1 All E.R. 64, dicta of Lord Denning, M.R. and Waller, L.J. applied. (4) Pett v. Greyhound Racing Assn. Ltd., [1969] 1 Q.B. 125; [1......
-
R v Board of Visitors of Hull Prison, ex parte St Germain
...34; [1970] 3 W.L.R. 434; [1970] 2 All E.R. 713. McDonald v. Lanarkshire Fire Brigade Joint Committee, 1959 S.L.T. 309. Maynard v. Osmond [1977] Q.B. 240; [1976] 3 W.L.R. 711; [1977] 1 All E.R. 64, C.A. Reg. v. Commissioner of Police of the Metropolis, Ex parte Blackburn[1968] 2 Q.B. 118; [1......
- Haritou v Skourdoumbis
-
Courts of Appeal
...v.OsmondAlthoughtheproceedingsin Maynard v.Osmond(1976,3W.L.R. 711)werebywayofa civilactionbroughtbyapoliceconstable,claiming adeclarationagainst aChiefConstable,theyraise aquestionofvitalimportanceforthoseconcernedintheadministrationofthecriminallaw.Thepoliceconstablehadmadeawrittenreporta......