NOTES OF CASES
| Date | 01 July 1970 |
| Published date | 01 July 1970 |
| DOI | http://doi.org/10.1111/j.1468-2230.1970.tb01286.x |
NOTES
OF
CASES
POLICE
POWER
TO
STOP
WITHOUT ARREST
Donnelly
v.
Jackman
was a decision of the Divisional Court to
afltirm the summary conviction of the appellant for assaulting a
police officer
in
the execution of
his
duty.= The appellant was
walking along a pavement when he was approached by
a
police
officer to make inquiries about a crime which he had cause to
believe had been committed by the appellant. Despite repeated
requests by the officer to stop, the appellant walked
on.
The
officer tapped the appellant
on
the shoulder; the latter. stopped
and tapped the officer
on
the chest, saying, “Now we’re even,
copper,’’ and walked
on.
The officer again touched the appellant’s
shoulder in order to stop him, whereupon the appellant struck him.s
The magistrates found that at
no
time did the officer intend
to
make a formal arrest, but intended only to stop and speak to him,
and that before the officer touched the appellant’s shoulder for the
second time he knew that the appellant did not wiah to stop. The
court held that at the time of the assault the officer was acting in
the execution of his duty.
Two
preliminary points may be made before the judgment de-
livered by Talbot
J.
is examined more closely. First, this is
another decision that appears to unsettle the law by extending in a
novel and ill-defined manner the scope of police powers at common
law.4 Secondly,
it
is unfortunate that the court was prepared to give
a potentially very important decision although
on
a
crucial matter
the iinding of fact was vague. The court was prepared to assume
that the second touching of the appellant’s shoulder was only a
“
trivial interference with a citizen’s liberty.” Leaving aside
the question of whether any physical interference with a person
against his will by a police officer should ever be properly charac-
terised as trivial,
it
is surely especially important in areas of the
1
[1970]
1
All
E.R.
987.
a
Police Act 1964,
8.
51 (1).
The officer then arrested the appellant for assaulting him
in
the execution
of
his duty; the only ground
upon
which the arrest could lawfully have
been
made was for
a
breach
of
the peace; but
qwere
whether, since the assault
was
over,
the arrest was lawful even
on
this ground, assuming that
no
renewal
of
the
breach was reasonably anticipated. Contrast
Lewis
v.
Arnold
(1830) 4
C.
&
P.
354 and
Derecourt
v.
Corbishley
(1855)
5
El.
&
B1.
188
with
Cook
v.
Nethercote
(1835)
6
C.
&
P.
741 and
Baynes
v.
Brewster
(1841)
2
Q.B.
375.
4
See also
Chic
Fashions
Ltd.
v.
Jones
[1968]
1
All E.R. 229 and
Ghani
v.
Jones
[1969]
3
All E.R. 1700.
5
[1970]
1
All E.R.
987,
989. It is at least
as
likely that the &cer did rather
more than merely place
his
hand lightly
on
the shoulder of
a
suspect
who
had
already clearly shown
his
unwillingnees to
stop.
488
JULY
1970
NOTES
OF
CASES
439
law relating to civil liberties that judges should formulate legal
rules against a factually precise background.
It
is noticeable that
in
the United States Supreme Court, where
“
minor
”
cases such
as this are treated as raising important constitutional issues, far
more meticulous scrutiny is given to the record of the lower court.’
The court justified its view of the ambit of a police officer’s duty
by falling back on the general statement in
Rice
v.
Connolly,‘
that,
cc.
.
.
it
is part of the obligations and duties of a police constable
to take all steps which appear to
him
to be necessary for keeping
the peace, for preventing crime
or
for protecting property from
criminal injury.”
This statement appears to have referred to the preventive duties of
the police and the court could have used the more apposite following
sentence in Lord Parker
C.J.’s
judgment where he said that in
addition
to
those already listed the powers and obligations
of
the
police
cc
include the duty to detect crime and bring an offender
to justice.” But in
Rice
the officers were merely asking the suspect
questions; he had not been stopped against his
will
and the officers
were not prima facie invading any legally protected interest by
so
doing. The court
in
Rice,
however, did not rely
on
a general state-
ment of the duties of the police
in
holding that the accused’s refusal
to answer their questions was not an obstruction in the execution
of their duty.
In
Hohfeldian terms, the police
in
the performance
of their functions have a privilege to question but
no
power to
require an answer. But in
Donnelly
the privilege of requesting a sus-
pect to stop and answer questions was used without more
to
establish
the existence of a legal power to require him to stop. The fallacy of
this reasoning was pointed out by Ashworth
J.
in
R.
v.
Waterfield
and
Lynn,g
a case relied
on
in
Donrzelly,
but not for this statement:
“
Thus while
it
is
no
doubt right to say in general terms that
police constables have a duty to prevent crime and a duty,
when crime is committed to bring the offender to justice,
it
is also clear from the decided cases that when the execution
of
these general duties involves the interference with the person
or
property of a private person, the powers of a constable are
not unlimited.”
The manner in which the court distinguished the authorities that
appeared to support the appellant was
no
more convincing.
Of
6
See,
for example,
Spinelli
v.
U.S.
(1969) 393
U.S.
410
(probable
WUBB
for
issue of search warrant) and
Coz
v.
Louisiana
(1965) 379
U.S.
536
(likelihood
of
breach
of
the peece); mntrest the vagueness
on
a
‘similar point
in
Duncan
v.
Jones
[1936]
1
K.B.
918.
7
[19&3]
2
Q.B.
414, 419
(per
Lord Parker
C.J.).
8
Supra.
9
[1964]
1
Q.B.
164,
171.
The doubts expressed
by
Lord
Denning
M.R.
in
Ghani
v.
Jones
(supra
at p.
1704)
about the correctness
of
Waterfield
on
the
scope
of
a
police officer’s power
to
seize
property rewonably suspected
of
being either the instrument or fruit of
a
serious crime from
a
person
believed to
be
implicated
in
it,
does
not
affect
the passage quoted.
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