Oraki v Director of Public Prosecutions
| Jurisdiction | England & Wales |
| Judge | Lord Justice Singh,Sir David Calvert-Smith |
| Judgment Date | 17 January 2018 |
| Neutral Citation | [2018] EWHC 115 (Admin) |
| Court | Queen's Bench Division (Administrative Court) |
| Docket Number | CO/4718/2017 |
| Date | 17 January 2018 |
[2018] EWHC 115 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
THE DIVISIONAL COURT
Royal Courts of Justice
Lord Justice Singh
and
Sir David Calvert-Smith
CO/4718/2017
APPEARANCES
Ms C Mawer (instructed by McMillan Williams) appeared on behalf of the Appellant.
Mr M Bisgrove (instructed by the Crown Prosecution Service) appeared on behalf of the Respondent.
Introduction
This is an appeal by way of case stated from the Crown Court at Isleworth, which on 4 th August 2017 dismissed, so far as relevant, the appellant's appeal against his conviction for obstruction of a police officer in the execution of his duty, contrary to s.89(2) of the Police Act 1996 (“the 1996 Act”) at Hammersmith Magistrates' Court on 21 st July 2016.
The question which has been stated for the opinion of this court is: “Is self-defence or defence of another a defence available to a charge of obstructing a police officer under s.89(2) of the 1996 Act?”
I will refer to the defence as “self-defence” or simply as “the defence” although it should be understood that I include in that concept the defence of another person.
Factual background
The factual background can be gleaned from the findings made by the Crown Court at paras.9–25 of the case stated. The alleged offence occurred on 11 th September 2014. The appellant was driving a Mercedes car. His mother, Dr Oraki, was in the passenger seat. The appellant did not have valid insurance to drive at the material time.
PC Harding and PC Nash were genuine police officers. The appellant did not believe otherwise, and even if he had believed otherwise, his belief would not have been reasonable. The two police officers were wearing uniforms. The appellant was requested to pull over by the police officers, and he did so. The appellant and his mother subsequently got out of the car. The insurance position was investigated and the officers reasonably suspected that the appellant was driving without insurance, as indeed was the case.
The officers were entitled to, and did, detain the Mercedes car, pursuant to their powers under s.165A of the Road Traffic Act 1988. This detention was communicated to Dr Oraki and the appellant, who reacted angrily and emotionally. Dr Oraki leant over and took the keys out of the ignition. Although this was denied by her, the Court preferred the evidence of PC Harding on his point. Following the communication of the decision to detain the car, Dr Oraki returned to the car and got into the driver's seat. She was seen by PC Nash inserting the keys into the ignition, and putting her hand on the keys with a view to driving off. Dr Oraki denied this but the Court preferred the evidence of PC Nash on this point. PC Nash then put his hand on the arm of Dr Oraki with a view to restraining her from starting the engine and driving off. The court found the actions of PC Nash were reasonable and proportionate, and that he was acting in the course of the execution of his duty in so acting in seeking to prevent removal of the car following its detention. The actions of PC Nash in putting his hand on her arm caused Dr Oraki to scream loudly and vociferously. The appellant, who was nearby, came over to pull PC Nash away because he was alarmed at what was happening to his mother.
PC Harding then intervened. The appellant alleged that he had acted in self-defence in trying to pull PC Nash away, as he said he was concerned for the safety of his mother. The Court found that the appellant's conduct “was not unreasonable” given that it is clear that Dr Oraki was screaming at the time and the appellant was reacting to those screams. However, the Court held that a defence of self-defence was not available to the appellant to the offence charged under s.89(2) of the 1996 Act in the light of what was said by the Court of Appeal (in fact that should have been a reference to the Divisional Court) in Kenlin v Gardiner [1967] 2 QB 510 at 518G (see para.27 of the case stated).
The court further held that if, contrary to the above, the defence had been available as a matter of law, it would have allowed the appeal from the conviction of obstructing PC Nash in the course of the execution of his duty (see para.28).
In the Magistrates' Court, the appellant was convicted of 4 offences: (1) obstructing a police officer, namely PC Nash in the execution of his duty; (2) assaulting a police officer, PC Harding, in the course of the execution of his duty, contrary to s.89(1) of the 1996 Act; (3) obstructing a police officer, PC Harding, in the course of the execution of his duty; and (4) driving without insurance.
The appellant did not pursue his appeal from the conviction of that last matter, the offence of driving without insurance, but he did appeal to the Crown Court in respect of the other three matters. The appeal was heard by the Crown Court which comprised Recorder Hill-Smith sitting with two lay justices. The Crown Court allowed the appeal in relation to matters (2) and (3) above. However, it dismissed the appeal in relation to matter (1) above. The court gave its reasons orally at the end of the hearing and subsequently put them in writing when it was asked to state a case for the opinion of this court.
There has been some suggestion in the background to this case, which was mentioned again towards the end of the hearing before this Court, that the appellant was never in fact convicted by the Magistrates' Court of the offence of obstructing PC Nash in the execution of his duty, and that the Crown Court never had that matter properly before it. We cannot concern ourselves with such suggestions. We have a case stated before this court, and we must deal with it and only with that case stated. Whether other procedures might have been available to the appellant or may still be available is a matter for him and his legal advisers.
Grounds of appeal
On behalf of the appellant, it is submitted by Ms Claire Mawer that the Crown Court erred in law in holding that self-defence and defence of another person are not available to a charge of obstruction of a police officer in the execution of this duty. It is submitted that as the Crown Court itself made clear, if that defence were available as a matter of law, the appeal from the Magistrates' Court would have been allowed, and accordingly his conviction should be quashed.
Material legislation
Section 89 of the 1996 Act, so far as material, 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…”
The predecessor provisions were contained in s.51 of the Police Act 1964 (“the 1964 Act”). That section was the subject of consideration by the divisional court in Kenlin v Gardiner, to which I will turn later.
So far as relevant, the following provisions are to be found in s.76 of the Criminal Justice and Immigration Act 2008:
“(1) This section applies where in proceedings for an offence—
(a) an issue arises as to whether a person charged with the offence (‘D’) is entitled to rely on a defence within subsection (2), and
(b) the question arises whether the degree of force used by D against a person (‘V’) was reasonable in the circumstances.
(2) The defences are—
(a) the common law defence of self-defence…
(b) the defences provided by section 3(1) of the Criminal Law Act 1967… (use of force in prevention of crime or making arrest).
(3) The question whether the degree of force used by D was reasonable in the circumstances is to be decided by reference to the circumstances as D believed them to be, and subsections (4) to (8) also apply in connection with deciding that question.
(4) If D claims to have held a particular belief as regards the existence of any circumstances—
(a) the reasonableness or otherwise of that belief is relevant to the question whether D genuinely held it; but
(b) if it is determined that D did genuinely hold it, D is entitled to rely on it for the purposes of subsection (3), whether or not—
(i) it was mistaken, or
(ii) (if it was mistaken) the mistake was a reasonable one to have made…
(10) In this section…
(b) references to self-defence include acting in defence of another person;…”
In Kenlin v Gardiner the Divisional Court comprised Lord Parker CJ, Winn LJ and Widgery J. The main judgment was given by Winn LJ. The facts concerned two schoolboys aged 14 who were in fact innocently...
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