R Reda v Director of Public Prosecutions

This is an appeal by way of case stated in respect of a decision given in the Crown Court at Basildon on 11th June 2010 whereby it was adjudged that an arrest undertaken by a Police Constable McCausland of the appellant was lawful. The context was that the defendant in the case, the appellant in this matter, had initially been charged with an offence under section 5 of the Public Order Act 1986 and had also been charged under section 89 of the Police Act 1996.

The result to which the Magistrates had come was to acquit the appellant on the section 5 matter on the basis of the one of the statutory defences available but to convict on the section 89 matter. The appeal to the Crown Court, of course, was by reference to the conviction on the section 89 matter.

The case stated has (as really the argument before me confirmed, it has to be said) not been drafted in an entirely clear way. What it says is this:

"On 13th August 2009, charges were brought by the respondent against the appellant that on 13th March 2009 at Brentwood, the appellant had assaulted Police Constable McCausland in the execution of his duty contrary to section 89(1) of the Police Act 1996.

2. At the same time, the appellant was charged with a further offence that on 13th March 2009 in Brentwood he used threatening, abusive or insulting words or behaviour or disorderly behaviour within the hearing or sight of a person likely to be caused harassment, alarm or distress, thereby, contrary to sections 5(1) and 6 of the Public Order Act 1986.

3. On 26th February 2010 [subsequently giving the correct date], Magistrates acting for the Grays Youth Court found that the appellant was guilty of an offence contrary to section 89(1) of the Police Act 1996 and sentenced the appellant by way of conditional discharge for 12 months. The appellant was also ordered to pay £25 compensation to Police Constable McCausland and £500 costs. The Magistrates found the appellant not guilty of an offence contrary to section 5(1) and 6 of the Public Order Act 1986.

4. The appellant appealed against the decision of the Magistrates to the Crown Court at Basildon, which appeal was heard on 11th June 2010.

5. We heard the said appeal on 11th June 2010 and we found the following facts:

a. That, on 13th March 2009, the appellant was walking with other youths past an empty police van;

b. The appellant raised his voice and used the words 'fuck the police'.

c. Police Constable McCausland, who was emerging from nearby flats, heard the words and decided to arrest the appellant.

d. During the course of the arrest and transportation to the station, the appellant kicked Police Constable McCausland.

6. We heard the following evidence when we reached the above findings of fact.

a. Police Constable McCausland gave evidence that there were no other members of the public nearby, just the group of boys. The man was parked on the side road which led on to a road, where there were a few cars driving towards the High Street. The appellant used the words twice. The words were not said aggressively. They were not directed towards anyone and Police Constable McCausland was not caused distress as a result. When the appellant was being searched in the rear coach of the vehicle, he kicked Police Constable McCausland in the right leg.

b. Police Constable Richardson gave the evidence that he followed Police Constable McCausland from the block of flats. Police Constable Richardson heard shouting but did not hear the actual words used. He did not see any other people in the area save for the small group of youths.

c. The appellant gave evidence that he used an American accent to sing those words, which feature in a well known rap song as he passed the empty police van. He was with three of his friends. The appellant did not see anyone else around. He did not see the police officers.

That is the relevant evidence for the purposes of this case."

The case stated then goes on to summarise the detailed submissions that have been made to the court at half time and at paragraph 10 the case stated says this:

"We were of the opinion that:

a. The test is whether there was reasonable cause to suspect an offence had been committed or was about to be committed in accordance to section 24(1)(c) and (d) of PACE. Therefore the question was whether the behaviour by PC McCausland fell within subsection (1)(c) or (d).

b. In this case the youths went by and one shouted 'fuck the police'. It is sufficient that there are reasonable grounds to suspect that an offence had been or was about to be committed. There may not have been others present and/or the officer was not affected himself, but it may have emerged later on that there were persons present.

(c) PC McCausland heard the words used by the appellant and we were satisfied that gave him reasonable grounds to suspect an offence had been or was about to be committed. For that reason, we found that at the time he was acting in the course of his duty.

(d) A consequence of the findings above, we found that the appellant was guilty of an offence contrary to section 89 of the Police Act 1989. We did not alter the sentence imposed by the lower court but ordered the appellant should pay £260 towards the costs of the appeal."

11. The questions for the opinion of the High Court are:

A. Whether the Crown Court was entitled to find that PC McCausland did have reasonable grounds to suspect that an offence under section 5 had been committed even though he was aware that the words spoken by the appellant were not within the hearing or sight of a person likely to cause harassment alarm or distress thereby …"

Pausing, there it may be noted that this question as posed does not accurately or precisely reflect the actual findings of fact made in paragraph 6. Then, going back to the questions:

"B. Whether the court was entitled to find that the prospect of information emerging later on that there were persons present is sufficient to satisfy the test of reasonable cause to suspect under section 24 of PACE; and

C. Whether there was sufficient evidence to entitle the Crown Court to convict the appellant of an offence contrary to section 89 of the Police Act 1996."

I have to say that these questions are posed in a very convoluted way, with all respect, and in reality the essential question is that posed in C.

Ms Hemingway, in the course of her excellent argument before me, has drawn my attention to the statutory provisions, including section 5 of the Public Order Act 1986, section 89 of the Police Act 1996 and section 24 of the Police and Criminal Evidence Act 1984. So far as the latter section is concerned, that, amongst other things, by subsection (1) provides:

"A constable may arrest without a warrant—

…

(c) anyone whom he has reasonable grounds for suspecting to be about to commit an offence.

(d) anyone whom he has reasonable grounds for suspecting to be committing an offence."

The question is important because, for the purposes of section 89 of the Police Act 1996, one has to ask oneself whether or not the constable was acting in the execution of his duty when he was assaulted. It is important to bear in mind that there is a distinction between establishing an offence under section 5 on the one hand and establishing an offence under section 89 on the other hand.

Ms Hemingway has then taken me to a number of authorities in this field. She referred me, amongst other things, to the case of Director of Public Prosecutions v Oram [1989] 1 WLR 88. That case established, amongst other things, that it is possible for a police officer to be a person who is capable of being likely to be caused harassment, alarm or distress. However, in the course of giving his judgment, Glidewell LJ said this at page 93:

"Mr Jones, for the prosecution, poses for our consideration a second question: if in fact a police officer is not likely to be caused harassment etc., does he then have any power to arrest under section 5(4)? Theoretically, the answer to that question may be 'Yes', but in practice, in my view, it must almost invariably be 'No.' The reason is this. If an officer is not caused harassment, alarm or distress, it is difficult to see how he can reasonably suspect, if he is the only person present, that an offence against section 5(1) has been committed since such causation is a necessary element in the offence. If he does not reasonably suspect that such an offence has been committed, then he has no power of arrest under section 5(4)."

It is to be noted that those remarks of Glidewell LJ are qualified by the words "if he is the only person present".

Then Ms Hemingway referred me to the decision of the Divisional Court in the case of Holloway v Director of Public Protections [2004] EWHC 2621 (Admin). That was a case in which it had to be decided whether an offence under section 5 of the 1986 Act had been made out in, it has to be said, very unusual factual circumstances. In the course of giving his judgment, Silber J stated:

"These words [that is to say in section 5] mean that some person must have actually seen the abusive or insulting words or behaviour. It is not enough that somebody merely might...