R Shah v Central Criminal Court
| Jurisdiction | England & Wales |
| Judge | Mr Justice Burnett,Lord Justice Moses,LORD JUSTICE MOSES |
| Judgment Date | 06 June 2013 |
| Neutral Citation | [2013] EWHC 1747 (Admin) |
| Court | Queen's Bench Division (Administrative Court) |
| Docket Number | CO/12583/2012 |
| Date | 06 June 2013 |
[2013] EWHC 1747 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
DIVISIONAL COURT
Royal Courts of Justice
Strand
London WC2A 2LL
Lord Justice Moses
Mr Justice Burnett
CO/12583/2012
Mr D Parrin (instructed by Criminal Defence Solicitors) appeared on behalf of the Claimant
The Defendant was not represented
On 28 June 2012 the claimant was convicted at Stratford Magistrates' Court of one offence of assaulting a police constable in the execution of his duty contrary to Section 89(1) of the Police Act 1996. The incident that gave rise to the prosecution had occurred on 29 January 2012. The claimant appealed against conviction. On 24 August 2012 his appeal was heard at the Central Criminal Court before HHJ Hone, QC and two magistrates; the appeal was dismissed.
By his application for judicial review, the claimant seeks an order quashing his conviction. The defendant court had taken no part in these proceedings but we have been assisted by written representations made on behalf of the Director of Public Prosecutions, who were served as an interested party. The DPP, having considered the matter with care in the light of the evidence given during the appeal, and, having considered the decision of the Crown Court, has concluded that the claimant's argument that his conviction is unsafe is well founded and that the appeal should have been allowed. The DPP observes that the appropriate route for appeal would have been to ask the Crown Court to state a case but that, nevertheless, the remedy of judicial review remains available as a means to challenge the conviction, see B v Carlisle Crown Court [2009] EWCH 3450. In those circumstances, no procedural point is taken. I conclude that it would not be appropriate to dismiss this application on the basis that the claimant has followed the wrong procedure if the grounds are otherwise made out.
The claimant contended before the Crown Court, and repeats here, that there was no basis upon which the court could properly conclude that the officer concerned was acting in the execution of his duty. That is an ingredient of the offence. The basis upon which the claimant argued the point was straightforward. There had been a serious incident in which there was no suggestion that the claimant had been involved to which the police officer concerned responded. The serious incident was an assault and the police officer wished to talk to the claimant who he thought was a relative of the victim. There was never any question of the claimant being under suspicion, still less that he could or should have been arrested. The uncontradicted evidence of the officer about his interaction with the claimant came to this. He said he placed a hand on the claimant to attract his attention. The claimant told him to take his hands off and began to walk away. However, the officer laid hands on him again in a way which was both insistent and quite forceful which provoked the claimant into resisting him with some violence.
In those circumstances, it is to my mind clear that, whilst the first touching might well have been lawful because it was no more than seeking to attract the attention of the claimant, the second was not. Having been told to desist the account of what followed, given by the officer himself, suggests that his conduct amounted to an assault.
It is clear from the reasons given by the court that the evidence of the officer was accepted....
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Walker v Commissioner of Police of the Metropolis
...EWHC 1056 (Admin), McMillan v. Crown Prosecution Service [2008] EWHC 1457 (Admin) and R v. Central Criminal Court ex parte Shah [2013] EWHC 1747 (Admin). It was distinguished, however, in R v. Fiak [2005] EWCA Crim 2381, where on the special facts found the officer had already commenced his......