R v Howell (Errol)
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE WATKINS |
| Judgment Date | 13 April 1981 |
| Judgment citation (vLex) | [1981] EWCA Crim J0413-5 |
| Court | Court of Appeal (Criminal Division) |
| Docket Number | No. 3838/C1/79 |
| Date | 13 April 1981 |
[1981] EWCA Crim J0413-5
Lord Justice Watkins
and
Mr. Justice Cantley
No. 3838/C1/79
IN THE COURT OF APPEAL
CRIMINAL DIVISION
Royal Courts of Justice
MR. A. ENGEL appeared for the Appellant.
MR. T. RAGGATT appeared for the Crown.
At Coventry Crown Court on the 10th August 1979, the Appellant then 28 years of age and a young woman, Tina McNulty, were tried on an indictment which charged each of them, in separate counts, with an assault occasioning actual bodily harm upon two police constables named Hammersley and Lewis respectively. McNulty was acquitted altogether. The Appellant was acquitted of assaulting Lewis but found guilty of the assault upon Hammersley whereupon he was sentenced by Mr. Recorder Owen, QC, to 5 months' imprisonment, suspended for two years. He appeals against that conviction.
On the 2nd September 1978 about 70 young people, white and coloured, attended a party at a house called 12 Guild Street, Coventry. It was a very noisy affair. Neighbours were disturbed and upset by the loudness of the music being played. In the early hours of the following morning the party got out of control. Many of those attending it went into the street outside the house and caused an uproar.
Someone telephoned the police in the hope that they would put an end to this unruly and uncivil behaviour. Soon afterwards a police inspector and a number of police constables appeared on the scene. The inspector advised the party goers who were in the street to either go back into 12 Guild Street, or go home and said that if they did not take his advice they would be arrested for committing a breach of the peace. So far as is known no violence had been used by anyone up to that time.
The arrival of the police was resented. The inspector's advice was ignored. There was loud jeering, cries of 'police brutality', accusations that the police were interfering only because it was a West Indian party and much foul language used. Some pushing and shoving began which did not fortunately erupt into acts of serious violence. However, a few people were arrested for breaches of the peace, placed in a police van and taken away to be charged.
Meanwhile, Police Constables Hammersley and Lewis decided to encourage the Appellant, who is coloured, McNulty, who is white, a coloured youth, a white youth and a coloured girl who had all been to the party and who were being noisily offensive and generally making a nuisance of themselves to go to their homes. The constables were treated to much foul abuse from these people who slowly but unwillingly moved away from the scene denying that they were causing the breach of the peace of which Lewis said he accused them.
Hammersley and Lewis followed them to ensure that they did not return in view of their apparent reluctance to depart. As they did the Appellant and others in very loud voices swore foul oaths as they stopped in their tracks every now and again, and one or more of them said that they were being picked on merely because they were black. All that was said could have been heard by local residents who had been aroused from their beds and who were in the street where the constables were moving the group on their way.
Hammersley said to the Appellant: "If you swear once more you will be arrested for disturbing public orden" The Appellant said that the foul language he was using was not disturbing public order, to which Hammersley replied: "At 4 a.m. in the morning, and in the middle of the street, it is. Now go home or you will be arrested." McNulty then exclaimed: "It will take more than two of you to take him in," and the Appellant made another foul and offensive remark about police brutality. By now this encounter had become thoroughly unpleasant and as likely as not to become more so unless brought to an end.
Consequently, Hammersley moved forward, caught hold of the Appellant's right arm and said: "I am arresting …." He had no opportunity to say anything further because the Appellant punched him very hard in the face and most of the group set upon him and Lewis. In the course of the violent struggle which ensued, Lewis drew his truncheon before he and Hammersley gained the upper hand and arrested the Appellant and McNulty. Hammersley who had been jumped upon by McNulty held on to the Appellant who lashed out at him again. They then exchanged several blows before the Appellant was finally subdued.
The Appellant described this account of what happened as a complete fabrication by the constables. He was, he told the jury, the innocent victim of their perjury. The truth of the matter was that he was walking away from the scene peacefully when Lewis came from nowhere and said: "You are going to get it." He was then attacked by both constables and hit on the head by a truncheon by Lewis several times before being arrested without any cause whatsoever. He did not lay so much as a finger on Hammersley. His version was supported by McNulty and a woman who claimed to have witnessed from nearby what happened between the constables, the Appellant and his companions.
Counsel for the prosecution submitted that the jury must have believed Hammersley's account of the affair to a very substantial extent, if not entirely, in convicting the Appellant. We cannot tell who or what the jury believed and whether the jury convicted upon the basis that they believed the Appellant was lawfully arrested or that he was using unreasonable force in a proper endeavour to escape from unlawful arrest we cannot be sure. At best we feel able to say there are indications that the verdict was founded upon there having been a lawful arrest.
The appeal is based upon points of law most of which were argued before the learned recorder at the end of the prosecution's case when counsel for the Appellant submitted that the jury should be directed to acquit the Appellant at that stage of the proceedings since he had no case to answer. In summary form this submission was based upon the ground that the Appellant's arrest was unlawful because no breach of the peace had been proved against him. Accordingly, on the supposition that the Appellant had, contrary to his own account of the matter as put in cross examination, struck Hammersley, he was acting lawfully in escaping from a wrongful arrest in that he was using no more force than was necessary for the purpose.
It is obvious from what has been said already of the actual termination of the proceedings that the recorder rejected Mr. Engel's submission and allowed the trial to proceed to the Appellant's conviction by jury.
What was the lawful excuse, if any, which caused Hammersley, according to him, to arrest the Appellant? It was, he said when being cross examined, a breach of the peace committed by the Appellant, with or without the assistance of his companions. This has, of course, to be put alongside what he told the Appellant immediately prior to arrest which was "You will be arrested for disturbing public order."
When re-examined he told the jury that he was aware there had previously been some kind of incident in the house where the party had taken place as he followed the Appellant down the street. He believed that if he had not followed the Appellant he would have returned to the vicinity of that house and worked the scene up again with shouting and swearing. His decision to arrest arose out of what he saw and what he feared. The Appellant was obviously refusing to be quiet and to go home and there was a possibility of his returning to the vicinity of the house and causing further trouble. He saw a number of local residents in their front gardens who were clearly disturbed by what was going on.
Although Hammersley at one stage of his evidence said he was not thinking of violence as he was following the groups it seems to this court that it was open to the jury to infer from the entirety of his evidence that he had feared a breach of the peace arising from the imminent use of violence by the Appellant as he was following him, or if the Appellant was allowed to return to it at the scene outside 12 Guild Street.
It is possible that Hammersley was in the heat of the moment confusing his power of arrest at common law for a breach of the peace with a similar power of arrest for offensive conduct conducive to a breach of the peace contrary to section 5 of the Public Order Act 1936. However, the Appellant was not charged with this statutory offence. Accordingly, and for the additional reason that the Appellant was told at the police station upon arrival there that he had been arrested for "a breach of the peace" we think it was open to the jury when deciding whether there had been a lawful arrest to have regard to the constable's power at common law only. Since this was the effect of the manner in which the jury was directed upon this matter by the judge we are not, strictly speaking, called upon to decide whether an arrest for a breach of the peace at common law would serve also to constitute a lawful arrest under section 7 (3) of the Public Order Act 1936 for committing an offence under section 5. But we feel it right to say our tentative view is that it would serve this dual purpose seeing that a breach of the peace is involved in both offences.
It is submitted that the recorder was wrong to refuse to direct the jury to acquit the Appellant at the close of the prosecution's case. His refusal, it is said, was based upon errors of law and a failure to appreciate that there was insufficient evidence to establish that there had been a breach of the peace involving either the actual use of violence or a reasonable apprehension of the use of violence which...
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