R v Venna
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE JAMES |
| Judgment Date | 31 July 1975 |
| Judgment citation (vLex) | [1975] EWCA Crim J0731-1 |
| Docket Number | No. 125/C/75 |
| Court | Court of Appeal (Criminal Division) |
| Date | 31 July 1975 |
[1975] EWCA Crim J0731-1
Lord Justice James
Lord Justice Ormrod
and
Mr. Justice Cusack
No. 125/C/75
IN THE COURT OF APPEAL
CRIMINAL DIVISION
Royal Courts of Justice
MR. J. WOODS appeared for the Appellant.
MR. R. EVANS appeared for the Crown.
The Judgment I am about to read is the judgment of the Court with which Mr. Justice Cusack agrees.
This is an appeal against conviction by Henson George Venna who, on 6th December, 1974, in the Crown Court at Gloucester, was convicted of threatening behaviour contrary to section 5 of the Public Order Act, 1936, and of an assault occasioning actual bodily harm. A co-defendant Edwards was also convicted of threatening behaviour and of an assault on a police constable contrary to section 51(1) of the Police Act, 1964, of which he was separately charged. Another co-defendant Allison, separately charged with criminal damage to a police officer's uniform, was acquitted of that offence and also of the charge of threatening behaviour. The third co-defendant, Robinson, charged only with the offence of threatening behaviour was acquitted by direction of the trial Judge at the close of the prosecution case.
Mr. Woods for the Appellant relied substantially upon the acquittals of Allison and Robinson and argued that the convictions of the Appellant are inconsistent with those acquittals.
The various charges against the four defendants arose out of an incident which occurred in the early hours of 30th August, 1974, in Station Road, Gloucester. The four defendants and another youth called Patterson, who was not arrested, were creating a disturbance in the public street by shouting and singing and dancing. At one stage there was a banging of dustbin lids. The local residents were disturbed and at least one complaint of the noise was made to the police. A police officer named Leach went to investigate. What took place between him and the youths was described in evidence by three taxi drivers. Leach patiently and tactfully tried to persuade the four youths to be quiet and to go home. The response was a remark by Robinson "Puck off" and the continuation of the noise and dancing. Leach told them there had already been a complaint about their unruly behaviour and ordered them on their way, Robinson thereafter stood apart from the others and did nothing. That was the foundation of his subsequent acquittal. The others continued a sort of war dance and went on singing. Leach told them that if they continued to create a disturbance and obstruct the pavement they would be arrested. Allison in defiance sat down on the pavement. Leach moved towards him to arrest him and the Appellant, Edwards and Patterson crowded round. As he placed his hand on Allison Leach said "You are all under arrest."
The Appellant's evidence at the trial was that he did not hear these words and did not appreciate that he was being arrested until a later stage of the incident. As Leach picked Allison up Allison struggled to free himself and the Appellant, Edwards and Patterson tried to pull Allison out of the officer's grip. Leach held on to Allison and called for help on his pocket radio. The scene was such that the taxi drivers were about to intervene. A passer-by, referred to as "the fat man", did intervene on the officer's behalf. The Appellant in evidence surmised that he did so because "he thought the copper's head might be bashed in". Other police officers arrived and assisted Leach in the arrest of the Appellant and the co-defendants. Before those who were resisting arrest were finally overpowered, Allison had torn Leach's uniform, Edwards had seized Leach's left thumb and bent it forceably backwards causing physical injury, and the Appellant had fought so violently that four officers were required to restrain him. In the course of the Appellant's struggles he was knocked or fell to the ground. Two police officers held him by the arms. Upon the Appellant's own admission he then knew he was being arrested and he continued to "lash out" wildly with his legs. In doing so he kicked the hand of a police officer who was trying to pick him up. The kick caused a fracture of a bone and was the subject of the charge of assault occasioning actual bodily harm.
The Appellant's evidence was to the effect that he and his friends were not told that they were creating a disturbance and that all he had done was to tell Leach that he could not arrest Allison. He said that he had been struck on the chin and knocked to the ground and that he had lashed out with his feet in an effort to get up. He did not know or suspect that there was a police officer in the way or that his foot might strike a police officer's hand.
The whole incident leading to the charges was, unfortunately, a very ordinary and all too common one. On any view the Appellant and his friends were behaving in an unruly and disgraceful anti-social manner, but it was not a very grave or serious incident. It was certainly not the sort of incident that Parliament had in mind when enacting the Public Order Act, 1936. We are not prepared to say that in this case it was wrong to perfer a charge under the provisions of that Act. The jury did find that there was threatening behaviour and, although the Police officer, Leach, agreed in evidence that he did not think the initial behaviour was threatening he made the arrest on the basis of belief that a breach of the peace was imminent.
There was ample evidence upon which the jury could find that there was behaviour within the terms of section 5. But those who have the responsibility of deciding what charges to prefer should consider very carefully, before having recourse to section 5 of the Public Order Act, 1936, whether the facts reveal a state of affairs which justifies proceedings under that Statute. In Ambrose (1973) 57 Criminal Appeal Reports, 538, Lord Justice Lawton, at page 540, issued a clear warning against the misuse of section 5 of the Act, which warning we repeat. In the end this comparatively minor matter occupied the time of the Grown Court for four days and the argument in this Court extended into a second day.
The argument for the Appellant was first that the Judge erred in law in his directions to the jury in a number of respects, and was wrong, having regard to the state of the evidence and the way the case was put for the prosecution, to leave to the jury the question whether the Appellant, Edwards and Allison had been guilty of threatening behaviour and to invite the jury to consider whether the conduct of the conduct of the Appellant after the point of time when the officer said "You are all under arrest" was threatening behaviour. This argument drew together a number of the heads enumerated in the grounds of appeal. It was essentially dependent upon the premise that the arrest of Allison was unlawful.
The pattern of summing-up suggested to the jury that they could regard the incident as comprising two stages separated by the arrest of the defendants; that they might reach the conclusion, as he expressly stated he had done, that up to the time of arrest there was little if any threatening behaviour; that on that view of the facts the jury might think that Leach, who had said that the arrest was made under his powers derived from section 7(3) of the Public Order Act, 1936, had made the arrest technically for the wrong reason; and that the jury, if they so found, should approach the case on the basis that the arrest was unlawful. The Judge then gave directions to the jury upon the duty of a person purporting to effect an arrest to make known to the person arrested the reason for the arrest, upon the right of a person to resist an unlawful arrest, and upon the right of a person to assist another who is the subject of an unlawful arrest to free himself from the unlawful restraint.
We find it unnecessary...
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