Recent Judicial Decisions
| Published date | 01 January 1971 |
| DOI | 10.1177/0032258X7104400107 |
| Date | 01 January 1971 |
| Author | J. C. Wood |
| Subject Matter | Article |
PROFESSOR
J. C. WOOD, LL.M.
The University
of
Sheffield
Legal Correspondent
of
The Police Journal.
RECENT
JUDICIAL
DECISIONS
MISTAKE AS A DEFENCE
There has been occasion before in these notes to pass critical com-
ment
upon
the uncertainty of the law.
It
is wrong that a police
constable, for example, should not be explicitly clear of his powers
of search (see Ghani v. Jones [1969] 3 AU E.R. 1700). It is equally
wrong that a citizen is unable to obtain a clear idea of his own
powers in the face of action by the police that he feels is unlawful.
In reality, of course, both police and citizens tend to act first and
think of legal justification afterwards,
but
this is no good reason for
vague law. The real surprise is that the law is vague in such areas of
practical importance.
One Saturday night in Portsmouth a fight broke out amongst some
40 youths outside a public house. Two policemen tried to stop the
fight and they were reinforced by others. Their attempts to make
arrests werehampered by the fighters. A young man, who was present
with his father and mother at the scene, was drawn into the fighting.
Apoliceman tried to arrest him
but
he resisted very violently.
It
appears that at one time he even kicked his mother. Finally the
father saw his son being restrained by two or more officers. He asked
asergeant to release him as
"he
had done no wrong". Evidence as
to the sergeant's reply diverged. The sergeant said he told the father
that his son was under arrest and must go to the police station. The
father said he was told to take his son home. Be that as it may, the
father gained the impression that excessive force was being used.
He approached one of the policemen
and
said he would hit him if
his son was not released. No move was made so the officer was hit a
deliberate blow on the chin. A charge was laid of assaulting a
constable in the execution of his duty under s.51 of the Police Act,
1954. The defendant was convicted and appealed.
These are the facts of R. v. Fennell [1970] 3 W.L.R. 513. The
appeal turned on the treatment of the defences raised by Fennell,
particularly
that
of mistake. The trial judge had ruled that the
mistake that his son was being unlawfully restrained and that only
such force as was necessary had been used was no defence. This
was the chief ofseveral lines
of
defence used at the trial and discussed
by the Court
of
Appeal. Two were rejected by the jury. These were
based on the fact that the arrest was unlawful, or on the other hand
that
he was in imminent danger of being injured by the use of ex-
cessive force. In effect the jury approved the police action which
48 January 1971
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