Wills (A.p.) v Bowley (on Appeal from a Divisional Court of the Queen's Bench Division)
| Jurisdiction | England & Wales |
| Judge | Lord Wilberforce,Lord Elwyn-Jones,Lord Russell of Killowen,Lord Lowry,Lord Bridge of Harwich |
| Judgment Date | 26 May 1982 |
| Judgment citation (vLex) | [1982] UKHL J0526-1 |
| Date | 26 May 1982 |
| Court | House of Lords |
[1982] UKHL J0526-1
House of Lords
Lord Wilberforce
Lord Elwyn-Jones
Lord Russell of Killowen
Lord Lowry
Lord Bridge of Harwich
My Lords,
I have had the benefit of reading in advance a draft of the speech to be delivered by my noble and learned friend. Lord Bridge of Harwich. I agree with it and would dismiss the appeal.
My Lords,
The appellant was charged at Cardiff Magistrates Court with the offence of using obscene language in a street to the annoyance of passengers. She had resisted arrest and the justices found that two police constables were kicked and another was bitten by her in the course of the struggle to get her into a police van. The justices were of opinion that the contention of the appellant that no obscene language was used by her could not be upheld but that her contention that "there were no passengers annoyed by the language used" could be upheld and they accordingly dismissed that information. However they convicted her on those informations alleging that she had assaulted the three police constables acting in the execution of their duty. They found that the respondent constable had an honest and reasonable belief that the appellant "was a person who within his view" was committing the obscene language offence.
It was common ground that the three police constables were only acting in due execution of their duty if the arrest of the appellant was lawful. The justification for the arrest relied on by the respondent was section 28 of the Town Police Clauses Act 1847. Section 28 provides that:
"Every person who in any street, to the obstruction, annoyance or danger of the residents or passengers, commits any of the following offences, shall be liable to a penalty not exceeding forty shillings for each offence, or … may be committed to prison … for a period not exceeding fourteen days and any constable … shall take into custody, without warrant, and forthwith convey before a justice, any person who within his view commits any such offence; (that is to say) …"
It is common ground that "within his view" means "in his sight" and not "in his opinion".
There follow in section 28 thirty paragraphs setting out the various acts which constituted offences if done in the circumstances set out in the opening paragraph. They are a remarkable assortment of street offences relevant to the conditions in towns in 1847. Some are serious, e.g. "Every person who rides or drives furiously any horse or carriage or drives furiously any cattle" "Every person who wantonly discharges any firearm" Some are trivial nuisances, e.g. "Every person who flies any kite" "Every person who places any line … across any street or hangs or places any clothes thereon"; "Every person who beats or shakes any carpet, rug or mat (except door mats, beaten or shaken before the hour of eight in the morning)" They range from causing annoyance to causing danger. Some are obsolete. It is a measure calling for earlyattention by Parliament if it is still considered necessary to use it despite the many changes in the law relating to public order which have been made since 1847.
The relevant part of the paragraph relied on in the obscene language information reads:
"Every person who in any street … uses any profane or obscene language".
The question at issue in the appeal is the extent of a constable's power of arrest without warrant under section 28. It is an important question, for the arrest of a person without warrant and taking him into custody for however short a time is a serious interference with the liberty of the subject. The appellant's submission is that the power is confined to cases where the relevant offence has actually been committed "within his view" and that it does not, save where prompt action is called for in the interests of public safety or because of threatened danger to life, limb or property, extend to mere nuisance and annoyance cases.
The first case directly in point is Parrington v. Moore and Another 5 Ex. 233—a decision of the Court of Exchequer Chamber in 1848, the year following the passing of the Town Police Clauses Act. Chief Baron Pollock observed:
"The defendant's counsel asks us to read the Act [the Malicious Trespass Act 1827] as protecting persons who apprehend not only offenders against the Act, but those whom they reasonably suppose to be so."
The powerful court refused to do so.
The same court two years later in Bowditch v. Balchin held that a police constable in the City of London had no power under a local Act of 1839 for regulating the police in the City of London to take a person into custody without a warrant merely on suspicion that he had committed a misdemeanour. Pollock C.B. observed in the course of argument:
"In a case in which the liberty of the subject is concerned, we cannot go beyond the natural construction of the statute."
The case of Trebeck v. Croudace [1918] 1 K.B. 158 C.A. is in my view distinguishable from the present case. In that case the police officer was held entitled to make the arrest of a taxicab driver on his honest and reasonable belief that the offence there charged was being committed, because of the imminent danger to the public which was involved in the commission of that offence. Bankes L.J. said:
"It was in aid of the common law on this point, and to supplement the powers of constables and others, that the legislature has from time to time given authority for arrest without warrant in a number of cases of misdemeanour. Though the language in which the authority has been conferred varies greatly in different statutes, and in different sections of the same statute, the object of the legislature must have been the same, namely, to provide for cases where, in the interests of public safety or where danger to life or limb or property is threatened, prompt action is called for, and action which must of necessity be founded on the circumstances of the moment, and mainly probably on such information as the senses of a police constable, his sight and hearing, convey to him."
No such circumstances arose in the present case. Public safety was not endangered, nor was danger to life or limb or property threatened.
In Ledwith v. Roberts [1937] 1 K.B. 232, Greene L.J. in examining the judgment of Bankes L.J. in Trebeck v. Croudace quotes the above passage as the real basis of the decision in that case. He adds:
"It is true that later on in his judgment he uses language which appears to deal with all cases where power to arrest without warrant is given by statute, but I think that this language must be construed as dealing only with the class of statutes where the nature of the offence is of the kind described in the passage above … I cannot myself read this decision as extending to cases other than those where the nature of the suspected offence requires prompt action."
Scott L.J. said:
"… powers of arrest without warrant should be expressed in quite unambiguous and simple language which any one can understand, and also that the occasions when the constable may rely on his discretion should be defined with care in any statutory provision conferring such a power."
In the case of Isaacs v. Keech [1925] 2 K.B. 354, an earlier Divisional Court authority by which the court in this case felt bound (while holding that independently of authority they would have reached the same conclusion on the construction of the section), the plaintiff was arrested as a common prostitute and taken into custody without a warrant, the defendant constable purporting to act under section 28(1) of the Town Police Clauses Act. The medical evidence showed that she was not a prostitute and there was no evidence to show she was importuning passengers to their annoyance. The magistrate dismissed the charge and the plaintiff brought an action against P.C. Keech in the county court for alleged wrongful arrest and false imprisonment.
The county court judge ruled that the plaintiff's arrest was not justified under section 28(1) but, believing that the defendant had acted bona fide in the honest discharge of his duty, he assessed the damages at seven guineas only. The defendant appealed.
On appeal Bankes L.J. said that in enacting a provision like section 28 of the Town Police Clauses Act 1847:
"… empowering a constable to take into custody without a warrant a person who commits an offence, the legislature has two conflicting interests to consider. There is on the one side the interest of the individual, who should be protected against illegal arrest, and there is on the other side the interest of the public, which requires that for the maintenance of order and safety there should be an immediate interference with persons committing certain offences, and the legislature no doubt always intends that the former of these interests as well as the latter should receive due attention."
Bankes L.J. adds:
"I think, however, that the whole trend of authority has been to put a uniform construction upon enactments giving power to arrest without a warrant a person found committing an offence, and to hold that what the legislature has in mind is not a mere power to arrest the person ultimately found guilty of the offence, but is a power to be exercised by the proper authority of acting at once on an honest and reasonable belief that the person is committing the particular offence."
In my view this goes too wide. In his judgment Scrutton L.J. said:
"I endeavour to appreciate the argument that the courts should be slow to construe an enactment of this kind as giving the constable power to arrest a person on a mere honest and reasonable belief that that person has committed an offence, and if the question were free...
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