Wycombe District Council v Alex Snowball
| Jurisdiction | England & Wales |
| Judge | Lord Justice Flaux,Mrs Justice Elisabeth Laing |
| Judgment Date | 29 June 2020 |
| Neutral Citation | [2020] EWHC 1656 (Admin) |
| Docket Number | Case No: CO/487/2020 |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 29 June 2020 |
[2020] EWHC 1656 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
Lord Justice Flaux
Mrs Justice Elisabeth Laing
Case No: CO/487/2020
Miss Kuljit Bhogal (instructed by BUCKINGHAMSHIRE COUNCIL LEGAL SERVICES for the Appellant
Mr Alex Snowball the Respondent appearing in person
Hearing dates: 16 June 2020
Approved Judgment
Introduction
This is the judgment of the Court.
It is the Appellant's case that on 20 December 2018, the Respondent failed without reasonable excuse to comply with a requirement from a Constable to surrender a can which the Constable reasonably believed to be alcohol, or a container of alcohol, and that by doing so, he committed an offence.
On 20 December 2018, the Respondent was issued with a fixed penalty notice (‘FPN’) under section 68 of Anti-social Behaviour Crime and Policing Act 2014 (‘the Act’), for breaching a Public Spaces Protection Order (‘PSPO’).
The Respondent did not pay the sum required by the FPN. He was charged with an offence contrary to section 63(6) of the Act. The Respondent was summonsed before High Wycombe Magistrates' Court. At his summary trial on 17 December 2019, the Respondent pleaded not guilty. District Judge (Magistrates' Court) Dodds (‘the DJ’) dismissed the information.
This is an appeal by way of case stated from the DJ's decision. The Appellant asks the Court to find the matter proved, or, if not, to remit the case to the Magistrates' Court with appropriate directions.
At the remote hearing, the Appellant was represented by Ms Bhogal. The Respondent represented himself. He was helped by his father, whom he described as his ‘Mackenzie Friend’. We thank the parties for their written and oral submissions.
The facts
The DJ found the following facts in the case stated dated 31 January 2020. On 20 December 2018 a PSPO was in force. This prohibited any person from consuming alcohol, or from having an open container for alcohol in a restricted area. On that date, the Respondent was in the restricted area. He was holding an open can labelled ‘Foster's Lager’. He was seen drinking from the can.
Police Constables Price and Cummins saw the Respondent holding, and drinking from, the container. At the time, Police Constable Cummins reasonably believed the container the Respondent was holding had alcohol in it, because of the Foster's label, and because the Respondent refused to surrender the container, or to explain what was in it.
Police Constable Cummins warned the Respondent that he reasonably believed that the Respondent was drinking alcohol, and had a container for alcohol, and that this was prohibited by the PSPO. He asked the Respondent to give him the container. The Respondent refused. Police Constable Cummins warned the Respondent that he would be issued with a FPN if he continued to refuse to surrender the container since this refusal was an offence. The Respondent continued to refuse to surrender the container.
Police Constable Cummins continued reasonably to believe that the container held by the Respondent had alcohol in it because of the label, and because the Respondent refused to give him the container, or to explain what was in it.
Police Constable Cummins then issued the Respondent with a FPN. The DJ made no findings about the terms of the FPN. There was a copy in the Appellant's bundle, but it was illegible.
After the hearing we asked the parties whether they could send us a clearer copy. The Respondent helpfully sent us a PDF of a scan of the FPN. It is still somewhat difficult to read. Doing the best we can, we think it says:
‘Had in your possession a container of suspected alcohol which was a can of FOSTER's which is believed to have contained alcohol. You have refused to hand it over when requested by PC 2353 CUMMINS. You were informed it was an offence not to but carried on possessing it and drunk from it.’
The DJ found that the Respondent ‘then showed to Police Constable Cummins by pouring out the liquid in the container and claimed that the container did not contain alcohol but contained an orange drink akin to orangeade’. Police Constable Cummins told the Respondent that the offence had still been committed. The contents of the container were never analysed.
At that point, Police Constable Cummins no longer reasonably believed that the container had had alcohol in it. He accepted that the orange liquid poured out by the Respondent was not alcohol.
The Respondent accepted that he had been deliberately awkward with the police because of his grievances against the authorities. In his evidence he admitted that he deliberately set out to give the police reasonable grounds for thinking that he was drinking alcohol in breach of the order.
The Appellant's skeleton argument explains that the PSPO in this case was made under section 59 of the Act on 1 February 2017 and varied on 22 August 2018. There was a copy before the DJ. It is at pages 43–48 of the Appellant's bundle of documents. It has not been challenged in accordance with the procedure in section 66 of the Act (see further, below). The effect of the PSPO was that, with exceptions which are irrelevant for present purposes, anyone who consumed alcohol in the prohibited area, or had an open container for alcohol, committed an offence.
Although the DJ made no finding about this, there was, according to section 68(10) of the Act (see further, below), evidence before him that the Respondent did not pay the FPN in this case. At pages 40–42 in the Appellant's bundle of documents there is an exhibit sheet and exhibit, dated 9 January 2019. This is described as a ‘Chief Finance Officer's Certificate pursuant to section 63 and section 68(10) of [the Act]’. It is signed by M David Skinner. The Respondent did not suggest to us that he had paid the FPN.
The arguments before the DJ
The Appellant argued that the offence was made out because when Police Constable Cummins issued the FPN all the relevant ingredients of the offence were made out. Police Cummins reasonably believed that there was alcohol in the container.
The Respondent argued that ‘Police Constable Cummins' reasonable belief was a continuing process’ and that after he had issued the FPN ‘the Respondent then showed Police Constable Cummins that there was no alcohol in the container and that the requirement to surrender the container fell away and that the Respondent was not guilty of the offence’.
Neither party referred the DJ to any case law.
The DJ's reasoning
The DJ held that ‘Police Constable Cummins' reasonable belief that the container held by the Respondent was a continuing process’. After Police Constable Cummins issued the FPN, the Respondent showed that there was no alcohol in the container. Police Constable Cummins then no longer reasonably believed that the container had alcohol in it.
The requirement to surrender the container then fell away. The situation was akin to a defendant being issued with a parking ticket and it then being discovered that there had not been a parking offence and that the ticket had been issued in error.
While the Respondent was guilty of awkward and obstructive behaviour in not showing the Police Officer on request that there was no alcohol in the container, ‘however he then did so demonstrate’.
The questions for the High Court
The DJ posed two questions.
i. Was the offence complete when Police Constable Cummins had issued the FPN, given the finding that at that time he reasonably believed that container which the Respondent was holding had alcohol in it?
ii. Did the DJ err in law in holding that the offence was not then complete, that the reasonable belief of Police Constable Cummins was a continuing process so that the Respondent could ‘belatedly’ show that there was in fact no alcohol in the container, ‘enabling me to dismiss the offence’?
The grounds of appeal
There are three grounds of appeal.
1. The point at which the court should ask whether the PSPO has been breached is the time at which the FPN is issued, and not afterwards. The Respondent had ample opportunity to show that the container had no alcohol in it. At any point before the issue of the FPN, he could have told the officers what was in the can, or poured out its contents and shown the officers what was in it. The Respondent chose not to, until after the officers issued the FPN. The Respondent submits that the section 63 offence had been committed by that stage, too. The DJ erred in comparing this case with the issue of a parking ticket. The PSPO was lawfully made
2. The Appellant does not have to show, either in order to issue a FPN, or to show that a section 63 offence has been committed, that alcohol was present or consumed. What is required, instead, is that the officer has a reasonable belief that the Respondent had a container with alcohol in it from which he was, or had been, consuming alcohol, or from which he intended to consume alcohol. Although the DJ made no finding to this effect, the Appellant's case is that the Respondent had a second unopened can in his pocket.
3. Those who enforce PSPOs must be entitled reasonably to conclude that a branded container of alcohol in fact does contain alcohol unless the contrary is shown. Without testing in a laboratory, officers have no way of telling whether a can has alcohol, or a non-alcoholic drink in it. If the DJ's reasoning is right, it will make PSPOs very hard to enforce
The parties' submissions
Ms Bhogal made oral...
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Consuming Alcohol in Breach of a PSPO: When is the Offence Complete? Wycombe District Council v Snowball [2020] EWHC 1656 (Admin)
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