Neutral Citation Number: [2007] EWCA Crim 1033 

Case No: 2006/04751/C3
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CRIMINAL DIVISION)
ON APPEAL FROM ISLEWORTH CROWN COURT
HER HJ. DANGOR
T. 2006 7055
Royal Courts of Justice
Strand, London, WC2A 2LL

Date: 4 May 2007
Before :

LORD JUSTICE TUCKEY
MR JUSTICE BENNETT
and
MR JUSTICE LANGSTAFF
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Between :

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	Shwan FARAJ		

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Miss A  PENNY for the Crown
Mr  R  BANKS for the Appellant

Hearing dates: 30 April 2007
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Judgment 

Lord Justice Tuckey: 
1.	On 21 August 2006 in the Isleworth Crown Court before Her Honour Judge Dangor and a jury the appellant was convicted of false imprisonment.   He was subsequently given a suspended sentence and ordered to pay compensation and costs.  He appeals against conviction by leave of the single judge.  The point now taken is that the appellant had a good defence based on mistaken belief which was not put before the jury.  
2.	The complainant, Mr Haq, was a Siemens engineer.  On the morning of 10 October 2005 he went in his Siemens van wearing his Siemens uniform to the house where the appellant was living in Ealing to repair a time switch.  After parking his van he rang the door bell twice but received no reply.  He looked through the letter box and saw a figure so he stepped back.  The appellant opened the door and accused him of trying to burgle him.  He said he was there by appointment to change the meter because there was a fault with the time switch and produced his Siemens identity card bearing his photograph, name and a contact number.  The appellant seemed shocked and snatched the card from him.  
3.	So much was largely common ground but what happened next was not.  Mr Haq’s evidence was that the appellant said “come in” and closed the door.  They went into the hall where the phone was.  The appellant then went into the kitchen and came back with a small kitchen knife, the blade of which he held to Mr Haq’s eyes in a very aggressive way, and told him not to look at him but look at the floor.  Mr Haq obeyed and backed into a corner.  The appellant was saying that he had come to burgle and he was saying that he had his computer and had come to do a job.  The appellant told him to sit down and he did so.  The appellant attempted to phone to confirm his identity but was dithering.   He then said “Bis-mil-allah” (God bless me) and the appellant asked him if he was a Muslim.  When he said he was, the appellant said he was lucky that he was a Muslim, ushered him out of the house and told him to get off his property.  
4.	The appellant’s evidence was that he was upstairs when the door bell rang.  He went down and saw an arm right up to the elbow and a man’s eyes looking through the letter box.  He thought it might have been a burglar.  The man withdrew his hand as the appellant opened the door and stumbled into the house.  He was dressed in a uniform but his approach did not coincide with his uniform.  The appellant asked why he was looking through the letter box and whether he was new in the job.  The man said he was not new but because his actions were naïve and defensive the appellant doubted him.  The man was argumentative and said that he was a utility fault repairer, but the appellant said that there were no faults to be rectified and he had not received any notification of an appointment.  He needed to verify his identification because he was so confrontational.  He took his identity card and phoned the number on it but the lines were busy.  He saw in the mirror that the man had stepped into the hall and so he asked him to leave and said that if there was a fault he wanted another engineer to come and deal with it.  The man left and he saw him drive off in a Siemens van.  He had not seen the van before.  He denied arming himself with a knife or forcing the man to sit in the corner or that there had been any discussion about him being muslim.  After he left he tried to telephone the police but was constantly put on hold and abandoned his call because he had not taken the man’s name and number.  He now accepted that the man was not a burglar but had believed that he was at the time.  
5.	So on the basis of the appellant’s evidence he had not detained or restrained Mr Haq at any time.  The prosecution’s case was that he had been unlawfully restrained from the moment he was threatened with the knife.  The jury obviously resolved this issue of fact in favour of the Crown. 
6.	But before the jury retired the judge was asked by the appellant’s counsel to give directions as to what the position would be if the jury rejected the appellant’s evidence that there had been no restraint.  Various suggestions were made in written submissions as to what directions should be given to which it is unnecessary to refer.  Miss Penny, who appeared then as she does now for the Crown, submitted that no such directions were required.  It was for the defence to raise any legal justification for the restraint and they had not done so.  The judge disagreed saying:
I have decided that I will tell the jury that they can consider a defence which was not put forward by the evidence of the defendant and that they can consider the question of whether this man was exercising his lawful right either to arrest or detain in defence of his property.  I will give a direction along those lines.
7.	So that was the task which the judge set herself.  In the summing up she defined the offence of false imprisonment impeccably by saying:
False imprisonment is the unlawful and intentional restraint of a victim’s freedom of movement from a particular place.  
She then elaborated quite correctly on what was required to show intentional restraint on a victim’s freedom of movement.  It is however the way in which she dealt with what was unlawful that gives rise to the issues on this appeal.  
8.	What the judge said was:
The prosecution must satisfy you so that you are sure … that the imprisonment was unlawful.  That means without reasonable excuse…
There are some defences to this offence.  A defendant is entitled to protect his property from intruders.  An imprisonment or detention will be lawful if it results from the proper exercise of a power of arrest, conferred by law.  The law says that a person, a defendant, may arrest … without a warrant, anyone who is in the act of committing an arrestable offence – and burglary is an arrestable offence – or anyone who he has reasonable grounds for suspecting to be committing such an offence.  To raise this defence the defendant must have reasonable grounds for suspecting that burglary was to be committed …  before that arrest or detention can be lawful.
You consider all of the evidence in deciding whether there were reasonable grounds for suspicion that a burglary was going to be committed.  If you conclude that it was not – there were not reasonable grounds, i.e. the answer to that question is “No” then that is the end of the matter.  If you consider that there were reasonable grounds and the answer to that is “Yes, there were”, then you have to go on to consider whether the defendant – what he did was in reasonable and proportionate defence of his home.
She then elaborated on what she meant by reasonable and proportionate by giving conventional defence of property directions, viz did the defendant honestly believe that he needed to use the threat of force to protect his property; and if so was the type and amount of threatened force or intimidation used reasonable?
9.	These directions covered the two defences which she had referred to in her ruling.  First a citizen’s power of arrest.  This power is now conferred by section 24A of the Police and Criminal Evidence Act 1984.  A person other than a constable may arrest anyone without a warrant whom he has reasonable grounds for suspecting to be committing an indictable offence but only if he has reasonable grounds for believing that it is necessary to make an arrest to prevent, among other things, loss of or damage to property.  
10.	The second part of the direction deals with defence of property including the reasonableness of the appellant’s  response to the perceived threat to his property.
11.	Now Mr Banks who did not appear for the appellant below submits that these directions missed the point.  Assuming that the appellant had restrained Mr Haq everyone overlooked the fact that he had a defence based on mistaken belief.  He had from the outset said that he believed Mr Haq was or might be a burglar and his evidence about this had not been challenged.  The law was that a man must be judged upon the facts as he believed them to be when the state of his mind was an ingredient of the offence with which he was charged.  The fact that the asserted belief was unreasonable was irrelevant, other than for the purpose of deciding whether he in fact held that belief.  Thus Mr Banks submits that the only direction which should have been given to the jury was whether they accepted that the appellant believed that Mr Haq was or might have been a burglar.  If they did he was entitled to be acquitted because his restraint as such was not unlawful.  If he had gone too far that was something which did not go to the legality of the restraint but something which could and should have been charged as a separate offence of assault if the facts warranted it.  In this case the appellant had been charged with common assault but the Crown decided not to proceed with that count at trial.
12.	It is well established that a genuine but mistaken belief can be relied upon as a defence to a criminal charge such as false imprisonment where the Crown have to prove that the defendant’s conduct was unlawful.  This principle is well illustrated by the case of  R v Gladstone Williams [1984] 78 CAR 276 where the appellant was charged with assault occasioning actual bodily harm.  He had assaulted a man in the street in defence of another whom he had mistakenly believed was being unlawfully assaulted.  Having said that the mental element necessary to constitute guilt in a case of assault was the intent to apply unlawful force to the victim Lord Lane Chief Justice said (281/2):
What then is the situation if the defendant is labouring under a mistake of fact as to the circumstances?  What if he believes, but believes mistakenly, that the victim is consenting or that it is necessary to defend himself, or that a crime is being committed which he intends to prevent?  He must then be judged against the mistaken facts as he believes them to be.  If judged against those facts or circumstances the prosecution fail to establish his guilt then he is entitled to be acquitted….
The reasonableness or unreasonableness of the defendant’s belief is material to the question of whether the belief was held by the defendant at all.  If the belief was in fact held, its unreasonableness, so far as guilt or innocence is concerned is neither here nor there.  It is irrelevant.  
13.	It is clear that neither the appellant’s trial counsel nor the judge considered this line of defence.  Miss Penny submits that it was unnecessary for them to do so because this defence cannot be raised unless the defendant claims that he was acting on the mistaken belief.  In this case the appellant did not say that he had restrained Mr Haq in the mistaken belief that he was a burglar.  He said that he had not restrained him at all.  
14.	We do not accept this submission.  If the judge had left the case to the jury on the simple basis that they had to decide whether the appellant had restrained Mr Haq or not we do not think she could have been criticised.  But once she agreed to direct the jury as to what the position would be if the appellant had restrained Mr Haq, it was incumbent upon her to give correct directions as to the law.  If she did not do so it is open to the appellant to raise the matter in this court even though his counsel at trial did not put his case as Mr Banks now does.  But what was the law to be applied in this case?
15.	Mr Haq’s evidence established that he had been intentionally restrained by the appellant.  The question was whether this restraint was unlawful – in other words without legal justification.  Lawful arrest was one such defence and we have already referred to the statutory provisions which confer limited powers of arrest on people other than the police.  Reasonable defence of property was also a defence.  
16.	Mr Banks submitted that neither of these defences need be considered in this case.  A householder who suspects someone of being a burglar must at least have the right to detain the suspect in his house for as long as is necessary to establish his identity.  If the existing law does not confer any such right we should establish one by our judgment in this case.  Mr Banks was not however able to refer us to any authority which might assist us to meet his challenge.  However before seeing whether we need to rise to it we should first consider how the two recognised defences to which we have referred could be deployed in this case. 
17.	Did the appellant arrest Mr Haq?  Mr Banks submits that he did not because.  Mr Haq was not detained for the purposes of being handed over to the police or subjected to any of the procedures associated with arrest provided by common law or statute.
18.	But an arrest may be constituted when any form of words is used or possibly conduct deployed which is calculated to bring to the suspect’s notice, and does so, that he is under compulsion, and he thereafter submits to that compulsion. (See Alderson v Booth [1969] 2 QB 216-221).  That is what happened in this case when the appellant told Mr Haq to sit in the corner and he did so.  There was therefore an arrest in our view.  The question is whether it was lawful.
19.	As we have already said the power of arrest conferred on the appellant could only have been exercised if he had reasonable grounds for suspecting Mr Haq of burglary.  How does this square with a genuine but mistaken belief that he was a burglar even if the belief was unreasonable?  
20.	This is a difficult question to which we can see there might be two answers.  It might be argued that the appellant was entitled to be judged on the facts as he believed them to be, that is to say that Mr Haq was a burglar, but that he did not have the power to arrest him unless he also had reasonable grounds for suspecting him.  This might in practice take away some of the advantage to the appellant of being judged on a belief which was genuine but unreasonable, but would recognise fully the statutory constraint on the power of arrest.  Alternatively, it might be proposed that the reconciliation between the objectivity required by the statute and the subjectivity inherent in regarding a genuine but mistaken belief as a defence is that for all purposes other than that of assessing the guilt of a defendant in criminal proceedings against him for false imprisonment the reasonableness of the arrest is to be judged by the standards of the reasonable person.  For the purposes of criminal responsibility it is however to be judged by assuming that things truly were as the defendant mistakenly believed them to be, and then asking whether then there would be reasonable grounds for the arrest in the eyes of the reasonable person.  Smith and Hogan, Criminal Law, (11th. edition) at 575 might seem to indicate this second approach, which would recognise fully the force of the defence of genuine but mistaken belief.  
21.	It is, however, unnecessary for present purposes to resolve this difficult question, upon which we would have wished to hear fuller argument if we were to decide it.  It seems to us consideration of the (separate) defence, that the act complained of was taken genuinely in defence of property, is sufficient to determine this appeal.
22.	So what about defence of property?  We can see no reason why a house-holder should not be entitled to detain someone in his house whom he genuinely believes to be a burglar.  He would be acting in defence of his property by doing so.  Here full effect can be given to the defendant’s belief however unreasonable it may be.  But this defence, like self defence, has its limits.  The householder must honestly believe that he needs to detain the suspect and must do so in a way which is reasonable.  So if the appellant believed that Mr Haq was a burglar he would be entitled to be judged on this basis even if his belief was unreasonable.  If all that he had done was to detain Mr Haq for the purposes of establishing his identity it is most unlikely that he would be found to have acted unreasonably.  Whether his use of a knife to do so was reasonable is another matter which, like everything else, would be for the jury to decide.
23.	Should there be some free standing right to detain which is not subject to the limits which arrest and defence of property are, as Mr Banks contends?  We do not think so.  The law has always jealously guarded the right to freedom of movement.  Any restriction of that right has to be justified and confined within  established limits.  In the event we think that in the circumstances of this case  defence of property gave the appellant sufficient protection.  
24.	So we return to consider the passage in the summing up which we have quoted in para. 11 with this brief discussion of the applicable law in mind.  First the judge refers to “reasonable excuse” rather than legal excuse.  The matter was not at large in the way that this direction might suggest, but if the remainder of the directions had made this clear, this mistake would not have been of importance.  Secondly, as we have already noted, it does not refer to mistaken belief at all.  Thirdly, and we think most importantly, it elides the two defences of arrest and defence of property.  It says that if the appellant did not have reasonable grounds for suspicion he is guilty, but that did not follow.  Defence of property was a separate defence.  It was not dependant upon whether the appellant had reasonable grounds for suspicion, but only upon whether in fact he believed that Mr Haq was a burglar.
25.	For these reasons we think the summing up was flawed and flawed in such a way as to cast doubt on the safety of the appellant’s conviction.  In saying this we do not think it would be fair to criticise the judge.  This is a difficult area of the law about which she was not in any way assisted by the submissions made before she started her summing up.  The directions should have dealt with honest but mistaken belief and, separately, with the defences of arrest and defence of property.  
26.	This appeal against conviction must therefore be allowed.  If there is a retrial the judge will need to consider whether any directions relating to a defence not advanced by the defendant should be given.  If directions are to be given we think they should be confined to defence of property.