Case No: CO/218/2003
[2003] EWHC 683 (Admin) 
IN THE HIGH COURT OF JUSTICE
QUEENS BENCH DIVISION
Administrative(Divisonal)Court

Royal Courts of Justice
Strand, London, WC2A 2LL

Date: 4th April 2003

Before:

LORD JUSTICE KENNEDY
MR JUSTICE HOOPER

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Between :

	Director of Public Prosecutions		
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	R Clive Winston Morrison		

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Stephen John (instructed by the Crown Prosecution Service) for the Claimant
Patrick Roche (instructed by Deighton Guedalla) for the Defendant

Hearing date: 20 March 2003
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JUDGMENT : APPROVED BY THE COURT FOR HANDING DOWN (SUBJECT TO EDITORIAL CORRECTIONS)

Mr Justice Hooper: 
This is the judgment of the Court
1)	The appellant appeals by way of case stated against the decision of Wood Green Crown Court (HH Judge Latham and lay justices) allowing the respondent’s appeal against conviction by Enfield Magistrates’ Court for an offence of disorderly conduct (section 5 Public Order Act 1986) and an offence of wilful obstruction of a police constable (section 89(2) Police Act 1996).  The appeal succeeded when, at the close of the prosecution’s case, the court ruled that the respondent had no case to answer.  
2)	The way in which this matter was dealt with in the Crown Court causes us some concern.  As is clear from paragraph 2 of the case stated the hearing extended over six working days, yet there were only two parties and the evidence was limited to seven witnesses, not all of that evidence being controversial.
3)	Following the hearing, the appellant asked for a case to be stated for the opinion of this court.  We were told that, in accordance with common and approved practice, a draft case stated was prepared by counsel for the appellant, submitted to counsel for the respondent, and then submitted to the court, which made substantial alterations, including annexing extensive notes of the judgment and of the evidence.  The result is voluminous, but not helpful.  Useful assistance as to what a case stated should contain can be obtained from Stone’s Justices’ Manual, Volume 1 paragraph 1-768.  The stated case should, itself, state clearly and succinctly all that is necessary to enable this court to resolve the issues of law. In the present case there was no need for a separate note of the judgment, and the summary of evidence should have been restricted to evidence relevant in relation to the second question posed for our consideration.  Had the matter been dealt with in that way it would have been necessary for the court to focus its mind on precisely what was (1) the disorderly behaviour relied upon by the prosecution in relation to the alleged breach of section 5 of the Public Order Act 1986, and (2) the act or acts of obstruction relied upon in relation to the alleged contravention of section 89(2) of the Police Act 1996.  Those are matters which are not easy to discern from the documentation before us, and we had to seek the assistance of counsel as to the precise factual basis of the prosecution case, including at what time and in what order acts which were alleged to be critical were said to have taken place.  Those are matters which should have been apparent upon the face of the case stated.
4)	The questions for the opinion of the High Court are:
“ 1. Was the Wood Green Crown Court wrong in law to hold that the Metropolitan Police on the evidence in this case had no lawful power or authority to close the public right of way over private premises by a cordon and forcibly prohibit the Defendant from using that right of way on foot against his will?
2. Was the court wrong in law to hold that the Defendant had no case to answer on both the charge of disorderly behaviour within the hearing or sight of a person likely to be caused harassment, alarm or distress contrary to section 5 of the Public Order Act 1986; and of wilfully obstructing a constable in the execution of his duty contrary to section 89(2) of the Police Act 1996?
5)	Question 1 raises an issue of public importance, namely whether to preserve and examine the scene where a crime is alleged to have been committed, the police may temporarily close off a public right of way over private premises and prevent unauthorised persons from entering therein.  The area in question was a mall in a shopping centre in Edmonton Green London N9.  The mall is private but there is a public right of way through it.  This point was raised by the judge during the hearing and then “adopted” by counsel for the defendant. 
6)	The respondent was charged with two offences:
“ (i) On 14.05.2001 at North Mall, Edmonton Green, N9, used threatening, abusive or insulting words or behaviour or disorderly behaviour within the hearing or sight of a person likely to be caused harassment, alarm or distress thereby, contrary to Section 5 (1) and (6) of the Public Order Act 1986.
(ii) On 14.05.2001 at North Mall, Edmonton Green, London N9 wilfully obstructed PC 204 YE Peter Sandell, a constable in the execution of his duty, contrary to Section 89 (2) of the Police Act 1996.”
7)	On the prosecution’s case the alleged disorderly conduct related to words spoken/shouted by the respondent after he had been told not to enter the cordoned off area and his general demeanour. It was PC Sandell’s evidence that he was arresting the respondent for disorderly conduct whilst, according to that officer and other officers, the respondent was within the cordoned off area. The Court made no finding as to whether the respondent had or had not stepped into the cordoned off area. 
8)	It appears that the prosecution’s case on the obstruction charge related to the conduct of the respondent after he had been arrested by PC Sandell.   He was alleged to have locked his arms around a railing. If the obstruction charge had related to the respondent’s alleged conduct before his arrest, then one would have expected the charge of obstruction to have related to the other officers involved.    
9)	On 14 May 2001 at about 5.00 pm the police received a report of a fight which involved a stabbing between two groups of males in the mall.  Ten police cars attended and found in the mall two sticks, possible weapons.  Police Inspector Hunt, who was not called as a witness, gave instructions that four areas should be cordoned off as “crime scenes” to preserve evidence until the scenes of crimes  officers arrived.  Officers then put up tapes across areas in the mall labelled “Police: Do not Cross”.  
10)	At about 7.45 pm the same evening, the respondent was seen by Police Sergeant Barden approaching the cordoned off area.  The notes of the judgment show that, on the prosecution’s case, the respondent first encountered PS Barden who told him  that he could not go through.  A few moments later the respondent was spoken to by PS Power and then PS Collin to the same effect and the respondent was arrested by PC Sandell.  The prosecution’s case was that, having been told by Police Sergeant Barden that he was not permitted to enter the cordoned area, the respondent made it clear to her that he challenged the police right to prohibit him from entering the area.  There was a dispute as to what was said and done by both the respondent and the police officers, as to whether or not the respondent did cross the tape and as to whether he was arrested only after having been warned about his conduct (paragraphs 8 and 9 of the stated case).
11)	Paragraph 11 of the stated case reads as follows:
“ i) There is no statutory power or authority for the setting up of a police cordon so as to close off an area otherwise open to the public other than under S.33 of the Terrorism Act 2000 which came into force on 19 February 2001.
 ii) There is no known express power to cordon and exclude people from a public place under Sections 1 and 8 of the Police and Criminal Evidence Act 1984 even if a magistrates’ court warrant were obtained.  There is no suggestion that such a warrant was sought or obtained in this case.
 iii) There is no evidence that any local bye-law applied to the Edmonton Green shopping centre, for example a market bye-law.” 
12)	The competing arguments of counsel are set out in the stated case, followed by the following conclusions of the court in paragraph 14:
“1. The only specific authority that can be found in English law for the setting up a cordon is under the Terrorism Act 2000.  That does not apply to the present case.  It is significant that that came into force just 3 months before the events in this case.
2.The police both at the time they set up the cordon and at this hearing have worked on the assumption that there is a lawful power to set up and maintain a cordon.  From that assumption it followed that the police officers’ attitude and language was the language of command not the language of request.  For the purpose of this submission we take the Prosecution evidence at face value.  On that basis there was a problem of “attitude” on both sides.  The police attitude was the language of command.  Mr Morrison’s language and attitude was that of challenge.
3. On the evidence before us about the nature and extent of the public right of way along the walkway, it has been established that there was a public right of way over the land shown in photograph 9.  There is no evidence that that public right of way was lawfully closed or excluded.
4. There is no evidence before us from Inspector Hunt who authorised the cordon.  All we have is hearsay evidence about his reasons.  We have no direct evidence as to what, if anything, he had reasonable cause to suspect.  Similarly there is no direct evidence as to Inspector Hunt’s reasoning or what he thought to be the legal basis for any power or duty to set up a cordon.
5. We conclude that if Inspector Hunt believed that he had the power to authorise and set up a police cordon he was mistaken.  Consequently the police officers who were acting on instructions from Inspector Hunt were misled about the extent of their authority.
6. There is an important conflict in the Prosecution case between the evidence of PS Power and PS Collin about who – as between Sergeant Collin and Mr Morrison – first pushed the other.  This is very important because it relates to Mr Roche’s (counsel for the defendant) third ground of appeal based on R v Galbraith.  This is a classic ground for submitting no case to answer where the police evidence contains an important conflict between their own witnesses.  It is inevitable given the presumption of innocence that if there is such a conflict we should resolve it in favour of the defendant.  There is no sufficient reason to exclude the evidence of PS Power that Sergeant Collin laid hands on Mr Morrison before he was arrested or was told he was going to be arrested.  This conclusion is supported by the evidence of witnesses that Mr Morrison was protesting vigorously – “Don’t fucking touch me.”
7. For the reasons I have explained there is insufficient evidence produced before us that PC Sandell was acting in the execution of his duty when he arrested Mr Morrison.  Similarly there is insufficient evidence that Morrison wilfully obstructed PC Sandell with the intention of causing harassment, alarm and distress.  To use a colloquial expression, it was not the defendant who was guilty of disorderly behaviour, it was PC Sandell who was ‘out of order’ in an attempt to prevent Mr Morrison from exercising his right to use a public right of way.
8. There is insufficient evidence before us that one ingredient of the Section 5 offence was established to constitute a prima facie case.  There was no direct evidence of any harassment, alarm or distress being caused to any member of the public or police officer.  No police officer has been asked if they or any member of the public was caused harassment, alarm or distress.  It is accepted that in some circumstances – in particular as set out in Chambers v Edwards, the fact-finding tribunal can infer harassment even if no witness expressly says that they were harassed.  It is important negative evidence that no witness speaks of any such harassment, alarm or distress – which is an essential ingredient of the offence.  We have considered all the evidence and we conclude there is no evidence that anyone was caused harassment, alarm or distress.  We also conclude that there was insufficient evidence of the necessary intention to make a case to answer. 
9.  On all the evidence produced by the Prosecution and before us we conclude that Mr Morrison’s words and conduct are attributable to his desire to assert his right of way and by way of self-defence in reaction to the threat of assault when PS Collin moved towards him.”
13)	It is well established that a constable is not acting in the execution of his duty unless he is acting lawfully.  If the respondent had a lawful right to enter the cordoned off area then an attempt to prevent him so doing would not be an act in execution of the duty of a police constable.  It was agreed before us that if the respondent had such a lawful right, then the only proper verdicts on the facts of this case were ones of not guilty. 
14)	In the first sentence of subparagraph (7), the reference to “for the reasons I have explained” must be a reference back to the conclusion in subparagraph  (5) that there was no power to set up the cordon. The arrest was, therefore, found by the court to be unlawful because the respondent had the right to enter into the cordoned off area.  It followed that the disorderly charge also failed. 
15)	It is this finding which is encapsulated in Question 1, to which we now turn.  We agree with Mr John, who appeared for the appellant before us but did not appear in the court below, that it would be surprising if, having regard to the duty of the police to bring offenders to justice, officers could not preserve intact the scene of a serious offence, such as a wounding, until that scene could be examined by specialist scenes of crime officers, and it is common knowledge that when an incident occurs in a public place police officers do habitually seek to preserve the scene, either by asking people to keep away or by erecting some form of barrier to cordon off the area or areas they want to preserve.  The detailed analysis of a scene of crime for weapons, fingerprints, footprints, DNA, the distribution of blood, fibres etc is vital both in the interests of the public, of the victim of a crime or his family and of any potential defendant.  All could have a legitimate right to complain if vital evidence was not preserved.   
16)	Mr Roche, for the respondent, realistically recognises the absurdity, but he submits that if police powers are insufficient that is a matter for Parliament rather than for the courts.  In fairness to Mr Roche it should also be said that the point as to the sufficiency of police powers was a point first taken by the court below rather than by him and in our judgment there is no reason to conclude that police powers are insufficient.  
17)	The fact that it is a common and desirable practice to do what the police did in this case does not mean that it is necessarily a legal practice.  The critical issue to be considered in this case is whether if land over which a public right of way exists is privately owned and neither a warrant nor the consent of the owner have been obtained, police officers who erect a cordon are acting illegally.  The Crown Court found that they are for what would seem to be two principal reasons: first, the only statutory authority for setting up a cordon is to be found in the Terrorism Act 2000 and secondly the land over which the public right of way ran is privately owned, the consent of the owner had not been obtained and no warrant had been (or indeed could be) obtained.   
18)	The reference to the Terrorism Act seems to us to be of little assistance, because what is relied on here is a common law power which, if it exists, would not be wide enough for the purposes of the 2000 Act (see, for example section 36(b) thereof, which enables a constable in uniform to require a person to leave premises adjacent to a cordoned area).
19)	As to the second reason, we accept that when seeking to investigate crime police officers do not have an unfettered right to restrict movements on private land – see R v Waterfield and Lynn [1964] 1 QB 164, but that decision has to be approached with some care in the light of what was said about it by Lord Denning MR in Ghani v Jones [1970] 1 QB 693 at 707 – 708.  As Lord Denning said at 708C –
“the police should be able to do whatever is necessary and reasonable to preserve the evidence of the crime.” 
20)	Assuming, for the purposes of argument,  that the owner of land over which a public right of way exists would have the lawful right to withhold consent to the police closing off an area for the purposes of preserving the scene of a crime, it seems to us that the police are entitled to proceed on the assumption that the owner would consent and would want to assist.  As Mr John pointed out, any alternative approach would lead to absurdity.  Before police officers could preserve the scene they would have to discover whether the land was privately owned, who was the owner, and whether he or she would give their consent.  
21)	The conclusion that the police were entitled to assume consent to act as they did on this occasion is not inconsistent with the law as we understand it which is laid down by the 1984 Act and receives support from the Code of Practice for the Searching of Premises by Police Officers (Code B), which makes provision for obtaining consent to search premises or obtaining a warrant.   Paragraph 1.3 of Code B provides that the Code applies to searches of premises –
“(a) Undertaken for the purposes of an investigation into an alleged offence, with the occupier’s consent, other than searches made in the following circumstances:
-	routine scenes of crime searches
-	calls to a fire or a burglary made by or on behalf of an occupier or searches following the activation of fire or burglar alarms
-	searches to which paragraph 4.4 applies
-	bomb threat calls”
22)	Mr John submits that as a matter of construction the occupier’s consent is not required where searches are made in the circumstances identified in paragraph 1.3(a).  We find it difficult to accept that the Code could grant a power to search in the absence of consent, of a warrant or of some other authority.  The Code proceeds on the assumption that neither a search warrant nor actual consent is needed, because consent can properly be assumed.  He further submitted that the circumstances identified are all ones where at least to some extent speed is of the essence.  That may not be entirely right in relation to paragraph 4.4 which permits a search without obtaining consent where the obtaining of consent would cause disproportionate inconvenience to the person entitled to grant entry, but for present purposes nothing turns on that.  Mr Roche rightly pointed out that the Code does not have the force of statute law, and he drew our attention to the decision of the Court of Appeal in Sanghera [2001] 1 Cr App R 20, but we can find nothing in that decision to cast doubt on the proposition that provided they do not go beyond what is reasonable in the circumstances, routine scenes of crime searches may assume the owner’s consent. 
23)	In the present case the police were entitled to assume consent.  It is not necessary for us to decide what would happen if the owner made it clear that he did not consent- an unlikely event.  It would be necessary to decide whether the owner of land over which a public right of way exists would have the lawful right to withhold consent to the police reasonably closing off an area for the purposes of preserving the scene of a crime and, if so, whether a warrant could be obtained.  It is sufficient to say that we believe that consent could not lawfully be withheld.  The cited passage in Ghani v Jones would support that tentative conclusion.  We also have doubts whether the owner of land over which a public right of way passes can either consent or not consent to an obstruction of the right of way.  His rights, faced with an unlawful obstruction, are no greater than the rights of any member of the public.  Furthermore, it seems very probable that the temporary obstruction of a public right of way in circumstances such as those in this case would be lawful. 
24)	The court seems to have been concerned about the fact that the inspector who ordered the cordon was not called as a witness and that therefore the court was being asked to rely on hearsay evidence (paragraph 14(4)).  The evidence that the officers were instructed to put up a cordon is not hearsay evidence.   There was no issue as to whether the inspector had reasonable cause to believe that a cordon was necessary. This is not surprising since it was the judge who first raised the issue of the lawfulness of establishing a cordon.
25)	Having considered all of the authorities referred to in the court below we are satisfied that the first question posed by the case stated must be answered in the affirmative.  It follows that the second part of the second question must be answered in the same way.
26)	We turn to the first part of the second question.  The appellant submits on the basis of subparagraph (6) of paragraph 14 of the stated case that the court applied the Galbraith test erroneously in this passage.  It is of particular importance that when a Crown Court is sitting in an appellate capacity the judge should take care to distinguish between a submission that there is no case to answer, where the leading authority is Galbraith [1981] 73 Cr App R 124, and a conclusion on the merits which should normally only be reached when all of the evidence has been heard.  The fact that two police officers do not agree in relation to one issue of fact would not normally be regarded as “a classic ground for submitting no case to answer” unless the issue was crucial in relation to the offence or offences charged, and the court could see no way of distinguishing between the evidence of the two officers.  As to those matters the case stated is far from clear.  To say as the stated case does: “There is no sufficient reason to exclude the evidence of PS Power that Sergeant Collin laid hands on Mr Morrison before he was arrested or was told he was going to be arrested” does not advance the matter unless one knows whether the charge of disorderly conduct related to what happened before the touching  being described in this passage and indeed why and in what circumstances there was any touching. On the prosecution’s case any touching of the respondent followed the respondent’s vehement insistence that he was allowed to enter the cordoned off area, had entered it and in so doing had acted in a disorderly way.
27)	Having concluded that PC Sandell was not acting in the execution of his duty when he arrested Mr Morrison because the cordon was unlawful, subparagraph (7) of paragraph 14 reads in part:
“Similarly there is insufficient evidence that Morrison wilfully obstructed PC Sandell with the intention of causing harassment, alarm and distress. It was not the defendant who was guilty of disorderly behaviour, it was PC Sandell who was ‘out of order’ in an attempt to prevent Mr Morrison from exercising his right to use a public right of way.”
28)	The court must have decided this part of the case on the basis that the alleged disorderly conduct was the use of “threatening, abusive or insulting words or behaviour or disorderly behaviour” by the respondent when wilfully obstructing PC Sandell.  That was not, so it seems to us, how the prosecution put their case on the disorderly conduct charge.  
29)	In fact PC Sandell arrested the respondent for his disorderly conduct, not, as the court appears to have thought, for obstructing the police in the execution of their duty by entering the area.   If he had the power to arrest he would have been acting in the course of his duty.  Section 5(4) and (5) of the Public Order Act 1996 give a constable the power to arrest in the following circumstances for disorderly conduct: 
“(4) A constable may arrest a person without warrant if—  
  (a) he engages in offensive conduct which  a constable warns him to stop, and  
  (b) he engages in further offensive conduct immediately or shortly after the warning.  
30)	In subsection (4) “offensive conduct” means conduct the constable reasonably suspects to constitute an offence under this section, and the conduct mentioned in paragraph (a) and the further conduct need not be of the same nature.” Assuming the necessary factual requirements in subsection 4(a) and (b) were established, reasonable suspicion would be sufficient.   
31)	In subparagraph (8) of the stated case, two further reasons are given for finding the charge of disorderly behaviour not proved.  First, “there was no direct evidence of any harassment, alarm or distress being caused to any member of the public or police officer” and we “conclude there is no evidence anyone was caused harassment, alarm or distress.”  Secondly: “We also conclude there was insufficient evidence of the necessary intention to make a case to answer.”  
32)	The appellant attacks the first reason submitting, rightly, that the court ought to have asked itself not whether any harassment etc was caused, but whether, as the statute provides and the charge set out, it was likely to be caused.  Mr John cited Chambers and Edwards v. DPP [1995] Crim. LR 896, cited in the stated case.   
33)	 As to the second reason, section 6(4) of the Public Order Act 1986 provides:
 (4)  A person is guilty of an offence under section 5 only if he intends his words or behaviour, or the writing, sign or other visible representation, to be threatening, abusive or insulting, or is aware that it may be threatening, abusive or insulting or (as the case may be) he intends his behaviour to be or is aware that it may be disorderly.
34)	We agree with Mr John that it was premature to resolve any issue of intent at this stage in this way.  
35)	We are satisfied that the first part of the second question posed by the case stated must also be answered in the affirmative.
36)	In conclusion the answers to both questions are in the affirmative.   
37)	The appellant does not seek an order remitting the case back to the Crown Court.