CO/181/2006 
Neutral Citation Number: [2006] EWHC 1197 (Admin)
IN THE HIGH COURT OF JUSTICE 
QUEEN'S BENCH DIVISION  
DIVISIONAL COURT 
Royal Courts of Justice 
Strand
London WC2 

Friday, 5th May 2006

B E F O R E:

LORD JUSTICE SCOTT BAKER 

MR JUSTICE OPENSHAW 

- - - - - - - 
SPILLMAN
(CLAIMANT)

‑v‑ 

DIRECTOR OF PUBLIC PROSECUTIONS
(DEFENDANT) 
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Computer‑Aided Transcript of the Stenograph Notes of 
Smith Bernal Wordwave Limited
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 - - - - - - -
MR P SPREADBOROUGH (instructed by Ann Blyth‑Cook & Co) appeared on behalf of the CLAIMANT
MISS N DARUWALLA (instructed by Crown Prosecution Service) appeared on behalf of the DEFENDANT
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J U D G M E N T
1.	MR JUSTICE OPENSHAW:  This is an appeal by way of case stated by David Spillman from decisions of the Magistrates for South‑East Essex sitting at Southend on 20th September last year, by which they convicted him of an offence of being drunk and disorderly contrary to section 91(1) of the Criminal Justice Act 1967, and a further offence of assaulting Sergeant Adams, a police officer in the course of his duty, contrary to section 89(1) of the Police Act 1996.  He was sentenced to 18 weeks' imprisonment.  He was later released by this court after serving some weeks when it became clear that his sentence would have been served long before this appeal was heard and determined.  He was acquitted of another charge of assaulting Constable Kelly in the course of his duty contrary to the same section of the Police Act. 
2.	The case stated sets out the facts.  I have slightly altered the order of the paragraphs so as to put them chronologically.  On 28th April last year, Mr Spillman went out drinking in Southend.  He later told the police in interview that he went to two public houses.  Presumably by reason of the drink which he had taken, he could not remember leaving the public house or what happened thereafter.  Shortly afterwards, by now in the early hours of the following morning, 29th April, members of the public reported to the police that a man was lying injured in Beach Road in Southend.  Constable Kelly and another officer went to the scene.  They did indeed find Mr Spillman lying there in the middle of the road.  He had injuries to his face which was bloody.  It seems that he may have hurt himself as he fell.  An ambulance had been called.  He refused offers of help by the police and by the ambulance service.  I read the next few paragraphs of the case stated precisely as they are set out.   
"That the appellant smelt of intoxicating liquor, his speech was incoherent and he was drunk.   
(f) That the appellant was aggressive, abusive and was kicking out with his feet.   
(g) That the appellant's conduct was disorderly prior to arrest.   
(h) That Police Constable Kelly placed handcuffs on the appellant to prevent the appellant hurting himself and other people present.   
(i) That the appellant was arrested at the time he was handcuffed.   
(j) That the appellant was arrested for being drunk and disorderly.   
(k) That the appellant continued to be aggressive and continued to kick out after his arrest.   
(l) That no‑one present at the scene was able to confirm that Police Constable Kelly had been kicked by the appellant.   
(m) That the appellant was conveyed to Southend Police Station.   
(n) That the appellant spat blood into Police Sergeant Adams' face whilst in the custody suite at Southend Police Station.   
(o) That Police Constable Hills, Police Constable Kelly and Sergeant Adams were all acting in the execution of their duties.   
(p) That the appellant had been lawfully arrested."
3.	The Magistrates then set out in some considerable detail the evidence which had been given.  There was no need for them to do so.  In an appeal by way of case stated we need to know the facts as they found them to be, not the evidence on which those facts were found.
4.	In paragraph 7, headed "We were of the opinion that:‑", the Magistrates set out further findings of fact and conclusions in these terms: 
"(a) The appellant was drunk.   
(b) Prior to his arrest the appellant's conduct amounted to disorderly behaviour.   
(c) Police 	Constable Kelly acted lawfully in handcuffing the appellant so as to prevent further acts of disorderly behaviour and injury to persons at the scene.   
(d) Police Constable Kelly was also entitled to arrest the appellant for being drunk and disorderly and that the arrest was therefore lawful.   
(e) No other witness present at the scene had observed the appellant kick Police Constable Kelly as he had described.   
(f) The appellant was lawfully at Southend Police Station and had deliberately spat in the face of Police Sergeant Adams.   
(g) Police Sergeant Adams was acting in the execution of his duty." 
Then they add by way of comment: 
"(h) We did not draw an adverse inference from the appellant's failure to give evidence in view of the fact that he could not remember what had happened due to his state of intoxication."  
They further said this: 
"(i) We are satisfied beyond reasonable doubt that the appellant was guilty of being drunk and disorderly and of assaulting Police Sergeant Adams in execution of his duty.  We convicted him of those charges.   
(j) We dismissed the charge of assaulting Police Constable Kelly in the execution of his duty as the charge was laid some four months after the date of the incident and no other witnesses had observed the appellant kicking him.  We were satisfied that this amounted to a reasonable doubt."
5.	After the draft case had been prepared by the Magistrates' clerk, the appellant (or those acting on his behalf) made a series of suggested amendments to the case but these were not accepted by the magistrates.  The final case was dated 23rd December 2005.  There followed a further ineffectual exchange of letters attempting to amend the case.  By a recent and very late application dated only 13th April (that is to say three weeks ago, after this case had been listed for hearing) the appellant has sought to pursue these suggested amendments to this court.  In view of the imminence of the hearing, they asked that the application be heard by us today.  
6.	It is very unfortunate, and indeed regrettable, that the application was not made earlier.  We are prepared to consider the points which Mr Spreadborough wished to make on behalf of the appellant and they are essentially these.  He argues, having himself represented the appellant in the Magistrates' Court, that the case stated as drafted did not faithfully and accurately represent the evidence which was given, namely that Police Constable Kelly, although he put handcuffs upon the appellant, did not himself intend to arrest him at that time, nor indeed did he think that he was doing so.  Accordingly, Mr Spreadborough submits that since the officer did not intend to effect an arrest, the act of putting the handcuffs upon him, which was, in law, an arrest, was not lawful because the mind of the officer did not go with the act.  These are points which he says were taken in the Magistrates' Court and were not recorded either in the notes of evidence or in the findings of fact.
7.	Before dealing with those matters, it is perhaps important to return to the merits of the case.  When the police arrived, the appellant was lying drunk in the middle of the road, injured and bleeding.  The nature and extent of his injuries was unclear.  He was seemingly unaware of his predicament.  He presented a clear and obvious danger to other road users, and indeed was himself at risk of being run over.  The police officers called to this scene were plainly authorised to remove the danger which he presented and if he refused to move from the road, or if he was unable or unwilling to comply with the request, then they were entitled to use such force as was necessary to move him.  Once he had been moved off the road and on to the pavement, it is plain that he continued to be aggressive, abusive and he kicked out.  Since he was drunk, this plainly justified ‑‑ or would have justified ‑‑ his arrest for being drunk and disorderly, and certainly the facts of the offence of being drunk and disorderly were made out.
8.	The legality of the arrest may have been very relevant in relation to the assault upon Police Constable Kelly, but in fact the Magistrates acquitted him of that charge.  It is true that they acquitted him not because they had doubts as to whether he was acting in the course of his duty.  They had doubts as to whether he kicked Constable Kelly in the way in which he described.  The Magistrates were impressed, as one can readily understand, that the other officer present at the scene had not himself seen that kick.  So, as it turns out, Mr Spillman was acquitted of that charge.  
9.	Whether that arrest was lawful or not, he was taken to the cells at Southend Police Station and there can be no doubt at all that the custody officer, Sergeant Adams, was acting in the course of his duty since he had a statutory obligation to administer to the needs of all prisoners brought to the cells, whether lawfully arrested or not.  Although a person, even if he had been wrongfully arrested, may use reasonable force to attempt to secure his freedom, he is not justified in spitting blood into the face of the custody officer.  Accordingly, it seems to me (as I understand Mr Spreadborough himself now concedes) that even if the arrest had been unlawful, it does not impact upon the correctness of the conviction for assaulting Sergeant Adams.  
10.	The statement of principle which I have just made is, I am told, consistent with a decision of this court in the case of the Director of Public Prosecutions v L and S which was, we are told, decided on 14th December 1998, although we do not have a report before us.  Consequently, it seems to me that, on the facts as found by the Magistrates, the conviction for the appellant being drunk and disorderly is unimpeachable and I am entirely unconvinced that the amendments which Mr Spreadborough wishes to make to the case would have any effect upon that conviction.  As I have already said, he now concedes that the conviction for assaulting Sergeant Adams is, in any event, unassailable.  It seems to me, on analysis, that the amendments to the statement of this case would not in fact have made any difference to the legality of the convictions actually recorded. 
11.	Accordingly, the first question which is in these terms: 
"Were the bench entitled to find that the appellant was lawfully arrest for being drunk and disorderly?"  
I answer in the affirmative.  The other two questions are both predicated upon the unlawfulness of the arrest.  They are in these terms: 
"(2) If the initial arrest was unlawful, what effect, if any, did the subsequent purported arrest for drunk and disorderly have?"  
Answer: It does not arise. 
"(3) If the initial arrest was unlawful, was Sergeant Adams acting in the execution of his duty when the applicant spat in his face?"  
The answer would have been: Yes, but it does not arise.
12.	Accordingly, I would reject the amendments of the case.  I would confirm the Magistrates' decision and uphold the convictions.
13.	Mr Spreadborough, however, goes further.  He submits that the facts as he suggests they were and should have been found, should have resulted in a reduction in sentence.  He urges us to intervene in some manner.  This is not a matter with which this court can deal.  Appeals against sentence, except in those rare cases where the sentence is simply not within the bounds of legality, are entirely matters for the Crown Court which, of course, could have dealt with an appeal against sentence within a week or so of the sentence having been passed in September last year.  Nine months has now passed.  It is unfortunate, therefore, that this case was started in this court rather than in the local Crown Court in Essex.  As it is, it seems to me that the appellant's previous convictions for serious violence are such that in any event Mr Spreadborough may have had difficulty in persuading the Crown Court that a sentence of 18 weeks was anything other than entirely appropriate. 
14.	LORD JUSTICE SCOTT BAKER:  I agree.  This appeal has resulted in a very unsatisfactory state of affairs that cannot be in the interests of anyone.  The appellant committed these offences over a year ago.  He was convicted by the Justices last September and the case stated was signed by the clerk to the Justices on 23rd December last.  The delay since then has, in part, been due to the fact that the appellant has been trying unsuccessfully to persuade the Justices to make amendments to the stated case.
15.	It now emerges that Mr Spreadborough, who has appeared for the appellant, has no real challenge to the appellant's convictions.  The main thrust of his appeal is that the findings of fact that the Justices should have made should have accurately reflected the evidence, and that had that been the case, they would have been relevant to sentence and the appellant could have received a more lenient sentence.
16.	For my part, even if Mr Spreadborough is correct that the arrest was unlawful because the arresting officer did not have the relevant state of mind, I very much doubt whether, in the light of the rest of the evidence, it would have made any difference to the sentence imposed.  Be that as it may, where there is no challenge to the correctness of the conviction but there is challenge to the correctness of some of the facts on which it is based which may have a relevance to sentence, it seems to me that the correct course is to appeal to the Crown Court where, as my Lord has pointed out, the matter can be quickly resolved.  The appellant is, of course, now long out of time for doing that.  The effect of pursuing this matter by way of case stated, which is designed to deal with issues of law, has resulted in a long delay, the appellant having served part of his sentence and now being liable to recall to serve the remainder.
17.	As to return to custody, he should now surrender to custody.
18.	MR SPREADBOROUGH:  I believe that is the appropriate order. 
19.	LORD JUSTICE SCOTT BAKER:  What is his local police station?
20.	MR SPREADBOROUGH:  Southend‑on‑Sea. 
21.	LORD JUSTICE SCOTT BAKER:  He should forthwith surrender to custody at the Southend Police Station.
22.	MR SPREADBOROUGH:  As you can see, my Lords, I am not attended today.  I will pass that information to those attending on me.  Is it appropriate to specify a time and date? 
23.	LORD JUSTICE SCOTT BAKER:  How long are you asking for?
24.	MR SPREADBOROUGH:  I would suggest perhaps 14 days. 
25.	LORD JUSTICE SCOTT BAKER:  No, no, no.
26.	MR SPREADBOROUGH:  Whichever time limit the court sees fit, my Lord.  It is just that it is the time that has been suggested. 
27.	LORD JUSTICE SCOTT BAKER:  48 hours, I would have thought.
28.	MR SPREADBOROUGH:  Perhaps telephone contact might be possible. 
29.	LORD JUSTICE SCOTT BAKER:  By noon on Monday.
30.	MR SPREADBOROUGH:  Perhaps that will allow communication if a letter cannot be sent.  It is three days, my Lord.  Deemed service would be effective by Monday if a letter was sent by 4 pm today. 
31.	LORD JUSTICE SCOTT BAKER:  Yes.
32.	MR JUSTICE OPENSHAW:  After which he would be unlawfully at large and liable to arrest. 
33.	MR SPREADBOROUGH:  Of course.
34.	LORD JUSTICE SCOTT BAKER:  Do you have any observations, Miss Daruwalla? 
35.	MISS DARUWALLA:  No, my Lord. 
36.	LORD JUSTICE SCOTT BAKER:  Thank you very much.