Case No. CO/2659/2012 
Neutral Citation Number: [2012] EWHC 3398 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION 
THE ADMINISTRATIVE COURT 
Royal Courts of Justice 
Strand
London WC2A 2LL 

Date: Friday, 26 October 2012
 
B e f o r e: 

MR JUSTICE CRANSTON
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Between: 
ELKINGTON 
Appellant

v 

DIRECTOR OF PUBLIC PROSECUTIONS 
Respondent 
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MR M TURNER (instructed by O'Neill Wright & Nash) appeared on behalf of the Appellant 
MR J MCGUINNESS, QC (instructed by CPS) appeared on behalf of the Respondent 
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J U D G M E N T 

1.	MR JUSTICE CRANSTON:  This is an appeal by way of case stated from the decision of the Central Buckinghamshire Justices sitting at Aylesbury Magistrates' Court.  On 21 July last year, they convicted the appellant of an offence, count 2, of resisting a police constable in the execution of his duty.  The issue before me is to answer the question posed by the justices: 
"Did we correctly find that there was a case to answer in respect of Count 2, resisting a police constable in the execution of his duty, at the close of the prosecution case?"
The Facts 
2.	On 31 January last year, the appellant was charged by the Thames Valley Police that, on 12 January 2011 at Chesham, he had assaulted Police Constable Philip Thomson in the execution of his duty.  On 30 June, the Crown Prosecution Service laid an information against the appellant that, on that same day in January 2011, and again at Chesham, he had resisted PC Thomson in the execution of his duty, contrary to Section 89(2) of the Police Act 1996.  The appellant entered pleas of not guilty to both charges.  The trial took place on 21 July 2011 before three justices.  
3.	The justices heard evidence.  First, PC Thomson explained that he had been on duty in Chesham on 12 January, earlier in the year, chasing a suspect in a burglary.  At about 10.30 in the morning he was driving into the town centre, with urgency, but without using a siren or blue lights.  While he was stationary at a roundabout, the appellant had approached the driver's side window of his police car to remonstrate with him about his driving.  PC Thomson said that the appellant was shouting at him, resting on the car and leaning towards the window.  He described the appellant as quite animated and heated.  He had one arm on top of the roof and another on the side and was leaning in the car.  PC Thomson said to the appellant that he had to leave.  PC Thomson told the justices that the appellant reached into the car and took hold of the equipment on his right shoulder.  The appellant's upper body, arm and head were inside the car.  PC Thomson took hold of the appellant's hand so that he would not hit him.  He asked the appellant what the hell he thought he was doing.  In PC Thompson's evidence, he pulled the appellant's hand off him and told him to desist.  PC Thomson said that he thought the appellant would grab him somewhere else, so he pushed him out of the car.  He then said to the appellant that the appellant had gone too far and he would to have a chat with him.  He indicated that he would need to park his vehicle.  
4.	In PC Thompson's evidence, after parking the car and as he approached the appellant, he was considering his powers, debating with himself whether to give the appellant a verbal warning, a ticking off or a ticket, in other words a penalty notice.  The appellant asked for PC Thompson's name and number.  PC Thomson told the justices that he found the appellant to be quite aggressive: the appellant's hands were by his side, his chest was inflated and his head tilted up towards PC Thomson as if he was spoiling for a fight.  In PC Thompson's evidence, the appellant turned and tried to walk away from him immediately after PC Thomson had given him his name and number.  PC Thomson said that he asked the appellant to stop a couple of times.  The appellant had committed an offence and he wanted to detain him to deal with him.  However, he was still considering his options.  He was debating whether to give him a penalty notice for a public order offence for his words and behaviour, but he also wanted to make it clear that someone like the appellant could not approach the police and assault them.  
5.	In PC Thompson's evidence, he wanted to detain the appellant and get his details and proceed from there.  He asked the appellant to stop a couple of times.  PC Thomson said that he then tried to take the appellant's arm to detain him.  The appellant had the other arm raised as though to strike him.  PC Thomson said that he put his arm up to stop him and he pushed the appellant's other arm back.  The appellant ended up going back on to the car.  At this point PC Thomson told the appellant that he was under arrest.  Once PC Thomson had control of the appellant on the ground, he cautioned him and informed him of the offence for which he had been arrested.  
6.	In cross‑examination, PC Thomson confirmed that he had taken hold of the appellant when he tried to walk off and only later told him that he was under arrest.  He accepted that he did not tell the appellant what he had been arrested for straight away.  He did that later, when he had control.  He arrested the appellant after the appellant had swung back with his hand raised.  PC Thomson said that he was of the opinion that the appellant intended to fight him.  He said, "You're under arrest," and the appellant continued to struggle.  He could not apply handcuffs because the appellant was resisting so much and he called colleagues.  In re‑examination, PC Thomson confirmed that it was all very fast and spontaneous as an incident.  He had not identified what offence he thought had occurred and what action he had to take to deal with it.  
7.	There was also oral evidence from an independent witness, Janice Bannerman.  She told the justices that she was in the Sundial Hairdressing Salon.  She was downstairs looking through the window.  Her daughter was upstairs with the hairdresser.  She explained that she had seen the police car coming from the high street, driving slowly up to the roundabout.  Looking across, she had seen a man coming from the carpark towards the kerb.  He put his hand up to get the police car to stop and then walked around to the driver's door.  In her evidence, the police officer put the window down and the man went to the open window, suddenly putting his body quickly through it.  Mrs Bannerman thought that, by the speed of his movement, he either intended to hit or to spit at PC Thomson.  Something had then made the appellant move away from the window.  The man then pulled back from the car.  Mrs Bannerman said that she could not hear anything, since the door of the salon was closed.  She thought that the man had hit the police officer so she shouted upstairs to her daughter and the hairdresser.  She said that she saw the man start to walk towards the police officer as the police officer was himself walking over.  The man then ran up to him and lunged at him, flailing out with his arms to hit him.  Prior to the lunge, Mrs Bannerman said that she could not see the police officer make any aggressive movements towards the man.  She then saw the struggle between the two.  In cross‑examination she said she was certain she had seen the man lunge at the police officer.  She had not seen the police officer take hold of the man's hand before that.  
8.	The trial was adjourned until 11 August.  The prosecution case was closed.  Mr Turner submitted on the appellant's behalf that there was no case to answer in relation to the charge of resisting PC Thomson in the execution of his duty.  Two authorities were cited, Mepstead v. DPP (1996) 160 JP 475 and Fraser Wood v. DPP [2008] EWHC 1056 (Admin).  There was also reference to the first limb of R v. Galbraith [1981] 1 WLR 1039.  The justices rejected the submission of no case.  The appellant gave evidence and, ultimately, the justices convicted him in respect of this matter.  They acquitted him of the charge of assaulting PC Thomson.  
9.	In their case stated, the justices say this about the no case submission:
"[12] We are of the opinion that PC Thomson had been weighing up his powers as he approached [the appellant].  PC Thomson believed that he had been assaulted and wanted to deal with [the appellant] in some way.  We are of the opinion that all the available evidence required adjudication by us.  It seemed to us that it was not a situation where there was no evidence to support the alleged offence of resisting a police constable, as contended by the appellant.  We had been referred to two cases, the principles of which needed to be applied in this case.  During the police officer's evidence it had become apparent that the incident had occurred very quickly.  Events happened in quick session as the officer went through his options.  He had taken hold of [the appellant's] arm after he had walked away because he had not finished dealing with him for an offence that he thought had been committed.  PC Thomson could be said to be acting in the execution of his duty because the taking hold was part of a sequence of events.  The sequence had begun with an alleged assault on the police officer for which he wanted to deal with [the appellant].  The appellant had walked away before the officer had completed matters.  It was possible, based on this, to say that a reasonable tribunal might convict.  Therefore we considered it appropriate that there was a case to answer."
The Law 
10.	Section 89(2) of the Police Act 1996 provides for assaults on constables:  
"(2)Any person who resists or wilfully obstructs a constable in the execution of his duty, or a person assisting a constable in the execution of his duty, shall be guilty of an offence and liable on summary conviction to imprisonment for a term not exceeding one month or to a fine not exceeding level 3 on the standard scale, or to both."
11.	In the course of the submissions before me, my attention was drawn in particular to two decisions.  The first is Donnelly v. Jackman (1969) 54 Cr App R 229.  In the course of the judgment of this court, Talbot J said this at 232:  
"Turning to the facts of this case, it is not very clear what precisely the justices meant or found when they said that the officer touched the appellant on the shoulder.  Whatever it was they really did mean, it seems clear to me that they must have felt it was a minimal matter by the way in which they treated it.  When one considers the problem, was this officer acting in the course of his duty, in my view one ought to bear in mind that it is not every trivial interference with a citizen's liberty which amounts to a course of conduct sufficient to take the officer out of the course of his duties.  In my judgment, the facts which the justices found in this case do not justify the view that the officer was not acting in the execution of his duty when he went up to the appellant and wanted to speak to him.  Therefore the assault was rightly found to be an assault on the officer while acting in the execution of his duty and I will dismiss the appeal." 
The Lord Chief Justice and Ashworth J agreed with Talbot J's judgment.  
12.	The second case is Collins v Wilcock [1984] 1 WLR 1172.  In the course of his judgment, Robert Goff LJ said that there were a number of points of conduct long held to be acceptable in touching a person for the purpose of engaging his attention.  That did not constitute an assault, although of course using no greater degree of physical contact than was reasoned necessary in the circumstances for that purpose.  Robert Goff LJ continued that in each case the test had to be whether the physical contact so persisted in had, in the circumstances, gone beyond generally acceptable standards of conduct.  The answer to that question would depend upon the facts of each particular case: at 1177.  Later in the judgment, Robert Goff LJ said this:
"Finally, Mr Armstrong [for the police officer] submitted that the question of whether the police officer was or was not acting in the execution of his duty was a question of fact for the Magistrate to decide and that he was entitled on the facts found by him to conclude that the prosecutor had been acting lawfully.  We cannot agree.  The fact is that the prosecutor took hold of the defendant by the left arm to restrain her.  In so acting, she was not proceeding to arrest the defendant.  Since her actions went beyond the generally acceptable conduct of touching a person to engage his or her attention, it must follow in our judgment that her action constituted a battery on the defendant and was therefore unlawful: at 1180." 
The respondent's case 
13.	On behalf of the Director of Public Prosecutions, Mr McGuinness QC submits that the issue before me is whether, taking the prosecution case at its highest, there was any evidence that the appellant had resisted PC Thomson in the execution of his duty.  Mr McGuinness QC highlighted certain aspects of the evidence as set out in the case stated.  He submitted that, taking the prosecution case at its highest, there was evidence in which these justices, properly directing themselves in law, could properly convict the appellant of resisting PC Thomson in the execution of his duty.  In his submission, cases such as this are highly fact specific.  Here the appellant had remained when PC Thomson said that he wanted to talk to him.  The appellant had asked for the officer's name and number.  There then followed, in very quick succession, the officer wanting the appellant's details and, when the appellant attempted to walk off, PC Thomson asking him a couple of times to stop before he tried to take hold of his arm.  Mr McGuinness QC submitted that it would seem that the officer only did this once.  There was no evidence of gripping, or of PC Thomson persistently taking hold of the appellant's arm, or persistently attempting to do so.  
14.	In Mr McGuiness QC's submission, the issue was whether the physical conduct of PC Thomson had gone beyond generally acceptable standards of conduct.  It was for the justices to decide at the close of the prosecution case if the evidence of what PC Thomson had done might reasonably be regarded as not going beyond that which was acceptable by the ordinary standards of everyday life.  It was a question of fact and degree and it was quintessentially a matter for the justices.  It could properly be said from the case stated that the justices were entitled to hold that the physical contact in this case did not go beyond what was acceptable in the circumstances.  The justices had properly directed themselves on the law and their decision was one which a reasonable tribunal was entitled to make.  
Discussion 
15.	In my view, the facts as found by the justices indicate that, after the incident in the police car and PC Thomson parking it, he was unclear as to the course he was intending to take, whether to give a verbal warning, a ticking off or a penalty notice.  The appellant had remained and he had asked PC Thomson for his name and number.  Then the appellant turned and walked away.  PC Thomson had told him to stop:  "PC Thomson wanted to detain him and get his details and proceed from there." 
16.	Up to that point there was no evidence of the appellant resisting or obstructing PC Thomson.  At that point, and after PC Thomson had asked him to stop a couple of times, PC Thomson then took the appellant's arm to detain him.  At that point, of course, the sequence continued: the appellant turned with his arm raised and the officer believed that the appellant was intending to strike him.  Albeit it that these events occurred in quick succession, the magistrates say at paragraph 12 that PC Thomson had taken hold of the appellant:
"PC Thomson had taken hold of the appellant's arm after he had walked away because he had not finished dealing with him for an offence which he thought he had committed."
17.	From other passages, I have concluded that the justices had formed the view that, when PC Thomson was still considering his options, he could take hold of the appellant and detain him until he decided what to do.  He had taken hold of PC Thompson's arm to detain him before there was a settled intention to arrest him.  His intention was to detain the appellant to obtain his details, to give him a ticking off or to give him a penalty notice.  He had no power, of course, to compel the appellant to provide details.  Nor did he have a power to detain him physically in those circumstances.  It amounted to an assault.  Therefore, from that point, PC Thomson was no longer acting in the execution of his duty.  To my mind, that means that, properly directed as a matter of law, the justices should have concluded that PC Thomson was not acting in the course of his duty and therefore there was no case for them to consider.  
18.	In conclusion, let me say this.  It seems to me clear that PC Thomson did have the power to arrest this appellant, given the circumstances of the initial incident with the car.  There was strong evidence from the independent witness, Mrs Bannerman.  Moreover, PC Thomson seems to have had the commendable aim of trying to avoid arresting the appellant for assaulting him at that stage.  He wanted to consider whether he could, or should, give him a verbal warning or to issue him with a penalty notice.  However, that good intention cannot render his actions lawful, given the fact that he detained the appellant.  
19.	For the reasons I have given, in these circumstances there was no case for the justices to consider.  My answer to the question posed by the justices is, therefore, no, and I allow the appeal.
20.	MR TURNER:  My Lord, in relation to costs, I understand there has been a late application for legal aid today and I do not know what the outcome of that is and whether the defendant is or is not legally aided.  In those circumstances, I do not think I am in a position to make any application in relation to costs as it stands.
21.	MR JUSTICE CRANSTON:  Would it be better to deal with the whole matter now? 
22.	MR TURNER:  I do have a schedule of costs from the solicitors, if I put that forward.
23.	MR JUSTICE CRANSTON:  How would you deal with it otherwise? 
24.	MR TURNER:  My Lord, if he is legally aided, of course, then it would be dealt with through the Legal Services Commission.
25.	MR JUSTICE CRANSTON:  Yes, but you will have to get assessment or whatever.
26.	MR TURNER:  Well, I may be wrong about this but my understanding is that it is an interests of justice test in relation to this court, rather than one that is based on means.  It may be I am wrong about that.
27.	MR JUSTICE CRANSTON:  I am going to leave that to you.  Thanks very much to the two of you.