Rawlins v Crown Prosecution Service [2018] EWHC 2533 (Admin)
Summary
Rawlins v Crown Prosecution Service [2018] EWHC 2533 (Admin) concerned an appeal by way of case stated against convictions for three offences of assaulting a constable in the execution of his duty contrary to section 89(1) of the Police Act 1996. Mr Justice Supperstone dismissed the appeal.
Mr Rawlins, aged 21, was convicted by the Basildon Magistrates’ Court on 20 October 2017. The offences arose when police officers attended his parents’ home in Barkingside following a telephone call from his father, Mr Ian Rawlins, who reported that his son had returned to the address having been removed the day before due to aggressive and hostile behaviour towards him. Three officers, Police Constables Jordan, Crome and Ross, attended with two colleagues. When they arrived Mr Rawlins was locked in his bedroom. His father requested the officers “have a word with him”. The officers entered using a key provided by the father. Inside, the appellant was sitting on the edge of his bed with red eyes as if he had been crying. He did not respond to attempts at conversation. Two officers, PC Crome and PC Jordan, remained with him whilst the others left. PC Jordan explained that if he did not leave he would potentially be arrested for breach of the peace, as the officer feared either party might come to harm if he remained. PC Jordan suggested he pack a bag and leave, stating that if he did so there would be no breach. The appellant then stood up with clenched fists and moved towards the officers aggressively. PC Jordan thereupon arrested him to prevent a breach of the peace. The appellant shouted “I’m going to fuck you all up” and swung his arms at the officers, connecting with their heads. He was then removed from the property. The justices found that he was not removed at this point pursuant to his father’s request to remove him.
At the close of the prosecution case the defence submitted there was no case to answer on the basis that there was no evidence the appellant was acting unlawfully or unreasonably or that he was about to do so when the officers attended. It was argued the police were therefore acting unlawfully in requiring him to leave the property and that the request amounted to an unlawful eviction as he was entitled to reasonable notice. The Crown contended there was no unlawful eviction. The justices found there was a case to answer. They found that the officers had given evidence that they reasonably and honestly believed that if they did not arrest the appellant a breach of the peace would be committed in the immediate future due to his moving towards them with clenched fists, coupled with what they had previously been told by his father as to his behaviour. They also found evidence that the appellant had swung his arms at the officers, connecting with their heads. The justices concluded there was evidence on which a reasonable tribunal properly directed could convict. In their conclusions the justices set out the legal principles concerning arrest for breach of the peace, noting that there must be the clearest of circumstances and a sufficiently real and present threat to the peace to justify depriving someone of liberty who was not at the time acting unlawfully. They concluded that the officers had acted reasonably in attending the address at the request of the father, that they reasonably and honestly believed that if they did not arrest the appellant a breach of the peace would be committed in the immediate future, and that the officers were accordingly acting in the execution of their duty. They found there was no evidence to support the contention that the officers unlawfully evicted the appellant at the request of his father and therefore no basis on which to consider the impact of that on the legality of the officers’ actions. They found that the appellant had swung his arms out at the officers, connecting with their heads, and that therefore he was guilty of assaulting the officers in the execution of their duty.
The appellant applied to state a case. The justices posed three questions. The appellant did not pursue the first question, concerning the admissibility of hearsay evidence as to the content of the father’s call to police. Ms Catherine Oborne, for the appellant, indicated it was not submitted that the justices had erred in admitting the evidence of the call not for its truth but as relevant to why police attended the property.
On question (b), whether the justices were in law entitled to conclude there were reasonable grounds to arrest the appellant to prevent a breach of the peace, Ms Oborne submitted the question should be answered in the negative for three reasons. First, she argued the police had no basis to threaten arrest for breach of the peace because no threat was observed until after they made the threat, at which point the justices found he stood up with clenched fists and moved towards them aggressively. Up to that point he was behaving lawfully and there was no imminent threat of a future breach. The justices had not found it would have been reasonable to arrest him for breach of the peace on the basis of what his father had told them alone. Accordingly the exceptional circumstances that would justify arrest did not exist, and it could not reasonably be concluded that an incident of violence was about to occur. She relied on Foulkes v Chief Constable of Merseyside Police [1998] 3 All ER 705, Bibby v Chief Constable of Essex Police (2000) 164 JP 297 and R (Laporte) v Chief Constable of Gloucestershire Constabulary [2007] 2 AC 105. She submitted that the threat of arrest before the appellant came towards the officers was unlawful, so the officers were not acting in the execution of their duty and he had every right to resist the unlawful arrest threatened, relying on Christie v Leachinsky [1947] AC 573. Second, she submitted the justices applied the wrong legal test when considering reasonableness. Whilst they correctly stated the objective test in the first sentence of paragraph 12(d) of the stated case, referring to Redmond-Bate v DPP [2000] HRLR 249, they fell into error in the following sentences because it was for the court to make its own assessment of imminence. Third, the officers’ conduct in threatening arrest was not proportionate. The justices made no findings that the officers considered alternative lesser action such as contacting friends or family to consider whether he would voluntarily stay elsewhere overnight, remaining in the premises until the situation had diffused, or leaving and returning shortly to re-assess.
Mr Simon Heptonstall, for the respondent, submitted that the fundamental flaw in the appellant’s argument was its focus on the period before the appellant stood up with clenched fists and moved towards the officers aggressively. He accepted there was no imminent breach of the peace before that aggressive action, but submitted it was the appellant’s physical aggression in clenching his fists and moving towards the officers that could properly be regarded as making a breach of the peace imminent. There had been no action by any officer which could have justified the appellant’s physical aggression as a proportionate response; PC Jordan had explained that if he did not leave he would potentially be arrested and suggested he pack a bag and leave. Plainly, having regard to that aggression against the background to the incident, the officers acted lawfully in the execution of their duty.
Mr Justice Supperstone held that it was clear from the findings of fact and the other findings made by the justices that the officers were acting in the execution of their duty when they arrested the appellant for aggression that could properly be regarded as making a breach of the peace imminent. Ms Oborne’s criticism of the test applied by the justices when considering reasonableness had no relevance to the threatened breach for which he was arrested, namely his physical aggression against the background of what the officers had been told by his father, as she did not suggest that this threatened breach was not imminent. The issue of proportionality of the officers’ conduct also did not arise when it was understood that the threatened breach of the peace was in fact the appellant’s physical aggression and not, as Ms Oborne contended, his behaviour prior to that point. In any event there was no threat to evict the appellant for the reasons given in answer to question (c).
On question (c), whether it was right to conclude there was no evidence to support a contention that police officers were unlawfully evicting the appellant, Ms Oborne contended that the appellant was told in essence that he had to leave or be arrested, which amounted to an unlawful eviction because he was at the very least a bare licensee for whom the occupier had withdrawn permission to be there and he was accordingly entitled to a reasonable period of notice to remove his belongings and find alternative accommodation, relying on Gibson v Douglas [2017] HLR 11. However he was being asked to leave without any consideration as to whether he had anywhere to go, and the officers were acting unlawfully in threatening arrest if he failed to leave.
Mr Justice Supperstone held that at the stage the appellant stood up with clenched fists and moved towards the officers aggressively there was no eviction for him to resist, lawful or otherwise. He accepted Mr Heptonstall’s submission in this regard. The relevant findings were that PC Jordan explained that if he did not leave he would potentially be arrested for breach of the peace and suggested he pack a bag and leave. Even if, which the judge did not accept, what the officer said amounted to an eviction, the aggressive action of the appellant would have been a disproportionate response to what the officer said. Mr Justice Supperstone answered questions (b) and (c) in the affirmative and dismissed the appeal. In short, the arrest was lawful because the appellant’s aggressive movement towards officers with clenched fists made a breach of the peace imminent, and there was no unlawful eviction at the point that aggression occurred.
Mr Rawlins, aged 21, was convicted by the Basildon Magistrates’ Court on 20 October 2017. The offences arose when police officers attended his parents’ home in Barkingside following a telephone call from his father, Mr Ian Rawlins, who reported that his son had returned to the address having been removed the day before due to aggressive and hostile behaviour towards him. Three officers, Police Constables Jordan, Crome and Ross, attended with two colleagues. When they arrived Mr Rawlins was locked in his bedroom. His father requested the officers “have a word with him”. The officers entered using a key provided by the father. Inside, the appellant was sitting on the edge of his bed with red eyes as if he had been crying. He did not respond to attempts at conversation. Two officers, PC Crome and PC Jordan, remained with him whilst the others left. PC Jordan explained that if he did not leave he would potentially be arrested for breach of the peace, as the officer feared either party might come to harm if he remained. PC Jordan suggested he pack a bag and leave, stating that if he did so there would be no breach. The appellant then stood up with clenched fists and moved towards the officers aggressively. PC Jordan thereupon arrested him to prevent a breach of the peace. The appellant shouted “I’m going to fuck you all up” and swung his arms at the officers, connecting with their heads. He was then removed from the property. The justices found that he was not removed at this point pursuant to his father’s request to remove him.
At the close of the prosecution case the defence submitted there was no case to answer on the basis that there was no evidence the appellant was acting unlawfully or unreasonably or that he was about to do so when the officers attended. It was argued the police were therefore acting unlawfully in requiring him to leave the property and that the request amounted to an unlawful eviction as he was entitled to reasonable notice. The Crown contended there was no unlawful eviction. The justices found there was a case to answer. They found that the officers had given evidence that they reasonably and honestly believed that if they did not arrest the appellant a breach of the peace would be committed in the immediate future due to his moving towards them with clenched fists, coupled with what they had previously been told by his father as to his behaviour. They also found evidence that the appellant had swung his arms at the officers, connecting with their heads. The justices concluded there was evidence on which a reasonable tribunal properly directed could convict. In their conclusions the justices set out the legal principles concerning arrest for breach of the peace, noting that there must be the clearest of circumstances and a sufficiently real and present threat to the peace to justify depriving someone of liberty who was not at the time acting unlawfully. They concluded that the officers had acted reasonably in attending the address at the request of the father, that they reasonably and honestly believed that if they did not arrest the appellant a breach of the peace would be committed in the immediate future, and that the officers were accordingly acting in the execution of their duty. They found there was no evidence to support the contention that the officers unlawfully evicted the appellant at the request of his father and therefore no basis on which to consider the impact of that on the legality of the officers’ actions. They found that the appellant had swung his arms out at the officers, connecting with their heads, and that therefore he was guilty of assaulting the officers in the execution of their duty.
The appellant applied to state a case. The justices posed three questions. The appellant did not pursue the first question, concerning the admissibility of hearsay evidence as to the content of the father’s call to police. Ms Catherine Oborne, for the appellant, indicated it was not submitted that the justices had erred in admitting the evidence of the call not for its truth but as relevant to why police attended the property.
On question (b), whether the justices were in law entitled to conclude there were reasonable grounds to arrest the appellant to prevent a breach of the peace, Ms Oborne submitted the question should be answered in the negative for three reasons. First, she argued the police had no basis to threaten arrest for breach of the peace because no threat was observed until after they made the threat, at which point the justices found he stood up with clenched fists and moved towards them aggressively. Up to that point he was behaving lawfully and there was no imminent threat of a future breach. The justices had not found it would have been reasonable to arrest him for breach of the peace on the basis of what his father had told them alone. Accordingly the exceptional circumstances that would justify arrest did not exist, and it could not reasonably be concluded that an incident of violence was about to occur. She relied on Foulkes v Chief Constable of Merseyside Police [1998] 3 All ER 705, Bibby v Chief Constable of Essex Police (2000) 164 JP 297 and R (Laporte) v Chief Constable of Gloucestershire Constabulary [2007] 2 AC 105. She submitted that the threat of arrest before the appellant came towards the officers was unlawful, so the officers were not acting in the execution of their duty and he had every right to resist the unlawful arrest threatened, relying on Christie v Leachinsky [1947] AC 573. Second, she submitted the justices applied the wrong legal test when considering reasonableness. Whilst they correctly stated the objective test in the first sentence of paragraph 12(d) of the stated case, referring to Redmond-Bate v DPP [2000] HRLR 249, they fell into error in the following sentences because it was for the court to make its own assessment of imminence. Third, the officers’ conduct in threatening arrest was not proportionate. The justices made no findings that the officers considered alternative lesser action such as contacting friends or family to consider whether he would voluntarily stay elsewhere overnight, remaining in the premises until the situation had diffused, or leaving and returning shortly to re-assess.
Mr Simon Heptonstall, for the respondent, submitted that the fundamental flaw in the appellant’s argument was its focus on the period before the appellant stood up with clenched fists and moved towards the officers aggressively. He accepted there was no imminent breach of the peace before that aggressive action, but submitted it was the appellant’s physical aggression in clenching his fists and moving towards the officers that could properly be regarded as making a breach of the peace imminent. There had been no action by any officer which could have justified the appellant’s physical aggression as a proportionate response; PC Jordan had explained that if he did not leave he would potentially be arrested and suggested he pack a bag and leave. Plainly, having regard to that aggression against the background to the incident, the officers acted lawfully in the execution of their duty.
Mr Justice Supperstone held that it was clear from the findings of fact and the other findings made by the justices that the officers were acting in the execution of their duty when they arrested the appellant for aggression that could properly be regarded as making a breach of the peace imminent. Ms Oborne’s criticism of the test applied by the justices when considering reasonableness had no relevance to the threatened breach for which he was arrested, namely his physical aggression against the background of what the officers had been told by his father, as she did not suggest that this threatened breach was not imminent. The issue of proportionality of the officers’ conduct also did not arise when it was understood that the threatened breach of the peace was in fact the appellant’s physical aggression and not, as Ms Oborne contended, his behaviour prior to that point. In any event there was no threat to evict the appellant for the reasons given in answer to question (c).
On question (c), whether it was right to conclude there was no evidence to support a contention that police officers were unlawfully evicting the appellant, Ms Oborne contended that the appellant was told in essence that he had to leave or be arrested, which amounted to an unlawful eviction because he was at the very least a bare licensee for whom the occupier had withdrawn permission to be there and he was accordingly entitled to a reasonable period of notice to remove his belongings and find alternative accommodation, relying on Gibson v Douglas [2017] HLR 11. However he was being asked to leave without any consideration as to whether he had anywhere to go, and the officers were acting unlawfully in threatening arrest if he failed to leave.
Mr Justice Supperstone held that at the stage the appellant stood up with clenched fists and moved towards the officers aggressively there was no eviction for him to resist, lawful or otherwise. He accepted Mr Heptonstall’s submission in this regard. The relevant findings were that PC Jordan explained that if he did not leave he would potentially be arrested for breach of the peace and suggested he pack a bag and leave. Even if, which the judge did not accept, what the officer said amounted to an eviction, the aggressive action of the appellant would have been a disproportionate response to what the officer said. Mr Justice Supperstone answered questions (b) and (c) in the affirmative and dismissed the appeal. In short, the arrest was lawful because the appellant’s aggressive movement towards officers with clenched fists made a breach of the peace imminent, and there was no unlawful eviction at the point that aggression occurred.