Dixon v Crown Prosecution Service [2018] EWHC 3154 (Admin); [2018] 4 WLR 160

Dixon v Crown Prosecution Service [2018] EWHC 3154 (Admin); [2018] 4 WLR 160 is a decision of the Divisional Court (Leggatt LJ and Dingemans J) dismissing an appeal by way of case stated from the Crown Court. The court held that a constable who reasonably believed that a suspect might be reaching for a weapon, and who intervened to restrain him, was acting in the execution of his duty even though the colleagues he assisted were unlawfully detaining the suspect.

The appellant was charged under section 89(1) of the Police Act 1996 with assaulting three constables in the execution of their duty. The magistrates acquitted him of the charges relating to PC Haroon and PC Bailey and convicted him of assaulting PC Dolling. His appeal to the Crown Court at Harrow was dismissed.

In the early hours of 26 March 2017 officers on patrol in Willesden saw the appellant, who was cycling and fitted an intelligence description of persons who might be carrying drugs or weapons. PC Haroon asked him to stop and, when he did not, took hold of his arm, without arresting him or exercising stop and search powers. A fight followed. PC Bailey joined in, and then PC Dolling restrained the appellant’s arm because he believed the appellant might be reaching for a weapon in his waistband. The appellant bit PC Dolling, knowing that he was a police officer. The Crown Court found that PC Haroon had not acted lawfully but that PC Dolling was acting in the execution of his duty. It asked whether, given that PC Haroon’s grabbing of the appellant was an unlawful use of force, it was entitled to find that PC Dolling was acting in the execution of his duty when bitten.

Two preliminary issues arose. The court extended time for the late notice of appeal. The appellant had also not disputed below that PC Dolling was acting in the execution of his duty. Relying on Kates v Jeffery [1914] 3 KB 160, the court held that if the Crown Court was not entitled in law to make that finding on the facts stated, the conviction should not stand; otherwise the appeal must be dismissed, and the case would not be remitted for further findings of fact.

The court reviewed Rice v Connolly [1966] 2 QB 414, Albert v Lavin [1982] AC 546, R v Waterfield [1964] 1 QB 164 and the Divisional Court’s decision in McCann [2015] EWHC 2461 (Admin), noting that force used to prevent crime is lawful only if reasonable (section 3 of the Criminal Law Act 1967). PC Haroon and PC Bailey were not acting in the execution of their duty. PC Dolling, however, acted to prevent crime and to defend a fellow officer: use of a weapon would have been more than reasonable force to resist detention. In the absence of a contrary finding, the reasonableness of his beliefs had to be assumed against the appellant.

The appellant relied on Cumberbatch v Crown Prosecution Service; Ali v Director of Public Prosecutions [2009] EWHC 3353 (Admin), arguing he could not distinguish between officers. The court considered that the report of Joyce v Hertfordshire Constabulary (1985) 80 Cr App R 298 appeared to transpose the words “illegal” and “legal”, and that the court in Ali may have been misled by this when distinguishing Joyce; whether the two decisions can be reconciled was left for another day. Ali was in any event distinguishable: the officers there had no reason to believe Mr Ali was using or about to use more than reasonable force, whereas PC Dolling reasonably believed the appellant might be about to use excessive force, giving an independent justification for his intervention. In Cumberbatch the Divisional Court itself recognised (at para 36) that the position would differ if the defendant exceeded a reasonable response.

The court held that whether an officer is acting in the execution of his duty depends on the officer’s reasonable beliefs and intentions, not on the defendant’s knowledge. The defendant’s position is protected by self-defence, which, following Oraki v Director of Public Prosecutions [2018] EWHC 115 (Admin) and Wheeldon v Crown Prosecution Service [2018] EWHC 249 (Admin), is available where the force used was justified on the facts as the defendant honestly believed them to be. The appellant was entitled to use reasonable force to free himself from PC Dolling, but biting was unreasonable force and an assault. The Crown Court was entitled to its conclusion and the appeal was dismissed.

The court added, referring to Bentley v Brudzinski (1982) 75 Cr App R 217, that prosecutors should consider an alternative charge of common assault where execution of duty may be in issue, since magistrates generally cannot convict of a lesser included offence.

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