The vexed question of the execution of duty

A police officer coming to the aid of colleagues when he feared a detainee was reaching for a weapon was acting in the execution of his duty.

Corey Dixon v Crown Prosecution Service Divisional Court (Leggatt LJ and Dingemans J) [2018] EWHC 3154 (admin)

Executive summary

A police officer coming to the aid of colleagues when he feared a detainee was reaching for a weapon was acting in the execution of his duty even though his colleagues were not. The claimant had therefore assaulted the officer acting in that capacity.

Background

The claimant had been cycling in the early hours of the morning when he was seen by three constables in an unmarked vehicle. He fitted an intelligence briefing description of someone who may be carrying drugs or weapons, causing the officers to ask him to stop. He failed to do so, so the first officer took hold of his arm. In doing so, that officer was neither arresting the claimant nor exercising his powers of stop and search.

In the ensuing fight, the first officer was joined by the second officer and they both struggled to restrain the claimant. Believing the claimant may be reaching for a weapon in his waistband, the third officer then moved in to restrain the claimant’s arm. In the process, the claimant bit him on the arm. When he did so, he knew he was biting a police officer.

In the Magistrates’ Court the claimant was convicted of assaulting the third officer in the execution of his duty, but acquitted in relation to the first two officers.

He appealed to the Crown Court. In that appeal, he did not submit that the third officer was not acting in the execution of his duty. The court concluded that the third officer had indeed been acting in the execution of his duty, because when he intervened he believed the claimant was reaching for a weapon.

The Crown Court subsequently sent the following question to the Divisional Court:

Given that the grabbing of the [claimant] by [the first officer] was an unlawful use of force, were we nonetheless entitled to find on the facts found that [the third officer] was acting in the execution of his duty when he was bitten by the [claimant]?.”

Decision

It was not in dispute that the first officer was acting unlawfully when he restrained the claimant without trying to arrest him or exercise a stop and search power. So too, when he went to assist his colleague, was the second officer.

The Crown Court‘s finding was that the third officer had gone to restrain the claimant because he believed he might be reaching for a weapon or something he could use as a weapon in his waistband. Any use of a weapon by the claimant would have involved the use of more force than reasonable in his self-defence of his unlawful detention by the first two officers, and on that basis would have amounted to a crime of violence against them.

There was no finding that the third officer had used excessive force or continued to use force when he realised the claimant did not in fact have a weapon. As a result, he had been acting in the execution of his duty in trying to prevent his fellow officers from being unlawfully assaulted,

The Divisional Court wrestled with previous authorities said by the claimant to support his case. However, on analysis, once the claimant was thought by the third officer to be about to use unreasonable force to resist the first two officers, the facts of the present case departed from the previous decisions in Cumberbach v CPS and Ali v DPP [2009] EWHC 3353 (Admin).

The Divisional Court concluded (paragraph 30):

“Whether a police officer is acting lawfully and in the execution of his duty depends on the reasonable beliefs and intentions of the officer. It does not depend on the knowledge or beliefs of the defendant. It would be illogical to reason that because the defendant could not be expected to distinguish between an officer who was acting unlawfully in trying to detain him and another who was acting in the execution of his duty in doing so, it follows that the second officer must be treated as also acting unlawfully.”

On that basis, once the claimant bit the third officer, he exceeded what was permissible as reasonable force and committed an assault. The fact that the claimant did not know that the third officer was acting in the execution of his duty was no defence in law to that charge.

Comment

Although the decision provides welcome support for the actions of the third officer in this case, the court did point out the difficulties attendant with identifying whether officers are acting in the execution of their duty or not.

The court referred to previous judicial observations that prosecutors should consider an alternative charge of common assault if there may be any issue about the execution of duty. At a summary trial (as in this case) magistrates have no power to find an accused guilty of a lesser offence, even if the lesser offence is entirely consumed by the offence charged (for example common assault and assaulting a constable in the execution of duty). Putting an alternative charge will avoid potential problems at trial.

 

If you have any questions or would like to know more about our update, please contact Nick Peel, Partner, on 0151 242 9453, or nick.peel@weightmans.com.

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