Timothy Metcalf v CPS
The court concluded that a push by an officer before his arrest of the claimant made no difference to the claimant’s criminal conduct before or after…
On an appeal by way of case stated, the divisional court concluded that a push by an officer before his arrest of the claimant for wilful obstruction of him in the execution of his duty made no difference to the claimant’s criminal conduct both before and after the push. That was the case even if the push itself was unlawful.
During a domestic disturbance between two men in Bradford in May 2014, officers attended and arrested both men. Constables Upshon and Mahmood attended to help in the separate transportation of the men to the police station. One of the arrested men was put into their vehicle, at which point the claimant intervened. He got in their way and was told repeatedly to stop interfering and move away but continued to challenge the officers, at one stage trying to open the rear door and attempting to stick his head into the police vehicle. PC Mahmood tried to stop the claimant speaking to the arrested man by barring his way and subsequently PC Upshon pushed him out of the way.
The claimant was arrested and subsequently convicted of wilfully obstructing an officer in the execution of his duty contrary to Section 89 (2) of the Police Act 1996. At the end of the prosecution case, he submitted that there was no case to answer on the basis that, at the time PC Upshon pushed him, it amounted to assault, as he had not formed any intention to arrest him. That intention only came later when the claimant continued to interfere.
Relying on the divisional court decision in Fraser Wood v DPP , the claimant submitted that PC Upshon’s conduct was unlawful and as a result he was not acting in the execution of his duty. It followed that the claimant’s conduct could not have amounted to obstruction. That submission failed and the claimant was convicted. He appealed by way of case stated.
The claimant accepted that he had wilfully obstructed PC Upshon in the execution of his duty before he was pushed. He also accepted that he had continued to do so after he was pushed, but he submitted that the case of Fraser Wood v DPP supported the proposition that, if PC Upshon’s push amounted to an unlawful assault, that ‘immunised’ the claimant’s own conduct both before and afterwards.
The court disagreed. In Fraser Wood, the claimant had been convicted of assaulting officers in the execution of their duty, but in that case he had been restrained by them simply to be asked who he was, with no intention to arrest him or any lawful basis to do so. That amounted to an unlawful restraint which Wood was entitled to resist using reasonable force. In those circumstances, his actions could not amount to the offence of assaulting a constable in the execution of his duty.
The court observed that the decision in Fraser Wood did not support the wider proposition that the only lawful circumstance in which a police officer could lay hands on a citizen was in the course of an arrest. The question was whether a claimant had resisted officers acting in the execution of their duty. In Fraser Wood that had not been the case as the officers were committing an assault, but in the present case, PC Upshon was securing an arrested man, both before and after the push, with a view to taking him to the police station. The court held that they were also “engaged in a more general sense in seeking to keep the peace”. Both features encompassed the duty on which PC Upshon and his colleague were engaged.
Burnett LJ went on to conclude that it mattered not whether the push was lawful or unlawful when determining whether the claimant had wilfully obstructed the officer in the execution of his duty. The push had no bearing on what the claimant had done before or did afterwards. Equally, had the push been unlawful, it would still not have followed that PC Upshon was not acting in the execution of his duty in dealing with the arrested man in the car.
To make the point, the court observed that although Fraser Wood had been entitled to resist when he was restrained - because officers were not acting in the execution of their duty when they restrained him- had he then tried to block the officers in order to stop them making an arrest or deal with an incident of disorder, that would have amounted to wilful obstruction of the officers in the execution of their duty.
The court also considered the lawfulness or otherwise of the push. Burnett LJ was “entirely satisfied” that the push was lawful. Under Section 3 of the Criminal Law Act 1967, reasonable force is permitted to prevent crime. Wilful obstruction of an officer in the execution of his duty is a crime and, before PC Upshon had pushed him, the claimant had obstructed both him and PC Mahmood. The facts founded by the magistrates made that clear. As a result, the magistrates had been entitled and correct to conclude that there was, on proper analysis, no assault of the claimant.
This is a useful divisional court decision, reinforcing the requirement for proper analysis of the circumstances in which force is used. The purported reach of the earlier decision in Fraser Wood has been overstated and this case acts as a useful check on its application.
For further information please contact:
Nick Peel, Partner on 0151 242 9453 or firstname.lastname@example.org.