R v Self
COURT OF APPEAL, CRIMINAL DIVISION
WATKINS LJ, SWINTON THOMAS AND GARLAND JJ
25 FEBRUARY 1992
Arrest – Arrest without warrant – Power to arrest without warrant where arrestable offence has been committed – Resisting arrest – Arrestable offence – Subsequent acquittal of defendant of offence for which arrested – Whether defendant can be convicted of assault with intent to resist lawful apprehension if he is acquitted of offence for which arrested – Offences against the Person Act 1861, s 38 – Police and Criminal Evidence Act 1984, s 24(5).
The appellant was seen by a store detective to put a bar of chocolate in his pocket and leave the store without paying for it. The store detective and a shop assistant followed the appellant and tried to arrest him, aided by a member of the public who stated he was making a citizen’s arrest. The appellant resisted, assaulting both the shop assistant and the member of the public before he was finally apprehended. He was charged with theft and two counts of assault with intent to resist or prevent his lawful apprehension or detainer contrary to s 38a of the Offences against the Person Act 1861. At his trial the appellant was acquitted of theft but convicted on the two assault charges. He appealed against his conviction on the ground that where an arrestable offence had been committed a citizen’s arrest could only be effected under s 24(5)b of the Police and Criminal Evidence Act 1984 of a person who was guilty of the offence or who was suspected on reasonable grounds to be guilty of the offence and since he had been acquitted of the theft neither the shop assistant nor the member of the public was entitled to make a citizen’s arrest under s 24 and therefore he could not be convicted of the offences under s 38 of the 1861 Act.
a Section 38, so far as material, provides: ‘Whosoever shall assault any person with intent to resist or prevent the lawful apprehension or detainer of himself or of any other person for any offence, shall be guilty of [an offence] …’
b Section 24(5) is set out at p 479 a b, post
Held – On the true construction of s 24(5) of the 1984 Act the power of arrest without warrant where an arrestable offence had been committed required as a condition precedent that an offence had actually been committed. If the person arrested was subsequently acquitted of the alleged offence for which he had been arrested no offence had been committed and there was no power to effect a citizen’s arrest under s 24 of the 1984 Act. Since the appellant had been acquitted of the theft charge he had not committed an arrestable offence at the time he was arrested and was entitled to resist his apprehension, with the result that he had not committed the offences under s 38 of the 1861 Act. Accordingly, the appeal would be allowed and his convictions on the two counts under s 38 of the 1861 Act would be quashed (see p 480 c d g h, post).
Walters v W H Smith & Son Ltd [1911–13] All ER Rep 170 considered.
Notes
For the powers of arrest without warrant, see 11(1) Halsbury‘s Laws (4th edn reissue) paras 703–709, and for cases on the subject, see 14(1) Digest (Reissue) 194–210, 1392–1526.
[1992] 3 All ER 476 at 477
For the Offences against the Person Act 1861, s 38, see 12 Halsbury‘s Statutes (4th edn) (1989 reissue) 102.
For the Police and Criminal Evidence Act 1984, s 24, see ibid 867.
Cases referred to in the judgment
Walters v W H Smith & Son Ltd [1914] 1 KB 595, [1911–13] All ER Rep 170.
Appeal against Conviction
Graham Self appealed against his conviction on 10 July 1991 in the Crown Court at Kingston-upon-Thames before Judge Wakley and a jury of two counts of assault with intent to resist or prevent lawful apprehension or detainer contrary to s 38 of the Offences against the Person Act 1861 on the ground that, having been acquitted of the alleged theft which had led to his arrest the arrest had been unlawful. The facts are set out in the judgment of the court.
Nicholas Price (assigned by the Registrar of Criminal Appeals) for the appellant.
Stuart Sleeman (instructed by the Crown Prosecution Service) for the Crown.
25 February 1992. The following judgment was delivered.
GARLAND J
delivered the following judgment of the court. On 10 July 1991 in the Crown Court at Kingston-upon-Thames before Judge Wakley this appellant was tried on an indictment which contained three counts. Count 1 alleged that he stole a bar of chocolate (value 79p) belonging to F W Woolworth plc. Count 2 alleged that, contrary to s 38 of the Offences against the Person Act 1861, he assaulted Stuart Michael Frost with intent to resist or prevent the lawful apprehension or detainer of himself. Count 3 alleged a similar offence against Jonathan George Mole.
All the offences were said to have been committed on 29 October 1990 and formed part of a continuous chain of events. The appellant was acquitted on count 1, the theft, but convicted on count 2 by a majority of 10 to 2 and on count 3 by a majority of 11 to 1. He was conditionally discharged and modest compensation was made.
The facts quite briefly stated were as follows. The appellant was a serving police officer, a detective constable. He had been in the police force for some 17 years. On the afternoon in question in October 1990 a Mrs Stanton, who is a store detective in Woolworths in Kingston, saw the appellant pick up a bar of chocolate. He then moved on and apparently picked up some Christmas cards using both hands. The chocolate had disappeared; in fact, he had put it in his trouser pocket. He then left the store without paying. Mrs Stanton asked Mr Frost, a young sales assistant, to help her. They followed the appellant out into the street and along Church Street. Mrs Stanton saw him put his hand in his pocket, take out the chocolate and throw it under a car. She actually retrieved it and said to him: ‘I do not want to call the police for a bar of chocolate. Come here and come back to the store.’ Mr Frost approached the appellant and said: ‘You have been seen shoplifting.’ The appellant became agitated, tried to leave, grabbed Mr Frost’s arm and scratched it, punched him on the cheek, kicked him on the shin and then ran off with Mr Frost in pursuit.
Mr Mole came into the picture because he was in his car and saw what had happened between the appellant and Mr Frost. He got out of his car and asked Mrs Stanton if she needed any help. She said ‘Yes’, so Mr Mole also ran after the appellant. During the chase the appellant jumped down a steep drop, some ten feet or more, from a churchyard to the street below. When Mr Mole caught up with him he took hold of his wrist and there was a minor struggle. He told the appellant that he was making a citizen’s arrest because he believed he had been shoplifting.
[1992] 3 All ER 476 at 478
The appellant struggled and apparently kicked Mr Mole just above his knee and tried to run away again. Mr Mole and Mr Frost caught up with him, there was a further struggle but in the end the appellant quietened down and there was some conversation between the persons involved. Mr Frost did say the appellant was in a very distressed condition, both physically and mentally.
When the appellant came to give his account of these matters before the jury he said that he recalled picking up the bar of chocolate in Woolworths but had no recollection of what had happened afterwards, save that he remembered looking at the Christmas cards. The chocolate was undoubtedly in his pocket when he left the store. He had forgotten about it. He had no intention of stealing it and had set off towards a bookshop. But on the way he put his hand in his pocket and realised that he had not paid for the chocolate that he found there. He then heard people running behind him and saw Mrs Stanton and Mr Frost coming and shouting and then everything closed in on him. He panicked and thought the situation looked very grave indeed. He threw the chocolate away and ran. Then Mr Frost intervened and the two scuffles with Mr Frost and Mr Mole followed.
He could not explain his actions. He felt sorry for Mr Frost and Mr Mole, who he thought had acted very properly. It should be mentioned in passing that a doctor confirmed that the appellant was at the time suffering from some degree of stress.
This matter comes before the court by leave of the single judge on a point of law. There is one point central to the appeal. It is this. Since the appellant was acquitted of theft neither Mr Frost nor Mr Mole were entitled by virtue of s 24 of the Police and Criminal Evidence Act 1984 to effect a citizen’s arrest. If they were not entitled to do that then this appellant could not be convicted of an assault with intent to resist or prevent the lawful apprehension or detainer of himself, that is to say his arrest.
In order to examine this proposition it is necessary of course to look closely at s 24 of the Act. But first some mention should be made of the extent to which the learned judge dealt with the matter. Counsel for both the defence and the prosecution have frankly informed us that they did not address their minds to s 24 and the question of whether or not the two complainants in fact were entitled to arrest the appellant. As a result of that, the learned judge never dealt with the issue, so far as the jury were concerned, by in any way seeking to link count 1, the theft, to counts 2 and 3 should the jury have been minded to acquit the appellant of count 1 before turning to the other counts. All he said was this:
‘He [that is one of the two young men] is perfectly entitled to make a citizen’s arrest and it is a publicly spirited thing to do whether right or wrong, provided there is reasonable cause to suspect.’
It is necessary, as has been said, to turn to the Act. Section 24 deals with powers of arrest without warrant. Subsection (1) sets out to define arrestable offences in respect of which powers of summary arrest can be exercised. Subsections (2) and (3) deal with the other qualifying offences. Subsection (4) begins to set out powers of arrest in the following terms:
‘Any person [and of course ‘any person’ means both a citizen and a constable] may arrest without a warrant—(a) anyone who is in the act of committing an arrestable offence; (b)anyone whom he has reasonable grounds for suspecting to be committing such an offence.’
It is immediately apparent that that subsection is dealing with the present continuous, that is somebody in the act of committing the offence or someone
[1992] 3 All ER 476 at 479
that the arrester has reasonable grounds for suspecting to be committing such an offence.
Subsection (5) moves on to the past, indeed the perfect, tense:
‘Where an arrestable offence has been committed, any person [both citizen and constable] may arrest without a warrant—(a) anyone who is guilty of the offence; (b) anyone whom he has reasonable grounds for suspecting to be guilty of it.’
One asks: guilty of what? The answer is: guilty of the arrestable offence which has been committed.
Then by contrast sub-s (6) deals with a constable’s powers of arrest, which are very much wider than those of the citizen. It provides:
‘Where a constable has reasonable grounds for suspecting that an arrestable offence has been committed, he may arrest without a warrant anyone whom he has reasonable grounds for suspecting to be guilty of the offence.’
Thus there are double reasonable grounds for suspecting, both as to the commission of the offence and the person who has committed it.
Subsection (7) again deals with constable’s powers and this is in anticipation of an offence. It provides:
‘A constable may arrest without a warrant—(a) anyone who is about to commit an arrestable offence; (b) anyone whom he has reasonable grounds for suspecting to be about to commit an arrestable offence.’
Then s 25 goes on to deal with general arrest conditions otherwise than for arrestable offences.
Although it appears to this court that the resolution of this particular matter is to be achieved by construing the plain words of the statute, we were referred to authority and in particular to Walters v W H Smith & Son Ltd [1914] 1 KB 595, [1911–13] All ER Rep 170, which arose out of a civil action for false imprisonment and malicious prosecution, but dealt with the circumstances in which the private citizen can make an arrest. The headnote reads as follows ([1914] 1 KB 595):
‘A private person is justified in arresting another on suspicion of having committed a felony if, and only if, he can show that the particular felony for which he arrested the other was in fact committed, and that he had reasonable and probable cause for suspecting the other of having committed it.’
In the course of the judgment by Isaacs CJ, reference was made ([1914] 1 KB 595 at 603, [1911–13] All ER Rep 170 at 173) to the common law historical origin of the law in Hale‘s Pleas of the Crown, where it was stated as follows (2 Hale PC (1800 edn) 77):
‘The third case is, there is a felony committed, but whether committed by B. or not, non constat, and therefore we will suppose that in truth it were not committed by B. but by some person else, yet A. hath probable causes to suspect B. to be the felon, and accordingly doth arrest him; this arrest is lawful and justifiable, and the reason is because if a person should be punished by an action of trespass or false imprisonment for an arrest of a man for felony under these circumstances, malefactors would escape to the common detriment of the people.’
But it is important to note that this passage follows:
[1992] 3 All ER 476 at 480
‘But to make good such a justification of imprisonment, 1. there must be in fact a felony committed by some person, for were there no felony, there can be [no] ground of suspicion.’
A footnote to the word ‘no’ in brackets refers back to the first edition of Hale in 1736, correcting a printer’s error to precisely the same effect.
Mention is made of the common law ancestry of the contents of the statute simply to deal with the arguments in misericordiam and ad absurdum advanced on behalf of the Crown pointing out the potential difficulties in which citizens may find themselves having every reason to believe that an offence is being committed when it has not or in circumstances where a jury subsequently acquits the person thought to have committed the offence.
However, in the judgment of this court, the words of s 24 do not admit of argument. Subsection (5) makes it abundantly clear that the powers of arrest without a warrant where an arrestable offence has been committed require as a condition precedent an offence committed. If subsequently there is an acquittal of the alleged offence no offence has been committed. The power to arrest is confined to the person guilty of the offence or anyone who the person making the arrest has reasonable grounds for suspecting to be guilty of it. But of course if he is not guilty there can be no valid suspicion, as was pointed out in the passage in Hale to which reference has been made.
If it is necessary to go further, one contrasts the words of sub-s (5) with sub-s (6), the very much wider powers given to a constable who has reasonable grounds for suspecting that an arrestable offence has been committed. However, it is said on behalf of the Crown that the court should not be assiduous to restrict the citizen’s powers of arrest and that, by going back to sub-s (4) and looking at the words there, ‘anyone who is in the act of committing an arrestable offence’, perhaps those words can be used to cover the sort of situation that arose in this case where somebody is apparently making good his escape. Having committed the offence of theft, can it be said, asks Mr Sleeman, that the thief is not in substance still committing the offence while running away?
He asks, rhetorically, should the court have to inquire into the exact moment when the ingredients of theft come together—dishonesty, appropriation, intention permanently to deprive—when to analyse the offence carefully may produce absurd results so that in one set of circumstances the offence may be complete and the situation fall within sub-s (5) and in another be still being committed and fall within sub-s (4).
The view of this court is that little profit can be had from taking examples and trying to reduce them to absurdity. The words of the statute are clear and applying those words to this case there was no arrestable offence committed. It necessarily follows that the two offences under s 38 of the Offences against the Person Act could not be committed because there was no power to apprehend or detain the appellant.
It follows also that that being the law, as this court sees it, that the convictions on counts 2 and 3 must be quashed and this appeal allowed.
Appeal allowed. Convictions quashed.
Kate O’Hanlon Barriste