[Police Power] Kenlin v Gardiner [1967] 2 QB 510

Crime – Assault – Police – Self-defence – Detention by police officers to question – Decision to arrest not made – Genuine belief that officers not policemen – Assault on officers in ensuing struggle – Whether technical assault by police officers – Whether justified – Whether self-defence justification for assault on police officers – Police Act, 1964 (c. 48), s. 51 (1).

Crime – Self-defence – Assault by police – Right of self-defence.

Two schoolboys, aged 14, in fact innocently visiting a number of premises for the purpose of reminding certain members of their school rugger XV of a forthcoming match, aroused the suspicions of police officers on duty in plain clothes, who approached the boys. One of the police officers produced his warrant card and said:”We are police officers, here is my warrant card. What are you calling at houses for?” but the boys did not read, nor comprehend the nature of, the warrant card, and did not believe them to be genuine police officers. One boy made as if to run away, and one of the police constables caught hold of his arm, said: “Now look, son, we are police officers, what have you been up to?” and cautioned him. The boy started to struggle violently, punching and kicking the officer. The other officer came to his assistance and the boy asked for his warrant card. That was not produced owing to the struggle.

____________

[Reported by GRAHAM GARNER, ESQ., Barrister-at-Law.]

[1967] 2 Q.B. 510 Page 511

The other boy started to run away and one of the police officers let go of the first boy and grasped him, when the boy struck the officer. Each boy was charged with assaulting a police constable in the execution of his duty, contrary to section 51 (1) of the Police Act, 1964.1 The justices found that the officers were at all times acting properly in the execution of their duty, but that the boys did not accept that they were police officers and were genuinely frightened when they struggled. They concluded that the violence shown to the police officers amounted to technical assault and convicted the boys, granting each an absolute discharge.

On appeal:-

Held, that the justification of self-defence was available to a charge of assault under section 51 (1) of the Police Act, 1964, as in the case of any other assault, provided that the prior assault by the police officer was not justified; that the prior assault by the police constables, in taking hold of an arm of each of the boys, was not justified in that it was not done as an integral step in the process of arresting the boys but in order to secure an opportunity, by detaining them, to question them so as to satisfy the officers whether or not it would be right in the circumstances to arrest them; and that, accordingly, there being a technical unjustified assault by the police officers, the plea of self defence was available to the boys and their conviction would be quashed.

Per Winn L.J. Knowledge that the man attacked is a police officer is not a necessary ingredient of the offence under section 51, but a genuine mistake of fact as to his character, e.g., a genuine and reasonable belief that he was a thug and not a police officer, would be material in judging the reasonableness of the resistance exerted and the degree of force falling within the justification of self-defence (post, pp. 519G – 520B).

CASE STATED by Hackney juvenile court justices.

On October 22, 1965, informations were laid by two police constables, Holga Gardiner and William Peters, against the defendants, Ian Kenlin and David sowoolu, that the defendant Kenlin, on October 22, 1965, at Maury Road, N.16, assaulted Police Constables Gardiner and Peters, and that Sowoolu on the same date and at the same place assaulted Police Constable Gardiner, in the execution of their duty, contrary to section 51 (1) of the Police Act, 1964.

The following facts were found by the justices: At about 1 p.m. on Thursday, October 22, 1965, the two defendants, who were both schoolboys aged 14, were engaged in visiting a number

1 Police Act, 1964, s. 51 (1): “Any person who assaults a constable in the execution of his duty, or a person assisting a constable in the execution of his duty, shall be guilty of an offence …”

[1967] 2 Q.B. 510 Page 512

of premises in the Stoke Newington area of London for the purpose of reminding certain members of their school rugby XV of a forthcoming match. The two police constables, who were on duty in plain clothes, saw the defendants as they knocked at the door of a house facing Stoke Newington Common. Having become genuinely but erroneously suspicious of the two defendants, the police constables followed them into Maury Road, where they saw the first defendant, Kenlin, knock at the door of No. 77 whilst the second defendant, Sowoolu, remained at the gateway of the house. Kenlin in fact spoke to a Miss Edwards at No. 77 but from the position that the officers were keeping observation they were unable to see that.

After the two defendants had left that address and were walking along Maury Road together and away from No. 77, the police officers went up to them. Police Constable Gardiner produced his warrant card to them and said to them: “We are police officers, here is my warrant card. What are you calling at houses for?” Neither of the defendants was able to readwhat appeared on the warrant card nor to comprehend the nature of the document. Further, both defendants were alarmed at being accosted in that way by strangers and, although both the police constables were dressed respectably, the defendants did not think that they were, in fact, genuine police officers. Neither defendant made any reply and Kenlin made as if to run away. Immediately Police Constable Gardiner caught hold of Kenlin’s left arm and said: “Now look, son, we are police officers, what have you been up to?” and then cautioned him. Kenlin immediately started to struggle violently and punched Police Constable Gardiner several times with his only free arm, namely, the right one, about the chest and body and kicked Police Constable Gardiner about the legs in an effort to free himself.

The defendant Sowoolu was told by Police Constable Peters to stand against the hedge and not to run away. Police Constable Peters then left Sowoolu and went to the assistance of Police Constable Gardiner. Kenlin called upon Peters to produce his warrant card (as he had not done so) but owing to the struggles of Kenlin, Peters did not do that and, in fact, never produced his warrant card to either defendant. The defendant Sowoolu, seeing the struggle between Kenlin and the two police constables, took fright and started to run away. That was seen by Police Constable Gardiner, who then let go of Kenlin, chased after Sowoolu and caught hold of Sowoolu’s right arm. Sowoolu then turned

[1967] 2 Q.B. 510 Page 513

towards Police Constable Gardiner and struck the officer with his free arm and also attempted to kick the officer, who lost his grip upon the defendant. Sowoolu then made off and went straight home, where he was later arrested. In the meantime, the defendant Kenlin had been struggling with Police Constable Peters. In the course of that struggle, he aimed a blow at the police constable but did not strike him, wriggled out of the officer’s grasp and ran away. Police Constable Peters pursued Kenlin and with the assistance of a passer-by driving a motor car, namely, a Mr. Howes, finally succeeded in catching Kenlin in Evering Road. After a struggle during which Kenlin shouted: “You’re not police officers” and “Don’t let them take me away,” Police Constable Peters and Mr. Howes succeeded in placing Kenlin into the motor car. There he continued to struggle until it became clear that they were, in fact, driving to a police station and, accordingly, Kenlin then appreciated that the two police constables were truly police officers and gave no further trouble.

In that episode, neither of the police constables received any injuries and out of the two defendants only Kenlin suffered a slight reddening below his right eye.

It was contended on behalf of the defendants that each of them had acted under a genuine and honest belief, reasonably held, that the constables were not police officers but were strangers committing a crime against the defendants, and, therefore, the defendants were entitled in law to use such force as was necessary to defend themselves.

The justices found that the officers had reasonable grounds for suspecting, and genuinely believed, that the defendants might be loitering with intent to commit a felony and were justified in approaching them, and that nothing that the defendants said or did thereafter acted in any way to allay their suspicions. They, accordingly, found that the officers were at all times acting properly in the execution of their duty; and that the defendants did not accept that the police constables were police officers and were genuinely frightened when they struggled.

They concluded that the violence shown to the police officers amounted in law to technical assaults only, convicted the appellants and granted each of them an absolute discharge on each of the informations.

The defendants appealed and the questions for the opinion of the High Court were: (1) Was the defence of “self-defence” open to a defendant in answer to a charge laid under section 51 (1)

[1967] 2 Q.B. 510 Page 514

of the Police Act, 1964? (2) Was “mens rea” an element required in proving an “assault” within the meaning of section 51 (1) of the Police Act, 1964? (3) Could a genuine mistake of fact alone, or considered together with the defence of “self defence,” amount to a defence to a charge laid under section 51 (1) of the Police Act, 1964? (4) What distinction was to be drawn between the word “assault” in section 51 (1) of the Police Act, 1964, and the word “resists” in section 51 (3) of the same Act?

J. W. Rogers for the appellants. This case falls between the basic liberties of the individual and the anxiety of the law to protect its officers. No police constable has any right to detain a person forcibly for an enquiry. Where an assault on a police constable is alleged under section 51 (1) of the Police Act, 1964, the word “assault” bears its ordinary meaning in law and has no special construction. That being so, the normal defences open to any person to a charge of assault are open in an allegation under section 51, i.e., self defence, or, here, that the personalleged to have done the assault was acting under such a fundamental mistake of fact that it negatived any animus or mens rea. If it be a requirement of the law that a mistake of fact be reasonable in order to provide excuse for the assault, then the fact that a mistake is made should reduce an assault to mere resistance: see section 51 (3).

The definition of assault set out in Archbold, 35th edn. (1962), p. 1046, para. 2631, is “an attempt to commit a forceable crime against the person of another.” There must be an intention to assault. If a complete stranger grabbed me as I stepped off the pavement before a bus which I had not seen, and I mistook his motive and used force to make him let go, this would be a mistake of fact and not blameworthy.

[WINN L.J. This all goes to justification. In the bus case you would have consented to the force had you known about the bus.]

The officers were concerned with a breach of the Vagrancy Acts. The appellants were not in the categories of idle or disorderly persons, or reputed thieves, which leaves suspected persons. And the boys never came into the category as far as the police were concerned. The officers had been put on inquiry, nothing more. They made an initial inquiry and never identified themselves to the appellants as neither read what was on the warrant card. Then there was a complete clash of misunderstandings which caused the young appellant Kenlin to start

[1967] 2 Q.B. 510 Page 515

to take flight. The first officer seized Kenlin. His reason was to ask the mere question “Now look son, we’re police officers. What have you been up to?” The fact that a person takes flight might deepen an officer’s suspicions and lead to arrest. But here the officer just grabbed the boy and questioned him. If this was the finding of fact, then it was impossible to argue that the police constable could equally well have said “I suspect you of being up to no good, and intend to arrest you as a suspected person” if he had by then decided to arrest, see Christie v. Leachinsky.2 It cannot be suggested that any different reason applied to the attempt by the same officer to seize Sowoolu.

The officer’s powers of arrest stem either from (1) The Vagrancy Act, 1824, s. 6, (2) the Metropolitan Police Act, 1839, s. 64, or (3) section 66 of the same Act. In section 6 the operative words are “to apprehend any person found offending” with the qualification that if the officer reasonably holds an honest belief that a person is offending, then that is justification in apprehending.

[LORD PARKER C.J. Where does one find that there is power to detain short of arrest?]

There is no direct authority on the point: see Rice v. Connolly3 which is as near as possible, and suggests there is none.

[LORD PARKER C.J. The whole point is whether the men were acting in the execution of their duty? If not, was the assault by the boys justified on the grounds of self defence?]

Michael Worsley for the respondents. (1) The officers were acting in the course of their duty. (2) To act in self defence involves acting on reasonably held grounds, and there was no finding of fact that the mistake was reasonable. There is a power to intervene to prevent felony. This is not to be found in current textbooks, but is in Hale’s Pleas of the Crown.

[LORD PARKER C.J. But on the facts the question “what have you been doing?” related to suspicions in the past and not in the future.]

One must take what happened as a whole. The officers have the power of arrest having regard to what they have already seen.

[LORD PARKER C.J. That cannot be right. If there is an arrest, then the law comes into force. Can the officers say “we are not going to arrest you, but just going to hold you?”]

See Rice v. Connolly3 and 2 Hale’s Pleas of the Crown, 1800

2 [1947] A.C. 573; 63 T.L.R. 231; [1947] 1 All E.R. 567, H.L.
3 [1966] 2 Q.B. 414; [1966] 3 W.L.R. 17; [1966] 2 All E.R. 649, D.C.

[1967] 2 Q.B. 510 Page 516

ed., p. 94 et seq. A constable could arrest where a felony had not yet been committed but was in danger of being committed. This book was an authority, as on Sir Matthew Hale’s death Parliament ordered it to be published and printed: see Rex v. Casement.4

[WINN L.J. Whatever the power to arrest or seize a man may be, since he was not arrested, what has Hale to do with it? The officers were using some force not part of the process of arresting. Where is the finding that they intended to arrest?]

One cannot doubt that arrest would have followed if no satisfactory explanation had been given. If there was a right of arrest, the fact that the officer asked a question which he need not have asked, and asked it in favour of the defence in case the boy had an explanation which might remove a reasonable suspicion, cannot alter the officer’s position to his detriment.

[WINN L.J. But he seized the boy before the explanation.]

Anyway this cannot justify the assault by the boy.

[LORD PARKER C.J. If so, this is a matter for the magistrates. The case will have to be sent back.]

I am not instructed to ask that it should be sent back. The Crown is not disposed to oppose the appeal on the merits, only on the principle. If a person acts under a mistake of fact that a person is not a police constable, and strikes the constable, that mistaken impression must be reasonably held: see Reg. v. Reynhourdt5 and Reg. v. Mark.6

WINN L.J. This is an appeal upon a case stated by two justices for the Metropolitan Area Inner London Juvenile Courts, who were sitting in Hackney as a juvenile court on November 22, 1965, when two boys of 14 were charged before them with assaulting two police officers in the execution of their duty and were convicted. This is a most unfortunate case which really might better have died down in the teacup in which the storm first began to arise.

These two police officers were acting in a perfectly proper way, apart from the merest technicality to which it will be necessary subsequently to refer. The boys were perfectly innocent and engaged in no improper behaviour of any kind. Mr. Rogers used an expression when addressing the court, which with his permission I will adopt: the whole thing was a clash of misunderstandings; the police officers misunderstood what the boys were

4 [1917] 1 K.B. 98, 140; 32 T.L.R. 601, C.C.A.
5 (1962) 107 C.L.R. 381.
6 [1961] Crim.L.R. 173.

[1967] 2 Q.B. 510 Page 517

doing, and the boys misunderstood what the police officers, as in fact they were, were doing to them. These police officers were in plain clothes, and in all probability not in their best plain clothes. As the justices have found, the boys thought that, so far from being police officers, these men were thugs.

It seems that in the middle of the day on a date in October, 1965, these two lads were going to a number of houses in the Stoke Newington area in order to remind members of their school rugger XV of the date or place at which a forthcoming match was to be played, a perfectly innocent errand, and they were going together from house to house knocking on the doors. The police officers saw them engaged in that manner, and, as the justices thought, became genuinely but erroneously suspicious of the two boys. Just what they suspected is not expressly found in the case; maybe they thought they were going from house to house begging; it may be they thought they were going from house to house looking for a door or window which was not secure with a view to breaking in and committing felonies in the house. At any rate, one of the officers went up to the two boys, properly acting in a reasonable and correct way, produced his warrant card and showed it to them and said: “We are police officers, here is my warrant card. What are you calling at houses for?” Unfortunately the warrant card in its talc case, one supposes, could not be readily read; whether these boys did not read quickly, whether they were frightened, or what was the explanation, the fact is that they did not appreciate from the displaying to them of the warrant card that these men were police officers, and they were frightened by being so accosted. Neither of them said anything; one of them made away. He tried to run away, whereupon one of the police officers, acting in a sensible, normal and natural way – but unfortunately, here comes the technical difficulty – caught hold of him by the left arm, using no violence to him, but merely seeking to hold him from escape, and said: “Now look, son, we are police officers, what have you been up to”; then he cautioned him. Immediately the boy began to struggle violently and punched the officer several times with one of his arms, in fact the only free one, the right arm, about the chest and body andkicked him about the legs. The other lad was told by the other officer to stand against the hedge and not to run away; the first boy, who was, one might say, a stalwart for his rights as a citizen, demanded that his warrant card should be produced by the second officer. He really could not get at that

[1967] 2 Q.B. 510 Page 518

because of the struggle, and so the other boy took fright also and started to run away; but he was chased and caught by the right arm, he then turned and struck that officer with his free arm and tried to kick him; then he went off and ran away home, either to his mother, or more probably to his father to tell him how bravely he had conducted himself. So the strusggles went on until one of these boys with the help of a passer-by who happened to come along with a motor car, was put into the car; he went on shouting: “You’re not police officers. Don’t let them take me away”; and he went on in that fashion until he realised that the car was bound for the police station, then he calmed down and everythingwas quiet. There was no more trouble until they came before the magistrates, who came to the conclusion that the violence shown to the police officers amounted in law to technical assaults – only technical – so after conviction they very sensibly granted each of the boys an absolute discharge on each of the informations. Now this case comes before this court with – I say this deliberately though without any intention to be insulting to either counsel – some tendency to put it forward as a cause célŠbre, a state trial. In my own view it is nothing of the kind; it is quite a simple and normal case where misunderstandings led to an unfortunate consequence which need not have involved any prosecution.

The boys undoubtedly assaulted the police officers: there cannot be any doubt about that, they struck them and kicked them; but the question is whether that was a justifiable or unjustified assault; and that again, as Mr. Rogers agreed, depends entirely on whether the answer of self-defence was available to these two boys in the particular circumstances. Of course, in the case of a charge of assault under section 51 (1) of the Police Act, 1964, as in the case of any charge of assault, the defence or justification – I prefer to call it a justification, because it must always be borne in mind that it is for the prosecution to exclude justification and not for the defendant to establish it – the justification of self-defence is available just as it is in the case of any other assault. That is subject to this, that if the self-defence, in this case self-defence by the two boys against a prior assault such as had been committed, in a technical sense, by the police officers taking hold of an arm of each of these boys, was self-defence against an assault which was justified in law, as, for instance, a lawful arrest, then in law self-defence cannot afford justification for assault in resistance to justified assault by police officers. So

[1967] 2 Q.B. 510 Page 519

one comes back to the question in the end, in the ultimate analysis: was this officer entitled in law to take hold of the first boy by the arm – of course the same situation arises with the other officer in regard to the second boy a little later – justified in committing that technical assault by the exercise of any power which he as a police constable in the precise circumstances prevailing at that exact moment possessed?

I regret, really, that I feel myself compelled to say that the answer to that question must be in the negative. This officer might or might not in the particular circumstances have possessed a power to arrest these boys. I leave that question open, saying no more than that I feel some doubt whether he would have had a power of arrest: but on the assumption that he had a power to arrest, it is to my mind perfectly plain that neither of these officers purported to arrest either of these boys. What was done was not done as an integral step in the process of arresting, but was done in order to secure an opportunity, by detaining the boys from escape, to put to them or to either of them the question which was regarded as the test question to satisfy the officers whether or not it would be right in the circumstances, and having regard to the answer obtained from that question, if any, to arrest them.

I regret to say that I think there was a technical assault by the police officer. From which it follows that the justification of self-defence exerted or exercised by these two boys is not negatived by any justifiable character of the initial assault. It is plain in my own view that it was within the province of the justices to decide whether there was any excess in exercising privilege of self-defence. The court is not asked to send back this case to the justices – that would have given it a quite inflated importance – for them to decide just what was the ambit of the self-defence permissible in the circumstances, what were the reasonable or unreasonable features of the conduct of the boys in seeking to defend themselves. It suffices to say that the self defence justification was available to these boys, and that it is not shown on the facts found by the justices that there was an excess of that liberty.

The justices have asked certain questions, as my Lord said, rather in the nature of an examination paper. It is not necessary to give any detailed answers to them, but in case they themselves want to know the answer, since they have consulted the court, to question (1) the answer is: yes as to any assault unless the assault resisted was itself justifiable; No. (2): yes, but knowledge

[1967] 2 Q.B. 510 Page 520

that the person assaulted was an officer in the execution of his duty does not have to be proved; No. (3): knowledge that the man attacked is a police officer is unnecessary, but a genuine mistake of fact as to the character of the person concerned, e.g. genuine and reasonable belief that he was a thug and not a police officer, would be highly material in judging the scope of reasonableness of the resistance exerted and the degree of force falling within the liberty or justification of self-defence. As to No. (4), it really does not need an answer: what is the difference between assault and “resists”? The two words have quite different meanings. “Resists” does not necessarily involve an assault.

For these reasons I think that this appeal should be allowed and this conviction quashed.

WIDGERY J. I agree.

LORD PARKER C.J. I also agree and I would only add that I think it is most unfortunate that these proceedings were ever brought, and saw the light of day; at the end the justices found that the offences committed by the boys amounted to technical assault, and as my Lord has just said, the action of the police amounted to technical assault.

Solicitors: Prothero & Prothero; Solicitor, Metropolitan Police.

Document1

Just another WordPress site

[Police Power] Kenlin v Gardiner [1967] 2 QB 510

Leave a Reply Cancel reply