The appellant was walking along the pavement when a police officer in uniform came up to him with a view to making enquiries about an offence which the officer had cause to believe that the appellant might have committed. The appellant ignored the officer’s repeated requests to stop and speak to him. At one stage the officer tapped the appellant on the shoulder, and shortly after the appellant tapped the officer on the chest. It became apparent that the appellant had no intention of stopping. The officer then again touched the appellant on the shoulder with the intention of stopping him (but neither then nor previously had the officer any intention to arrest the appellant), whereupon the appellant struck the officer with some force. The appellant was charged with and convicted of assaulting the officer in the execution of his duty. On appeal,
Held – The touching of the appellant’s shoulder was a trivial interference with his liberty and did not amount to a course of conduct sufficient to be outside the course of the officer’s duties; accordingly the appeal would be dismissed (see p 989 f to h, post).
Dicta of Ashworth J in R v Waterfield, R v Lynn (1963) 3 All ER at 661 and of Lord Parker CJ in Rice v Connolly [1966] 2 All ER at 651 applied.
This was a case stated by justices for the county of Surrey in respect of their adjudication as a magistrates’ court sitting at Farnham on 12 June 1969. The respondent, Maurice Jackman, preferred an information against the appellant, Michael James Donnelly, charging him with assaulting Edward Roy Grimmett, a police officer, whilst acting in the execution of his duty. The facts are set out in the judgment of Talbot J.
C P B Purchas for the appellant.
J M Wright for the respondent.
27 January 1970. The following judgments were delivered.
The facts found by the justices were these; at about 11.15 am on Saturday, 5 April, the appellant was lawfully walking along a pavement when Pc Roy Grimmett in uniform came up to him for the purposes of making enquiries about an offence which the officer had cause to believe the appellant had committed or might have committed. The officer spoke to the appellant asking him if he could have a word with him. The appellant ignored that request, and continued to walk along the pavement away from the officer. The officer followed close behind him, and apparently repeatedly asked him to stop and speak to him. At one stage the officer tapped the appellant on the shoulder, and apparently shortly after that the appellant turned round and in turn tapped the officer on the chest saying ‘Now we are even, copper’.It became apparent to the officer, so the finding proceeds, that the appellant had no intention of stopping to speak to him. The officer then again touched the appellant on the shoulder with the intention of stopping him, whereupon the appellant then turned round and struck the officer with some force. The finding is that the officer did not touch the appellant for the purpose of making any formal arrest or charge, but solely for the purpose of speaking to him. Following the striking of the officer, the appellant was arrested for assaulting the officer in the execution of his duty and taken to the police station. The justices convicted the appellant, finding the summons proved.The principal question it seems to me is whether the officer was acting in the execution of his duty, and a secondary question, whether anything he did caused him to cease to be acting in the execution of his duty. When considering what the duties of the officer were, I do not think that I can do better than cite the words of Lord Parker CJ in Rice v Connolly ([1966] 2 All ER 649 at 651, [1966] 2 QB 414 at 419), when he said:
‘It is also in my judgment clear that it is part of the obligations and duties of a police constable to take all steps which appear to him necessary for keeping the peace, for preventing crime or for protecting property from criminal injury.’
Furthermore, in considering the problem whether the officer went outside the ambit of his duties so as to be ceasing to be acting therein, I would refer to the words of Ashworth J taken from R v Waterfield, R v Lynn ([1963] 3 All ER 659 at 661, [1964] 1 QB 164 at 170), and this is the way it was put:
‘In the judgment of this court it would be difficult, and in the present case it is unnecessary, to reduce within specific limits the general terms in which the duties of police constables have been expressed. In most cases it is probably more convenient to consider what the police constable was actually doing and in particular whether such conduct was prima facie an unlawful interference with a person’s liberty or property. If so, it is then relevant to consider whether (a) such conduct falls within the general scope of any duty imposed by statute or recognised at common law and (b) whether such conduct, albeit within the general scope of such a duty, involved an unjustifiable use of powers associated with the duty.’
The main point taken by counsel for the appellant is that the result of what the officer did was such that he was not acting in the execution of his duty. He had, argued counsel, no right to stop the appellant or any other person other than by arrest.
[1970] 1 All ER 987 at 989
In support of his argument he cited several authorities in which officers, whilst it is alleged acting in the execution of their duties, had been assaulted, in which the court had found that in fact that was not so, they were not acting in the execution of their duties. The first one was Davis v Lisle. That was a case where a police officer, taking these facts from the headnote, believing that an offence had been committed by the servant of the appellant of causing an obstruction on the highway with a motor lorry, was making enquiries, and he went to the appellant’s garage and he went into the garage. The appellant asked him to leave and as a result of not leaving he was assaulted. It was held that even if the respondent police officer had a right to go into the garage and make enquiries, he became a trespasser after he had been told to leave, and henceforward was not acting in the execution of his duty.That seems to me a very different case from the present one which we are considering. There the police officer had gone so far as to make himself a trespasser. The other authority quoted by counsel for the appellant was Kenlin v Gardiner. There two schoolboys apparently were visiting a number of premises and caused certain police officers to be suspicious; the police officers therefore went up to make enquiries, they said that they were police officers and asked the boys what they were calling on these houses for. Apparently the boys were acting perfectly innocently and had a perfectly lawful reason for what they were doing. However, the upshot of it was that they became alarmed and the police officers seized them by the arm, with the result that these boys retaliated and assaulted the police officers. There again in my judgment the facts of that case are vastly different from those that we are considering because there each officer had taken hold of one of the boys and had in fact detained him.Turning to the facts of this matter, it is not very clear what precisely the justices meant or found when they said that the officer touched the appellant on the shoulder, but whatever it was that they really did mean, it seems clear to me that they must have felt that it was a minimal matter by the way in which they treated this matter and the result of the case. When one considers the problem: was this officer acting in the course of his duty, in my view one ought to bear in mind that it is not every trivial interference with a citizen’s liberty that amounts to a course of conduct sufficient to take the officer out of the course of his duties. In my judgment the facts that the justices found in this case do not justify the view that the officer was not acting in the execution of his duty when he went up to the appellant and wanted to speak to him. Therefore the assault was rightly found to be an assault on the officer whilst acting in the execution of his duties, and I would dismiss this appeal.I agree.I agree.
Solicitors: Vizard, Oldham, Crowder & Cash agents for Mellersh & Lovelace, Godalming (for the appellant); McNamara Ryan & Co, Chertsey (for the respondent).