By Rob Jerrard LLB LLM (London)

"Staid guardians of public peace": Assaulting a constable in the execution of his/her duty: the law reviewed.


"The police in this country are the instrument for enforcing the rule of law; they are the means by which civilised society maintains order, that people may live safely in their homes and go freely about their lawful business", Final Report of the Royal Commission on the Police 1962, Cmnd. 1728, para. 57. Thirty years on, the basis propositions remain; more important is the question; are we giving police officers the protection they deserve?

According to a survey conducted by Police Review, within England Wales and Scotland there were a total of 22,538 assaults on police in 1991. These surveys which began in 1986 show a steady increase; 1987, 16,941, 1989, 19,047, and 1990, 19,072. The figures indicate an indictment against society, since these assaults are against a section of society who are duty sworn to protect the the rest.

Statisticians have a habit of discussing these type of results in a particular way; they will tell you that the total number of officers assaulted fell by 4% in 1991. When discussing statistics let's put aside percentages and talk of numbers; of individuals. The fiqures show that for a police officer the safest place seems to be the City of London and, the most dangerous Strathclyde. Whatever your opinion may be of the figures they are totally unacceptable.


Summary Trial

S.51(1) of the Police Act 1964 provides:

"any person who assaults a constable in the execution of his duty... shall be guilty of an offence and liable on summary conviction to imprisonment for a term not exceeding six months or to a fine not exceeding level 5 on the standard scale or to both."


Charging

The Criminal Justice Act 1967 abolished the right of a defendant charged under s.51(1) to elect trial by jury. The maximum penalty for the offence is six months' imprisonment, a fine not exceeding level 5, or both. The Magistrates' Association guidelines indicate that if the matter is considered serious, then consider custody. By serious they mean, any injuries caused, gross disregard for police authority, group action or premeditated.

Practitioners will know from experience that the defendant faces a real possibility of a custodial sentence, see R v Coote (1992) The Times, 7 May, (Police assault is always a serious matter). Some commentators consider this to be scandalous when no right of jury trial exists. If the officer receives injury or a wound there may be no choice but to charge under ss. 47 or 18; those charges will confer with them the right to jury trial, and give the court greater sentencing powers.

The question of whether the officer was "in the execution of his duty" is inextricable bound to the charge under s.51(1). Common assault is now a summary offence punishable exactly the same as a s.51(1) assault. If the officer is not injured it may, if any technical challenge is anticipated, be prudent to charge common assault. The sentencing guidelines may still be sufficient, a seriousness indicator being an assault upon a public servant.


Assault by omission

In Fagan v Metropolitan Police Commissioner (1969) 133 J.P.16, a police officer was on duty when he saw the defendant driving a motor vehicle. As the defendant reversed his car the officer asked him to pull into the kerb so that he could check his driving documents. Upon being asked to move his vehicle nearer to the kerb the defendant drove the vehicle with its front offside wheel onto the officer's foot.

The officer said: "Get off, you are on my foot." The defendant replied, "F... you, you can wait." The defendant did eventually remove the car. The officer's big toe was swollen and bruised. The defendant was charged and convicted at the magistrates' court with assaulting the officer in the execution of his duty. Quarter Sessions dismissed his appeal.

The Queen's Bench Divisional Court held, dismissing the appeal, that whether or not the mounting of the wheel on the constable's foot had been deliberate (as to which there was some doubt), the defendant had deliberately and provocatively allowed it to remain there when asked to remove it and that constituted an assault. The crucial factors were that the defendant had (i) remained seated in the car so that his body through the medium of the car was in contact with the officer, (ii) switched off the car's ignition, (iii) maintained the wheel of the car on the officer's foot and, (iv) used words indicating that he intended the vehicle to remain there.


A Constable

The person assaulted must be a constable. "Constable" here refers to the office of constable and covers prison officers when acting as such.


In the execution of his duty

In R v Waterfield [1964] 128 J.P.48, Ashworth J; said:

"In the judgment of this court it would be difficult to reduce within specific limits the general terms in which the duties of a police constable 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."

In Rice v Connolly [1966] 2 All E.R.649, Parker CJ; 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. There is no exhaustive definition of the powers and obligations of the police, but they are at least those, and they would further include the duty to detect crime and to bring an offender to justice".


A trespassing officer will not be on duty.

In Davis v Lisle [1936] 2 ALL E.R. 213, a police officer believing that an offence of obstructing the highway with a motor lorry, had been committed, went to the appellant's garage and entered it to make enquiries. The appellant asked him to leave and as a result of not leaving the officer was assaulted. It was held that even if the officer had a right to go into the garage he became a trespasser after he had been told to leave and, henceforward was not acting in the execution of his duty.

In McArdle v Wallace [1964] Crim.L.R. 467, a constable found property in a public place which he thought might be stolen, and went to a nearby cafe to make enquiries. There he met the defendant, the son of the occupier, who told the constable that the property was his and ordered him to get out. The constable did not do so and the defendant struck him. He was charged with assault on police. The justices held that any implied authority which the constable might have thought he had to be on the cafe was withdrawn when he was told to leave; accordingly; he then ceased to be acting in the execution of his duty. They dismissed the information and the prosecutor appealed.

The Queen's Bench Divisional Court, held, allowing the appeal, that the constable was acting in the execution of his duty when he entered the cafe. The question was therefore whether anything had happened thereafter to turn him into a trespasser. A member of the occupier's family might or might not have the implied authority to tell someone to leave. The case should go back to the justices with a direction to consider whether in all the circumstances the proper inference to be drawn from the facts was that the defendant had such implied authority from his father.

In McGowan v Chief Constable of Kingston upon Hull [1968] Crim. L.R. 34, the defendant was living in his own home with a woman, Mrs T; she left after an argument, taking their illegitimate child aged 15 months with her. He forcibly took the child, to use it as "bait" to lure Mrs T back. She went to the house with two constables, who entered with her. The defendant picked up the child and aimed a blow at one of the constables; the child was screaming and the constable decided he must get it away. There was a struggle and the defendant fell on a sofa with the child underneath him. The constable tried to prise the defendant's head up; the defendant bit him. After the defendant had broken the handcuffs which had been put on him the constables used their truncheons. He was convicted of assaulting the officers in the execution of their duty and of occasioning actual bodily harm.

The Queen's Bench Divisional Court held, dismissing the appeal, that the only question was whether the police were acting in the course of their duty. They were not trespassing in entering the house, for the defendant intended the child to be "bait" for Mrs T and she invited them in; and in any event they were justified because they suspected a danger of a breach of the peace. It was unnecessary for them to obtain a warrant. It was not outside the constable's duty, accordingly the defendant had been rightly convicted.


Agreeing to fight is not in the execution of his duty

In Whiteside v Gamble [1968] Crim.L.R. 560, a police constable came upon a group of youths and girls at night shouting and jumping on and off the stalls in a market place. He decided to take their names and addresses in case he later discovered damage done in the area. He had no intention of taking any other action against them. He saw the appellant sitting on a stall some twenty feet from the rest of the group. He had not seen him taking part in the rowdy behaviour. He asked him for his name and address. As the officer wrote it down the appellant referred to previous incidents in which he had been involved. The officer then said to the appellant, "In my mind your just a pile of Shit," to which the appellant replied, "if it wasn't your uniform, I'd have you."

The officer then said: "Forget the uniform, just walk down the market away from the rest". The officer was knocked to his knees and suffered a broken nose. The appellant landed further blows. The officer, blinded, drew his truncheon and struck the appellant with it. After the incident was over, the officer was alleged to have said it was his fault.

In allowing the appeal, the Queen's Bench Divisional Court said that the officer was acting in the execution of his duty up until the time he made a grossly offensive remark and the statement, "Forget the uniform..." After the direct challenge to fight he was not.


A duty to prevent a breach of the peace

In King v Hodges [1974] Crim.L.R. 424, a police officer was called by the warden of a girls' probation hostel where a fight had taken place. The officer was asked to help move K to a different part of the premises in order to avoid the fight breaking out again. He put his hand on the girl's elbow to guide her and tried to persuade her to move. K started shouting and assaulted the officer. She appealed against her conviction contending that if the officer feared a breach of the peace he should have arrested her whereas she had not been arrested until after the assault and that only an arrest could have justified the officer using even slight physical force on her. The appeal was dismissed by the Queen's Bench Divisional Court who stated that a constable reasonably believing that a breach of the peace was about to take place was entitled to use reasonable force to prevent it even though he did not arrest any person.

In Hickman v Dwyer [1979] Crim.L.R. 309, H was one of a number of youths who were told to move on by a constable. He was lying on a bench and although the group were noisy they were not disorderly and no arrestable offence had been committed. As H started to move slowly and deliberately the constable took hold of his arm and refused to let go when H protested. He assaulted the officer by punching him in the stomach a number of times and, after being convicted appealed to the Queen's bench Divisional Court. That Court held that since the officer did not think that a breach of the peace was likely his action was not justified; the conviction was quashed. As stated in Whiteside v Gamble supra, this kind of resistance may however be a common assault on the officer; if it were proved that greater force than was reasonable was used to resist the false imprisonment.

In Coffin v Smith (1980) 71 Cr.App.R. 221, two police officers were called to a youth club because a youth leader wanted to ensure that particular persons (including the two defendants S and H) left before a disco started. The constables asked them to move on and were sworn at ("F___ off pig".) S came back and struck one of the constables in the chest, S was arrested and placed in a police car. H then lashed out at the other officer, a WPC who attempted to restrain her. Both defendants were charged with assaulting the officers in the execution of their duty. The defence argued that they were not acting in the execution of their duty. It was accepted that up until the time they had been asked to leave no criminal offence had been committed inside or outside the club, nor had any been contemplated, it was argued that the officers were doing something they were not compelled by law to do.

The Justices upheld the submission of no case to answer. Held, on appeal, that it was the duty of a police officer to keep the peace. Through attending they would assist to keep the peace, they were doing no more than their duty at the time.

In Albert v Lavin [1981] Crim.L.R. 238, a plain clothes police officer was waiting in a bus' queue, when the defendant pushed past the people in the queue to board an approaching bus'. The people in the queue objected to this behaviour and the officer prevented the defendant from boarding the bus'. A struggle took place during the course of which the officer revealed his identity and said that he would arrest the defendant if he did not stop struggling. The defendant did not believe the officer and hit him in the abdomen. The officer arrested him for assaulting him in the execution of his duty. The justices decided that the reaction of the queue was such that the officer was entitled to believe that a breach of the peace was about to take place, and that although the defendant genuinely did not believed in the officer's identity there was no reasonable ground for that belief. The defendant was convicted and appealed.

Dismissing the appeal, the Queen's Bench divisional Court held, that an officer who had reasonable grounds for believing that a breach of the peace was about to take place was entitled to use reasonable force to restrain a person without arresting him. It was not a defence to a charge of assault if the defendant honestly and mistakenly disbelieved the identity of the officer and believed that his actions were justified in self-defence, unless there was reasonable grounds for that belief.

The Divisional Court certified a point of general public importance, viz, "whether a person charged with an offence of assault may properly be convicted if the court finds that he acted in the belief that facts existed which if true would justify his conduct on the basis of self-defence but that there was in fact no reasonable grounds for so believing." The defendant appealed to the House of Lords, who said the question certified was a hypothetical one which had not been necessary and, it would not have been proper for their Lordships to hear argument; they declined to answer it.

Held, dismissing the appeal, that every citizen in whose presence a breach of the peace was being or reasonable appeared to be about to be committed had the right and the duty to take reasonable steps to make the person who was breaking or threatening to break the peace to refrain from doing so, and those reasonable steps in appropriate circumstances included detaining him against his will. For the definition of a breach of the peace see R v Howell (1981) 73 Cr App R 31 at p 36.

The certified question in Albert has since been answered in R v Williams (Gladstone) (1983) 78 Cr.App.R. 276, where it was held that the defence of self-defence depended upon what the accused "honestly" believed the circumstances to be and not upon the reasonableness of that belief. This decision received the approval of The Privy Council in Beckford v The Queen [1988] AC 130.


The officer's intentions

In Weight v Long [1986] Crim.L.R. 746 a police officer saw the respondent arguing with his girlfriend, who ran away. The police asked the girlfriend if she was alright, and then approached the respondent to speak to him "to check him out in case he was" following" the girl. The respondent did not stop, and when the officer approached him he pushed him aside and punched and kicked him. The justices dismissed the information since in their opinion the man had assaulted the officer with justification: in speaking to the respondent the officer was not acting in the execution of his duty because he had no reason to believe that an offence had been or was being, or would be committed; or that the situation represented anything except a tiff between friends.

The Queen's Bench Divisional Court allowed the appeal and remitted it for the Justices to deal. Provided the officer's intention in attempting to speak to a person is in pursuit of the preservation of the peace or the prevention of crime or investigation of crime already committed, he acts in the execution of his duty.


Even an unlawful arrest?

In DPP v Hawkins [1988] Crim.L.R. 741, H was charged with assaulting three police officers in the execution of their duty. H was not informed of the ground of his arrest as soon as it was practicable to do so, as required by s.28(3) of PACE Act 1984. His defence was therefore that since the arrest was unlawful the police officers could not have been acting in the execution of their duty at the time of assaults upon them.

This argument was rejected: when a police officer made an arrest which he was lawfully entitled to make but was unable at the time to state the ground because it was impracticable to do so, it was plain on the wording of the section that it was his duty to maintain the arrest until it was practicable to inform the arrested person of that ground.

If, when it became practicable he failed to do so, then the arrest was unlawful, but that did not mean acts that were previously done in the execution of duty and were when done, done in the execution of his duty became, retrospectively, acts which were not done in the execution of duty. The Act certainly did not say so and contentions founded upon other consequences of arrest being unlawful did not assist.

There are limitations; the issue was whether the constable was acting in the execution of his duty when he was assaulted by the person he had arrested. Because he was violent it was not practicable to inform him of the reasons for the arrest. When it became practicable at the station he was not told. The decision that the arrest was lawful between those two periods meant the constable was acting in the execution of his duty.

The consequences of a civil claim for false imprisonment may well be that the arrest would be unlawful from the point when it became practicable to inform of the grounds for arrest. In Simpson v Chief Constable of South Yorkshire Police (1991) The Times, 7 July, it was held that a person convicted of malicious wounding and threatening behaviour in the course of his lawful arrest was not precluded from alleging that the officers assaulted him at the same time. A defendant is entitled to be informed under s.28 that he was being arrested and the grounds of his arrest, however obvious both must be Hill v Chief Constable of South Yorkshire Police (1989) The Times, 31 October.

If a constable exceeds his authority and power he will no longer be acting in the execution of his duty.

A person has an unqualified right at common law to resist an unlawful arrest. A person wrongly arrested may not use grossly excessive force in resisting arrest.

In Donnelly v Jackman [1970] 1 All E.R. 987; 134 J.P. 352, D was walking along a road when a constable in uniform came up to him with a view to talking to him about an offence about which he believed D had committed. D ignored repeated requests to stop and talk to the officer. The officer, who had no intention of arresting D, touched him on the shoulder with the intention of stopping him but D then assaulted the officer. On appeal against conviction the Queen's Bench Divisional Court held that touching D's shoulder was a trivial interference with his liberty and did not amount to conduct which took the officer outside the course of his duty. The appeal was dismissed. It would appear here that even if the constable's conduct had been held unlawful, the defendant's act involved a disproportionate use of force.

In Bentley v Brudzinski [1982] Crim.L.R. 825, at 3.30 am. a police constable stopped the defendant and his bother in a street to question them. They answered his questions truthfully and identified themselves. After some minutes they started to walk away, but the constable took hold of their arms and asked them to wait while further enquiries were made. The brothers waited by the police car, not under arrest but as volunteers. The constable was unsuccessful in confirming their identities by radio. After 10 minutes the defendants started to walk off. As they walked away another constable arrived on the scene, but had no knowledge of what had transpired. The first constable indicated to the second that he wanted to talk to the defendant, whereupon the second constable stopped the defendant by placing his hand on his shoulder, the first constable taking the other by the arm. The defendant then assaulted the second constable, and was arrested and charged with a s.51 assault. On those facts the justices found the defendant had no case to answer and dismissed the information. The prosecution appealed

The Queen's Bench Divisional Court held, that the defendant had provided all the information requested by the first constable, and remained with that officer to enable him to make inquiries as a volunteer, the second constable's attempt to prevent him from leaving amounted to more than a trivial interference with the defendant's liberty and constituted an unlawful attempt to stop and detain him so that thereafter he was acting outside the scope of his duty - it made no difference that it was the second constable who had stopped the defendant for he was acting as agent for the first. The defendant's arrest was unlawful, the justices had come to the right decision.

In giving judgment Lord Donaldson LJ; said:

"I hope police prosecutors will consider making an alternative charge of common assault when they have reason to think that there may be a technical challenge to the officer's authority and when the reaction of the citizen has been wholly unjustifiable. This will enable the limits of an officer's authority to be defined, while at the same time doing justice and giving the officers the support they are entitled to expect".

The cases of Donnelly and Bentley are similar; however it is important to distinquish between a mere touching in order to attract attention and an interference with a citizen's liberty. The following cases give further examples.

In Kenlin and another v Gardiner and another [1966] 3 All E.R. 931, two boys were doing nothing illegal, but officers in mufti were suspicious of them. One of the officers showed the boys his warrant card and told them he was a police officer and asked them what they were doing. The boys, not appreciating that they were being spoken to by police officers, tried to run away. Both were caught but struggled and hit the officers. They appealed against their convictions at the Magistrates' court. The Queen's Bench Divisional Court held that the boys were not being arrested and therefore the catching hold of them was technically an assault. The Boys were allowed to use self-defence against an assault, thus their convictions were quashed.

In Squires v Botwright [1972] Crim.L.R. 106, a constable in plain clothes saw S driving her car without due care and attention. He followed her to her home and told her what he had seen and asked her to await the arrival of uniformed officers. She tried to push her way into her house but the officer deliberately stood in her way, but did not formally arrest her, (Described in the commentary, [1973] Crim.L.R. 107, as "detention not amounting to imprisonment or arrest). The officer's power of arrest under the section (s.228 Road Traffic Act 1960) did not arise until he had requested the name and address and production of a driving licence and both requests had been refused. She refused to give her name and address and then assaulted the officer. Her appeal against conviction was dismissed by the Queen's Bench Divisional Court. The Court said that the officer was trying to do his duty and that nothing he had done had taken him outside the execution of his duty.

In Ludlow and others v Burgess [1977] Crim.L.R. 238, a police officer in plain clothes was kicked on the shin whilst boarding a 'bus by one of three youths. An argument followed as to whether it was deliberate or accidental. The officer, who did not have his warrant card on him, told the youths that he was a constable and then told them to stop using obscene language. L started to walk away but the constable put a hand on his shoulder intending not to arrest him but to continue the conversation. L then assaulted the officer and the other two youths joined in. The three youths appealed against conviction and the Queen's Bench Divisional Court allowed the appeal on the grounds that the detention was a serious interference with a citizen's liberty. The officer was not acting in the execution of his duty.

In R v Fennell [1970] 3 ALL E.R. 215, F's son, who was involved in a fight had been properly arrested by a constable. F using enough force to release his son, assaulted the officer because he genuinely but mistakenly believed that his son had been unlawfully arrested. F's appeal against conviction was dismissed, the court saying that where a child was in police custody and not in imminent danger of injury there was no justification for the use of force to release the child. The Court of Appeal went on to say that if the arrest had been unlawful it is probable that the defendant would have been justified in using reasonable force to secure the release of his son.

In Collins v Wilcox [1984] Crim.L.R. 481; 148 J.P. 692, it was held, allowing an appeal, although there was a recognised special procedure for administering a caution to a woman suspected of being a common prostitute, the procedure does in fact require the co-operation of the woman concerned to supply relevant details. S.2 of the Street Offences Act 1959 did not imply that police officers had the power to stop and detain women for the purpose of implementing the system.


Voluntarily at the Station

In R v Inwood [1973] Crim.L.R. 290, Inwood had gone voluntarily to a police station to help with enquiries into offences of theft. The police told Inwood that he was being charged with theft. Fingerprinting was started but after a time Inwood decided to leave the station. He was prevented from doing so and two police officers were injured. He appealed against conviction. The Court of Appeal said the police were entitled to use force to stop Inwood leaving the station if had been made clear to him that he was under arrest. As it was impossible to say that in this case, the conviction was quashed.

Inwood, relying on Ludlow v Burgess and Kenlin v Gardiner, supra, submitted that as he had gone to the station voluntarily he was free to go until formally arrested. The situation would now be covered by sections 28 and 29 of the Police and Criminal Evidence Act 1984.


Searching at the station

In R v Naylor [1979] Crim.L.R. 532 Leicester Crown Court, Miss N was in lawful custody on a charge of obstruction. On arrival at the station she behaved in an abusive manner. She refused to be searched and a policewoman forcibly removed some jewellery (rings necklace and, earrings) from her to safeguard it. N assaulted the policewoman and at her trial asserted that the police were acting unlawfully. His Honour Judge Skinner, citing Leigh v Cole (1853) 6 Cox C.C. 329 held, that the police had a right to search prisoners for property connected with the crime for which they were in custody and also for property which could be used to cause injury or to escape. They had no right to take property for safekeeping and therefore N had a right to defend herself.

In Lindley v Rutter [1979] Crim.L.R. 729, a police officer discovered the defendant in a street late at night and took the view that she was drunk. He arrested her and took her to a police station where she was placed in a cell. There a police woman attempted to search the defendant and remove her brassiere. The police woman was acting in accordance with her understanding of the Chief Constable's standing orders, which she believed required her to search every female prisoner and remove her brassiere for the prisoner's own protection. The defendant resisted, a second police woman was called and together they searched the defendant and removed the brassiere. The defendant was convicted of disorderly conduct while drunk, and of a s.51 assault. She appealed by way of case stated to the Queen's Bench Divisional Court on the ground that the constable had not been acting in the execution of her duty in searching her and removing her brassiere.

Held, allowing the appeal, that a police constable was under a duty to ensure that prisoners in his charge did not injure themselves or others, commit further crimes, destroy evidence, escape or assist others to escape. In each case the discharge of that duty involved having regard to the particular circumstances of the case. The adoption of specific measures in every case could never be justified. The searching of prisoners and removal of articles from them could only be justified in relation to the particular prisoner in question, and since the justices had made no finding that the constable had considered whether it was necessary to search the defendant for any lawful purpose, or remove her brassiere for her own protection, the constable was not acting in the execution of her duty. The conviction would be quashed.

The rules regarding a detained person's property are now to be found in The Code of Practice C: para 4.


I don't think you are a police officer

It would be impossible for a defendant to make such a statement if the officer was in full uniform, situations do arise with officers on duty in mufti.

In R v Green [1971] Crim.L.R. 477, W was convicted of assaulting two police officers S and T. He was indicted with four others. That were making merry in the street and were approached by the officers, who were in plain clothes. S said he showed his warrant card to W who then struck him. T said he went to assist S and W struck him. W said he acted in self-defence. He was approached by a shabbily dressed man who claimed to be a police officer but who failed to identify himself when asked to do so. He was pulled by the shoulder and lost his balance and lashed out instinctively. The judge did not direct the jury that the burden of negativing self-defence was on the prosecution. W's four co-defendants whose account was similar were acquitted.

The Court of appeal, following R v Wheeler (1968) 52 Cr.App.R. 28 allowed the appeal, saying it was not a case for the proviso. In Wheeler, the court criticised the "regrettable habit of referring...to the defence of self-defence". It is important to make it clear that the onus of proof rests with the Crown.


I thought the police officer was a robber

In R v Malcolm Mark, Brown and Maureen Mark [1961] Crim.L.R. 173, Central Criminal Court,the first two defendants were charged with robbery together, and all three were charged with assault on a police officer. The constable concerned chased Brown from the scene of the robbery and was in fact arresting him when the other two interfered with the result that Brown escaped. The defence of the two Marks was that they acted under the mistaken belief that Brown was being robbed by some person unknown to be a police officer. Brown claimed that he was attacked by the constable who was in plain clothes and whom he did not know to be a police officer, while he was on his lawful occasions. After argument citing: Russell on Crime, 11th ed; p.763; Christie v Leachinsky [1947] A.C.573; Foster Crown Cases 318;R v Forbes and Webb (1865) 10 Cox 362; R v Maxwell and Clanchy (1909) 2 Cr.App.R. 26, it was held by Maxwell Turner J, that although knowledge that the person assaulted was a police officer was not an ingredient of the offence, an unlawful assault is one of the ingredients and so if the jury believed that the defendant acted under a genuine belief, honestly and reasonably held, that the person assaulted was in fact committing a felony or breach of the peace, they should find the defendant not guilty. The verdict in fact was all three guilty.

The next case was a charge of assault occasioning actual bodily harm. It is included since it illustrates a case where the defendant thought he was being robbed. In R v Green [1982] Crim.L.R. 604, Green who was in the West-end of London, hailed a taxi and was about to enter it, when a woman of scruffy unkempt appearance accosted him saying she was a police officer and wished to question him about an incident which she had just witnessed when he had been talking to a man; the man was known to the police to be a drug addict or dealer. Green pushed her out the way and entered the cab; the woman also entered it, caught hold of his arm and there was a struggle in which she was pulled out of the cab into the road and banged her head as she fell; she grabbed him again but he struggled free and again she caught him but he struck her so that she suffered minor injuries.

It was conceded that during the course of the struggle he said to her, "you are not a police woman." He was charged with assault occasioning actual bodily harm. A submission of no case to answer was rejected and Green was convicted. He appealed on the grounds that her acts were unlawful in that, although s.23(2)(a) of the Misuse of Drugs Act 1971 entitled a police officer in certain circumstances to detain a person in order to search him, the section did not entitle the officer to detain in order to question, which was the admitted reason for Green's detention, and that the jury had been misdirected on the issue whether Green might have thought, as he stated, that the officer was not an officer but a mugger.

In allowing the appeal the Court of Appeal held, that the submission relating to s.23(2)(a) was ill founded. The right to detain in order to search must necessarily involve the right to detain and question and search. There was no obligation, because of the detention, to search. The charge was not of assault on a constable in the execution of duty. However, the issue about Green possible believing the officer to be a mugger was not really put to the jury, the case was not one for application of the proviso to s.2(1) of the Criminal Appeal Act 1968, and the conviction would be quashed.

In Ansell v Swift [1987] Crim L.R.194 (Lewis Crown Court), the Court held that self defence is a defence to a charge of assault on a police officer where the defendant thought himself under attack.


Transferred malice: it is possible?

Following R v Forbes and Webb (1865), supra, which decided that there is no defence to a charge of assaulting a policeman in the execution of his duty that the accused had a positive belief that the person assaulted was not a constable on duty: (the offence is, not assaulting them knowing them to be in the execution of their duty, but assaulting them being in the execution of their duty). Under the doctrine of "transferred malice" A is criminally liable if he strikes at B but unintentionally and unforeseeably, hits C. (C being a constable). Forbes has been criticised, see Williams, The Criminal Law, 1st ed; p.157), but is still good law and, was approved of in R v Maxwell (1909) 2 Cr.App.R. 26.

In McBride v Turnock [1964] Crim.L.R. 456, the defendant had a quarrel with another man and assaulted him. In the course of the assault, some of the blows struck a constable who was nearby and acting in the course of his duty. The defendant was charged with assaulting the constable in the execution of his duty. The justices decided that he had no intention of assaulting the constable and that the blows were accidental, and dismissed the information. The prosecution appealed.

The Queen's Bench Divisional Court held, allowing the appeal, that the justices were wrong and they would be directed to convict.


Rob Jerrard