"Internet Law Book Reviews" Provided by Rob Jerrard LLB LLM
Written January 1995
Assault on Police: Mistake over Arrest
Kerr v. Director of Public Prosecutions
(1994) The Times, August 5, Queen's Bench Division
A policeman was not acting in the course of his duty for the purposes of s.51(1) of the Police Act 1964 while restraining someone under the mistaken belief that that person was under arrest. The Queen's Bench Divisional Court so held when allowing the appeal by way of case stated of Nikki Tracey Kerr against her conviction by Newquay Justices on September 24, 1993 of assaulting a police constable in the execution of his duty, contrary to s.51(1) of the 1964 Act. The policeman, mistakenly believing that the defendant had been arrested by another officer, restrained her by holding her arm. She had struggled and struck the officer.
The court found that a mistaken belief was not enough to drive them to find that the policeman had acted in the course of his duty. While there was no doubt that the policeman had been exceeding his powers, it was with reluctance that the finding was made.
Lord Justice Butler-Sloss, agreeing, said that the CPS might reconsider again Lord Donaldson' s advice in Bentley v. Brudzinski (1982) 75 Cr. App. R. 217, of prosecuting in the alternative for common assault. Meanwhile, the defendant had been charged with the wrong offence and was entitled to have her appeal allowed.
Comment
This small report in The Times illustrates once again the need to add an additional charge should the circumstances warrant it, the facts of the earlier case are worth repeating. In Bentley v. Brudzinski (1982) 75 Cr. App.R. 217; (19821 Crim.L.R. 825, a police constable on patrol stopped the defendant and his brother in a public street in order 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 inquiries were made. While that was being done the brothers waited by the police car, not under arrest but as volunteers. The constable was unsuccessful in confirming their identifies by radio and, after another 10 minutes the defendant told the constable that he was going home and started to walk off, his brother following him. 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, was arrested and charged with assaulting a police officer in the execution of his duty. 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."
Rob Jerrard