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Lawfulness of arrest irrelevant in assault charge

Regina v Lee (2000) The Times, October 24, Court of Appeal

The Statute

Section 38, as amended by section 63(3) of the Police Act 1964 and section 10(2) of the Criminal Law Act 1967, provides: "Whosoever ... shall assault any person with intent to resist or prevent the lawful apprehension or detainment of himself or of any other person for any offence (is guilty of an offence)."

The Facts (Judgement of Lord Justice Rose)

Lee was driving a motor car when he was asked to pull over by the police for a roadside safety check.

One of the officers smelt alcohol on Lee’s breath and asked him to provide a specimen of breath. He informed Lee that if the test was positive he would be arrested on suspicion of drink driving and taken to the local police station for a more accurate test.

Lee gave a sample by blowing into the Alcolyser device. The officer concluded that Lee had given a positive sample, but Lee disputed that view. According to the officers, after he had been told that he was being arrested, Lee punched them both.

Lee was subsequently charged with intent to resist lawful apprehension contrary to section 38 of the 1861 Act. The trial judge directed the jury that the offence could only be committed if the apprehension was lawful and it would be lawful if the person arresting reasonably believed an arrestable offence had been committed.

Counsel for the Registrar of Criminal Appeals submitted that if Lee genuinely, albeit wrongly, believed his arrest was unlawful he could not have intended to resist lawful apprehension; the judge should therefore have gone further and directed the jury that they must be sure that the defendant had no honest belief that he had failed the breath test. His Lordship said that section 38 of the 1861 Act made it an offence to "assault any person with intent to resist or prevent the lawful apprehension or detainment of himself or of any person for any offence".

It was therefore an essential ingredient of the offence that Lee intended to resist lawful arrest. But, provided he had that intention, the statute did not require proof of any particular belief on the part of Lee. A genuine or honest mistake might afford a defence in relation to many criminal offences requiring mens rea even if not reasonably held. Such a mistake might afford a defence in relation to assault with intent to resist arrest: see R v Brightling [1991] Crim LR 364, or assaulting an officer in the execution of his duty: see Blackburn v Bowering [1994] 1 WLR 1324, if it related to whether or not the victim was a police officer.

In such a case, the defendant’s mistake might be relevant to whether he intended to assault a police officer and to whether he was acting in reasonable self-defence.

However, to afford such a defence the mistake had to be one of fact. In Blackburn, Sir Thomas Bingham, referred to "the important qualification that the mistake must be one of fact (particularly as to the victim’s capacity) and not a mistake of law as to the authority of the person acting in that capacity". His Lordship said that, even had Lee given evidence, which it appeared he had not, that he resisted arrest because his interpretation of the Alcolyser lead him honestly to believe his arrest was unlawful, that would not have afforded him a defence. Such a belief would have been not about any facts relating to the identity or conduct of the police officer at the time of the attempted arrest but about the legal consequences of believed antecedent facts.

In his Lordship’s judgment, Lee’s position was indistinguishable from that of a person sought to be arrested on the ground of reasonable suspicion for any arrestable offence which he knew or believed he had not committed.

If, in such circumstances, that person assaulted an officer whom he knew was acting as a police officer, belief in innocence could not afford a defence to assault, either with intent to resist arrest or on an officer in the execution of his duty. Once the lawfulness of the proposed arrest was established, the mens rea necessary for a section 38 offence was an intention by the defendant to resist arrest, accompanied by knowledge that the person he assaulted, who might or might not be a police officer, was a person who was seeking to arrest him.

Whether or not an offence had actually been committed or was believed by the defendant not to have been committed was irrelevant.

The Decision

The mens rea required for an offence of assault with intent to resist arrest was that the defendant intended to resist arrest and that he knew that the person whom he assaulted was a person seeking to arrest him. It was irrelevant that the defendant (Lee) honestly believed that the arrest was unlawful.

The Court of Appeal, so held, dismissing an appeal by Lee against his conviction for two offences contrary to section 38 of the Offences against the Person Act 1861, at Crown Court.


The facts of R v Blackburn v Bowering considered in the report were:-

Following the first defendant’s failure to pay a judgment debt, a warrant for his committal for failure to attend the county court was issued against him. Subsequently, three county court bailiffs saw the first defendant and his son, the second defendant, in a café near the first defendant’s address and a fracas ensued. The defendants were charged with assaulting an officer of the court while in the execution of his duty contrary to s 14(1)(b) of the County Courts Act 1984. They claimed that they had been unaware that their assailants were court officers. Under s 14(1) a person who assaulted an officer of a court while in the execution of his duty was liable ‘(a) on summary conviction, to imprisonment for [up to] 3 months or ... or (b) on an order made by the judge ... to be committed for [up to] 3 months to prison ...’ At trial they submitted that it was a good defence to proceedings under s 14(1)(b) of the 1984 Act to show either that the defendants did not know that the bailiffs were such, or any other officer of the court, or that the bailiffs were acting in the execution of their duty. The judge ruled that the offence was absolute and that if the defendants’ conduct was deliberate it made no difference what their knowledge or belief or state of mind was, and made suspended committal orders in respect of both defendants. They appealed, contending that the judge’s ruling was incorrect.

Held – While s 14 of the 1984 Act did not require proof by the Crown that the defendant knew either that the complainant was an officer of the court or that he was acting in the execution of his duty, it did require proof of assault, namely, the unlawful show or application of force or the intentional or reckless application of unlawful force. To apply reasonable force in self-defence was lawful and if the defendant applied force to a police or court officer which would be reasonable if that person were not a police or court officer, and the defendant believed that he was not, then even if his belief was unreasonable he had a good plea of self-defence. Accordingly, if the defendant honestly believed that he was being attacked by a person other than an officer of the court and if the force used was no more than was necessary to repel the attack, his use of force did not constitute an assault and it was for the prosecution to prove that the defendant had not acted reasonably in lawful self-defence. Accordingly, the judge had misdirected himself. The appeal would therefore be allowed and the judge’s order quashed

Where a defendant is charged with assaulting a police officer in the execution of his duty pursuant to s 51(1) of the Police Act 1964 and raises an issue as to the lawfulness of his conduct, either by saying he was acting in self-defence or in defence of another or in defence of property or to prevent crime then it is for the prosecution to disprove those matters.

Mental Element

The actus reus is the same as that for assault. As well as the mens rea for assault a further specific intent is required for this offence. Because this is an offence of specific intent, only intention to cause the relevant consequence will suffice, and intention here has the same meaning as in Hancock [1986] AC 455

What the Court of Appeal are saying in Brightling is that the issue in respect of the Offences against the Person Act 1861, s. 38, was that a genuine mistake as to the identity of the victim was relevant to the defendant’s intent. The court noted the distinction between s. 38 and what is now the Police Act 1996, s. 89(2). For the purposes of s. 38, the person attempting to make an arrest does not have to be a police constable, and to that extent the defendant’s belief that such person was not a police constable does not automatically exculpate him. He may realise that a lawful citizen’s arrest is being attempted.

The arrest (or apprehension of detainer) must be lawful, bearing in mind that different powers are available under statute to constables and private citizens R v Self [1992] 1 WLR 657.

The wording in s. 38 is in contrast to the wording in the Police Act 1996, s. 89(2). Whereas the Police Act uses the word ‘obstruct’, s. 38 refers to resisting or preventing. Resisting might be taken to imply some kind of physical action, but preventing can be said to have a much wider meaning; an intent to prevent an arrest should be easier to prove.