The appellant
stole a bar of chocolate valued at 79p belonging to Woolworths. He was seen by
a store detective to take the chocolate and walk out of the store without
paying for it. The store detective and a sales assistant saw him take the
chocolate from his pocket and place it in his car.
When challenged
there was a scuffle during which the assistant was punched scratched and
kicked. The appellant decamped. During a chase a man who had seen the scuffle
asked the store detective if he needed a hand. Upon being told yes, he made a
citizen's arrest. He believed the appellant had been stealing. In a struggle to
get away the appellant kicked the man above his knee.
The appellant
was charged with theft and two counts of assault with intent to resist or
prevent his lawful apprehension or detainer, contrary to s.38 Offences Against
the Person Act 1861. His defence was he had forgotten about the chocolate and
had no intention of stealing it, and, he had been unwell. He was acquitted of
theft, but conditionally discharged for the assaults.
Powers of arrest
are divided into two categories; those which anyone (including a constable) may
exercise and those that can be used only by a constable. Section 24(5) of the
Pace Act 1984 provides: "Where an AO has been committed, any person may
(AWW), (a) anyone who is quilty of the offence: (b) anyone whom he has
reasonable grounds for suspecting to be quilty of it.
This can be
contrasted with sub-section (6) which deals with a constables power of arrest:
this could be termed "the double negative": there are double
reasonable grounds for suspecting, both as to the commission of the offence and
the person who has committed it.
Counsel for the
Crown asked why the court had to inquire into the exact moment when the
ingredients of theft came together - when to analyse the offence carefully may
produce absurd results, so that in one set of circumstances the offence may be
complete and the situation fall within sub-section (5) and in another be still
being committed and fall within sub-section (4).
However the
Court of Appeal found the words of the statute abundantly clear: in subsection
(5) the powers of (AWW) where an (AO) had been committed required as a
condition precedent, an offence must have been committed.
Since there had
been an acquittal of the arrestable offence (theft), no offence had been committed
and the appellant could not be convicted of the assaults. Neither of the
citizen's had any power of arrest. The convictions were quashed.