West Law Report

MCMILLAN v CROWN PROSECUTION SERVICE

Posted in Assault, Police powers and duties, Westlaw Reports by mrkooenglish on May 23, 2008

Last Updated: 11:26AM BST 22/05/2008
Divisional Court

Maurice Kay LJ, Penry-Davey J

May 12, 2008 (Filed: May 22, 2008)

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Assault – Drunk and disorderly – Police officers – Arresting police officer escorting drunken person from private garden – Actions acceptable in ordinary conduct of daily life – s. 5 Public Order Act 1986

FACTS

The appellant (M) appealed by way of case stated against a decision of a magistrates’ court to convict her of the offence of being drunk and disorderly in a public place. Police officers had found M on the street in a drunken state, warned her about her behaviour and advised her to go home. The officers later found M in the garden of her daughter’s house shouting and swearing at the front door. One of the officers (S) advised her to leave but M continued to shout and swear. S then took M by the arm and escorted her down a set of steps from the garden and onto a public footpath. M shouted at and argued with S and was arrested. The lawfulness of S’s actions in physically leading M from the garden to the footpath was considered at trial. The magistrates held that there had been no assault, and convicted M of the offence charged. The principal question posed for the consideration of the High Court was whether the magistrates were correct to find that there had been no assault. M submitted that from the moment S took her by the arm, he was in law assaulting her, and her disorderly behaviour was the behaviour of someone who was the victim of a continuing assault against which she was entitled to protest.

ISSUE

Whether the magistrates were correct to find that there had been no assault.

HELD (appeal dismissed)

The question was whether the magistrates were entitled to hold that S, by taking M by the arm, had been acting within the bounds of what was generally acceptable in the ordinary conduct of daily life, Collins v Wilcock [1984] 1 WLR 1172 DC applied. Common sense compelled that they were so entitled. The magistrates were plainly satisfied that S had made the pragmatic decision not to arrest M in the garden, perhaps for an offence under the Public Order Act 1986 s. 5, preferring instead a negotiated conclusion which would be in M’s interests. The magistrates found that S had taken M by the arm to escort her out of the garden so he could speak to her in the street, and they rejected any suggestion that she was removed to a public place so as to justify an arrest for an offence with a public place requirement. In acting as he did, S, who had had in mind the steepness of the steps and had wanted to steady her for her own safety, could properly be said to have acted in conformity with generally acceptable standards of conduct.

Quincy Whitaker (instructed by Ben Hoare Bell, Sunderland) for the appellant. Robert Spragg (instructed by Crown Prosecution Service) for the respondent.

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