West Law Report

Restraint without arrest was assault

Posted in Assault, Police powers and duties, Times Law Report by mrkooenglish on May 23, 2008

From The TimesMay 23, 2008

Restraint without arrest was assault
Queen’s Bench Divisional Court
Published May 23, 2008
Wood v Director of Public Prosecutions
Before Lord Justice Latham and Mr Justice Underhill
Judgment May 14, 2008

Where a police officer restrained a person, but did not at that time intend or purport to arrest him, he was committing an assault, even if an arrest would have been justified.

The Queen’s Bench Divisional Court so held when allowing an appeal by way of case stated from the dismissal by Luton Crown Court (Judge Bevan, QC and justices) of the appeal by Fraser Wood against his conviction by Stevenage Justices for offences of assaulting police officers in the execution of their duty, and of threatening behaviour contrary to section 4 of the Public Order Act 1986.

The police officers had attended an incident acting on reports that a man called “Fraser”, who had a police record for violent behaviour but was unknown to the officers themselves, had behaved in a disruptive manner. When the defendant appeared one of the officers had taken hold of him by the arm and asked whether he was Fraser.

The second officer had taken hold of him when he denied that was his name, although at the time he was being addressed as “Fraser” by some of his companions. The defendant’s ensuing struggle with the officers had given rise to the charges and convictions.

The crown court, dismissing the defendant’s appeal, had held that the first officer had reasonable grounds to suspect the man in front of them had committed an arrestable offence and to detain him, although it was not until a later point that the officer’s suspicion had crystallised into certainty that he was indeed Fraser Wood, the man he had come to arrest. The court was therefore satisfied that the actions of the first officer and those following him were lawful and the defendant was guilty of the offences charged.

In the case stated, two questions were asked: (i) Was the court right to conclude that the officers were acting in the execution of their duty? (ii) Must a police officer, when exercising a power of arrest, intend to exercise that power of arrest and believe that he did have the power to arrest?

Mr Timothy Bowden for Fraser Wood; Mr Patrick Fields, solicitor, for the Director of Public Prosecutions.

LORD JUSTICE LATHAM said that it was unfortunate that there were no findings by the crown court as to what the two officers intended or said at the time.

The distinction made by the officer in his evidence between detaining the defendant and arresting him was not a question of se-mantics. The officer did not intend or purport to arrest the defendant when he restrained him and at no stage before the defendant struggled to free himself did he assert that he was arresting the defendant.

As was the case in Kenlin v Gardiner ([1967] 2 QB 510), the officer had committed a technical assault. Accordingly the defendant’s appeal was allowed and his convictions quashed.

Mr Justice Underhill agreed.

Solicitors: Hegarty LLP, Peterborough; Crown Prosecution Service, Luton.

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