R v Inwood

COURT OF APPEAL, CRIMINAL DIVISION

[1973] 2 All ER 645, [1973] 1 WLR 647, 57 Cr App Rep 529, 137 JP 559

HEARING-DATES: 15, 23 FEBRUARY 1973

23 FEBRUARY 1973

CATCHWORDS:
Arrest - Arrest without warrant - What constitutes arrest - Suspect voluntarily visiting police station to assist police with enquiries into theft - Suspect informed after questioning that he would be charged - Police proceeding with appropriate formalities - Suspect deciding to leave police station - Police officers restraining suspect - Suspect charged with assaulting officers in execution of their duty - Issue whether suspect under arrest - Duty of police to make clear to suspect that he has been arrested - Issue whether made clear to him on of fact for jury.

HEADNOTE:
The appellant went voluntarily to a police station to help the police with their enquiries into certain thefts which had taken place. After some questioning a police officer said to the appellant, 'I propose to charge you with theft... and dishonest handling...' The police then began the appropriate formalities, such as taking fingerprints and preparing documents. After some time the appellant decided to leave. He was prevented from so doing by two police officers and in the resulting struggle the police officers were injured. The appellant was charged with assaulting a police officer in the execution of his duty. The trial judge directed the jury as a matter of law that the words of the police officer and the commencement of formalities meant that the appellant was no nonger merely a suspect, free to leave the police station at any time, but had been adequately placed under arrest and that the police officers were therefore acting in execution of their duty in preventing him from leaving. The appellant was convicted and appealed.

Held - In order to establish that the police were entitled to use force to restrain the appellant from leaving the police station it was necessary to show that it had been made clear to the appellant that he was under arrest. The question whether it had been made clear to him was a question of fact for the jury; on the facts of the case it was impossible to conclude as a matter of law that it had been made clear to the appellant that he had been arrested. Accordingly the question had been wrongly withdrawn from the jury and the appeal would be allowed (see p 649 f to p 650 c, post).

NOTES:
For the meaning of arrest, see 10 Halsbury's Laws (3rd Edn) 342, para 631, and for cases on arrest without warrant, see 14 Digest (Repl) 194-207, 1590-1729.

CASES-REF-TO:

Alderson v Booth [1969] 2 All ER 271, [1969] 2 QB 216, [1969] 2 WLR 1252, 133 JP 346, 53 Cr App Rep 301, DC, Digest (Cont Vol C) 191, 1550a.
Erskine v Hollin [1971] RTR 199, DC.
Ghani v Jones [1969] 3 All ER 1700, [1970] 1 QB 693, [1969] 3 WLR 1158, 134 JP 116, CA, Digest (Cont Vol C) 158, 607b.
Kenlin v Gardiner [1966] 3 All ER 931, [1967] 2 QB 510, [1967] 2 WLR 129, 131 JP 191, DC, Digest (Cont Col B) 192, 8225a.
Ludlow v Burgess [1971] Crim LR 238, DC.
R v Bass [1953] 1 All ER 1064, [1953] 1 QB 680, 117 JP 246, 37 Cr App Rep 51, CCA, 14 Digest (Repl) 476, 4568.
R v Jones, ex parte Moore [1965] Crim LR 222, DC.
R v Waterfield, R v Lynn [1963] 3 All ER 659, [1964] 1 QB 164, [1963] 3 WLR 946, 128 JP 48, 48 Cr App Rep 42, CCA, Digest (Cont Vol A) 416, 8201a.
R v Wattam (1952) 36 Cr App Rep 72, CCA, 14 Digest (Repl) 515, 4986a.
Squires v Botwright [1973] Crim LR 106, DC.
Wheatley v Lodge [1971] 1 All ER 173, [1971] 1 WLR 29, [1971] RTR 22, DC.

CASES-CITED:

Robson v Hallett [1967] 2 All ER 407, [1967] 2 QB 939, DC.

INTRODUCTION:


Appeal. This was an appeal by Derek Inwood against his conviction in the Crown Court at Croydon on 11th October 1972 before his Honour Judge Granville Slack and a jury on two counts of assulting a police constable in the execution of his duty. The appeallant was found guilty by a majority of ten to two, a previous jury having failed to agree, and was fined 50 on each count. He appealed by certificate of the trial judge. The facts are set out in the judgment of the court.

COUNSEL:
M R Hickman for the appellant. A C Lewisohn for the Crown.

JUDGMENT-READ:


Cur adv vult. 23rd February.

PANEL: STEPHENSON, ORR LJJ AND CAULEFIELD J

JUDGMENTBY-1: STEPHENSON LJ

JUDGMENT-1:
STEPHENSON LJ read the following judgment of the court. Caulfield J, who is not able to be here today, agrees with the judgment we are about to give. On 11th October 1972, at Croydon Crown Court, the appellant was convicted on two counts of assulting a police constable in the execution of his duty. The verdicts were by majorities of ten to two, the jury having failed to agree at an earlier trial. He was fined 50 on each. The appellant now appeals against conviction on a certificate from the learned judge. The certificate is in these terms:

'I certify that the case is a fit case for appeal on the ground that the convictions of the defendant on counts 10 and 11 raise the following question of general importance: -- It being accepted (a) on the one hand, that a person at a police station who has been arrested (whether arrested outside and brought to the police station or arrested whilst at the police station) is not free to leave the police station, and if he attempts to do so may be restrained by the police, and if in attempting to leave he assaults a police officer, that is an assault on a police constable in the execution of his duty; and (b) on the other hand, that a person who attends at a police station voluntarily, e.g. to answer questions, is free to leave the police station at any time, and if he attempts to do so may not be restrained by the police, and if in attempting to assert that right to leave he assaults a police officer (using no more force than is necessary to assert his right), that is not an assault on a police officer in the execution of his duty; what is the position of a man who attends voluntarily at a police station, is questioned, is told by the police that they propose to charge him with specified offences (e.g. dishonest handling), is no told in specific words "You are being arrested", but the police start to carry out the steps leading up to charging him, i.e. type out the charge sheet, take his fingerprints, and ask him to empty his pockets (which he does) to make a list of his property, and then tries to leave the police station? Is he still free to leave as in paragraph (b) above, or is he then held at the police station under compulsion and no longer free to leave, as in paragraph (a) above? I directed the jury that in these circumstances he was acting under compulsion, was no longer free to leave, and that an assault committed in attempting to leave was an assault on the police constable in the execution of his duty. The question in law in whether I was right so to rule.'

The case for the prosecution was this. In January 1971 police were investigating certain thefts and handling of stolen goods. On 31st January they called at the appellant's house in Hayes with a search warrant, and took away a television set and some copper tubing. The appellant, who had not then been home, called next morning at St Mary Cray Police Station, and had a lengthy interview with Det Con Crisp, after which it was left that the police should pursue their enquiries and make an appointment to see him again. The appellant in fact called again at the station at about 7 pm on 15th February and was interviewed in an upstairs room by Det Con Crisp and Det Sgt Gale.

According to the police evidence. on 15th February, after Det Con Crisp had put some questions to the appellant, he said to him: 'I propose to charge you with theft of the copper and dishonestly handling the T.V. set', and cautioned him. The appellant replied, 'I understand. I don't want to be awkward'. Then, between 7.30 pm and 8.30 pm, Det Con Neville was engaged in taking fingerprints from the appellant, and also obtaining antecedents and completing forms in relation to offences with which he was to be charged. Det Con Crisp again saw the appellant with Det Sgt Gale and told him he would have to be searched. The detective sergeant did search him, and came across the two purported insurance certificates, which were later the subject of two other counts in the indictment to which the appellant pleaded guilty at the first trial.

Soon after 9 pm the appellant became excited and shouted 'Look, when are you going to finish with me, I want to get out of here', and held his head in his hands. He was told 'You will be released when we have completed our inquiries'. After some further questions, Det Con Crisp got up and went to the door. As he opened it, the appellant shouted, 'That's it, then' and got up. Det Sgt Gale got up too, whereupon, according to both officers, the appellant punched the sergeant in the chest. The sergeant caught hold of the appellant's coat, and they both fell to the floor struggling and fighting. The constable turned back and grabbed the appellant, but the appellant eluded his grasp and dashed out of the door.
The constable called to another detective constable, Neville, who came out of his office and tried to bar the appellant's way. The appellant punched Neville in the chest also and made off down the stairs with Neville hanging on to his coat, being dragged down after him. At the bottom they both fell to the ground. Neville said that in doing so he banged his head on the front door. According to the police, the appellant, as he fell, caught his face on the fire extinguisher. After that he really went berserk and kicked and punched Neville as he lay dazed before other officers secured him and later put him in a cell.

There was medical evidence of Dr Comper who was called to the station.At 9.30 pm he said that he found Det Con Nevill to have a swelling over his right eye, to be dazed and concussed and to be unfit for duty. A quarter of an hour later, he found Det Sgt Gale to have a bruised and swollen left thumb and a slightly swollen right kneecap. Ten minutes after that he found the appellant to have a deep laceration over his right eyebrow which was bleeding and required suturing.

The appellant gave evidence in his own defence that from about 7.30 pm until 9.10 pm at the police station, Det Sgt Gale was more or less continuously punching him, slapping him and calling him a liar; but towards the end the blows became harder; the cut over his eye and the subsequent bruising were caused in this way, and Det Con Crisp made no attempt to stop the sergeant, merely remarking 'Don't connect me with it'. The appellant said that he twice tried to get out of the room and run downstairs, once before 9 pm and then shortly after 9 pm on the occasion already recounted. He said further that at no time did he strike the sergeant, and there was no physical contact between him and Det Con Neville. Indeed he seems to have gone so far as to say that Det Con Neville never came out of his room on to the landing, did not attempt to stop him leaving, did not chase him down the stairs, and was not at the bottom of the stairs in the hallway when the appellant was collared.

It should be noted that at the time of these incidents the appellant was a man of good character with no previous convictions apart from minor motoring offences, and that he called medical evidence that he was at the time under stress from sources quite independent of these police enquiries.

Now the judge directed the jury in this way. He said:

'The question we have to consider in this case, as I see it, is this: had the police the right to keep this man, or was he free to go? That raises a question of law which you must take from me. Now, the law is quite clear. If a man is arrested either before he comes to the police station or whilst he is at the police station, and then he is in custody, and then tries to leave the station, the police are entitled to restrain him. If he assaults the police in the course of trying to leave the station, when he is in custody, or tries to leave the room where he is being detained -- if he assaults the police in those circumstances -- then that is an assault on a constable in the execution of his duty. That is quite clear. That is one side of the picture.The other extreme is this: if a man goes to a police station voluntarily and is being questioned -- or to use this wonder phrase which we see in the papers or hear on television or radio, "a man is assisting police with their enquiries" -- if he is there merely in a voluntary capacity, he is free at any time to leave whether they have finished their questioning or not. He can say "Right, I am going to leave". He can get up nd walk out. If, in those circumstances, the police seek to detain him they have no right to do so unless they arrest him. They have no right to detain him. If, in those circumstances, he assaults the police in trying to assert his right to leave, that is not an assault in the execution of the constable's duty because the police are then exceeding their authority. They are acting beyond their duty in restraining a man they have no right to restrain. So, you have those two positions.'  The judge went on:

'It seems to me that this case raises the problem of what is the position in a case between those two? What is the position if a man goes voluntarily to the police station at seven o'clock, as this man did, and then is questioned for a time, and the position comes, and it is not disputed that this happened at half-past seven, where the police say to him "We are going to charge you", "We propose to charge you", and then take the necessary steps. They start on the formalities leading up to charging him. They ask him to produce the contents of his pockets because they have to make a list of his property, take his fingerprints and start to type out the charge sheet, the formal document which is used on these occasions. So it is clear that it was bona fide. They were going to charge him. In this case they said they were going to charge him with dishonestly handling the television set and the copper. Now, this case raises the question: if the police say that, does a man's position alter? Is he still a volunteer? Does he still have the right to leave freely of his own accord or is he then acting under compulsion and in the same position as the man who has been arrested?'
A little later he said:

'The view of the law put forward by [counsel for the appellant] yesterday, was that even in those circumstances if the man has never been formally arrested he is still free to leave, free to assert his right to leave, and if the police restrain him and had no right to restrain him, and if in the course of leaving -- asserting his right to leave -- he assaults them, that is not an assault in the execution of their duty. That was the view of the law which he put forward. Now, there is another possible view of the law, and that is this: when the stage is reached that the police say "We are charging you', and they start on the formalities, then his status changes and he is then ceasing to be there voluntarily. You then have a man who is under compulsion. Then if he seeks to leave, he is in the same position as a man who has been formally arrested, and the police have a right to restrain him. If he assaults them in the course of trying to leave, in those circumstances, that is an assault in the execution of their duty. Now, I am going to direct you, as a matter of law, that that is the law, and not as stated by [counsel for the appellant]. It may be that in certain circumstances this case might go to some other court, and some other court might say I am wrong or they might say that [counsel] is wrong. I do not know. I am going to direct you that that is the state of the law, namely, that when the police said to this man "We are going to charge you", and then started on these formalities so that it was bona fide that they were going to charge him, then he was a man under compulsion and then he was no longer there voluntarily. Then if he tried to go either out of the room or out of the station, the police had a right to detain him just in the same way as if he had been arrested. They had a right to detain him, and if in trying to leave he then assaults them, that is an assault in the execution of their duty. I am going to ask you to consider the case on that basis. Accept that from me. It is my responsibility that that is the law.'

Counsel for the appellant submitted to us, as to the trial judge, that as the appellant had gone to the police station voluntarily as distinct from being arrested, then notwithstanding that he had been told he was to be charged with handling stolen goods and the procedure and formalities preliminary to such a charge were being followed, he was not under arrest and if he sought to leave the police station the police were not entitled to restrain him. In other words the police would not then be restraining him in the execution of their duty but would be unlawfully restraining his liberty. He supported his interesting argument that the police had no right or duty to hold or detain a suspect unless and until he was arrested and charged by numerous authorities, none of them, he concedes, directly in point. They were Kenlin v Gardiner n1; Ludlow v Burgess n2; Alderson v Booth n3; Wheatley v Lodge n4; Erskine v Hollin n5; R v Wattam n6; R v Bass n7; R v Waterfield, R v Lynn n8; Ghani v Jones n9; R v Jones n10; Squires v Botwright n11.

n1 [1966] 3 All ER 931, [1967] 2 QB 510

n2 [1971] Crim LR 238

n3 [1969] 2 All ER 271, [1969] 2 QB 216

n4 [1971] 1 All ER 173, [1971] 1 WLR 29

n5 [1971] RTR 199

n6 (1952) 36 Cr App Rep 72

n7 [1953] 1 All ER 1064, [1953] 1 QB 680

n8 [1963] 3 All ER 659, [1964] 1 QB 164

n9 [1969] 3 All ER 1700, [1970] 1 QB 693

n10 [1965] Crim LR 222

n11 [1973] Crim LR 106

Counsel for the Crown submitted that it is unsatisfactory to restrict the argument to the question of arrest. Detention, arrest and custody are all synonymous. Here on the admitted facts the officers had made up their minds to charge the appellant and therefore they then had to follow certain procedures preliminary to making the formal charge, such as taking his antecedent history, fingerprinting him, preparing the charge sheet and searching him. Counsel conceded that there was an obligation on the police officers to make it clear to the appellant that he had to remain until actually charged and then until bailed, but he submitted that on the facts which were not disputed the appellant must have known he was under compulsion to stay. As the court understands this argument, the Crown is saying that the obligation on the police to convey to the appellant that he was in custody had been discharged.

This court does not wish to say and cannot conclude as a matter of law that it had been made clear to the appellant that he had been
arrested. We are of the opinion that, as counsel for the appellant submitted in reply, this is a question of fact.It all depends on the
circumstances of any particular case whether in fact it has been shown that a man has been arrested, and the court considers it unwise to say that there should be any paticular formula followed. No formula will suit every case and it may well be that different procedures might have to be followed with different persons depending on their age, ethnic origin, knowledge of English, intellectual qualities, physical or mental disabilities. There is no magic formula; only the obligation to make it plain to the suspect by what is said and done that he is no longer a free man. However, what we think is clear is that it is a question of fact, not of law, and it must be left to the jury to decide whether a person has been arrested or not, at least where there is a real dispute as to the question whether the defendant understood that he was being arrested.

Here there was such a dispute. The appellant had been to this police station before in connection with the same enquiry and had been allowed to go free. He was told on the occasion of the assaults that he would be released when the police enquiries were completed, with nothing said about bail. He was a man of good character, who had never before been asked to go to a police station to heop the police in their enquiries.   Nevertheless, the jury might have concluded that the appellant must have understood perfectly well that he was under arrest and no longer at liberty, if they had been allowed to do so.They might well have reached this conclusion without the direction which the judge gave, but we cannot be sure. For this reason then there was, we think, a misdirection in withdrawing this question from the jury and the ruling which the judge gave was wrong.

In our judgment, the Crown's concession, properly made, compels us so to decide and to quash these convictions, and makes it unnecessary to review, still less to comment on, the authorities cited to us or the important principle of law which counsel for the appellant extracted from them.  If we had been asked to apply the proviso n1 we could not have done so. One jury had already failed to agree on these two charges of assault, and we cannot say that this jury would inevitably have taken the same view of the facts as the judge plainly took. Indeed if we said so we would be falling into the same error as the judge in stating our view of the facts as necessarily being the jury's view.

n1 Ie the proviso to s 2 (1) of the Criminal Appeal Act 1968

This appeal is allowed.

DISPOSITION:


Appeal allowed.

SOLICITORS:
Attwater & Cope, Orpington (for the appellant); Solicitor, Metropolitan Police.