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  • (1964) 1 Q.B. 164

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    R v Waterfield, [1963] 3 All ER 659, [1964] 1 Q.B. 164

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    [1964] 1 Q.B. 164

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    R v Waterfield, [1963] 3 All ER 659, [1964] 1 Q.B. 164

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    © All Rights Reserved
    Download as PDF or read online from Scribd
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    53 views9 pages

    (1964) 1 Q.B. 164

    Uploaded by

    Brian Doody
    R v Waterfield, [1963] 3 All ER 659, [1964] 1 Q.B. 164

    Copyright:

    © All Rights Reserved
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    164 1963 Reo. a Kent Josmiozs. Ez parte CRrrrexDEN. Winn 3. C0. A 1963 Oct. 2, 8, 17. Lord Parker Ashworth and Hincheliffe JJ. QUEEN’S BENCH DIVISION. [1964] I appreciate that it is true that the owner may not be suscep- tible to effective control by force of the Town and Country Planning condition alone; the enforcement of planning control is a wholly different procedure from that by which conditions upon a site licence may be enforced; it is not only different but far more dilatory or susceptible of delays, Parliament also appreciated that distinction. In my judgment, the local authority when dealing with the owner’s application for a site licence were bound in law to treat him as having only the benefit of a permission to use his site for the reception of 18 caravans and were unable therefore to issue to him a licence authorising any greater extent of use. Therefore, they were bound to attach the condition limiting the number of caravans to 13, The words “‘ only if the applicant is entitled to “the benefit of a permission . . . ’” in section 3 (3) have in my opinion, the same meaning as “‘ only if and to the extent that “‘the applicant is entitled to the benefit of .. .”” It follows that the justices could not in law remove or modify that condition and I would refuse the motion for mandamus. Application dismissed with costs. Solicitors: Garber, Vowles & Co.; R. W. Storr, Town Clerk, Beckenham, REGINA v. WATERFIELD and ANOTHER. Crime—Assault—Police—' Due execution of duty"—Power to detain property without charge or arrest—Signal to stop stationary car— Whether police acting in due execution of duty—Whether signal valid exercise of power—Removal of car involving assault on police —Whether assault on police in due execution of duty—Offences against the Person Act, 1861 (24 & 25 Vict, c. 100), s. 38—Road Traffic Act, 1960 (8 ¢ 9 Eliz, 2, ¢. 16), 8. 223. Road Traffie—Police—Powers— Due execution of duty"—Whether duty to detain property without charge or arrest—Signal to stop stationary car—Removal of car involving assault on police—Whether assault on police in due execution of duty—Offences against the Person Act, 1861 (24 & 25 Vict, c, 100), s, 38~—Road Traffic Act, 1960 (8 & 9 Eliz. 2, c. 16), 3. 223. [Reported by L. Norwaw Wrutrasts, Esg., Barrister-at-Law.] 1Q3B. QUEEN’S BENCH DIVISION, ‘Two polico constables, having been informed that a car was involved in a serious offence, but having no personal knowledge of the circumstances, were keeping watch on tho car, which was in a public car park, L. and W. entered the car intending to remove it, and, while the constables, without charging or arresting L. or W., were preventing them from taking it away, one constable, who held up'his hand in a signal to stop, was assaulted. L. was convicted of assaulting the constable in the due execution of his duty, contrary to section 38 of the Offences against the Person Act, 1861,? and W. was convicted of counselling, procuring and commanding the commission of the assault. On appeal, L. and W. contended that the constable was not acting in the due execution of his duty, and the Crown contended that the constable was so acting to preserve for use in court evidence of a crime and, alternatively, was acting in execution of a duty arising under section 223 of the Road Traffic Act, 1960? :— Held, that since the constables’ conduct was prima facie an unlawful interference with liberty or property, it was relevant to consider, first, whether that conduct fell within the general scope of any duty imposed by statute or recognised at common law, and, secondly, if the conduct did so fall, whether it involved an unjustifi- able use of powers associated with the duty. Accordingly, although the constables were acting in the execution of a duty to preserve for use in court evidence of a crime, the execution of that duty did not authorise them to prevent removal of the car; and, con- sequently, when they detained the car they were not acting in due execution of their duty at common law. Further, section 225 of the Road Traffic Act, 1960, merely provided a power as opposed to laying down a duty; and the exercise of such power to detain the car was invalid because the object of its exercise was to do something which the constable had no right to do. Therefore, tho constable who was assaulted was not acting in the due execution of his duty within section 38 of the Offences against the Person Act, 1861, and the appeals would be allowed and the convictions quashed. Quaere whether section 223 of the Road Traffic Act, 1960, enables a constable to require a stationary vehicle not to move. AppEazs against conviction. On January 22, 1963, Police Constable Michael Charles Willis and Police Constable Raymond Brown were keeping observation upon @ motor car, 970 CMF, parked in Tuesday Market Place, King’s Lynn. They had been informed by their police sergeant that the car had been involved in a serious offence, but neither * Offences against the Person Act, ® Road Traffic Act, 1960, s. 293 1861, s. 38: “ Whosoever shall... “A person driving a motor vehicle ““sissault. . . any peace officer in the“. ..onarmad... sball stop... “ due execution of his duty... shall ‘‘on being so required by a police be guilty of a misdemeanor . “constable in uniform." 1 QB. 1964, n 165 C.C. AL 1963 Rao. 8, ‘Wareerianp. ° ‘Warenrrep. QUEEN’S BENCH DIVISION. [1964] police constable had personal knowledge of the circumstances. ‘At about 7.80 p.m. the defendant, Geoffrey Lynn, entered the car and sat in the driving seat. Police Constable Brown told Lynn that the police sergeant wished to examine the car and that it had to remain where it was. Lynn asked who was going to stop him if he wanted to go, and Police Constable Brown replied that he was. The defendant Eli Waterfield then arrived and said, inter alia, ‘‘ You cannot impound my car,”’ and told Lynn to drive away. Lynn started the engine. Police Constable Brown went to the back of the car, and Police Constable Willis went to the front of the car and raised his hand as a signal to Lynn to stop. Lynn then put the car into reverse, going backwards a short distance and coming into slight contact with Police Constable Brown who then went to the driver’s door in order, if possible, to get the ignition key; but he was unsuccessful. Waterfield said to Lynn, “ Drive at him, he will get out of the way,” referring to Police Constable Willis who was standing in front of the car. Lynn then drove the car forward, and Police Constable Willis was forced to jump to one side. The car was driven away. On June 28, 1963, at King’s Lynn Borough Sessions (Recorder : J.C. Llewellyn), Lynn and Waterfield were tried on an indict- ment which, in relation to the incidents occurring about 7.30 pm. at the Tuesday Market Place, charged: 1. Lynn with assaulting Police Constable Brown in the due execution of his duty, contrary to section 38 of the Offences against the Person Act, 1861; 2. Waterfield with counselling, procuring and com- manding Lynn to commit the assault on Police Constable Brown; 8. Lynn with driving a motor vehicle on a road in a manner dangerous to the public, having regard to all the circumstances of the case, contrary to section 2 (1) of the Road Traffic Act, 1960; 4. Waterfield with unlawfully inciting Lynn to commit that offence; 5. Lynn with assaulting Police Constable Willis in the due execution of his duty contrary to section 38 of the Offences against the Person Act, 1861; and 6. Waterfield with counselling, procuring and commanding Lynn to commit the assault on Police Constable Willis. The jury found Lynn and Waterfield not guilty of the offences in connection with Police Constable Brown but guilty of the offences in relation to dangerous driving and guilty of the offences in connection with Police Con- stable Willis, and they were each sentenced to three months’ imprisonment concurrent on each count [but consecutive to sentences which had been imposed on each defendant at the 1 QB. QUEEN’S BENCH DIVISION. same sessions on April 23, 1963, in connection with offences committed earlier in the day on January 22, 1963]; additionally, Lynn was disqualified from driving for 12 months [having been disqualified from driving for 5 years on April 23, 1963]. 16 ©. A. 1963 Reo 7 Lynn and Waterfield appealed against conviction, with a certifi- Warmtento, cate from the recorder that the case was fit for appeal “‘ in view of “the submissions on behalf of the defence (1) that the place “where the motor vehicle was driven was not a road, and (2) “ that Police Constable Willis was not acting in the due execution “‘of his duty when the defendants assaulted him.’? Only the appeals relating to the assault call for report. Adrian Head for the appellants. The police have no power to detain the property of any person against his will, unless a warrant has been issued or he is charged or arrested. If without such justification the police attempt to detain property or a person, they may be resisted with reasonable force, and the person resisting will not be guilty of an assault under section 38 of the Offences against the Person Act, 1861, because the police are not acting in the “ due execution ”’ of their duty within the section; no question of common law assault falls to be con- sidered in this case. Such an attempt to detain a person would amount to unlawful arrest, and to detain property would amount to trespass to goods, each of which may be resisted with appropriate force. There is no authority for that which was done here; the power, therefore, does not exist. If such power to seize property existed there would have been no need for the decisions in Hntick v. Carrington* and Elias v. Pasmore* and other such cases, nor for Dillon v. O’Brien and Davies* and Gordon v. Chief Commissioner of Metropolitan Police.* The existence of section 66 of the Metropolitan Police Act, 1839, is comprehensible only on the footing that no general right exists to hold property as evidence. No reference to the existence of such power as is contended for by the Crown is to be found in’ the textbooks. [Reference was made to Blades v, Higgs’; Reg. v. Lockley*; Bird v. Jones® and Colchester Corporation v. Brooke.*] An offence against section 228 of the Road Trafiic 3 (1765) 19 St.Tr, 1029, 7 (1861) 10 C.B.N.S. 713, 4 [1984] 2 K.B. 164; 50 T.L.R. § (1864) 4 P. & F. 155, 198. ® (1845) 7 Q.B, 742, 5 (1887) 20 L.R.Ir, 300, 30 (1846) 7 Q.B. 339. 6 [1910] 2 K.B. 1080, QUEEN’S BENCH DIVISION. [1964] Act, 1960, was not committed merely because Police Constable Willis raised his hand, since he had no duty to raise it, and the power given by the section cannot be such as to render lawful an otherwise unlawful action. J. ©, Blofeld for the Crown. At common law constables have wide powers and duties to preserve peace and maintain aw and order; see Glasbrook Brothers Ltd. v. Glamorgan County Council and Thomas v. Sawkins ?; and they have a duty to apprehend offenders, and, therefore, power to make inquiries and an undoubted duty and right to collect evidence; this follows from Reg. v. Lushington'® and Betts v. Stevens“; the test should be whether they are acting reasonably. Elias v. Pas- more, Thomas v. Sawkins ** and Humphries v, Connor show that the police can anticipate breaches of the peace, trespass or assault, the question raised in each case being whether they are behaving reasonably. [Reference was made to Dumbell v. Roberts.1*] Upon the assumption that Tuesday Market Place was a road, the policeman, under section 228 of the Road Traffic Act, 1960, had a right and a power to stop the vehicle. Having the power to stop it, he had the power to detain it. Head in reply. None of the oases cited by the Crown provide authority for the police to interfere with a person’s property in soarching for evidence of a crime. Cur. adv. vult. October 17, 1963. Lorp Parker C.J. Ashworth J. will deliver the judgment of the court. Asuwonrn J. These two appellants were convicted at King's Lynn Borough Sessions of the following offences: as regards Lynn (a) of assaulting a police constable named Willis in the due execution of his duty, and (b) of driving a motor vehicle on a road in a dangerous manner; as regards Waterfield, (a) of counsel- ling, procuring and commending Lynn to commit the assault, and (b) of inciting Lynn to drive dangerously. They appeal to this court in pursuance of a certificate granted by the recorder. Tho incidents out of which the charges arose occurred on the evening of January 22, 1963, and were the sequel to trouble 41 [1925] A.C, 270. 15 [1984] 2 K.B. 164. 12 [1985] 2 K.B. 249; 61 TLR. 18 [1935] 9 K.B, 249. bl, D.C. 4 (1864) 17 C.L.RIr. 1. 13 [1894] 1 Q.B. 420. 18 (1944) 60 T.L.R. 93) 1 [1910] 1 KB. 1. All E.R. 926, C.A. 1QB. QUEEN’S BENCH DIVISION. which had occurred earlier on the same day, in which the two appellants and Weaterfield’s son were involved. As a result of that trouble all three were convicted of assaulting one man and, in addition, Lynn was convicted of unlawfully wounding another man, and of dangerous driving. Applications by Lynn and the son for leave to appeal against the punishment imposed by the court in respect of those offences have already been dismissed. ‘The earlier offence of dangerous driving involved a collision between the motor car driven by Lynn and a brick wall, and at the time of the incidents, the subject of this appeal, the police were anxious to examine the car in order to obtain evidence of its collision with the wall. Accordingly, at about 7.30 a.m., two police constables, named Willis and Brown, were stationed in the Tuesday Market Place at King’s Lynn where the car was parked. Lynn arrived and got into the driving seat of the car and was told by Police Constable Brown that the police sergeant wished to examine the car and that it had to remain where it was. Lynn asked who was going to stop him if he wanted to go and Police Constable Brown replied that he was. The appellant Waterfield then arrived on the scene and said, among other things: “‘ You cannot impound my car He then told Lynn to drive it away. Lynn started the engine and the two constables then went, Willis to the front and Brown to the back of the car. Willis raised his hand as a signal to Lynn to stop. Lynn then put the car into reverse and went backwards a short distance, coming into slight contact with Police Constable Brown, who then went to the driver's door in order if possible to get the ignition key. He was not successful and Lynn then drove the car forward after Waterfield had said (referring to Police Constable Willis, who was standing in front of the car): ‘‘ Drive ‘at him, he will get out of the way.”” Willis was forced to jump to one side and the car was driven away. The first issue raised in this appeal is whether, on the facts as summarised above, the police constables, and in particular Willis, were acting in the due execution of their duty within the meaning of section 88 of the Offences against the Person Act, 1861, under which the charge of assault was brought, ‘The two constables had been told by their sergeant that the car had been involved in a serious offence, although neither of them had any personal know- ledge of the circumstances, and it is not disputed that at the time when the incidents now under consideration occurred they were engaged in preventing removal of the car; the question is, 169 0.6. AL 1963 Res, Warm, 170 CCA. 1968 Reo. °. Warenetep, QUEEN’S BENCH DIVISION. [1964] whether they were entitled to do this, at any rate without making a charge or an arrest. It is convenient to emphasise at this point that the alleged offences were committed in King’s Lynn and that special powers, for example, those conferred upon the Metropolitan Police under section 66 of the Metropolitan Police Act, 1839, or powers con- ferred under a special local Act, cannot be relied on as authorising the action of the two police constables. In such reported cases as have involved consideration of a police constable’s duties, the courts have referred to those duties in general terms and have not attempted to lay down by way of definition the scope or extent of those duties. Thus in Bette v. Stevene + Bucknill J. said?: “‘‘The first question we have to ask “‘ ourselves is what was the duty which was being executed by “the police officer Pyke? It has been contended that it was nob “* a duty within the section; that the word ‘duty’ in the section “means some special duty which is laid by common law or by “some statute upon constables as distinguished from other “* members of the community. I cannot accept that contention.”” In Glasbrook Bros. Lid, v. Glamorgan County Council > Viscount Cave L.C. said‘: ‘No doubt there is an absolute and uncondi- “tional obligation binding the police authorities to take all steps “which appear to them to be necessary for keeping the peace, “

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