[1964] 1 QB 164, [1963] 3 All ER 659, [1963] 3 WLR 946, 48 Cr App Rep 42, 128 JP 48

HEARING-DATES: 2, 3, 17 October 1963

17 October 1963

Police -- Constable -- Duty -- Scope -- Preventing removal of privately owned car, the subject-matter of evidence of crime -- No charge nor
arrest at that time -- Alleged assault of constable in execution of duty -- Whether constable acting within the execution of his duty in trying to
prevent removal of car -- Whether statutory power so to do under Road Traffic Act, 1960 (8 & 9 Eliz. 2 c. 16), s. 223.

A motor car belonging to W. and driven by L. ran into a wall. The police were anxious to examine the car in order to obtain evidence of its
collision with the wall in connexion with a prospective charge of dangerous driving. In the evening, when the car was parked in a market place
and L. had got into the driving seat, B., one of two constables on duty there, told L. that the police sergeant wanted to examine the car and
that it was to remain where it was. L. asked who was going to stop him if he wanted to go, and B. replied that he was. Meanwhile W. arrived,
told the constables they could not impound his car, and advised L. to drive it away. Neither L. nor W. had been charged or arrested. L. started
the engine. The second constable went to the front of the car and raised his hand as a signal to L. to stop, whilst B. went to the rear of the
vehicle. L. reversed and came into slight contact with B., who immediately went round to the driver's seat to get the ignition key. He was
unsuccessful. W. told L. to drive at the constable in front, who jumped aside as L. drove forward. On appeals against convictions, under s. 38 *
of the Offences against the Person Act, 1861, of assaulting the constable at whom the car had been driven when the constable was in due
execution of his duty, and of procuring the assault,

* Section 38, so far as material, reads "Whosoever shall... assault, resist, or wilfully obstruct any peace officer in the due execution of his
duty... shall be guilty of [an offence]..."

Held: the convictions must be quashed because in attempting to detain the car, B. and the second constable were not acting in the due
execution of their duty at common law (see p. 662, letter D, post); moreover s. 223 of the Road Traffic Act, 1960, did not confer statutory
power to detain a motor vehtcle in such circumstances as the present, where a constable would not have had power, under the common law,
to do so (see p. 662, letter G, post).


Appeals allowed. As to general powers of police constables, see 30 HALSBURY'S LAWS (3rd Edn.) 129, para. 206; and for a case on the subject,
see 37 DIGEST 186, 82; as to when resisting a peace officer is justifiable, see 10 HALSBURY'S LAWS (3rd Edn.) 634, 635, para. 1207, text and
note ; and for cases on the subject, see 15 DIGEST (Repl.) 852-854, 8194-8216.


Betts v. Stevens, [1910] 1 K.B. 1; 79 L.J.K.B. 17; 101 L.T. 564; 73 J.P. 486; 15 Digest (Repl.) 854, 8216.
Davis v. Lisle, [1936] 2 All E.R. 213; [1936] 2 K.B. 434; 105 L.J.K.B. 593; 155 L.T. 23; 100 J.P. 280; 15 Digest (Repl.) 852, 8201.
Dillon v. O'Brien and Davis, (1887), 16 Cox C.C. 245; 20 L.R.Ir. 300; 14 Digest (Repl.) 193, * 972.
Glasbrook Brothers, Ltd. v. Glamorgan County Council, [1924] All E.R. Rep. 579; [1925] A.C. 270; 94 L.J.K.B. 272; 132 L.T. 611; 89 J.P. 29;
affg., sub nom. Glamorgan County Council v. Glasbrook Brothers, [1924] 1 K.B. 879; 37 Digest 186, 82.
R. v. Lushington, Ex p. Otto, [1894] 1 Q.B. 420; 70 L.T. 412; 58 J.P. 282; 22 Digest (Repl.) 422, 4567.


Entick v. Carrington, (1765), 19 State Tr. 1029; 95 E.R. 807; Bird v. Jones, (1845) 7 Q.B. 742; 115 E.R. 663; Colchester Corpn. v. Brooke,
(1845), 7 Q.B. 339; 115 E.R. 518; Blades v. Higgs, [1861] 10 C.B.N.S. 713; 142 E.R. 634; R. v. Lockley, [1864] 4 F. & F. 155; 176 E.R. 511;
Humphries v. Connor, (1864), 17 I.C.L.R. 1; Gordon v. Metropolitan Police Chief Comr., [1908-10] All E.R. Rep. 192; [1910] 2 K.B. 1080; Elias v.
Passmore, [1934] All E.R. Rep. 380; [1934] 2 K.B. 164; Thomas v. Sawkins, [1935] All E.R. Rep. 655; [1935] 2 K.B. 249; Dumbell v. Roberts,
[1944] 1 All E.R. 326.

Appeals. These were appeals by Eli Waterfield and Geoffrey Lynn against their convictions on June 28, 1963, at King's Lynn Borough Sessions.
Lynn was convicted of (a) assaulting a police constable in the execution of his duty, and (b) dangerous driving; and Waterfield was convicted
of (i) counselling, procuring and commanding Lynn to commit the assault, and (ii) inciting Lynn to drive dangerously. The appeal was pursuant to
a certificate granted by the recorder under s. 3 (b) of the Criminal Appeal Act, 1907. The facts appear in the judgment of the court.

A. H. Head for the appellants. J. C. C. Blofield for the Crown.

Cur. adv. vult. Oct. 17.

PANEL: Lord Parker, C.J., Ashworth and Hinchcliffe, JJ.


ASHWORTH, J., at the request of LORD PARKER, C.J., read the following judgment of the court: 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 counselling, procuring and commanding
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
learned recorder. The incidents out of which the charges arose occurred on the evening of Jan. 22, 1963, and were the sequel to trouble which
had occurred earlier on the same day, in which the two appellants and Waterfield's son were involved. As a result of that trouble all three were
convicted of assaulting a man named Kirk and in addition Lynn was convicted of unlawfully wounding a man named Auker and of dangerous
driving. Applications by Lynn and by the son for leave to appeal against the punishment imposed by the court in respect of those offences have
already been dismissed n(1). 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 p.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 P.C. 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 P.C.
Brown replied that he was. Waterfield then arrived on the scene and said amongst 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 P.C. 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 P.C. 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.

n(1) By the court, similarly constituted, on Oct. 2, 1963.

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 s. 38 of the Offences against the Person Act, 1861, under which n(2) 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 knowledge 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, 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 on the Metropolitan Police under s. 66 of the Metropolitan Police Act, 1839, or powers conferred under a
special local Act, cannot be relied on as authorising the action of the two police constables.

n(2) The relevant terms of s. 38 are set out in footnote (*), p. 659, ante.

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 Betts v. Stevens n(3), BUCKNILL, J., said

n(3) [1910] 1 K.B. 1.

n(4) [1910] 1 K.B. at p. 9.

"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 not a duty within the meaning of the section n(5); that the word 'duty' in the section means some special duty which is laid by the
common law or by some statute upon constables as distinguished from other members of the community. I cannot accept that contention."

n(5) The Prevention of Crimes Amendment Act, 1885, s. 2; 5 HALSBURY'S STATUTES (2nd Edn.) 915.

In Glasbrook Brothers Ltd. v. Glamorgan County Council n(6) VISCOUNT CAVE, L.C., said n(7):

n(6) [1924], All E.R. Rep. 579; [1925] A.C. 270.

n(7) [1924] All E.R. Rep. at p. 582; [1925] A.C. at p. 277.

"No doubt there is an absolute and unconditional obligation binding the police authorities to take all steps which appear to them to be necessary
for keeping the peace, for preventing crime, or for protecting property from criminal injury..."
With particular reference to the obtaining of evidence, WRIGHT, J., said in R. v. Lushington, Ex p. Otto n(8):

n(8) [1894] 1 Q.B. 420 at p. 423.

"In this country I take it that it is undoubted law that it is within the power of, and is the duty of, constables to retain for use in court things
which may be evidences of crime, and which have come into the possession of the constables without wrong on their part."

In the judgment of this court it would be difficult, and in the present case it is unnecessary, to reduce within specific limits the general terms in
which the duties of police constables have been expressed. In most cases it is probably more convenient to consider what the police constable
was actually doing and in particular whether such conduct was prima facie an unlawful interference with a person's liberty or property. If so, it
is then relevant to consider whether (a) such conduct falls within the general scope of any duty imposed by statute or recognised at common
law and (b) whether such conduct, albeit within the general scope of such a duty, involved an unjustifiable use of powers associated with the
duty. Thus, while it is no doubt right to say in general terms that police constables have a duty to prevent crime and a duty, when crime is
committed, to bring the offender to justice, it is also clear from the decided cases that when the execution of these general duties involves
interference with the person or property of a private person, the powers of constables are not unlimited. To cite only one example, in Davis v.
Lisle n(9), it was held that even if a police officer had a right to enter a garage to make inquiries, he became a trespasser after the appellant
had told him to leave the premises, and that he was not, therefore, acting thenceforward in the execution of his duty, with the result that the
appellant could not be convicted of assaulting or obstructing him in the execution of his duty.

n(9) [1936] 2 All E.R. 213; [1936] 2 K.B. 434.

In the present case it is plain that the police constables Willis and Brown, no doubt acting in obedience to the orders of their superior officer,
were preventing Lynn and Waterfield taking the car away and were thereby interfering with them and with the car. It is to be noted that
neither of the appellants had been charged or was under arrest and, accordingly, the decision in Dillon v. O'Brien and Davis n(10) does not
assist the prosecution. It was contended that the two police constables were acting in the execution of a duty to preserve for use in court
evidence of crime, and in a sense they were, but the execution of that duty did not in the view of this court authorise them to prevent removal
of the car in the circumstances. In the course of argument instances were suggested where difficulty might arise if a police officer were not
entitled to prevent removal of an article which had been used in the course of a crime, for example, an axe used by a murderer and thrown
away by him. Such a case can be decided if and when it arises; for the purposes of the present appeal it is sufficient to say that in the view of
this court the two police constables were not acting in the due execution of their duty at common law when they detained the car.

n(10) (1887), 16 Cox C.C. 245; 20 L.R.Ir. 300.

Apart however from the position at common law, it was contended that P.C. Willis was acting in the execution of a duty arising under s. 223 of
the Road Traffic Act, 1960. That section, so far as material, provides that

"a person driving a motor vehicle on a road... shall stop the same on being so required by a police constable in uniform."

That argument, however, assuming that the car park is a road, involves considerable difficulties. In the first place its validity depends on a
construction of the section which would enable the constable not merely to require a moving vehicle to stop but to require a stationary vehicle
not to move. The court finds it unnecessary to reach a conclusion on that because, in the second place, it is to be observed that the section is
merely giving a power as opposed to laying down a duty. It seems to the court that it would be an invalid exercise of the power given by the
section if, as here, the object of its exercise was to do something, namely to detain a vehicle, which as already stated the constable had in the
circumstances no right to do. For these reasons appeals against the convictions in respect of the alleged assault on P.C. Willis must be allowed
and the convictions quashed.

[HIS LORDSHIP then considered the appeals relating to the convictions for dangerous driving and stated that in the judgment of the court there
was no reason to set aside either of the convictions in respect of dangerous driving and the appeals in respect thereof would be dismissed.]

Appeals against the convictions of assault allowed.

Pounder & Brown, King's Lynn (for the appellants); Kenneth F. M. Bush & Co., King's Lynn (for the Crown).