REGINA v. HOWELL (ERROL)
COURT OF APPEAL (CRIMINAL DIVISION)
 QB 416,  3 All ER 383,  3 WLR 501, 73 Cr App Rep 31, 146 JP 13
HEARING-DATES: 15 January, 13 April 1981
13 April 1981
Crime -- Common law offence -- Breach of peace -- Disturbance in street at night -- No actual violence -- Reasonable apprehension of violence
in immediate future -- Whether behaviour constituting breach of peace -- Whether power to arrest
The defendant was tried on an indictment containing two counts charging him with assault occasioning actual bodily harm in respect of two
police constables. The prosecution's case was that a disturbance had occurred in the early hours of the morning as people congregated in a
street from a house where a party was being held and the police were called. Two constables asked a small group, including the defendant, to
go to their homes, accusing them of breach of the peace. They moved away reluctantly, shouting abuse at the constables all of which could be
heard by local residents who had been woken by the noise and had gathered in the street. The defendant, who was swearing at the
constables, was told by one of them that if he did not stop swearing he would be arrested for disturbing public order. He denied that he was
disturbing public order by swearing and the constable replied that at 4 a.m. in the middle of the street it was. The defendant continued to
swear and the constable stated that he was arresting him, whereupon the defendant, without giving the constable time to state the reason for
the arrest, struck him and a fight developed. The prosecution alleged that the defendant had violently resisted a lawful arrest for breach of the
peace. At the close of the case for the prosecution counsel for the defendant submitted that there was no case to answer since the
prosecution had failed to show that any violence had been used immediately preceding the arrest; that therefore no breach of the peace had
been proved; and, accordingly, even if the defendant had struck the constables, which was denied, he was acting lawfully in using reasonable
force to resist an unlawful arrest. The recorder rejected that submission, ruling that there was a power to arrest for threatened as well as
actual breach of the peace, and that, in any event, a threat of violence was sufficient to constitute a breach of the VOL. 3 peace. The
defendant was convicted of assaulting the arresting officer, but not his colleague.
On the defendant's appeal against conviction: --
Held, dismissing the appeal, (1) that a constable or a private citizen had a power of arrest without warrant where a breach of the peace was
committed in the presence of the person making the arrest; where there was a threat of a breach of the peace being renewed; and where,
although no breach had been committed, the person making the arrest reasonably and honestly believed that such a breach would be
committed in the immediate future (post, pp. 507H -- 508A, C).
(2) That the behaviour that caused a constable to believe that a breach of the peace had or would occur had to be related to violence and
such a breach occurred whenever harm was actually done or was likely to be done to a person, or in his presence to his property, or a person
was put in fear of being so harmed through an assault, affray, riot, unlawful assembly or other disturbance (post, p. 509B-C).
(3) That where an arrest was made for an anticipated breach of the peace it was sufficient that the constable stated that it was for "a breach
of the peace" and, since the defendant either knew why he was being arrested or had prevented the constable from telling him the reason for
the arrest, the arrest was valid (post, p. 509D-G); and since the recorder had correctly stated the ingredients of the offence of a breach of the
peace in his ruling on the submission of no case and in his directions to the jury, it could not be said that the verdict of the jury was unsafe or
unsatisfactory and the conviction for assaulting a police officer stood.
Quaere. Whether an arrest for a breach of the peace at common law would serve also to constitute a lawful arrest under section 7 (3) of the
Public Order Act 1936 for committing an offence under section 5 (post, pp. 505H -- 506A).
Christie v. Leachinsky  A.C. 573;  1 All E.R. 567, H.L.(E.).
Gelberg v. Miller  1 W.L.R. 153;  1 All E.R. 291, D.C.
Reg. v. Light (1857) Dears. & B. 332.
Reg. v. Podger  Crim.L.R. 524.
Albert v. Lavin  2 W.L.R. 1070;  1 All E.R. 628, D.C.
Anon (1593) Poph. 12.
Cohen v. Huskisson (1837) 2 M. & W. 477.
Cook v. Nethercote (1835) 6 C. & P. 741.
Coupey v. Henley (1797) 2 Esp. 539.
Grant v. Moser (1843) 5 Man. & G. 123.
Hardy v. Murphy and Wedge (1795) 1 Esp. 294.
Howell v. Jackson (1834) 6 C. & P. 723.
Ingle v. Bell (1836) 1 M. & W. 516.
Pedro v. Diss  2 All E.R. 59, D.C.
Price v. Seeley (1843) 10 Cl. & Fin. 28, H.L.(E.).
Reg. v. Abraham  1 W.L.R. 1270;  3 All E.R. 694, C.A.
Reg. v. Holah  1 W.L.R. 127;  1 All E.R. 106, C.A.
Reg. v. Venna  Q.B. 421;  3 W.L.R. 737;  3 All E.R. 788, C.A.
Reg. v. Wheeler  1 W.L.R. 1531;  3 All E.R. 829, C.A.
Rex v. Bright (1830) 4 C. & P. 387.
Rex v. Curvan (1826) 1 Moo.C.C. 132.
Simlock v. Rhodes (1977) 66 Cr.App.R. 192, D.C.
Spilsbury v. Micklethwaite (1808) 1 Taunt. 146.
Timothy v. Simpson (1835) 1 Cr.M. & R. 757.
Walker v. Lovell  1 W.L.R. 1141;  3 All E.R. 107, H.L.(E.).
Webster v. Watts (1847) 11 Q.B. 311.
Wheeler v. Whiting (1840) 9 C. & P. 262.
APPEAL against conviction.
On August 16, 1979, at Coventry Crown Court (Mr. Recorder Owen Q.C.), the defendant, Errol Howell, was convicted, by a majority of ten to
two, of assault occasioning actual bodily harm on P. C. Hammersley, but acquitted of a similar assault on P. C. Lewis. The basis of the
prosecution case was that the defendant had violently resisted a lawful arrest for breach of the peace.
The defendant appealed against conviction on the grounds, inter alia, that, at the close of the prosecution case upon a submission of no case
to answer, the recorder error in law in ruling that the term "breach of the peace" included threatened as well as actual violence, and that there
was a power of arrest where it was reasonably apprehended that a breach of the peace was in imminent danger of being committed; and that
the recorder erred in law in failing to rule that the arrest was unlawful.
The facts are stated in the judgment.
A. J. Engel (assigned by the Registrar of Criminal Appeals) for the defendant.
Timothy Raggatt for the Crown.
Cur. adv. vult. April 13.
PANEL: Watkins L.J., Cantley and Hollings JJ.
JUDGMENTBY-1: WATKINS L.J.
WATKINS L.J. read the following judgment. At Coventry Crown Court on August 10, 1979, the defendant then 28 years of age and a young
woman, Tina McNulty, were tried on an indictment which charged each of them, in separate counts, with an assault occasioning actual bodily
harm upon two police constables named Hammersley and Lewis respectively. McNulty was acquitted altogether. The defendant was acquitted of
assaulting P. C. Lewis but found guilty of the assault upon P. C. Hammersley whereupon he was sentenced by Mr. Recorder Owen Q.C. to three
months' imprisonment, suspended for two years. He appeals against that conviction.
On September 2, 1978, about 70 young people, white and coloured, attended a party at a house at 12, Guild Street, Coventry. It was a very
noisy affair. Neighbours were disturbed and upset by the loudness of the music being played. In the early hours of the following morning the
party got out of control. Many of those attending it went into the street outside the house and caused an uproar.
Someone telephoned the police in the hope that they would put an end to this unruly and uncivil behaviour. Soon afterwards a police inspector
and a number of police constables appeared on the scene. The inspector advised the party-goers who were in the street to either go back into
12, Guild Street, or go home, and said that if they did not take his advice they would be arrested for committing a breach of the peace. So far
as is known no violence had been used by anyone up to that time.
The arrival of the police was resented. The inspector's advice was ignored. There was loud jeering, cries of "police brutality," accusations that
the police were interfering only because it was a West Indian party, and much foul language used. Some pushing and shoving began which did
not fortunately erupt into acts of serious violence. However, a few people were arrested for breaches of the peace, placed in a police van and
taken away to be charged.
Meanwhile, P. C. Hammersley and P. C. Lewis decided to encourage the defendant, who is coloured, McNulty, who is white, a coloured youth, a
white youth and a coloured girl who had all been to the party and who were being noisily offensive and generally making a nuisance of
themselves to go to their homes. The constables were treated to much foul abuse from these people who slowly but unwillingly moved away
from the scene denying that they were causing the breach of the peace of which P. C. Lewis said that he accused them.
P. C. Hammersley and P. C. Lewis followed them to ensure that they did not return in view of their apparent reluctance to depart. As they did
the defendant and others in very loud voices swore foul oaths as they stopped in their tracks every now and again, and one or more of them
said that they were being picked on merely because they were black. All that was said could have been heard by local residents who had been
aroused from their beds and who were in the street where the constables were moving the group on their way.
P. C. Hammersley said to the defendant: "If you swear once more you will be arrested for disturbing public order." The defendant said that the
foul language he was using was not disturbing public order, to which P. C. Hammersley replied: "At 4 a.m/. in the morning, and in the middle of
the street, it is. Now go home or you will be arrested." McNulty then excliamed: "It will take more than two of you to take him in," and the
defendant made another foul and offensive remark about police brutality. By now this encounter had become thoroughly unpleasant and as likely
as not to become more so unless brought to an end.
Consequently, P. C. Hammersley moved forward, caught hold of the defendant's right arm and said: "I am arresting..." He had no opportunity to
say anything further because the defendant punched him very hard in the face and most of the group set upon him and P. C. Lewis. In the
course of the violent struggle which ensued, P. C. Lewis drew his truncheon before he and P. C. Hammersley gained the upper hand and
arrested the defendant and McNulty. P. C. Hammersley who had been jumped upon by McNulty held on to the defendant who lashed out at him
again. They then exchanged several blows before the defendant was finally subdued.
The defendant described this account of what happened as a complete fabrication by the constables. He was, he told the jury, the innocent
victim of their perjury. The truth of the matter was that he was walking away from the scene peacefully when P. C. Lewis came from nowhere
and said: "You are going to get it." He was then attacked by both constables and hit on the head by a truncheon by P. C. Lewis several times
before being arrested without any cause whatsoever. He did not lay so mush as a finger on P. C. Hammersley. His version was supported by
McNulty and a woman who claimed to have witnessed from nearby what happened between the constables, the defendant and his companions.
Counsel for the prosecution submitted that the jury must have believed P. C. Hammersley's account of the affair to a very substantial extent, if
not entirely, in convicting the defendant. We cannot tell who or what the jury believed and whether the jury convicted upon the basis that
they believed the defendant was lawfully arrested or that he was using unreasonable force in a proper endeavour to escape from unlawful arrest
we cannot be sure. At best we feel able to say there are indications that the verdict was founded upon there having been a lawful arrest.
The appeal is based upon points of law most of which were argued before the recorder at the end of the prosecution's case when counsel for
the defendant submitted that the jury should be directed to acquit the defendant at that stage of the proceedings since he had no case to
answer. In summary form this submission was based upon the ground that the defendant's arrest was unlawful because no breach of the peace
had been proved against him. Accordingly, on the supposition that the defendant had, contrary to his own account of the matter as put in
cross-examination, struck P. C. Hammersley, he was acting lawfully in escaping from a wrongful arrest in that he was using no more force than
was necessary for the purpose.
It is obvious from what has been said already of the actual termination of the proceedings that the recorder rejected Mr. Engel's submission and
allowed the trial to proceed to the defendant's conviction by jury.
What was the lawful excuse, if any, which caused P. C. Hammersley, according to him, to arrest the defendant? It was, he said when being
cross-examined, a breach of the peace committed by the defendant, with or without the assistance of his companions. This has, of course, to
be put alongside what he told the defendant immediately prior to arrest which was: "You will be arrested for disturbing public order."
When re-examined he told the jury that he was aware there had previously been some kind of incident in the house where the party had taken
place as he followed the defendant down the street. He believed that if he had not followed the defendant he would have returned to the
vicinity of that house and worked the scene up again with shouting and swearing. His decision to arrest arose out of what he saw and what he
feared. The defendant was obviously refusing to be quiet and to go home and there was a possibility of his returning to the vicinity of the house
and causing further trouble. He saw a number of local residents in their front gardens who were clearly disturbed by what was going on.
Although P. C. Hammersley at one stage of his evidence said he was not thinking of violence as he was following the group, it seems to this
court that it was open to the jury to infer from the entirety of his evidence that he had feared a breach of the peace arising from the imminent
use of violence by the defendant as he was following him, or if the defendant was allowed to return to it at the scene outside 12, Guild Street.
It is possible that P. C. Hammersley was in the heat of the moment confusing his power of arrest at common law for a breach of the peace with
a similar power of arrest for offensive conduct conducive to a breach of the peace contrary to section 5 of the Public Order Act 1936. However,
the defendant was not charged with this statutory offence. Accordingly, and for the additional reason that the defendant was told at the police
station upon arrival there that he had been arrested for "a breach of the peace" we think it was open to the jury when deciding whether there
had been a lawful arrest to have regard to the constable's power at common law only. Since this was the effect of the manner in which the jury
was directed upon this matter by the judge we are not, strictly speaking, called upon to decide whether an arrest for a breach of the peace at
common law would serve also to constitute a lawful arrest under section 7 (3) of the Public Order Act 1936 for committing an offence under
section 5. But we feel it right to say our tentative view is that it would serve this dual purpose seeing that a breach of the peace is involved in
It is submitted that the recorder was wrong to refuse to direct the jury to acquit the defendant at the close of the prosecution's case. His
refusal, it is said, was based upon errors of law and a failure to appreciate that there was insufficient evidence to establish that there had been
a breach of the peace involving either the actual use of violence or a reasonable apprehension of the use of violence which would have entitled
P. C. Hammersley to arrest the defendant. The comment already made upon the quality of it plainly indicates that we do not agree that the
evidence available was not sufficient to be considered by the jury for this purpose.
The recorder's initial and fundamental error of law lay, so it is said, in his comprehension of the extent of the power of arrest for the offence of
and in the definition he chose to adopt of "breach of the peace." Mr. Engel submits in respect of the power of arrest that the recorder should
have followed the ruling in Reg. v. Podger  Crim.L.R. 524 of a recorder sitting at Bristol Crown Court which was to the effect that the
power to arrest for a breach of the peace at common law is confined to cases in which a breach was either committed in the presence of the
arrestor or where one had been committed and its renewal was threatened.
The recorder in the present case declared the definition to include also a power of arrest where there is reasonable ground to suppose a person
who has caused no trouble previously is about to commit a breach of the peace. In other words he said that a threatened breach is a valid
ground of arrest.
This power, if it then did, was not acknowledged to exist in Stone's Justices' Manual, 3rd ed. (1845), p. 15, which sets out the common law
power of arrest in these terms:
"A private person may apprehend without a warrant, on view of a breach of the peace, and before the affray is over, and deliver the offender
to a constable; and he is justiied in giving in charge, and a constable in arresting without a warrant, a party who has been guilty of a breach of
the peace, if there are reasonable grounds for apprehending its continuance or immediate renewal, but not otherwise. (Baynes v. Brewster, 11
L.J.M.C. 5, and cases there cited.) The general rule is 'that for the sake of the preservation of the peace, any individual who sees it broken,
may restrain the liberty of him who he sees breaking it, so long as his conduct shows that the public peace is likely to be endangered by his
acts.' (Timothy v. Simpson, 4 L.J.Exch. 81.)
By constables. -- A constable may arrest without a warrant on a charge made, having reasonable ground to suspect that a felony has been
committed, though none have in fact -- He may also arrest in all cases in which a private individual may. (See 7 J.P. 237.) A constable may
apprehend without a warrant on view of a breach of the peace, but not after the affray is over unless there be reasonable grounds for
apprehending its continuance or immediate renewal. (Baynes v. Brewster, 11 L.J.M.C. 5, and cases there cited.) A constable may also
apprehend any person obstructing him in the execution of his duty."
The comments and commentary upon Podger's case  Crim.L.R. 524, 525 which accompany the report of it are particularly noteworthy.
They suggest that the power exists now even if it was correct to say that it did not in 1845. They are:
"If this decision be right then Smith and Hogan, Moriarty, Glanville Williams and Halsbury's Laws of England 3rd and 4rd eds. are wrong. It is
supported (in the more used texts) only by Stone's Justices' Manual, 110th ed. (1978), vol. I, p. 567 and vol. II, p. 3165. Further the statement
in Archbold's Criminal Pleading Evidence and Practice, 39th ed. (1976), at p. 2802 (that all common law powers of arrest without warrant are
now superseded by section 2 of the Criminal Law Act 1967) cannot be right in any event and was disowned by both sides. The learned recorder
approved of only the first sentence in Halsbury's Laws of England, 4th ed., vol. 11 (1976), [para. 108: 'A private person or a constable may at
common law arrest without warrant anyone who in his presence commits a breach of the peace where the offence is continuing, or, if it is not
continuing, where there is reasonable ground for apprehending its renewal. A private person or a constable may also arrest without warrant
anyone who there is reasonable ground to suppose is about to commit or about to renew a breach of the peace in his presence....'
"Commentary. It is clear that where a breach of the peace has occurred but it is over and there is no ground for believing that it will be
renewed, there is no power to arrest. It is also clear that where there are reasonable grounds for supposing that a breach of the peace will be
renewed, an arrest in order to prevent it is lawful. This is so even where the constable did not himself witness the first breach but it has been
reported to him. Clearly the fact that a breach of the peace has occurred is important evidence of the existence of reasonable grounds for
apprehending a further breach. It is submitted, howeve, that that is all it is; it is not a condition precedent and none of the authorities referred
to, including Light (1857) Dears. & B. 332, suggests that it is a condition precedent. It is plain that the law is here concerned not with what has
happened but with what is reasonably expected to happen. It would be wrong if a constable (or any other person) had overwhelming evidence
for believing that a grave breach of the peace was about to be committed in the immediate future but could do nothing to prevent it because
no previous breach had occurred."
Professor Glanville Williams in his article "Arrest for Breach of the Peace"  Crim.L.R. 578, in which, inter alia, he makes reference to Reg. v.
Light, Dears. & B. 332, stated at p. 586:
"It seems clear that there may be an arrest for breach of the peace which is reasonably apprehended in the immediate future, even though the
peson arrested has not yet committed any breach."
We share the opinions expressed in the foregoing quotations.
We entertain no doubt that a constable has a power of arrest where there is reasonable apprehension of imminent danger of a breach of the
peace, so for that matter has the ordinary citizen. Reg. v. Podger  Crim.L.R. 524 involved the examination, by the recorder who tried it,
of a number of authorities, including Light's case, all of which we have perused. Reg. v. Podger was in our opinion wrongly decided. We hold that
there is power of arrest for breach of the peace where: (1) a breach of the peace is committed in the presence of the person making the arrest
or (2) the arrestor reasonably believes that such a breach will be committed in the immediate future by the person arrested although he has not
yet committed any breach or (3) where a breach has been committed and it is reasonably believed that a renewal of it is threatened.
The public expects a police officer not only to apprehend the criminal but to do his best to prevent the commission of crime, to keep the peace,
in other words. To deny him, therefore, the right to arrest a person who he reasonably believes is about to breach the peace would be to
disable him from preventing that which might cause serious injury to someone or even to many people or to property. The common law, we
believe, whilst recognising that a wrongful arrest is a serious invasion of a person's liberty, provides the police with this power in the public
In those instances of the exercise of this power which depend upon a belief that a breach of the peace is imminent it must, we think we should
emphasise, be established that it is not only an honest albeit mistaken belief but a belief which is founded on reasonable grounds.
A comprehensive definition of the term "breach of the peace" has very rarely been formulated so far as, with considerable help from counsel, we
have been able to discover from cases which go as far back as the 18th century. The older cases are of considerable interest but they are not
a sure guide to what the term is understood to mean today, since keeping the peace in this country in the latter half of the 20th century
presents formidable problems which bear upon the evolving process of the development of this branch of the common law. Nevertheless, even in
these days when affrays, riotous behaviour and other disturbances happen all too frequently, we cannot accept that there can be a breach of
the peace unless there has been an act done or threatened to be done which either actually harms a person, or in his presence his property, or
is likely to cause such harm, or which puts someone in fear of such harm being done. There is nothing more likely to arouse resentment and
anger in him, and a desire to take instant revenge, than attacks or threatened attacks upon a person's body or property.
In Halsbury's Laws of England, 4th ed., Vol. 11 (1976), para. 108, it is stated:
"For the purpose of the common law powers of arrest without warrant, a breach of the peace arises where there is an actual assault, or where
public alarm and excitement are caused by a person's wrongful act. Mere annoyance and disturbance or insult to a person or abusive language,
or great heat and fury without personal violence, are not generally sufficient."
That is an amalgam of opinions expressed in various old cases which is principally criticised by Mr. Engels for its failure to attach the actual
commission of violence to all acts which are said to be capable of causing a breach of the peace.
He makes a similar criticism of the crisp definition provided by the Attorney-General, Sir Reginald Manningham-Buller, referred to in Gelberg v.
Miller  1 W.L.R. 153 with reference to the word "disturbance." Lord Parker C.J. said, at p. 158:
"The Attorney-General, to whom the court is grateful for his assistance, has appeared and has told the court that he feels unable to contend
that a constable is entitled to arrest somebody for obstructing him in the course of his duty which, of course, is a misdemeanour under the
Prevention of Crimes Amendment Act 1885, unless the circumstances show that a breach of the peace or an apprehended breach of the peace
is involved, meaning by that some affray or violence or possibly disturbance."
The statement in Halsbury is in parts, we think, inaccurate because of its failure to relate all the kinds of behaviour there mentioned to violence.
Furthermore, we think, the word "disturbance" when used in isolation cannot constitute a breach of the peace.
We are emboldened to say that there is a breach of the peace whenever harm is actually done or is likely to be done to a person or in his
presence to his property or a person is in fear of being so harmed through an assault, an affray, a riot, unlawful assembly or other disturbance.
It is for this breach of the peace when done in his presence or the reasonable apprehension of it taking place that a constable, or anyone else,
may arrest an offender without warrant.
The recorder in the present case in ruling on the submission clearly regarded violence as of the essence of a breach of the peace. So we find
that neither in that nor in any other way did he misdirect himself upon the associated matters of the power of arrest and the definition of a
breach of the peace. Furthermore, as to the defendant's knowledge of why he was arrested, he correctly applied the principles laid down in
Christie v. Leachinsky  A.C. 573. The evidence at the end of the prosecution showed plainly that either the defendant knew without
being told at the moment of arrest the reason for it or, by striking P. C. Hammersley when he did he made it impossible for that officer to tell him
why he was being arrested. In this connection we should make it clear, since the point was argued, that a constable makes a valid arrest when
he reasonably believes a breach is about to be committed if he says merely: "I am arresting you for a breach of the peace." It is ridiculous to
expect him to give, in what may be for him very trying circumstances, some such incantation as: "I am arresting you because I reasonably
believe you are about to commit a breach of the peace." In speaking merely of a "breach of the peace" on arrest the arrestor is not, as Mr.
Engel seemed to suggest, to be taken as referring only to the actual commission of a breach and, therefore, forbidden from giving evidence, the
effect of which would be that he had in fact carried out the arrest for an apprehended breach.
In an alternative attempt to persuade the recorder that the defendant had no case to answer it was submitted that the blows allegedly struck
by the defendant could not have amounted to the use of excessive force in escaping from an unlawful arrest. This effort was in vain. This was
an issue when on the evidence could only have been decided by the jury to whom it was rightly entrusted. Accordingly, we reject as wholly
unjustified the criticism of the recorder for leaving it to them.
What about the grounds of appeal said to arise out of the summing up? The recorder directed the jury that in order for there to have been a
lawful arrest it had to be proved that P. C. Hammersley was a witness to the shouting and swearing of the defendant and had, therefore,
reasonable grounds for believing, and did believe, that the defendant's conduct either alone or as part of a general shouting and swearing, was
likely to lead to the use of violence by the defendant or somebody else in the officer's presence. We are invited to condemn that as a
misdirection. We can think of no good reason why we should do so. In our view it was a clear, correct and, in the circumstances of the case,
wholly appropriate direction according to law. It is said there was no evidence to warrant the giving of it. We simply cannot accept that. The
evidence of P. C. Hammersley, if believed, was of the kind which called for a direction upon a reasonable apprehension of a breach of the peace
and, as has already been stated it was in our view sufficient to merit consideration by a jury which could surely draw the inference, if it chose
to, that a lawful arrest for an apprehended breach of the peace had been made.
The summing up is said to have been defective in a number of other respects. It is submitted that the factual issues involved in the question of
whether or not there had been a lawful arrest were not put before the jury and, in effect, that no assistance whatsoever was given to the jury
about what parts of the relevant evidence could be allied to any, and if so what, issues. At the outset of the summing up the recorder said:
"Now what about the lawful excuse. In this case, the only lawful excuse which you have to consider comes about in this way. If you strike a
blow or use force to resist an unlawful arrest, then it may be that your blow is not unlawful. So you have to consider whether there was a
lawful arrest. In the circumstances of this, if there was shouting by the defendant, for instance, and if there were obscentities to which he was
acceding and if all of this led P. C. Hammersley to fear that the defendant was about to be violent in his presence, then the officer was entitled
to arrest him because there was about to be or was a breach of the peace. Technical terms do not matter and I am not going to weary you
with them, but that is really the situation. You have to ask yourselves, was there shouting and were there abusive obscenities of a kind which
led P. C. Hammersley reasonably to fear that the defendant was about to be violent in his presence. If so, he was entitled to arrest him. You
must not think that this country is such that a police officer is entitled to arrest anybody who does not do what he wants him to do. We have
not got to that stage in this country and please God we never will. A police officer has certain powers; maybe they ought to have more powers,
one can see it is a difficult job that they have to do, but they have to abide by the law just as other people have to abide by the law."
This was followed later on by a satisfactory reminder in, we are glad to observe, summary form of the evidence of P. C.. Hammersley and P. C.
Lewis. At the end of the summing up the jury were again reminded of what had to be proved to establish a lawful arrest. No jury could have
failed, we believe, to understand with this assistance how they should approach and finalise the task of deciding whether the defendant had
been lawfully arrested. There is no substance in this ground of appeal.
Finally, it is submitted that there was no evidence for the jury to safely consider on the issue of the use of excessive force in escaping from
unlawful arrest, the recorder failed to direct the jury that it was for the prosecution to prove that the force used by the defendant was
excessive, and finally no direction was provided to the effect that a person unlawfully arrested has the right to escape. The recorder said of the
right to resist unlawful arrest:
"Now what is the position if it was an unlawful arrest. In those circumstances a person is entitled to use reasonable force to resist the arrest.
You will have to ask yourselves in those circumstances, if you find that the arrest was illegal, was it reasonable for Mr. Howell to swing a punch
when all that had happened to him was that he had been taken on the arm? That is something which you will have to ask yourselves and decide
whether it was a reasonable thing or not."
In our judgment this was proper and adequate guidance upon this subject. It was later in the summing up repeated. We fail to appreciate the
distinction apparently sought to be drawn between the word "escape" and the words "resist the arrest." In this context they amount to the
same thing. With respect to what otherwise has been helpful assistance provided by Mr. Engel, he plays with words in this submission.
It must be acknowledged that the recorder did not anywhere say that the prosecution had to prove that the alleged force used by the
defendant was excessive. In that he erred. However, we cannot accept that injustice could have arisen from that error. The general and
correct direction on standard of proof was firmly stated early and late in the summing up. The summing up as a whole was impeccably balanced
and fair. This one blemish in it could not in our view have had the effect of producing an injustice by the verdict of guilty of an assault
occasioning actual bodily harm which we cannot bring ourselves to regard as in any respect unsafe and unsatisfactory.
For these reasons the appeal is dismissed.
I. S. Manson, Birmingham.