Abstract
Section 89(1) of the Police Act 1996 provides that: Any person who assaults a constable in the execution of his duty, or a person assisting a constable in the execution of his duty, shall be guilty of an offence […].
Pegram was an appeal concerning the extent to which a police officer is considered as acting in the course of his or her duties when using force on another, and whether self-defence may justify the conduct of a defendant who assaults a police officer in the execution of that duty. The appeal also concerned an alleged misdirection as to the appellant’s character; that, however, is outside the scope of this comment.
John Pegram (P) took part in a demonstration in Bristol, protesting another demonstration. The police wished to keep the two demonstrations separate and away from the public. It was accepted that P had strayed away from the pack and had diverted away from the agreed route. The victim, PC Millett, grabbed P by the arm in order to get his attention and warn him that he must rejoin the agreed route or he may be liable for a public order offence. During the confrontation (half-way through the warning according to the officer), P swung his arm around and struck the officer in the face. P contended that such contact was accidental.
P was convicted of an offence contrary to s 89(1) of the 1989 Act noted above in the magistrates’ court. P unsuccessfully appealed to the Crown Court which reheard the case in full. The Crown Court preferred the evidence of PC Millett finding that he was acting in the course of his duties in taking hold of P. Further, the Court found that ‘[n]o prima facie case of self-defence was raised’, and instead found the defendant liable for the offence based on the recklessness of his conduct. Interestingly, P did not run self-defence in either his summary trial or first appeal to the Crown Court; this being one of the issues raised on appeal to the Divisional Court. P requested the learned judge state a case for the opinion of the Divisional Court. This request was initially rejected, however, following a successful judicial review application (R (on the application of Pegram) v Bristol Crown Court [2019] EWHC 965 (Admin)), the case was stated to the Divisional Court.
Pegram, therefore, concerns the appeal by way of case stated to the Divisional Court. The Divisional Court was tasked with considering three points of law, as follows (at [2]): (1) Whether, on the facts found in the Crown Court, PC Millett was acting in the execution of his duty when taking hold of the defendant; (2) whether, upon the evidence before the Crown Court, a prima facie case of self-defence was raised and, if so, whether the Crown Court erred in law (a) by not considering self-defence or (b) by dismissing the appeal; and (3) whether the approach adopted in the Crown Court at page 80E-F in the transcript of the appeal proceedings constituted or involved a misdirection of law as to character.
In relation to question one, Kerr J explained ‘the officer had gripped the appellant’s arm in an atmosphere of commotion and some alarm among nearby members of the public’ (at [31]). His Lordship continued (explaining the argument of the Crown at [32]): acceptable standards of everyday conduct tolerate a higher degree of contact to attract attention in such a febrile atmosphere than might be tolerated amid calm and tranquillity; since in a tense situation it takes more to attract someone’s attention than usual, especially where the person whose attention needs attracting is a cause of the commotion.
In this regard, Kerr J would conclude (at [37]): In the end, I am persuaded that it was open to the Crown Court to find that PC Millett was acting in the execution of his duty. The Crown Court was the tribunal of fact. They heard and saw the witnesses and were best placed to assess the contextual evidence of the surrounding circumstances, the proximity of members of the public to the scene and the atmosphere at the time. (emphasis added)
In relation to question two, Kerr J found that there was no prima facie case of self-defence and, even if there were, the Crown Court was right to reject the defence. Kerr J did not stop there, however. His Lordship then proceeded to consider whether self-defence could have acted as a defence. His Lordship reasoned that (at [43]): In my view, the Crown Court was right to reject self-defence on the facts. PC Millett’s evidence of a swing of the appellant’s arm to dislodge his grip on the arm could at the most amount to the appellant defending himself against the gripping of his arm. It could not be self-defence against anything worse.
In relation to question three, Kerr J found that there was no misdirection in relation to a good character direction. His Lordship found that the Crown Court was within its power to decide not to rely on any character evidence, one way or another, and instead rely on the witness evidence in determining P’s guilt or innocence. Kerr J explained the position quite simply (at [53]): ‘There was little room for character evidence to play much part in its assessment’.
In this respect, P’s conviction contrary to s 89 was safe and his conviction was upheld.
Commentary
While Pegram is a rather simple authority, largely confirming a number of common law principles and authorities, it does serve as a useful indication of the court’s treatment in cases involving the use of retaliatory force against a police officer’s use of force. Several aspects of the judgment are worthy of further consideration.
Relevance of the ‘Atmosphere’ and ‘Context’ of the Situation
A major part of Kerr J’s judgment was a consideration of whether the officer was acting within the execution of his duty. In doing so, Kerr J concerned himself with the question of whether the officer’s conduct fell within generally acceptable standards or went beyond such standards. Counsel for the Appellant contended that the officer gripped P’s arm longer than was necessary to merely get his attention (noting that he had time to turn around, swear at the officer and hear half of the warning). In addition, the Appellant argued that his arm would have been gripped throughout the entire warning had the defendant not broken free. In light of this, counsel for the Respondent argued that the context of the situation became extremely important. As noted above, his Lordship made particular reference to appreciating the sort of cases which involve ‘acceptable standards of everyday conduct’.
Reference to ‘acceptable standards of everyday conduct’ is notably from the judgment of Goff LJ in Collins v Wilcock [1984] 3 All ER 374 who explained that it was acceptable to ‘[touch] a person for the purpose of engaging his attention, though of course using no greater degree of physical contact than is reasonably necessary in the circumstances for that purpose’. Indeed, Pegram is not the first authority dealing with whether force used by a police officer is ‘reasonably necessary’ in those circumstances. In the case of McMillan v CPS [2008] EWHC 1457 (Admin), Maurice Kay LJ found that a police officer who escorted a drunken and abusive woman from a private garden to the street in order to speak with her was acting ‘in conformity with “generally acceptable standards of conduct”’ (McMillan at [13]). Of particular interest in Pegram is the length of time that force was applied by the officer before P struck the blow. Indeed, Kerr J concluded that the facts were ‘close to the borderline’ (at [35]). Kerr J accepted that the officer had held the defendant’s arm for longer than was necessary in the circumstances (ie, longer than was necessary to attract his attention). Prima facie, this may have pointed to the conclusion that the force used was unlawful. However, Kerr J would explain (at [36]–[37]): the context was important…There was a need was [sic] to gain the appellant’s attention not just to make him aware of the officer’s presence, but also to keep his attention for long enough to receive the warning it was the officer’s role to give him, for his own benefit as well as the public’s. A civilian member of the public might have done as much, for the appellant’s own sake.
This aspect of Kerr J’s judgment is paramount. It is a clear statement of the importance in having regard to the context and atmosphere of the situation. For example, the hustle and bustle of a football match and the implied consent involved by one’s attendance cannot be compared with a peaceful stroll down the street involving an unexpected and non-consensual touch. Ultimately, the circumstances will dictate whether the conduct is within the generally acceptable standards of conduct or not. Pegram is helpful in demonstrating that principle in a clear and accessible manner.
No Need to Expressly Disregard a Defence
The issue of self-defence was not raised by the defendant at either the trial at first instance or his retrial on appeal to the Crown Court. Counsel for the Appellant contended that where a prima facie case of self-defence exists, the court is obliged to consider it, even if the defendant does not personally raise the issue (citing R (Skelton) v CPS [2017] EWHC 3118 (Admin) on this point). The issue of self-defence may be raised, therefore, from the evidence of the prosecution and need not come from the defendant. In that regard, the Appellant contended that the Crown Court had erred in failing to deal with the issue of self-defence.
The Divisional Court was, quite frankly, unimpressed by this notion. The evidence from the defence was that the defendant’s conduct was accidental. The Crown did not dispute this; they merely used this to contend that P was reckless. Interestingly, Kerr J explained that: [The recorder] did not in terms state his awareness of the proposition that the defence might need considering even if not raised by the defendant, but that does not matter.
It is not entirely clear what his Lordship means in this regard. Perhaps Kerr J is describing that it did not matter that the relevant court did not expressly state that they had considered and rejected the defence at all. Alternatively, and more narrowly, it may be the case that his Lordship considered that the court need not expressly identify that the defence has been considered despite not being raised by the defendant. If his Lordship was of the opinion that there is no need to expressly state that the defence has been considered (and rejected), this raises particular difficulties in terms of transparency and ensuring that the court have actually considered the defence. Whatever Kerr J did mean by this statement is largely irrelevant to the instant case given that his Lordship concluded that the Crown Court did consider the defence (or at least were ‘fully alive to the possibility’ of a defence (at [42])) and thus did not fail in their duty.
Necessity of an ‘Unlawful Act’?
While Kerr J rejected the argument that the evidence presented a prima facie case of self-defence, his Lordship did not stop there. His Lordship then proceeded to consider whether self-defence could have acted as a defence, reasoning that (at [43]): In my view, the Crown Court was right to reject self-defence on the facts. PC Millett’s evidence of a swing of the appellant’s arm to dislodge his grip on the arm could at the most amount to the appellant defending himself against the gripping of his arm. It could not be self-defence against anything worse. (emphasis added)
It is not clear from this paragraph whether Kerr J concluded that the use of force would not be necessary in the circumstances (ie, the subjective limb of the defence) or whether the use of force would not be reasonable (ie, the objective limb of the defence)—see Palmer v The Queen [1971] AC 814. It is likely that his Lordship was referring to the necessity of the force. This is supported by his Lordship’s statement (at [44]) where it was stated: There was, therefore, no unlawful act against which the appellant could have been defending himself. There was no evidence to support any far fetched theory that the appellant might have struck PC Millett to pre-empt a fresh assault on him. (emphasis added)
One particular issue arising from this statement is his Lordships reference to ‘no unlawful act’. It is the case that the common law of self-defence (and now contained in s 76 of the Criminal Justice and Immigration Act (CJIA) 2008) requires that force be used in response to an unjustified threat, not necessarily an unlawful act. The use of force in response to an unlawful act (ie, a crime) would be covered by s 3 of the Criminal Law Act 1977 (prevention of crime), and not by the common law defence of self-defence. While the two defences are largely interchangeable (R v Cousins [1982] QB 526), it is certainly debatable whether it was appropriate for his Lordship to speak about an ‘unlawful act’ as opposed to a mere unjustified interference. In addition, there appeared to be no discussion of the potential argument that P had operated upon a mistaken belief as to the necessity to use force (R v Williams (Gladstone) [1987] 3 All ER 411). While it is agreed that self-defence would be unlikely to apply here, given that there was little evidence to suggest that P believed force was necessary in the circumstances, it does remain troubling that Kerr J would refer to the need for an ‘unlawful act’ which there is clearly no requirement for under the common law or s 76. It is doubtful that the use of s 3 entered into the mind of the defence or the trial judges for that matter. This is particularly so given the focus on the phrase ‘self-defence’ and not ‘prevention of crime’. While this distinction is unlikely to cause any real issue in practice, it is worth remembering that the requirements for private and public defence are different and are intended to apply in separate circumstances.
Conclusion
As noted at the start of this commentary, Pegram is a relatively simple case which acts to reaffirm the relevance of context when considering whether force falls within generally accepted standards of conduct. Despite this, the judgment has a number of quirks which result in its worth for a commentary. First, there is Kerr J’s statement regarding whether a court must expressly state whether they have considered the defence or not. On this point the wording in the transcript is not particularly clear; if his Lordship does not consider such express statement necessary, this could be a potentially dangerous course of action, impacting upon fairness and transparency. Secondly, it is not clear on what basis his Lordship concluded that there was no prima facie case of self-defence. His Lordship’s reference to a lack of an ‘unlawful act’ raises the question of whether Kerr J had focused his attention on the prevention of crime defence, as opposed to the common law self-defence. Likewise, the potential effect of mistake on P’s mind appears to have been overlooked by the Court, with no reference to its possible relevance. Lastly, and on a more pedantic point, his Lordship (at [44]) referred to the conduct of the police officer (ie, grabbing the arm of P) as a ‘technical assault’. While ‘common assault’ is used as a generic term to refer to both assault and battery, ‘technical assaults’ are understood to relate to conduct on part of the defendant aimed to cause the victim to apprehend immediate unlawful personal violence, while a ‘battery’ concerns the actual application of physical force (Fagan v MPC [1969] 1 QB 439). While this point is more pedantic than of substance, it does (along with the other points listed above) shine a more interesting light on Pegram and its place among the case law concerning force used in the execution of official duty.