Abstract
The appellant was encountered by police officers in a street in the early hours of the morning whilst in an intoxicated state. One of the officers attempted to place handcuffs on her and a struggle ensued, during which the appellant scratched the officer's thumb causing it to bleed. Following her arrest, the appellant was taken to a police station. As she was being escorted to the custody suite she kicked another officer. Later, after she had been detained in a cell, she kicked the leg of the same officer whose thumb she had earlier scratched. This incident occurred after she had washed her hands under supervision in a corridor. The appellant was charged with being drunk and disorderly in relation to her conduct in a public place contrary to s.91(1) of the Criminal Justice Act 1967. She was also charged with three offences of assaulting an emergency worker, contrary to s.39 of the Criminal Justice Act 1988 and s.1 of the Assaults on Emergency Workers (Offences) Act 2018.
Before the justices, it was argued on the appellant's behalf that the test as to whether a police officer was acting in the exercise of their functions as an emergency worker for the purposes of the 2018 Act was the same as whether an officer was acting in the execution of their duty for the purposes of the offence contrary to s.89(1) of the Police Act 1996, i.e. assaulting a police officer. It was submitted that prior to her attempt to place handcuffs on the appellant, the officer whose thumb was scratched (and who was later kicked) had placed her hands on the appellant without intending to arrest her, thereby acting unlawfully. It was further submitted that since the arrest of the appellant and the attempt to handcuff her had been unlawful, the subsequent actions of the officers at the police station were also unlawful. Accordingly, at no time had the officers been acting in the exercise of functions as emergency workers for the purposes of s.1(1) of the 2018 Act.
In convicting the appellant of all four offences, the justices held that for the purposes of the s.1(1) offence, a police officer could be exercising the functions of an officer even if they were not acting in the execution of their duty within the meaning of s.89(1) of the 1996 Act. It followed, therefore, that the lawfulness of the officer's actions prior to the arrest of the appellant had been irrelevant.
In the present appeal by way of case stated, three questions were drafted for the opinion of the Administrative Court: (i) were the justices right to conclude that a defendant can be convicted of assaulting an emergency worker contrary to s.1 of the 2018 Act even where the officer may not have been acting in the execution of their duty?; (ii) were the justices right to conclude, on the facts, that even if the police officer was acting unlawfully when she took hold of the appellant to handcuff her, this would not prevent a finding that the appellant was guilty of the subsequent assaults at the police station?; and (iii) were the justices right to conclude that the case law pertaining to the offence under s.89(1) of the Police Act 1996 did not apply to charges brought under s.1 of the 2018 Act?
Introduction
Commentary
As Popplewell LJ noted in the present appeal, s.1 of the Assaults on Emergency Workers (Offences) Act 2018 does “not create a new and free-standing offence” (at [10]). Instead, it must be read in conjunction with s.39(1) of the Criminal Justice Act 1988 since it enhances the maximum penalties for the offences of common assault and battery where the victim is an ‘emergency worker’. Thus, whereas these offences are summary only under the 1988 Act and are punishable by six months’ imprisonment, by virtue of the 2018 Act they are converted into triable either way offences for which the maximum sentence is 12 months’ imprisonment. It should be noted that at the time of writing, it is the Government's intention to increase the maximum sentence for a s.1(1) offence to two years’ imprisonment: see clause 2 of the Police, Crime, Sentencing and Courts Bill. For the purposes of the 2018 Act, an ‘emergency worker’ is accorded a relatively wide definition. Thus, in addition to police officers, it also includes prison officers, firefighters and health workers: see s.3(1)(a)-(j).
The Bill which became the 2018 Act was introduced by the Labour MP, Chris Bryant, and like so much other private members’ legislation, it is characteristically short. It is therefore something of a surprise that in Campbell, Popplewell LJ made use of a quote relating to the purpose of the legislation which he prefaced with the observation: “When introducing the Bill the Minister said” (at [21]). Since the Bill was actually introduced by its sponsors (Baroness Donaghy in the House of Lords) and not by a Minister, it is inaccurate to suggest otherwise. Unfortunately, the quote itself is not referenced in the judgment and neither is the ‘Minister’ identified by name. A little detective work reveals that rather than being uttered during the parliamentary stages of the Bill, the words quoted by Popplewell LJ reflect a subsequent statement made by the Minister of State at the Ministry of Justice when seeking to explain the underlying principles of the 2018 Act: see https://www.cps.gov.uk/legal-guidance/assaults-emergency-workers-offences-act-2018. They express the view that “an assault on an emergency worker is an assault on us all”, and that since emergency workers “protect society and deliver services on our behalf”, an “attack on them is an attack on us and on the state” which “should be punished more severely than an attack simply on an individual victim”.
In the exercise of functions as such a worker
Although this expression is key to the operation of the 2018 Act, it is not defined in the legislation. It was, however, central to the outcome of the appeal in Campbell since if it bore the same meaning as the expression “in the execution of his duty” in s.89(1) of the Police Act 1996, it followed that an officer who was acting unlawfully at the time that they were assaulted was not in the exercise of functions as an officer. Not surprisingly, however, the Administrative Court held that the two expressions were not synonymous. It did so for a number of reasons as enumerated by Popplewell LJ. The first of these concerned the language of s.1(1) of the 2018 Act which uses the word “functions” rather than “duty” or “lawfulness”. In the judgment of Popplewell LJ, whilst it would be “impossible to describe a police officer as acting in the execution of her duty when acting unlawfully because her duty is to act lawfully”, it would be “a perfectly natural use of language to describe her as exercising the function of a police officer when conducting police activity, even if in doing so she mistakenly exceeds the special powers granted to her in that capacity” (at [17]). This construction of s.1(1) seems entirely appropriate given the statutory wording. Its practical effect is that the protection afforded to a police officer under the provision is wider than that under s.89(1) of the 1996 Act.
The point made above can be further explained with the aid of an example. A police officer who stops and searches a person is carrying out a police function. If, prior to undertaking the search, they fail to comply with the information requirements laid down in s.2(2) and (3) of the Police and Criminal Evidence Act 1984, they will still be carrying out a police function so that if they are assaulted, a s.1(1) offence will have been committed. For the purposes of the s.89(1) offence, however, a failure to supply the s.2(2) and (3) information would take an officer outside the execution of their duty at the time that they were assaulted: see, for example, Osman v DPP (1999) 163 JP 725 and Bonner v DPP [2004] EWHC 2415 (Admin).
In Campbell, Popplewell LJ saw the additional protection provided to police officers under s.1(1) as a second reason for construing “in the execution of his functions” to mean something different to “in the execution of his duty”. From a practical standpoint, if the two offences were indeed synonymous, then s.1(1) need not have been applied to emergency workers who were police officers. Instead, as Popplewell LJ noted, the additional protection for officers could have been provided simply by increasing the maximum penalty for a s.89(1) offence from six months to 12 months imprisonment.
A third reason for the construction adopted by the Administrative Court concerned the need for consistency in the application of the s.1(1) offence. As Popplewell LJ pointed out, many of the emergency workers protected under the provision “will exercise their functions without doing so in execution of a duty” (at [19]). To construe the two phrases to have the same meaning would therefore have imported the requirement of lawfulness into contexts in which it was patently not meant to apply. A fourth reason concerned the fact that by virtue of s.1(3) of the 2018 Act, a person can be exercising their functions as an emergency worker even when not at work. Thus, as Popplewell LJ explained, “the nurse who stops at a road traffic accident to assist falls within the section, yet he cannot be said to be acting in execution of any duty” (at [20]). The fifth and final reason identified by the Administrative Court was that “the obvious purpose of the 2018 Act is better served by the construction adopted by the justices in this case” (at [21]). In other words, it is the status of the person as an emergency worker which is key to attracting the added protection; not the lawfulness of what they were doing at the relevant time.
Does an unlawful act by a police officer immunise a defendant against criminal liability if they subsequently assault or obstruct the officer when they are acting lawfully?
This particular issue arose in Metcalf v Director of Public Prosecutions [2015] EWHC 1091 (Admin), (2015) 2 Cr App R 25, where the appellant had been charged with the offence of wilfully obstructing a police officer in the execution of their duty contrary to s.89(2) of the Police Act 1996. On the facts, it was found that at one stage of the encounter the officer had unlawfully pushed the appellant. However, the justices concluded that the officer had been wilfully obstructed in the execution of his duty both prior to and after the push and accordingly found the appellant guilty of the s.89(2) offence. In dismissing the appeal against conviction, Burnett LJ (as he then was) observed: “The push clearly had no bearing on the question whether the appellant's conduct before that time amounted to wilful obstruction… I am unable to see how an unlawful push could retrospectively render conduct lawful, which was otherwise criminal. But equally, if the push were unlawful it does not follow that PC Upshon was any the less acting in the course of the execution of his duty thereafter in dealing with the arrested man in the car. Even on that hypothesis, a person who has been assaulted by a police officer is not liberated from the application of the criminal law prohibiting wilful obstruction of a constable (including that constable) in the execution of his duty” (at [14]).
The logic of these remarks is inescapable. It would be a strange state of affairs if a momentary unlawful act by a police officer meant that they were acting outside the execution of their duty for the remainder of an encounter, such that no s.89 offence could be committed against them. In Campbell, Popplewell LJ accepted an alternative submission made on behalf of the CPS to the effect that even if the principles derived from the s.89 case law did apply to offences charged under s.1(1) of the 2018 Act, the offences would still have been committed. In applying the principles set out in Metcalf, he opined that on the basis of the justices’ findings of fact, the three assaults had occurred either whilst a lawful arrest was being made, or following the lawful arrest and detention of the appellant. Thus, in his judgment, it was “irrelevant whether there had been any prior unlawful act in touching the appellant prior to the events of the arrest” (at [27]). The decision in Campbell therefore reinforces the principle that an unlawful act by a police officer does not immunise a defendant against criminal liability if, prior to or subsequent to the act, they assault or wilfully obstruct the officer when they were acting lawfully.
Conclusion
Thus far, there has been limited case law on the s.1(1) offence even though prosecutors appear to have made much use of it. Thus in 2019, in excess of 11,250 cases of assault on an emergency worker were proceeded against, with approximately 9,050 cases resulting in the imposition of a sentence: see ‘Assaults on emergency workers impact assessment’ at https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/967767/MOJ_Sentencing_IA_-__Assault_on_Emergency_Workers.pdf. The decision in Campbell is therefore something of a milestone. It is also of some practical importance since had the Administrative Court accepted the submission that “in the execution of his duty” and “in the execution of his functions” meant the same thing, it would have significantly limited the additional protection which s.1(1) provides for police officers who have been assaulted. Given that it is undesirable for the statute book to contain offences which duplicate one another, it is significant that the interpretation accorded to s.1(1) in Campbell distinguishes it from s.89(1) of the Police Act 1996. It is now clear, therefore, if it was not before, that the reach of s.1(1) is wider than that of s.89(1) since it is not dependent upon whether a police officer was acting lawfully at the time that they were assaulted. With this in mind, charging a defendant with a s.89(1) offence in preference to a s.1(1) offence seems an increasingly unlikely exercise of prosecutorial discretion. It may not be too long, therefore, before the Home Office decides that s.89(1) has become redundant and that the provision ought to be repealed.
Footnotes
Declaration of Conflicting Interests
The author(s) declared no potential conflicts of interest with respect to the research, authorship, and/or publication of this article.
Funding
The author(s) received no financial support for the research, authorship and/or publication of this article.