Director Of Public Prosecutions v Heather Avery [2001] EWHC Admin 784 (11th October, 2001)

Neutral Citation Number: [2001] EWCA Admin 748 IN THE HIGH COURT OF JUSTICE QUEENS BENCH DIVISION ADMINISTRATIVE COURT DIVISIONAL COURT Royal Courts of Justice Strand, London, WC2A 2LL Date: 11th October 2001 B e f o r e : LORD JUSTICE BROOKE and Mr JUSTICE NEWMAN - - - - - - - - - - - - - - - - - - - - - DIRECTOR OF PUBLIC PROSECUTIONS Appellant - and - HEATHER AVERY Respondent - - - - - - - - - - - - - - - - - - - - - (Transcript of the Handed Down Judgment of Smith Bernal Reporting Limited, 190 Fleet Street London EC4A 2AG Tel No: 020 7421 4040, Fax No: 020 7831 8838 Official Shorthand Writers to the Court) - - - - - - - - - - - - - - - - - - - - - Carl Fender (instructed by Crown Prosecution Service, Cambridgeshire for the Appellant) Henry Blaxland (instructed by Birnberg Pierce & Partners, London NW1 7HJ for the Respondent) - - - - - - - - - - - - - - - - - - - - - Judgment As Approved by the Court Crown Copyright © Mr Justice Newman: 1. This is an appeal by way of case stated from a decision of the Huntingdon Magistrates' Court. 2. On 2nd March 2001, following a submission of no case to answer, the magistrates dismissed charges laid against the respondent, Heather Avery, of assault on a police constable in the execution of his duty and criminal damage to a pair of spectacles belonging to the officer. It was alleged that both offences were committed on l7th June 2000, in the course of a demonstration in the vicinity of a dog-breeding site in Wyton, near Huntingdon. 3. There were approximately 200 demonstrators outside the site, which was surrounded by a perimeter fence some l0 feet high. Some of the demonstrators were blowing horns, others were abusing police officers and at the material time it was believed that an attempt might be made to scale the fence. There were 40 to 50 police officers present. 4. Earlier, on l7 June 2000, Chief Inspector Gipp gave an authorisation that the powers conferred by Section 60 of the Criminal Justice and Public Order Act 1994 (as amended) were to be exercisable at any place within the Cambridgeshire Police area for a period not exceeding 24 hours. There is no challenge to that exercise of power. 5. PC Judge, being one of the police officers present at the site, was aware of the authorisation which had been made. Whilst he was on duty near the perimeter fence, at the time when it was believed that an attempt might be made to scale it, the respondent appeared on his left side, wearing a skeleton-type mask, which covered the whole of her face. PC Judge believed that she was wearing the mask in order to conceal her identity. The respondent was standing about l2 - 18 inches away from him and he requested her to remove the mask. He formed the impression she had chosen to ignore the request. The magistrates found that she had heard the request. PC Judge put out his hand and took hold of the mask to remove it. As he did so, he received a blow to his face from the respondent. He was wearing spectacles, which were knocked to the ground. He arrested the respondent for assaulting a police officer in the execution of his duty and causing criminal damage to the glasses. 6. There were a number of demonstrators in the immediate vicinity of this episode. On being informed of her arrest she called for assistance. At this, twenty hostile people surrounded PC Judge, whilst the respondent contrived to struggle. PC Judge placed her on the ground to restrain her. As he did so, he was kicked twice from the rear. After about l0 - 15 minutes the respondent calmed down and was taken to an adjacent prisoner transport vehicle. 7. At no time did PC Judge give the respondent his name, the location of the police station at which he was based, or the reasons why he was making a request for the mask to be removed. 8. The magistrates dismissed the charge because they concluded that PC Judge's powers under section 60(4A) of the Criminal Justice and Public Order Act 1994, as amended ("CJPOA"), had to be exercised pursuant to section 2(2)(b) and (3) of the Police and Criminal Evidence Act l984 ("PACE"), and since those requirements had not been met, the seizure of the mask was not lawful and therefore he had not been acting in the execution of his duty. The question asked of this court is: "On the facts found, were we correct in law to determine that the powers conferred upon a police constable by section 60(4A) of the Criminal Justice and Public Order Act 1994 as amended, were subject to the provisions of section 2(2) and 2(3) of the Police and Criminal Evidence Act l984, thereby rendering the actions of PC Judge to have been otherwise than in the execution of his duty?" The Legislation 9. Section 60 CJPOA 1994 was amended by the Knives Act 1997, section 8 and the Crime and Disorder Act l998, section 25. As amended it provides, under the heading "Powers to stop and search in anticipation of violence", as follows: "(1) If a police officer of or above the rank of inspector reasonably believes - (a) that incidents involving serious violence may take place in any locality in his police area, and that it is expedient to give an authorisation under this section to prevent their occurrence, or (b) that persons are carrying dangerous instruments or offensive weapons in any locality in his police area without good reason, he may give an authorisation that the powers conferred by this section are to be exercisable at any place within that locality for a specified period not exceeding 24 hours. (2) [Repealed by Knives Act 1997, s.8.] (3) If it appears to an officer of or above the rank of superintendent that it is expedient to do so, having regard to offences which have, or are reasonably suspected to have, been committed in connection with any activity falling within the authorisation, he may direct that the authorisation shall continue in being for a further 24 hours. (3A) If an inspector gives an authorisation under subsection (1) he must, as soon as it is practicable to do so, cause an officer of or above the rank of superintendent to be informed. (4) This section confers on any constable in uniform power - (a) to stop any pedestrian and search him or anything carried by him for offensive weapons or dangerous instruments; (b) to stop any vehicle and search the vehicle, its driver and any passenger for offensive weapons or dangerous instruments. (4A) This section also confers on any constable in uniform power - (a) to require any person to remove any item which the constable reasonably believes that person is wearing wholly or mainly for the purpose of concealing his identity; (b) to seize any item which the constable reasonably believes any person intends to wear wholly or mainly for that purpose. (5) A constable may, in the exercise of the powers conferred by subsection (4) above, stop any person or vehicle and make any search he thinks fit whether or not he has any grounds for suspecting that the person or vehicle is carrying weapons or articles of that kind. (6) If in the course of a search under this section a constable discovers a dangerous instrument or an article which he has reasonable grounds for suspecting to be an offensive weapon, he may seize it. (7) This section applies (with the necessary modifications) to ships, aircraft and hovercraft as it applies to vehicles. (8) A person who fails to (a) to stop, or to stop a vehicle; or (b) to remove an item worn by him, when required to do so by a constable in the exercise of his powers under this section shall be liable on summary conviction to imprisonment for a term not exceeding one month or to a fine not exceeding level 3 on the standard scale or both. (9) Any authorisation under this section shall be in writing signed by the officer giving it and shall specify [the grounds on which it is given and] the locality in which and the period during which the powers conferred by this section are exercisable and a direction under subsection (3) shall also be given in writing or, where that is not practicable, recorded in writing as soon as it is practicable to do so. (10) Where a vehicle is stopped by a constable under this section, the driver shall be entitled to obtain a written statement that the vehicle was stopped under the powers conferred by this section if he applies for such a statement not later than the end of the period of twelve months from the day on which the vehicle was stopped ... (10A) A person who is searched by a constable under this section shall be entitled to obtain a written statement that he was searched under the powers conferred by this section if he applies for such a statement not later than the end of the period of twelve months from the day on which he was searched. (11) In this section - "dangerous instruments" means instruments which have a blade or are sharply pointed; "offensive weapon" has the meaning given by section 19 of the Police and Criminal Evidence Act l984 [or, in relation to Scotland, section 47(4) of the Criminal Law (Consolidation)(Scotland) Act 1995]; and "vehicle" includes a caravan as defined in section 29(1) of the Caravan Sites and Control of Development Act l960. (11A) For the purposes of this section, a person carries a dangerous instrument or an offensive weapon if he has it in his possession. (12) The powers conferred by this section are in addition to and not in derogation of, any power otherwise conferred." 10. Sections 2 and 3 of PACE, so far as material to this case, provide: "2(2) If a constable contemplates a search, other than a search of an unattended vehicle, in the exercise - (a) ... (b) of any other power, except the power conferred by section 6 below and the power conferred by section 27(1) of the Aviation Security Act 1982 - (i) to search a person without first arresting him; or (ii) to search a vehicle without making an arrest, it shall be his duty, subject to subsection 4 below, to take reasonable steps before he commences the search to bring to the attention of the appropriate person - (i) if the constable is not in uniform, documentary evidence that he is a constable; and (ii) whether he is in uniform or not, the matters specified in subsection (3) below; and the constable shall not commence the search until he has performed that duty. (3) The matters referred to in subsection (2)(ii) above are - (a) the constable's name and the name of the police station to which he is attached; (b) the object of the proposed search; (c) the constable's grounds for proposing to make it; and (d) the effect of section 3(7) or (8) below, as may be appropriate." 11. It is not disputed that " ... any other power ..." in section 2(2)(b) includes the powers to stop and search under section 60 of the CJPOA as originally enacted, namely without sub-section (4A). The issue on the appeal is whether the power conferred by sub-section (4A) falls within section 2(2) at all. It was submitted to the magistrates that a power to seize or remove a mask was not a power to search and for that reason could not be within section 2(2) at all. The magistrates' approach to this particular argument does not appear from the Case Stated, although their conclusion does: "Despite the fact that subsection (4A) of section 60 of the Criminal Justice and Public Order Act 1994 was not added until on or after March 1998, it was a provision caught by the requirement laid down by Section 2 of the Police and Criminal Evidence Act 1984 and the Codes of Practice." 12. Having regard to the argument which had been advanced to them it seems they must have accepted a submission that since sub-section (4A) was inserted into Section 60, being a section headed: "Powers to stop and search in anticipation of violence", the sub-section was to be regarded as conferring a power to stop and search, whether or not the exercise of power could be characterised as giving rise to a search or not. 13. Counsel for the respondent, Mr Blaxland, submitted that the appeal raised a question of statutory construction. I agree. In my judgment it should be resolved, first by reference to the terms of sub-section (4A) and then, as necessary, by the use of any legitimate aid to construction. A heading or marginal note in a statute is a legitimate aid to construction but it cannot serve to contradict the plain meaning of a section or sub-section. Nor should it be employed without consideration being given to the terms of the sub-section. Where a sub-section has been inserted into a section having a heading or marginal note, the latter's value as an aid to construction is obviously qualified by the legislative means which have been adopted to effect the amendment. Section 60 as originally enacted plainly conferred various powers of search (sub-sections 4, 5, 6, 7 and 8) and the section continues to do so after the amendments made in 1997 and 1998. For that reason had reference to the heading been appropriate I would have regarded its effect as neutral. 14. Mr Blaxland relied upon the heading to Section 60 but made the following additional points in support of the conclusion reached by the magistrates. He drew attention to the charge which the magistrates dismissed, namely that the respondent: "failed to remove an item worn by you, namely a skull mask, when required to do so by a constable in uniform exercising powers to stop and search under Section 60 Criminal Justice and Public Order Act 1994". Next he submitted that the "power to seize any item which the constable reasonably believes any person intends to wear wholly or mainly" to conceal identity should not be regarded as the creation of a new full-standing power but as an additional power of search or a power within the same category or genus as the power of search. For that reason he relied upon the legislative means which had been adopted, namely its insertion into an established and clearly defined category of police powers, from which it was to be regarded as taking its character and definition. Further, he drew attention to the absence, according to the terms of the sub-section, of any need for a constable to explain the reason for a request to remove a mask, namely his belief that it was being used to conceal identity. As such the power so conferred was calculated to be oppressive, arbitrary and an interference with the freedom of expression and association. I took this submission to be that the court should give the sub-section an interpretation which was consistent with the prevention of any such interference with fundamental liberties. In a note, supplied to the court after close of argument, Mr Blaxland submitted that applying common law principles governing the exercise of police powers in connection with arrest and search, a lawful exercise of the power in sub-section (4A) required a constable to explain the reason for the request to remove a mask and a warning to be given that a failure to do so may result in arrest. Conclusions 15. In my judgment the terms of the charge laid against the respondent cannot affect the meaning to be given to the section and are irrelevant. 16. The exercise of power conferred by sub-section (4A) does not give rise to a search. No search is required. It is the overt use of the mask, not its concealment or its detection, with which the sub-section is concerned. No power to search for a mask is conferred. If in the exercise of a lawful search a mask was discovered, it could not be seized unless the constable reasonably believed the person intended to wear it wholly or mainly for the purpose of concealing his identity (sub-section (4A)(b)). Sub-section (4A) is plainly not conferring upon a constable a power to search and is not within the powers regulated by Sections 2 and 3 of PACE. 17. The combined effect of the power to make a request to remove an item (sub-section 4A(a)) and the fact that a failure to remove an item is made an offence (sub-section 8), renders the request an interference with the liberty of the subject. Manifestly seizing an item, unless under the exercise of a lawful power, amounts to a trespass. Further, I accept that it is important to remember that the wearing of apparel to the head and face can be required by custom or religion and that the sensitivities arising therefrom have to be recognised. Again, the wearing of a mask can be a potent means of demonstrating in a lawful manner. But in my judgment these points of difficulty in implementation are not only irrelevant to the issue of statutory construction, but they are not met, nor will they be prevented, by placing the power conferred by sub-section (4A) within the regime of PACE. A request to a Muslim to remove a mask, with or without explanation and the tendering of the constable's identity, gives rise to the contemplated difficulties. 18. In my judgment the important point to emerge from the appeal is that sub-section (4A) creates a significant power to interfere with the liberty of the subject, which it is appropriate to subject to scrutiny not only in accordance with the common law but also having regard to the Human Rights Act 1998. Having considered the matter I am satisfied as to the legality of the provision, for the following reasons: (I) The powers conferred by Section 60, CJPOA arise only in anticipation of violence and after deliberation and a decision of a senior police officer. (II) It is well recognised that the wearing of masks to conceal identity in the course of violent demonstrations serves two aims for an offender and could serve to defeat two legitimate objectives of the enforcement of the law: (i) to impede arrest and to facilitate escape from the commission of an offence in the course of a demonstration; (ii) to impede proper measures by way of control in connection with future demonstrations. The control of the movement of troublemakers and offenders as a preventative measure is a legitimate objective. (III) The common law has not upheld an unconditional right to be informed of the reason for an interference with liberty. It is not a rote or incantation which is required but a reason, which gives rise to an opportunity to decline the request. In Brazil v Chief Constable of Surrey [1983] 1 WLR 1155, Robert Goff LJ stated as follows so far as the power of search is concerned, at pp 1162H-1163A: "I can see no difficulty in general terms in the officer explaining to the person no doubt in the simplest and most ordinary language, why the search is proposed. In my judgment, generally speaking, that ought to be done. Consistent with the speech of Viscount Simon in Christie v Leachinsky [1947] AC 573 , there may well be circumstances where the giving of such reasons would not be necessary. To give an example, the circumstances may be such that it is perfectly obvious why a search is necessary. If so, it would be otiose for the officer concerned to give an explanation." The rationale for the giving of the reason is well expressed by the submission of counsel in Brazil at p 1161C: "If persons do not know why they are being searched, they have no basis on which to form a view whether or not that search is justified in the circumstances." i) A request to a person to remove a mask is, for all material purposes, self explanatory. It is a request to the person to reveal his physical identity. Nothing material would be gained by the person being told by a constable that he believed the person was concealing his identity. ii) The existence of a requirement for a subjective belief on the part of a constable is a legislative restraint upon the power being exercised oppressively or arbitrarily. 19. For the above reasons I would answer the question posed: no, and I would allow the appeal. Lord Justice Brooke: 20. The people of this country have always been jealous of their right to liberty. We are a free people, and the common law judges have always made it clear that if our liberty is to be lawfully constrained, we are entitled to be told the reason why, in language which we can understand. The great case of Christie v Leachinsky [1945] AC 573 preceded by only a few years its codification, in a European context, in Article 5(2) of the European Convention on Human Rights: "Everyone who is arrested shall be informed promptly, in a language which he understands, of the reasons for his arrest and of any charge against him." 21. Thirty years later common law judges had to restate the principles underlying this branch of the law in a case in which a woman took exception to being subjected to a personal search at a police station. In Brazil v Chief Constable of Surrey [1983] 1 WLR 1155 Robert Goff LJ, with whom McNeill J agreed, said (at p 1162E) that: "... To require a person to submit to a personal search is to impose on that person a restraint on his freedom. Generally speaking, a person should not be required to submit to that restraint unless he knows in substance the reason why that restraint is being imposed." 22. During the course of his judgment Robert Goff LJ cited (at pp 1158G-1159F) and applied principles laid down by the earlier judgment of this court in Lindley v Rutter [1981] QB 128, in which Donaldson LJ had said at p 135B-C: "So far as searches are concerned, [the officer having custody of the prisoner] should appreciate that they involve an affront to the dignity and privacy of the individual. Furthermore, there are degrees of affront involved in such a search. Clearly going through someone's pockets or handbag is less of an affront than a body search. In every case a police officer ordering a search ... should have a very good reason for doing so." 23. When the powers of the police to stop and search were codified, the principles of the common law which were identified by this court in Brazil were carried forward into Section 2(2) and (3) of PACE. Newman J has set out these statutory provisions in paragraph 10 of his judgment. In short, before carrying out a search of a person a constable must give that person his name and the name of the police station to which he is attached, the object of the proposed search and his grounds for proposing to make it, and the person's entitlement to a record of the search. In Osman v Southwark Crown Court (COT 1 July 1999) Sedley LJ suggested that officers might carry in their pocket slips of paper giving their name and station to facilitate their performance of the first part of these obligations. 24. As Newman J has observed, the present case is not concerned with searches at all. Nor is it concerned with the affronts to dignity and privacy to which Donaldson LJ alluded in Lindley v Rutter . It is concerned with a scenario in which a police officer of or above the rank of inspector reasonably believes that incidents involving serious violence may take place within his police area, and a constable in uniform requires a person to remove an item which he reasonably believes that person is wearing wholly or mainly for the purpose of concealing his identity. 25. We are all used to seeing on television people attending demonstrations with their facial features concealed by animal masks or bird masks or by balaclavas (as happened in the present case). In 1998 Parliament decided to legislate in order to make the task of the police in controlling public order less burdensome. The fact that it legislated by piecemeal reform through the amendment of earlier legislation concerned with a parallel subject-matter has made the interpretive task of the courts more burdensome that it need have been, and I sympathise with the justices for having to face such a complicated task. This case, however, has nothing to do with police powers of search, and I agree with Newman J, for the reasons he gives, that the requirements of section 2 of PACE are not to be imported into the interpretation of the procedures permitted by section 60(4A) of the Criminal Justice and Public Order Act 1994. 26. This leaves for consideration the question whether we should introduce into these procedures by necessary implication, drawn from longstanding principles of the common law, a duty similar to that created by section 2(2) - (4) of PACE. In my judgment, we should not adopt this course. In enacting sub-section (4A) Parliament has been silent about the need for a uniformed constable, confronted at a potentially violent demonstration by a demonstrator in a Donald Duck mask, to announce his name and police station and the reasons why he requires the demonstrator to take off the mask. I do not consider it necessary to fill a supposed gap in the law by judicial legislation. The issues of policy appear to be quite different from those which concerned the courts in Christie v Leachinsky and Brazil v Chief Constable of Surrey, and now that Parliament has undertaken the general responsibility of codifying the law relating to police powers, I do not consider this to be an appropriate occasion for inserting, by necessary implication, what Parliament has omitted. I can also see nothing in the European Convention on Human Rights to impel us to take this course. 27. I therefore agree that the answer "no" should be given to the question posed by the justices, and that the appeal should be allowed. Order: Appeal allowed; no order for cost; detailed public assessment. (Order not part of approved judgment) © 2001 Crown Copyright BAILII: Copyright Policy | Disclaimers | Privacy Policy | Feedback | Donate to BAILII