What does it mean to assault a police officer in the execution of his duty (Part 2)

In my last blog, I discussed the offence of assaulting a Police Officer in the execution of his duty and highlighted how various actions may take an officer outside the execution of his duty such as carrying out a wrongful arrest.

Another action that may take an officer outside the course of his duty is if he was unlawfully on premises and therefore a trespasser.

A few years ago, I acted for Jack Harper in an action against Merseyside Police.

In the early hours of 29 January 2007, Jack Harper was at home, in his kitchen talking and drinking with a neighbour, Mark.  Neither man was drunk. Nothing was untoward.

At around 02.55h there was a knock on the front door, which opened into the kitchen.  Jack Harper opened  the door and was shocked as uniformed police officers burst through without warning, invitation or explanation and  attempted to barge past him.

Jack Harper immediately told the officers to leave and repeated that instruction on several occasions to no avail. He had no idea why the officers were there, and nor did they attempt to explain themselves.

Jack stood still and put out his arms to block the officers’ progress into the house. The officers attempted to push past him but couldn’t due to his defensive position within the narrow kitchen.

According to Mr Harper, this was the extent of the physical contact which he instigated with the officers. He did not himself push, hit or attempt to hit any officer. He was doing no more than standing his ground in response to what happened to be an unlawful ‘invasion’ of his home.

Jack Harper was by this point shouting ‘Get out of my fucking house, this is my home’. Without any attempt at explanation or reasoning the police officers forced him to the floor and handcuffed him, causing immediate pain and discomfort to both of his wrists.

At no time did any officer comply with Jack Harper’s clear instruction to leave his property.

Jack Harper was taken from his home to the local police station where he arrived at 03.14h. His detention was authorised at 03.22h. The custody record recorded that he had been arrested for assault upon a constable in the execution of his duty. Specifically that:

“Report of Domestic.  On arrival IP states male had been causing problems banging on door.  Male now believed at being at neighbouring address.  When OIC attends address to speak to male door is opened up and DP immediately violent towards office striking and pushing.  Arrested”.

At 14.30h Jack Harper was interviewed.  In interview, Jack Harper gave a full account and indicated that no officer had at any time told him why they had attended his home. He confirmed that there had been no conversation at all prior to the officers’ entry to the premises. The man who the officers were looking for was not Jack Harper, but his neighbour Mark  who was visiting him at the time.

At 15.04h (therefore after 12 hours and 4 minutes in police custody) Jack Harper was bailed to attend the same police station at a later date.  Jack Harper was subsequently charged and bailed to attend Court where he pleaded not guilty.

At the subsequent trial, one officer gave evidence and claimed that Jack Harper had pushed him twice to the chest then lunged at him in an attempt to punch him. A second officer claimed that Jack Harper pushed the first officer off a step, pushed him again, swung a punch and then pushed both palms to the officer’s face.  A third officer claimed to have arrived later than the other two officers and to have seen Jack Harper raise his arm in the kitchen.  He and other officers pushed Jack Harper to the corner of the kitchen.

A submission of no case to answer was successful. The Magistrates ruled that there were so many inconsistencies in the evidence presented by the police officers that no Tribunal could properly convict Jack Harper.

When I was consulted by Jack Harper, I was satisfied that he had strong grounds for a claim not only because of the clear inconsistencies in the evidence of the Police Officers but because it was equally clear that the Police were trespassers in his home, and as such could not claim to have been acting in the execution of their duty, thereby rendering Jack Harper’s arrest and detention on suspicion of assaulting a constable in the execution of his duty entirely unlawful. 

An officer is not acting in the execution of his duty of he is a trespasser. The starting point for trespassing, is that without at least implied permission to enter onto someone else’s property, you are committing trespass if you do so enter.

Here, not only was there no implied permission to enter Jack Harper’s home, but he was expressly instructing the officers to leave – in no uncertain terms – but they ignored him. They were clearly all trespassers.

In certain situations, the Police can rely upon Section 17 of the Police and Criminal Evidence Act 1984 (PACE) to ‘override’ the general rules of trespass and lawfully enter premises without permission.  There are a number of specified situations where this power can be used e.g.

  • If the Police have a Warrant of Arrest.
  • In order to arrest a person for an indictable offence.
  • To re-capture an escaped prisoner.
  • To save “life and limb”.
  • To prevent an ongoing or imminent Breach of Peace.

(That is not an exhaustive list, but most of the other situations in which Section 17 PACE applies are fairly uncommon.)

In the present case, the only possible power the Police could have been using would have been Section 17(1)(b) – entry for the purpose of arresting a person for an indictable offence.  An indictable offence is a serious criminal offence to which the right of a trial by Jury in the Crown Court applies, as opposed to a more minor ‘Summary offence’ which can only be tried by the Magistrates’ Court.

Here, although I did not know for certain what the Police wanted Mark for, given the entry in the custody record, I suspected it was likely to be a relatively low-level offence e.g. Common Assault which is not an indictable offence – and hence the Police had no lawful authority to enter Jack Harper’s premises and could not have been acting in the course of their duty.

An officer cannot be acting in the execution of is duty if he is committing trespass at the same time.

My suspicions as to the lack of any lawful basis for entry onto Jack Harper’s premises, were confirmed when in response to my letter of claim, Merseyside Police admitted unlawfully arresting and detaining Jack Harper, and I was able to agree an ‘out of Court’ settlement of damages for his claim.

Sadly, Jack Harper is far from the only individual I have represented who has been arrested by Police Officers acting either in ignorance or wilful disregard of the law of trespass.

I currently act on behalf of John Stokes who pursues a claim against Merseyside Police.

During the late evening of the 18 December 2015, John was relaxing at home, in the company of his two children.

Shortly after 11.pm, Mr Stokes heard a knock at his front door.

John Stokes, believing that it was his partner at the door, requested that his son (then aged 16) go to answer the door.

Soon after John’s son returned, and advised that a Police Officer was at the door.

Mr Stokes went to the front door where he found a uniformed Police Officer standing with his left foot over the door threshold, inside the house.

Neither John Stokes nor his son had granted the officer any consent/permission to enter the address.  The officer simply took it upon himself to do so.

Unbeknown to my client, the officer was making house to house enquiries in respect of a serious road traffic accident which had taken place in the street earlier that day.  This accident was nothing to do with my client.

Understandably, John Stokes was displeased with the actions of the officer in standing partially inside his address and immediately requested that he remove his foot from its position.

In response, the officer  became immediately hostile/aggressive, stating that he could detect a smell of cannabis from the address and that he wanted to check for the presence of any substance.  So as to reinforce his intentions, the officer  then stood with both feet inside the house.

John Stokes, shocked at the arrogant and heavy-handed attitude of the officer retorted that there were no drugs within the premises and whatever suspicions the officer may have had in regards to the use of cannabis, these were mistaken.  John went on to suggest that it may well have been a smell emanating from neighbouring properties.

The officer insisted to our client that he had the right to enter the property and search for drugs and that if he wished to do so, then he would.

Mr Stokes was not prepared to be overborne by the officer and insisted that no-one from his address had consumed any drugs and that there was no aroma of cannabis.

The officer then stated that he would be obtaining a warrant and requesting dogs to attend.  My client understood the reference to dogs to mean dogs trained in the detection of controlled drugs.

Eventually, the patience of John Stokes came to an end.  Accordingly, he explained to the officer that it was time for his children to go to bed, his partner was due home and the officer’s suspicions were unfounded.

John then used minimal and reasonable force to push the officer backwards before closing and locking the front door.  Remember that the officer had not been invited onto the premises, and had no power to enter under PACE.  He was therefore at all times a trespasser.

The officer then proceeded to kick repeatedly on the front door, demanding that it be re-opened.

Not only was John concerned by the very conduct of  the officer itself, but was acutely aware that his partner, Julie was due to return home at any moment.  For this reason, he contacted Julie on her mobile to warn her of the presence/conduct of the officer.

Prior to Julie’s return, the officer had requested assistance from colleagues, who arrived a short time later.

When Julie arrived she entered the family home, followed (uninvited) by the officer and his colleagues.

Not only did the officer have no consent to enter the address, he was not acting under any lawful authority/statutory power by entering.

Shockingly, the officers then proceeded to handcuff and arrest John Stokes.

Despite it being obvious that he was in the process of being arrested, Mr Stokes was not told at the outset the reason for his arrest.

Some 10 minutes later, John was told that he was under arrest for assaulting the officer and that he would be moved to a Police Station.

Following arrival at St Ann Street Police Station, John proceeded through the booking in procedure, was searched and lodged in a cell.

Later during his detention, my client was required to provide his fingerprints, DNA sample and be photographed.

The next morning, John Stokes was interviewed under caution, during which he denied all allegations made by the officer.

Notably, during interview, he was not asked any questions pertaining to cannabis.

During the detention period of my client, the officer prepared a witness statement under the provisions of Section 9 of the Criminal Justice Act 1967.  This statement was used as the basis on which to charge my client with the single offence of assaulting the officer in the execution of his duty.

My client was bailed to appear at Liverpool Magistrates Court on the 15 March 2016.

At trial in September 2016 (having earlier pleaded not guilty), John Stokes was found not guilty, following a legal submission to the sitting Justices that the prosecution had failed to establish a case for my client to answer.

On the 6 December 2016, Mr Stokes submitted a formal complaint against the officer.

Following investigation, the complaint was upheld, in terms that John Stokes had been unlawfully arrested and subjected to unnecessary force.

Key findings of the Complaint Report are reproduced below:

“In the statement of the officer requests further patrols attend to assist with gaining entry into the property to arrest but does not stipulate for what offence.  There is a radio transmission which states the female occupant has returned and is opening the door.  In his statement he states that he followed her into the property as he wished to ascertain the safety and whereabouts of John Stokes and the 16 year old male and to arrest John Stokes for the assault. The female was shouting for the police to leave and get out of her house. 

The officer was asked under what power he entered the property to which he responded that he entered under Section 17(1) (D) – to enter and search a premises for the purpose of recapturing a person, as John Stokes had been told he would be arrested by the officer after he had assaulted him.  

Section 17 (1)(D) of the Police and Criminal Evidence Act 1984 (PACE) gives a power of entry to recapture any person whatsoever, who is unlawfully at large and whom he is pursuing.  

John Stokes had not been detained, or arrested, for any offence and was not unlawfully at large. 

At no point did he arrest John Stokes for drug related offences. 

He had no power of entry to enter to arrest for Assault Constable in the Execution of his Duty as it is not an indictable offence, it is a summary offence only. 

The officer had not been invited into the property, in fact in his statement he says that after explaining the reason to enter to Julie, she was shouting for the police to leave and get out of her house. 

The officer had no power of entry, was not invited into the property and was asked to leave.  Therefore, as there was no power of entry, the arrest and force used thereafter in the application of handcuffs was also incorrect.”

 All entries into John Stokes’s home by the Police that night were unlawful and constituted trespass.  Specifically, the officer had no initial consent or license to so enter and by remaining within the premises following a request to leave, his continued presence made him a trespasser.  Thereafter, the subsequent Police entry for the purposes of arresting John Stokes was not permitted by law, neither Section 17 (1) (B) nor (D) of the Police and Criminal Evidence Act 1984 being operative.  As stated above John Stokes had not previously been arrested (he was not an escaped detainee) and nor was the offence alleged by the officer an indictable offence, and nor in any event could the officer have been acting in the execution of his duty when he was in fact trespassing.  When John Stokes pushed the officer out of his house (with minimal force) the officer was not, in the eyes of the law, a Police Officer on duty, but in fact a trespasser.

John Stokes’s claim is continuing and I expect him to recover substantial damages.

Please contact me for advice if you believe Police Officers have unlawfully entered your home. In my experience there are numerous occasions when the Police overstay their powers in such situations, thereby becoming trespassers and it is only right to use the full force of the law to hold them to account when they do so.

Author: iaingould

Actions against the police solicitor (lawyer) and blogger.

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