Dixon v Crown Prosecution Service, Court of Appeal - Administrative Court, November 20, 2018, [2018] EWHC 3154 (Admin)

Resolution Date:November 20, 2018
Issuing Organization:Administrative Court
Actores:Dixon v Crown Prosecution Service

Case No: CO/2592/2018

Neutral Citation Number: [2018] EWHC 3154 (Admin)




Royal Courts of Justice

Strand, London, WC2A 2LL

Date: 20/11/2018





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Mr James Davis (instructed by Hollingsworth Edwards Solicitors) for the Appellant

Mr Simon Heptonstall (instructed by the CPS Appeals and Review Unit) for the Respondent

Hearing date: 13 November 2018

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JudgmentLord Justice Leggatt (giving the judgment of the court):

  1. This appeal by case stated from the Crown Court raises a question about whether a police constable was acting in the execution of his duty when he was assaulted by the appellant.

    Findings of fact

  2. The relevant findings of fact made by the Crown Court are that the appellant was cycling in the early hours of 26 March 2017 in Willesden, when he was spotted by three police constables who were on patrol in an unmarked vehicle. The appellant fitted the description of persons who, according to an earlier intelligence briefing, might be carrying drugs or weapons. PC Haroon got out of the vehicle and asked the appellant to stop. When the appellant failed to do so, PC Haroon took hold of his arm. He was not arresting the appellant nor exercising powers of stop and search.

  3. A fight ensued, and PC Haroon was joined by PC Bailey, who struggled to restrain the appellant. They were then joined by PC Dolling. PC Dolling went to restrain the appellant's arm because he believed that the appellant might be reaching for a weapon, or something to use as a weapon, in his waistband. PC Dolling understood that PC Haroon and PC Bailey were trying to detain the appellant.

  4. The appellant bit PC Dolling on the arm. He knew when doing so that he was biting a police officer.

    The proceedings below

  5. The appellant was charged with offences under section 89(1) of the Police Act 1996 of assaulting each of the three constables in the execution of his duty. Before the Willesden magistrates, the appellant was acquitted of the offences charged in relation to PC Haroon and PC Bailey but convicted of the offence in relation to PC Dolling.

  6. He appealed against his conviction to the Crown Court at Harrow. The appeal was heard on 8 March 2018 by Mr Recorder Hall QC sitting with two justices. They dismissed the appeal. They found it proved, first, that the appellant had bitten PC Dolling on the arm and, second, that in doing so the appellant had not been acting in lawful self-defence. When asked by the court to indicate whether he was submitting that PC Dolling was not acting in the execution of his duty, the appellant's representative said that he was not making that submission. The court concluded that, although PC Haroon had not been acting lawfully when he attempted to detain the appellant, PC Dolling was nevertheless acting in the execution of his duty because he thought that the appellant might be reaching for a weapon in his waistband.

  7. The Crown Court subsequently posed the following question for the opinion of this court:

    ``Given that the grabbing of the appellant by PC Haroon was an unlawful use of force, were we nonetheless entitled to find on the facts found that PC Dolling was acting in the execution of his duty when he was bitten by the appellant?''

    Two preliminary issues

  8. Two preliminary issues have been raised. The first is that the appellant's notice was filed with the court and served on the respondent 19 and 24 days respectively after the time for doing so had expired and (at least in relation to the late filing) the appellant requires relief from sanctions as well as an extension of time before the appeal can proceed. The second issue is whether the appeal should be entertained in circumstances where the point that the appellant is seeking to raise (that PC Dolling was not acting in the execution of his duty) was not taken below.

  9. Where an appeal is made by way of case stated the appellant is required by Practice Direction 52E, para 2.2, to file the notice of appeal at the appeal court within 10 days of the date of the case stated by the lower court. In this case the Crown Court stated the case on 4 June 2018. However, the appellant's solicitors requested two amendments to it, which the Crown Court notified them on 15 June 2018 that it was not prepared to make. There was then a delay before the appellant's solicitors succeeded in contacting the appellant on 25 June 2018 to obtain his instructions to lodge the appeal. The notice of appeal was filed on 3 July 2018 and an application was also made for an extension of time. Although there is no good excuse for this delay (nor for the further delay in serving the notice of appeal and the appellant's skeleton argument), there is no suggestion that the delay caused any significant inconvenience to the respondent (which did not actively oppose the application for an extension of time) nor that it had any significant effect on the overall progress of the appeal. In the circumstances we consider that it is appropriate to grant the necessary extensions of time.

  10. As for the fact that the appellant did not dispute in the Crown Court that PC Dolling was acting in the execution of his duty, that was nevertheless an element of the offence which the prosecution had to establish in order to justify the appellant's conviction. In principle and as confirmed by the case of Kates v Jeffery [1914] 3 KB 160, the correct approach in our view is this. If this court were to conclude that, on the facts found by the Crown Court and stated in the case, the Crown Court was not as a matter of law entitled to find that PC Dolling was acting in the execution of his duty when he was bitten by the appellant, then the appellant's conviction ought not to stand. It would not be right to leave in place a conviction which can be seen to be wrong in law because the point of law was overlooked by the defendant's representative in the Crown Court. If on the other hand this court does not so conclude, then the appeal must be dismissed. In particular, it would not be right to remit the case in order for further findings of fact to be made which could have been made if the point now taken had...

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