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Case No: 2000/1870/Y5
IN THE OF APPEAL
(CRIMINAL) DIVISION)
Royal Courts of Justice
Strand, London, WC2A 2LL
Date: 29th September 2000
B e f o r e :
THE VICE PRESIDEN
T
LORD JUSTICE ROSE
MR JUSTICE NEWMAN
and
HON MRS JUSTICE RAFFERTY
R
v
Dennis Percival LEE
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(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)
- - - - - - - - - - - - - - - - - - - - -
Mr G Patterson apppeared for the Appellant)
Mr E Fowler appeared for the Crown)
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Judgment
As Approved by the Court
Crown Copyright ©
THE VICE PRESIDENT:
1. The question raised by this appeal is whether on a charge, under s38 of the
Offences Against the Person Act 1861, of assault with intent to resist lawful
apprehension for failing a roadside breathalyser test, it is a defence that the
defendant honestly believed that he had not failed the test. Put another way,
and more widely, does the mens rea for assault with intent to resist lawful
apprehension include an absence of honest belief in the defendant that the
arrest was lawful?
2. The appellant was convicted at Maidstone Crown Court on 28th February 2000
of two offences contrary to s38 and subsequently sentenced to 2 years
imprisonment on each concurrently, with a further concurrent sentence for
handling stolen goods. He appeals against conviction by leave of the single
judge on the ground that the trial judge failed to direct the jury that it was
a defence genuinely, albeit mistakenly, to believe that the purported arrest
was unlawful. Leave has not been granted to argue any other ground.
3. The relevant facts can be shortly stated. On 24th September 1999, the
appellant was driving a motor car in Mace Lane, Ashford. He was stopped by
police for a roadside safety check. His breath smelt of alcohol. He said he
had only drunk a pint and a half. He was asked to provide a breath specimen.
He did so in an alcolyser bag. It was common ground that the officers said the
test was positive, in that the crystals had changed colour beyond the red line,
but the appellant immediately, in subsequent interviews and in evidence
disputed this: he said there was a bubble in the crystals so that it was not
clear that the line had been reached or crossed. According to the officers,
after he had been told he was being arrested, the appellant punched both of
them. The appellant admitted pushing one officer and punching the other. It
is conceded on the appellant's behalf that there was evidence on which the jury
could conclude that the officers were acting lawfully because the breathalyser
test provided possible reasonable grounds to suspect the commission of a
drink-driving offence.
4. The judge directed the jury as to the elements of the offence in a manner
about which complaint is made by Mr Patterson, on behalf of the appellant, in
only one presently relevant respect. The judge stressed that the offence could
only be committed if the apprehension were lawful and that it would be lawful
if the person arresting reasonably believed an arrestable offence had been
committed. Mr Patterson submits that if the appellant genuinely, albeit
wrongly, believed his arrest were unlawful he could not have intended to resist
lawful apprehension: the judge should therefore have gone further and directed
the jury that they must be sure that the defendant had no honest belief that he
had not failed the breathalyser test. That is not a submission which Mr
Patterson made to the trial judge when these matters were being discussed in
the absence of the jury: but that would not be fatal to this appeal if the
submission is well-founded.
5. The argument advanced by Mr Patterson before us proceeds as follows.
6. In his commentary on R v Brightling 1991 Crim LR 364 at 365
Professor Sir John Smith QC said
"The mens rea of the offence is the intent to resist lawful apprehension. If
the defendant believes in circumstances which would cause the arrest to be
unlawful he does not have that mens rea."
7. In Blackstone's Criminal practice 2000 Edition at paragraph B 2.14, page
156, it is said that intent to resist "lawful arrest means that a subjective
realisation of the lawfulness of the arrest must be proved". In Archbold 2000
Edition paragraphs 19-260 it is said "general principle suggests that where a
defendant has made a mistake of fact his criminality should be judged on his
mistaken view of the facts".
8. On this basis, although the appellant would be guilty of common assault, he
had a defence to a s38 offence, even if his belief that the officers were
acting unlawfully was unreasonable (see Gladstone Williams 78 Cr App R 276).
9. Mr Patterson also referred to DPP v Morgan 1976 AC 182,
Beckford 1988 AC 130, B v DPP 2000 2WLR 452 and
Smith and Hogan, Criminal Law 9th Edition, paragraph 415, in which appears the
following:
"if D wrongly believes in circumstances in which the arrest would be unlawful
his mistake of fact negatives the mens rea. Whatever the true facts he does
not intend to resist lawful arrest".
10. For the Crown, Mr Fowler submits, in reliance on Fennell
1971 1QB 428, that the direction sought on the appellant's behalf would have
been inappropriate. In Fennell it was held that belief in the
unlawfulness of custody was no defence to an offence of assaulting police in
the execution of their duty. He submits that this principle still holds good,
although the law has subsequently developed so that reasonable grounds for such
a belief are no longer required. He submits that, although a defendant's
intention is to be judged on the basis of the facts as he believes them to be,
an honest mistake as to law or as to mixed fact and law affords no defence. He
too relies on a passage in Smith and Hogan 9th Edition at 415 "the intent must
be to resist "lawful" arrest. If D knows of the circumstances which make the
arrest lawful he probably has a sufficient intent even though he believes it to
be unlawful e.g. having read in an out-of-date law book that conspiracy is not
an arrestable offence he resists arrest for conspiracy".
11. S38, as amended, omitting unmaterial words, makes it an offence to
"assault any person with intent to resist or prevent the lawful apprehension or
detainment of himself or of any other person for any offence". It is therefore
an essential ingredient of the offence that the defendant intended to resist
lawful arrest. But, provided he has that intention, the statute does not
require proof of any particular belief on the part of the defendant.
12. In our judgment, the relevant authorities can be summarised in this way.
(1) Fennell and Lord Diplock's speech in Sweet v
Parsley 1970 AC 132 at 163 are no longer authority for the proposition
that, in order to afford a defence to offences involving mens rea, a
defendant's belief as to facts must be reasonable, as well as genuine or
honest. That approach, in relation to self- defence, was rejected in
Gladstone Williams which was approved by the Privy Council in
Beckford and by the House of lords in B v DPP.
And, in the light of Morgan, Lord Diplock's observations were
expressly disapproved in B v DPP (see in particular, the speech
of Lord Nicholls at 456B to 457A and Lord Steyn at 470F)
(2) A genuine or honest mistake may afford a defence in relation to many
criminal offences requiring mens rea e.g. rape, if made as to the woman's
consent (Morgan), indecent assault if made by a 15 year old as to
the girl's age (B v DPP) and offences of violence if made as to
the nature of the victim's behaviour towards the defendant
(Beckford) or another (Gladstone
Williams).
(3) Such a mistake may afford a defence in relation to assault with intent to
resist arrest (Brightling CACD transcript 15 January 1991 p
13D-F) or assaulting an officer in the execution of his duty,
(Blackburn v Bowering 1994 1 WLR 1324 at 1329A) if it relates
to whether or not the victim is a police officer. In such a case, the
defendant's mistake may be relevant to whether he intended to assault a police
officer and to whether he was acting in reasonable self-defence.
(4) But, to afford such a defence, the mistake must be one of fact. In
Blackburn v Bowering at1329C Sir Thomas Bingham, then Master of
the Rolls, referred to Fennell and to " the important
qualification that the mistake must be one of fact (particularly as to the
victim's capacity) and not a mistake of law as to the authority of a person
acting in that capacity". This approach accords with the passage in Smith and
Hogan on which Mr Fowler relies, with the passages in Archbold and Blackstone
on which Mr Patterson relies and also with Sir John Smith's comment on
Brightling, once it is understood that by "circumstances" in
that comment he was referring to facts: this construction is supported by the
passage in Smith and Hogan on which Mr Patterson relies, where circumstances
are equated with facts.
(5) In Bentley 1850 4 Cox CC 406, Talfourd J put the point in a
way which in our judgment is still good law.
"I think that, to support a charge of resisting a lawful apprehension, it is
enough that the prisoner is lawfully apprehended, and it is his determination
to resist it. If the apprehension is in point of fact lawful, we are not
permitted to consider the question, whether or not he believed it to be so,
because that would lead to infinite niceties of discrimination. The rule is
not, that a man is always presumed to know the law, but that no man shall be
excused for an unlawful act from his ignorance of the law. It was the
prisoner's duty, whatever might be his consciousness of innocence, to go to
the station-house and hear the precise accusation against him. He is not to
erect a tribunal in his own mind to decide whether he was legally arrested or
not. He was taken into custody by an officer of the law, and it was his duty
to obey the law".
13. Applying these principles to the present case, it is clear that, even had
the appellant given evidence (which it appears he did not) that he resisted
arrest because his interpretation of the alcolyser lead him honestly to believe
his arrest was unlawful, this would not have afforded a defence. Such a belief
would have been not about any facts relating to the identity or conduct of the
police officers at the time of the attempted arrest but about the legal
consequences of believed antecedent facts. The appellant's position is, in our
judgment, indistinguishable from that of a person sought to be arrested on
grounds of reasonable suspicion for any arrestable offence which he knows or
believes he has not committed. If, in such circumstances, that person assaults
an officer whom he knows is acting as a police officer, we have never known it
to be suggested that belief in innocence could afford a defence to assault,
either with intent to resist arrest or on an officer in the execution of his
duty.
14. In our judgment, once the lawfulness of the proposed arrest is established,
the mens rea necessary for a s38 offence is an intention by the defendant to
resist arrest, accompanied by knowledge that the person he assaults (who may
or may not be a police officer) is a person who is seeking to arrest him.
Whether or not an offence has actually been committed or is believed by the
defendant not to have been committed is irrelevant.
15. We reach this conclusion without regret. Neither public order nor the
clarity of the criminal law would be improved if juries were required to
consider in relation to s38 offences the impact of a defendant's belief as to
the lawfulness of his arrest in cases where a lawful arrest is being properly
attempted on reasonable grounds.
16. Accordingly this appeal is dismissed.
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