Factual and Procedural Background
The appellant was cycling in the early hours of 26 March 2017 in The City when spotted by three police constables on patrol in an unmarked vehicle. The appellant matched a description from an intelligence briefing concerning persons potentially carrying drugs or weapons. PC Haroon attempted to stop the appellant by taking hold of his arm, though he was not arresting or conducting a stop and search. A physical struggle ensued, with PC Bailey and then PC Dolling joining to restrain the appellant. PC Dolling intervened because he believed the appellant might be reaching for a weapon in his waistband. The appellant bit PC Dolling on the arm, knowing he was biting a police officer.
The appellant was charged under section 89(1) of the Police Act 1996 with assaulting the three constables in the execution of their duty. He was acquitted in relation to PC Haroon and PC Bailey but convicted regarding PC Dolling. The appellant appealed to the Crown Court, which dismissed the appeal, finding the assault on PC Dolling proved and rejecting the claim of lawful self-defence. The Crown Court concluded that although PC Haroon acted unlawfully in attempting to detain the appellant, PC Dolling was acting in the execution of his duty due to his belief about the appellant's potential use of a weapon.
The Crown Court posed a question to this court: whether, given PC Haroon's unlawful use of force, it was nonetheless correct to find that PC Dolling was acting in the execution of his duty when bitten by the appellant.
Legal Issues Presented
- Whether a police constable who intervenes to restrain a person, assisting another officer acting unlawfully, can be regarded as acting in the execution of his duty.
- Whether the Crown Court was entitled to find that PC Dolling was acting in the execution of his duty when the appellant assaulted him.
- Whether the appeal should proceed despite late filing of the notice of appeal and the appellant not raising the issue of PC Dolling's execution of duty below.
Arguments of the Parties
Appellant's Arguments
- A police constable knowingly assisting in the unlawful detention of a person acts unlawfully and outside the exercise of his powers, regardless of the purported purpose.
- Drawing a distinction between the officer who unlawfully detained and the officer who assisted is artificial and undermines the right to resist unlawful detention.
- The appellant could not be expected to distinguish between the officers and was defending his rightful liberty.
- The Crown Court erred in law by holding PC Dolling was acting in the execution of his duty when bitten.
Table of Precedents Cited
| Precedent |
Rule or Principle Cited For |
Application by the Court |
| Kates v Jeffery [1914] 3 KB 160 |
Correct approach to appellate review when a legal point was not raised below but relates to an essential element of the offence. |
The court applied this principle to consider whether PC Dolling was acting in the execution of his duty despite the appellant not contesting this below. |
| Rice v Connolly [1966] 2 QB 414 |
Police constables have duties to take steps necessary for keeping the peace, preventing crime, or protecting property. |
Used to frame the general obligations of police officers relevant to execution of duty. |
| McCann v Director of Public Prosecutions [2015] EWHC 2461 (Admin); [2016] 1 Cr App R 6 |
Reasonableness must be considered in police officers' decisions and actions; lawful exercise of powers includes reasonable use of force. |
Supported the court’s analysis that PC Dolling’s intervention was lawful and reasonable under the circumstances. |
| R v Waterfield [1964] 1 QB 164 |
Test for lawful exercise of police powers involves assessing whether conduct was within the scope of duty and whether any use of force was justifiable. |
Guided the court’s evaluation of whether PC Dolling’s actions were lawful and within the scope of his duty. |
| Cumberbatch v Crown Prosecution Service; Ali v Director of Public Prosecutions [2009] EWHC 3353 (Admin) |
Police officers assisting an unlawful arrest are not acting in execution of duty; a person resisting unlawful arrest is entitled to resist all officers involved. |
Appellant relied on this case; the court distinguished it on the basis that PC Dolling reasonably believed the appellant was about to use excessive force. |
| Joyce v Hertfordshire Constabulary (1985) 80 Cr App R 298 |
Intervening officers may act lawfully in preventing breaches of peace even if the initial detention is unlawful. |
Used to analyze whether PC Dolling’s intervention was justified despite the unlawfulness of PC Haroon’s initial detention attempt. |
| Bentley v Brudzinski (1982) 75 Cr App R 217 |
Prosecutors should consider alternative charges where there may be doubt about whether a constable was acting in execution of duty. |
Referenced to highlight the importance of alternative charges like common assault in such cases. |
| Kenlin v Gardiner [1967] 2 QB 510 |
Previously suggested that self-defence is not available against a lawful use of force by police. |
Court noted more recent authority supersedes this, allowing self-defence if force was justified in the defendant’s honest belief. |
| Oraki v Director of Public Prosecutions [2018] EWHC 115 (Admin); Wheeldon v Crown Prosecution Service [2018] EWHC 249 (Admin) |
Self-defence is available if the defendant honestly believes the force used was justified, regardless of the actual lawfulness of police actions. |
Supported the court’s conclusion that the appellant’s right to defend himself extends to resisting officers acting unlawfully and lawfully. |
Court's Reasoning and Analysis
The court first addressed procedural issues, granting extensions of time for late filing as no significant prejudice was caused. It then considered whether the appeal could be entertained despite the appellant not contesting PC Dolling’s execution of duty below, concluding that the court must correct errors of law even if overlooked previously.
The court reiterated the two elements of the offence: an assault and that the victim was a constable acting in the execution of duty. The assault element was undisputed. The central question was whether PC Dolling was acting in the execution of his duty.
The court applied established principles from Rice v Connolly, McCann, and Waterfield, emphasizing that police officers must act reasonably and lawfully in exercising their powers. It was agreed that PC Haroon and PC Bailey acted unlawfully in attempting to detain the appellant. However, PC Dolling intervened based on a reasonable belief that the appellant might use excessive force with a weapon, which would constitute a crime of violence.
Accordingly, PC Dolling’s actions were considered a lawful exercise of his duty to prevent crime and protect fellow officers. The absence of findings that PC Dolling used excessive force or continued restraint after realizing no weapon was present supported this conclusion.
The court distinguished the present case from Cumberbatch and Ali, noting that in those cases the assisting officers had no reason to believe the person resisted unlawfully, whereas here PC Dolling reasonably believed unlawful force was imminent. The court rejected the appellant’s argument that the distinction between officers was artificial, clarifying that the lawfulness of each officer’s conduct depends on their reasonable beliefs and intentions, not the defendant’s perception.
The court also clarified that recent authorities establish that self-defence is available if the defendant honestly believed the force used was justified, regardless of the actual lawfulness of the police officers’ actions. The appellant was entitled to resist the officers but was not entitled to use unreasonable force, such as biting PC Dolling.
Holding and Implications
The court DISMISSED THE APPEAL, holding that on the facts found, PC Dolling was acting in the execution of his duty when assaulted by the appellant.
The decision confirms that a police officer who reasonably believes that excessive force may be used by a suspect and intervenes to prevent it acts lawfully and in the execution of duty, even if another officer’s initial detention attempt was unlawful. The ruling clarifies the importance of assessing the reasonableness and lawfulness of each officer’s conduct individually. No new precedent was established beyond applying existing principles to the facts. The court also emphasized the prosecutorial importance of alternative charges such as common assault where there is doubt about the execution of duty element, to avoid complete acquittals in such circumstances.