Not in the Line of Duty

Mark Watson considers the judgment in Campbell v CPS [2020] EWHC 3868 (Admin) and its impact on the offence of assault on an emergency worker.

The facts

At 4 o’clock in the morning on Sunday 3 March 2019 police officers attended Wardour Street in Chinatown.  They encountered Tonique Campbell who was drunk.  PC Regan attempted to place handcuffs on her wrists. 

A struggle ensued during which the appellant scratched PC Regan’s thumb causing it to bleed.  Ms Campbell was taken to West End Central Police Station; on the ramp on the way to the custody suite, PC Young was kicked by Ms Campbell, who was thereafter detained in a cell. 

Later on, Ms Campbell was taken into the cell corridor by PC Regan in order to wash her hands.  When PC Regan sought to return her back to her cell, she kicked PC Regan’s leg.

Ms Campbell was charged with being drunk and disorderly in relation to her conduct in Wardour Street, and with three offences of assaulting an emergency worker.  The three assault offences related to:

• the scratching of PC Regan’s thumb during the struggle to apply handcuffs;
• the kick to PC Young on arrival at the police station; and,
• the kick to PC Regan in the sink area of the cell corridor.

Ms Campbell was convicted of all matters and appealed by way of case stated to the High Court.

The statement of case read as follows:

1. Were we right to conclude that a defendant can be convicted of assaulting an emergency worker contrary to section 1 of the [2018 Act] even where the officer may not have been acting in the execution of his duty?
2. Were we right to conclude, on the facts of this case, that even if PC Regan was acting unlawfully when she took hold of Ms Campbell to handcuff her, this would not prevent us finding her guilty of the subsequent assaults at the police station?
3. Were we right to conclude that the case law pertaining to assault police officer in execution of his duty contrary to section 89 of the Police Act 1996 did not apply to offences brought under section 1 of [the 2018 Act]?

The answer to all three questions was “yes”.

The 2018 Act

The Assaults on Emergency Workers Act 2018 [“the 2018 Act”] came in to force on 18 November 2018. Section 1(1) of the Act provides that where the offence of common assault or battery occurs in circumstances where it is committed against an emergency worker acting in the exercise of functions as such a worker, the offence is triable either way and currently carries a maximum sentence of 12 months.

The 2018 Act was a piece of reactive, not to say reactionary legislation, introduced to address a perceived rise in assaults on emergency workers, and to increase the seriousness of sentences where convictions followed.

Section 3 of the 2018 Act defines what is meant by “emergency worker” and the list included is broad but exhaustive. It does not include legal representatives, court staff or the judiciary.

Defence practitioners, particularly those who practised in the Magistrates’ Court before 2018, will be all too aware of the offence of assaulting a constable in the execution of his or her duty, contrary to s89(1) of the Police Act 1996.

That offence can only be committed if the constable is acting in the lawful execution of his or her duty.

There is a wealth of case law in relation to this offence but a paucity of case law relating to the 2018 offence, leaving Magistrates’ Courts and Crown Court to interpret the legislation in whatever way the bench, legal adviser, district judge or circuit judge deemed appropriate.

Judgment in Campbell

Helpfully, this judgment from Popplewell LJ includes a useful precis of the case law in relation to s89(1) and the principles that flow from it, such as the fact that an initial unlawful act does not necessarily colour the subsequent actions of the officer.

The ruling raises some real concerns, not only for defence practitioners but also for the populace at large, best captured in the chilling analysis set out at paragraph 16 of the judgment:

“…it is clear that the expression “in the execution of his functions” in s.1 of the 2018 Act is not to be construed in the same way as the expression “in the execution of his duty” in s.89(1) of the 1996 Act, and imports no requirement that the emergency worker be acting lawfully”.

Popplewell LJ’s reading of the statute is what many defence practitioners had feared the interpretation would be.

Indeed the judgment codifies a rather worrying truth inherent in the legislation; an officer can exceed his or her statutory powers as an officer and still be performing a function of being an emergency worker.

That means an officer’s duty is to act lawfully, but an officer’s function does not have to be lawful.

Popplewell LJ quite rightly highlights that one of the issues with the legislation is that police officers are included in a list that includes doctors, paramedics and similar whose roles and functions in their roles are incomparable with police officers.

The olive branch however is extended by Popplewell LJ in paragraph 24:

“…if the emergency worker is acting in the execution of their functions but unlawfully, the offence can only be committed if an assault or battery takes place.  This will only occur if the defendant is not acting in lawful self-defence.”

This means that if an officer is acting unlawfully then a person is entitled to defend themselves using lawful self-defence.

At first blush, this is reassuring.

In order to successfully raise self-defence, the actions must be reasonable and proportionate in all of the circumstances, taking in to account the subjective and objective situation and facts.

In Law, the Crown retain the burden of proof and must rebut self-defence so that a tribunal are sure that the self-defence was not lawful.

Most defence practitioners’ experience is not that simple. When self-defence is raised by the defendant and/or the defence, if the defendant doesn’t give evidence, one may think the defence somewhat difficult to establish. In law, it should be but in practice it is not that straightforward.

In reality, when self-defence is raised the burden shifts to the defence and defendant to prove that what was done constituted lawful self-defence.

That is what makes this legislation so pernicious and troubling.

Before this legislation was introduced, if the police officer was not acting lawfully, that was the end of the matter for a defendant charged with assaulting a constable. And that is comforting. If a police officer exceeds their statutory powers, a defendant has a cast-iron defence and the case will not proceed past the end of the Crown’s case.

This could be seen as in keeping with legislation such as the Police and Criminal Evidence Act 1984 and its accompanying codes of practice, which were designed to protect both defendants and law enforcement officers, so that everyone knew the rules of engagement.

However, under the 2018 Act, if the officer has exceeded their statutory powers, a defendant still has a case to answer and will need to successfully raise self-defence to avoid conviction.

If a person is unlawfully assaulted by a police officer, in practice, that person has to demonstrate that what they did was lawful, despite the unlawful act of the officer. That is a bold position for the law to take.

In relation to the 1996 Act, an officer acting lawfully was a central requirement of the prosecution the case. Under the 2018 Act, the lawfulness of the conduct of the officer is almost an irrelevance.

It is hard to see why prosecutors will now charge under the 1996 Act. Why would the CPS tie their hands and limit their prospects if they could exclude argument about the lawfulness of the officer’s conduct by charging a Defendant under the 2018 Act?

This offence is either way, thankfully, meaning any defendant charged has the opportunity to be tried by a jury.

As we have seen time and time again, the jury system is vindicated by decisions of the juries, bringing common sense and experience into the courtroom notwithstanding harsh laws. The most recent example of what the Americans call ‘jury nullification’ occurred at the Extinction Rebellion trial when the jury was directed that the defendants had no defence in law but they were acquitted anyway.

The 2018 Act has a particular poignancy given the last year where the trial of the murder of Dalian Atkinson and the policing at vigils in relation to Sarah Everard were the subject of intense scrutiny and criticism of the actions of police officers.

Whilst the 2018 Act remains in force, the protection afforded to emergency workers will be increased, but defendants falling foul of the 2018 Act are in a significantly less well protected position than before its introduction.

And with the reactionary Police, Crime, Sentencing and Courts Bill being debated and passing its third reading on 05 July 2021, that balance is in no danger of being redressed in the near future.

Given this judgment, it may be that far more of these cases will be charged under the 2018 Act and Crown Courts will see a huge increase of these sorts of cases and issues being ventilated. Certainly in the experience of many defence practitioners, charges under s89 of the 1996 Act are a thing of the past.

In fact, the CPS even provides guidance to prosecutors that the related existing summary offences, such as s89(1) of the 1996 Act are superseded by the 2018 Act.

Mark Watson is a member of Carmelite Chambers who specialises in financial crime and was called to the Bar in 2011. He defended in the largest counterfeit cigarette production operation that HMRC has ever prosecuted and is regularly instructed in cases involving complicated evidence and complex issues. He is also an elected member of the Criminal Bar Association Executive Committee.