Collman, R (on the application of) v Director of Public Prosecutions

A lawful search under section 32(1) of the Police and Criminal Evidence Act 1984 is not subject to a statutorily prescribed method. Officers may adopt a reasonable method suited to the purpose of the search, including temporarily retaining items removed from the searched person, provided they intend to return items which are not lawfully seized when the search ends.

Recklessness in battery requires foresight of the possibility of unlawful force and taking that risk. It is ordinarily inferred from the facts. On a case stated, the reviewing court asks whether there was evidence capable of supporting the finding; assessment of that evidence remains for the justices.

The appellant was convicted by magistrates of assaulting a police constable in the execution of his duty, contrary to section 89(1) of the Police Act 1996. The officers had arrested him away from a police station and conducted an empty-pockets and pat-down search under section 32(1) of the Police and Criminal Evidence Act 1984.

The magistrates found that the search was lawful, that the officers used reasonable force, and that they lawfully retained the appellant’s possessions temporarily. They also found that the appellant was reckless when resisting handcuffing. On appeal by way of case stated, the issues were whether the finding of recklessness was supported by the evidence and whether temporary retention of the possessions was lawful.

1. The appeal by way of case stated was dismissed. The magistrates had not erred in finding either that the police acted lawfully or that the appellant was reckless.
2. Section 32(1) of the Police and Criminal Evidence Act 1984 was satisfied. The officers had reasonable grounds for believing that the arrested person might present a danger to himself or others, having regard to the offence, the police computer markers and his increasingly agitated behaviour.
3. Section 32(8) was not the basis on which the police sought to justify retention. That provision permits seizure and retention where there are reasonable grounds for believing that an item might be used to cause physical injury.
4. The detailed methodology of a lawful search under section 32(1) is not prescribed by statute. A degree of judgment is necessarily left to the officers, subject to the requirement that their method remains reasonable in all the circumstances. Temporarily retaining items while an empty-pockets and pat-down search was completed was lawful because returning them individually would have undermined the effectiveness of the search, and the officers intended to return them at its conclusion.
5. Recklessness in battery involves foresight of the possibility that the complainant will be subjected to unlawful force, coupled with taking that risk. The issue is generally one of inference from the circumstances. The magistrates had ample evidence of the appellant’s movements and the surrounding circumstances from which the necessary foresight could be inferred. Evaluating that evidence was their function, not the function of the appellate court.
6. No order for costs was made.

• Magistrates’ court: The appellant was convicted and conditionally discharged for assaulting a constable in the execution of his duty. The magistrates found that the search, temporary retention of possessions and force used were lawful, and that the appellant was reckless.
• High Court (Administrative Court): The appeal by way of case stated was dismissed.