Director of Public Prosecutions v Morrison

Police officers may temporarily cordon off a public right of way over privately owned land where reasonably necessary to preserve the scene of a serious crime. They may proceed on the assumption that the owner would consent, provided their actions remain reasonable. A constable acting lawfully in making an arrest is acting in the execution of his duty.

On a submission of no case to answer, the court must distinguish evidential insufficiency from a premature assessment of disputed facts. Conflicting evidence does not ordinarily justify withdrawing a case unless the conflict concerns a crucial issue and cannot be resolved by rational fact-finding. For an offence under section 5 of the Public Order Act 1986, the relevant question is whether harassment, alarm or distress was likely to be caused, and issues of intent should not ordinarily be resolved before the evidence is complete.

The defendant was convicted by Enfield Magistrates’ Court of disorderly conduct under section 5 of the Public Order Act 1986 and wilfully obstructing a constable under section 89(2) of the Police Act 1996. Wood Green Crown Court allowed his appeal and ruled, at the close of the prosecution case, that there was no case to answer.

The Crown Court considered that the police had no power to cordon off a private shopping-centre mall over which there was a public right of way, and that the defendant therefore had a right to enter. It also relied on evidential conflicts and insufficient evidence of the statutory elements. The Director of Public Prosecutions appealed by case stated on the legality of the cordon and the correctness of the no-case ruling.

1. The court answered both questions in the case stated in the affirmative. The police were entitled to establish and maintain a temporary cordon to preserve the scene of a serious offence. The power was a common-law power, and the existence of specific powers under the Terrorism Act 2000 did not exclude it.
2. The principle in R v Waterfield and Lynn [1964] 1 QB 164 required careful application in light of Ghani v Jones [1970] 1 QB 693. Police powers were not unfettered, but the police could do what was necessary and reasonable to preserve crime-scene evidence. They could assume that the owner of land crossed by a public right of way would consent to a reasonable temporary closure. The court did not need finally to decide the owner’s ability to withhold consent.
3. The Crown Court had treated a conflict between police witnesses as a classic basis for a no-case submission. Applying Galbraith [1981] 73 Cr App R 124, the court held that such a conflict ordinarily requires resolution after all the evidence, unless it concerns a crucial issue and admits of no rational resolution. The stated case did not adequately identify the factual relevance of the conflict.
4. The Crown Court had applied the wrong statutory question to the section 5 charge. The issue was whether harassment, alarm or distress was likely to be caused, rather than whether it was proved that such harm had actually been caused. The court also held that it was premature to determine intent under section 6(4) of the Public Order Act 1986.
5. Because the cordon was lawful, the arresting officer could be acting in the execution of his duty. The court therefore rejected the Crown Court’s basis for holding that the obstruction charge necessarily failed. The case was not remitted because the appellant did not seek an order for remittal.

• High Court (Administrative Court): answered both questions in the affirmative and allowed the Director of Public Prosecutions’ appeal against the decision of Wood Green Crown Court. No remittal order was sought.
• Wood Green Crown Court: allowed the defendant’s appeal against conviction and ruled that there was no case to answer.
• Enfield Magistrates’ Court: convicted the defendant of disorderly conduct and wilfully obstructing a constable.