Bonner v Director of Public Prosecutions

Where police officers intend to search a person without arrest, the statutory safeguards in Police and Criminal Evidence Act 1984, section 2, must be complied with before steps are taken to begin the search. The process cannot be divided into an initial detention followed by a later search where the facts show that the search was contemplated from the outset. Failure to comply with section 2, together with the requirement in Code A that cooperation be sought and force used only as a last resort, renders the attempted search unlawful. Officers are consequently not acting in the execution of their duty for the purposes of an assault charge under section 89(1) of the Police Act 1996.

Andrew Bonner appealed by way of case stated against his conviction by Bristol magistrates for assaulting a constable in the execution of her duty, contrary to section 89(1) of the Police Act 1996. Plain-clothes officers detained him for a drugs search under section 23 of the Misuse of Drugs Act 1971. They did not comply with the identification, information and procedural requirements in section 2 of the Police and Criminal Evidence Act 1984, and used force before seeking his cooperation. The central issue was whether the officers nevertheless remained in the execution of their duty when the struggle began.

1. The appeal was allowed and the conviction was quashed. The question stated for the High Court was reformulated as whether PC Marshall was acting in the execution of his duty. The answer was no.
2. On the facts found by the justices, the officers contemplated searching the claimant from the beginning. They were therefore required by section 2(2) and (3) of the Police and Criminal Evidence Act 1984 to take the prescribed steps before proceeding to conduct the search. It was immaterial that the search had not technically begun.
3. The court rejected the proposed distinction between detaining a person for a search and commencing the search later. The officers had informed the claimant that he was being detained for a search and immediately seized his arms. The circumstances were materially indistinguishable from Osman v DPP (1999) 163 JP 725, where non-compliance with section 2 rendered the search unlawful and the officers were not acting in the execution of their duty.
4. Code A, paragraph 3.2, required cooperation to be sought in every case. A forcible search and reasonable force were permitted only after unwillingness or resistance had been established and force was necessary as a last resort. On the stated facts, there was no need to seize the claimant before seeking cooperation.
5. Although the court sympathised with officers facing practical dangers, the statutory safeguards had to be applied. The justices’ conviction was therefore quashed.

• Magistrates’ court: Bristol magistrates convicted Andrew Bonner of assaulting a constable in the execution of her duty under section 89(1) of the Police Act 1996.
• High Court (Administrative Court): The appeal by way of case stated was allowed. The conviction was quashed.