H, R (on the application of) v Crown Prosecution Service

Section 91(1) of the Criminal Justice Act 1967 creates liability for disorderly behaviour committed in a public place while the defendant is drunk. The relevant disorderly behaviour must exist before, and justify, the arrest. A person who is drunk but not disorderly may not be lawfully arrested under the provision. Disorderly behaviour that begins only after an unjustified arrest does not retrospectively establish the offence.

The appellant appealed by way of case stated from a decision of the South East Northumberland Justices. He had appeared drunk outside a public house while arguing with door staff, but the justices found that he was not disorderly at that stage. He became disorderly only when police officers attempted to place him in a police van, after arrest. The central issue was whether those findings entitled the justices to convict him under section 91(1) of the Criminal Justice Act 1967.

1. The appeal was allowed. The question stated by the justices was answered in the negative.
2. Per Lord Justice Scott Baker, section 91(1) is concerned with disorderly behaviour in a public place while drunk. Being drunk alone does not constitute the offence. The disorderly behaviour is also the circumstance which permits arrest without warrant.
3. On the findings of fact, the appellant was drunk but was not disorderly outside the public house. The police therefore lacked justification to arrest him under section 91(1).
4. The subsequent disorderly behaviour occurred only after the unjustified arrest, when the police attempted to put the appellant into the van. Conduct arising in those circumstances could not satisfy the statutory offence or retrospectively validate the arrest.
5. Mr Justice Owen agreed with the judgment.

• High Court (Administrative Court): On an appeal by way of case stated, the court allowed the appeal and answered the justices’ question in the negative.
• South East Northumberland Justices: Convicted the appellant after finding that he was drunk and became disorderly when police attempted to place him in a police van.