Burrell v Crown Prosecution Service

Failure to prove a substantive public-order offence beyond reasonable doubt does not necessarily make an arrest unlawful. The lawfulness of an arrest under section 5(4) of the Public Order Act 1986 depends on whether, at the time of arrest, it was reasonable for the constable to suspect that the conduct constituted an offence under section 5. The substantive offence and the arrest power contain different ingredients and are assessed on different evidential material. Accordingly, a person may be acquitted of the substantive offence while still having been lawfully arrested and liable for resisting a constable in the execution of his duty.

Alistair Burrell appealed by way of case stated from his conviction by Harrogate Magistrates’ Court for resisting a constable in the execution of his duty, contrary to section 89(2) of the Police Act 1996. The magistrates dismissed a concurrent charge under section 5 of the Public Order Act 1986, finding that the prosecution had not proved beyond reasonable doubt that his conduct was likely to cause harassment, alarm or distress.

The appellant argued that the acquittal made the arrest under section 5(4) unlawful and that the conviction for resisting arrest was therefore inconsistent. The central issue was whether the different outcomes were logically and legally incompatible.

1. Appeal dismissed. The conviction for resisting a constable in the execution of his duty was upheld.
2. The substantive offence under section 5 of the Public Order Act 1986 and the statutory power of arrest under section 5(4) involve different legal questions. At trial, the prosecution had to prove beyond reasonable doubt that the conduct was likely to cause harassment, alarm or distress. For the arrest, the question was whether it was reasonable for the constable to suspect that the conduct constituted an offence under section 5.
3. The assessment of reasonable suspicion was objective and had to be made at the time of arrest. The fact that the magistrates later failed to find the substantive offence proved beyond reasonable doubt did not determine whether the arrest had been lawful.
4. The absence of evidence satisfying the criminal standard for the section 5 offence could therefore coexist with reasonable grounds for arrest. The two verdicts were not mutually or logically inconsistent because they depended on different ingredients and different evidential inputs.
5. Lord Justice Laws agreed with Mr Justice Steel. The four questions stated for the opinion of the court were answered in the affirmative.

1. High Court (Administrative Court): Appeal by way of case stated from the decision of Harrogate Magistrates’ Court dated 11 August 2004. The appeal was dismissed and the questions in the case stated were answered in the affirmative.