D v Director of Public Prosecutions

A police officer may arrest to prevent a breach of the peace where he reasonably believes that a breach will occur immediately, or that a previous breach is likely to be renewed shortly. The assessment is fact-sensitive and may take account of an earlier confrontation involving weapons, the arrested person’s continued presence and the risk that danger will resume when police leave.

An assault by battery may be committed recklessly. The prosecution need not prove deliberate infliction of force if the evidence establishes foresight of the risk of unlawful force, and the taking of that risk. A conviction may be based on recklessness where that finding does not alter the substance of the defendant’s case.

The appellant, a child represented by his mother and litigation friend, appealed by way of case stated against his conviction by the Combined South and East Hampshire Youth Court Panel. He had bitten a police constable during a struggle after the constable arrested him to prevent a further breach of the peace.

The stated case raised three questions: whether the constable had been acting in the execution of his duty when making the preventive arrest; whether the justices could find recklessness although the prosecution had relied on an intentional bite; and whether the evidence supported conviction for a reckless or other assault.

1. Preventive arrest. The appeal was dismissed. The recognised circumstances in which an arrest to prevent a breach of the peace may be made include an anticipated breach in the immediate future and the likely short-term renewal of a breach already committed. The relevant question was whether the officer reasonably believed that a renewed breach was likely and about to occur.

2. That test was satisfied. The officer knew of a hostile confrontation involving a knife and screwdriver. The appellant had been disarmed and escorted outside, but had remained there for nearly half an hour despite being asked to leave. He was upset, his home was nearby, and the officer reasonably considered that danger to the property or its occupants might resume once police involvement ended. The arrest was therefore in the execution of the constable’s duty.

3. Reckless assault. An assault involving battery is committed where a person intentionally or recklessly causes unlawful personal violence. Recklessness requires foresight of the risk that the complainant will be subjected to unlawful force, together with the taking of that risk, with that state of mind coinciding with the biting.

4. The justices were entitled to find recklessness. They were entitled to accept that the appellant bit the officer, that he was struggling to avoid recapture, and that he brought the officer’s hand to his mouth. In those circumstances, the risk of contact with the appellant’s teeth while he shouted and struggled was clearly foreseeable and was taken.

5. The prosecution’s failure to present the case specifically as recklessness did not invalidate the conviction. The appellant’s case was that there had been no bite, so an allegation of recklessness would not have affected the way in which he presented his defence. The three questions in the stated case were answered in the affirmative.

• High Court (Administrative Court): The Divisional Court answered all three questions in the stated case in the affirmative, thereby upholding the youth court conviction.
• Combined South and East Hampshire Youth Court Panel: The appellant was convicted of assaulting a police constable in the execution of his duty.