Spillman v Director of Public Prosecutions

An appeal by way of case stated addresses issues of law arising from facts found by the magistrates. It is not the appropriate route for challenging factual findings solely because they may affect sentence. Police officers may use necessary force to remove a drunken person who presents a danger, and continued aggressive and disorderly conduct may justify arrest for being drunk and disorderly. A person detained in police custody may use reasonable force to seek freedom if unlawfully arrested, but is not entitled to assault a custody officer acting in the execution of that officer’s duty. Any challenge to sentence or relevant factual findings should be pursued in the Crown Court.

David Spillman appealed by way of case stated from convictions by magistrates at Southend on 20 September 2005. He had been convicted of being drunk and disorderly contrary to section 91(1) of the Criminal Justice Act 1967 and assaulting a police officer in the execution of his duty contrary to section 89(1) of the Police Act 1996. He received a sentence of 18 weeks’ imprisonment.

The appellant sought amendments to the stated case, arguing that the handcuffing officer had not intended to arrest him. He also contended that more accurate factual findings might have produced a lower sentence. The central questions were whether the arrest was lawful, whether any unlawfulness affected the convictions, and whether this appeal was an appropriate means of challenging matters relevant only to sentence.

1. The appeal was dismissed and the convictions upheld. The proposed amendments to the case stated were rejected because they would not affect the legality of the convictions.
2. The police were entitled to remove the appellant from the road, where he was drunk, injured and presenting a danger to himself and other road users, using such force as was necessary. Once on the pavement, his continued aggression, abusive conduct and kicking plainly justified, or would have justified, arrest for being drunk and disorderly. The magistrates were therefore entitled to find that the arrest was lawful.
3. The legality of the arrest did not affect the conviction for assaulting Sergeant Adams. The custody officer was acting in the execution of his duty because he had a statutory obligation to attend to prisoners brought into the cells, whether or not they had been lawfully arrested. Although a person wrongfully arrested may use reasonable force in an attempt to secure freedom, spitting blood into the face of the custody officer was not justified. This principle was consistent with Director of Public Prosecutions v L and S, decided on 14 December 1998.
4. The questions concerning the consequences of an unlawful initial arrest did not arise because the arrest was found lawful. The case stated also did not provide a proper route for challenging factual findings with a view to reducing sentence. An appeal against sentence, save where the sentence was outside the bounds of legality, was a matter for the Crown Court.
5. Mr Spillman was ordered to surrender forthwith to custody at Southend Police Station, and by noon on the following Monday. Otherwise he would be unlawfully at large and liable to arrest.

• High Court (Administrative Court): The Divisional Court considered an appeal by way of case stated from convictions and sentence imposed by magistrates at Southend on 20 September 2005. The appeal was dismissed, the convictions were upheld, and the proposed amendments to the stated case were rejected.