McMillan v Crown Prosecution Service

Physical contact by a police officer is lawful where, in its circumstances, it remains within generally acceptable standards of conduct. The assessment is fact-sensitive and must consider the whole context, including the purpose and manner of the contact, the person’s condition and the officer’s justification for intervening. Where an officer lawfully escorts a drunken person from private premises, partly to prevent danger and to calm the situation, the contact does not necessarily amount to an assault or arrest. A conviction for disorderly behaviour in a public place may therefore be based on conduct occurring after the person has been lawfully led into that place.

The claimant appealed by case stated from her conviction by Sunderland Magistrates’ Court for being drunk and disorderly in a public place. Police officers had found her intoxicated and shouting and swearing in the garden of a house. One officer took her by the arm and led her to the public footpath, intending to speak to her and steady her on steep steps. Her shouting and swearing continued on the footpath, where she was arrested.

The magistrates accepted the officers’ evidence and rejected submissions of no case to answer and an application under section 78 of the Police and Criminal Evidence Act 1984. The central issue was whether the officer’s physical intervention was lawful and whether the subsequent conduct could support the conviction.

1. Appeal dismissed. The court answered the crucial question whether the officer’s physical intervention involved an assault or arrest in the affirmative in favour of the prosecution. The remaining questions concerning the conviction, the submission of no case to answer and the exclusion of evidence were also answered in the affirmative.
2. The applicable principle was stated in Collins v Willcock [1984] 1 WLR 1172. Ordinary physical contact is generally acceptable in daily life. The question is whether the contact, persisted in, went beyond generally acceptable standards of conduct. The answer depends on the facts of the particular case.
3. The magistrates were entitled to find that the officer acted within those standards. The claimant had been drinking, had previously been warned, remained in the garden at about 4 am, and did not respond to further warnings or attempts to calm her. The officer chose to escort her away rather than arrest her in the private garden, and took account of the steep steps and her safety.
4. The court rejected the suggestion that the claimant had been moved from private premises merely to create the public-place element of an offence under section 5 of the Public Order Act. Once the intervention was lawful, the conduct on the public footpath could properly be considered for the purposes of the conviction.
5. Lord Justice Maurice Kay gave the judgment. Mr Justice Penry-Davey agreed.

• High Court (Administrative Court): On a case stated from Sunderland Magistrates’ Court, the appeal was dismissed and the magistrates’ answers were upheld.
• Sunderland Magistrates’ Court: The claimant was convicted of being drunk and disorderly in a public place. The magistrates rejected a submission of no case to answer and an application to exclude evidence under section 78 of the Police and Criminal Evidence Act 1984.