Semple v The Director of Public Prosecutions

A constable required under Licensing Act 2003 section 143(4) to assist a licence holder in ejecting a drunk or disorderly person may use reasonable force. The source of that power is the common-law right of the occupier and the constable acts as the occupier’s agent. The request to assist with ejection may implicitly include preventing the person’s immediate return. Separately, a constable may arrest a person under Police and Criminal Evidence Act 1984 section 24 where there are sufficient grounds to believe that the person intends to commit an assault. An intention to arrest may be inferred from the officer’s conduct and the surrounding circumstances, even where the officer did not expressly announce the arrest.

This was an appeal by way of case stated from the Luton Justices, who convicted Duncan Semple of assaulting a police constable in the execution of his duty. The appellant had been removed from a public house after refusing to leave and was then restrained when he threatened to re-enter and assault someone. The central issue was whether the constable had acted lawfully when using force to eject the appellant and prevent his return, and when restraining him to prevent the threatened assault.

1. Appeal dismissed. The magistrates were not wrong in law to find that the constable had acted lawfully in the execution of his duty. The conviction stood.
2. Under section 143(4) of the Licensing Act 2003, a constable requested by a licence holder to assist with the ejection of a drunk or disorderly person is bound to assist. The provision does not itself create the power to use force. That power derives from the common-law right of an occupier to eject a person using reasonable force, with the constable acting as the licence holder’s agent. The omission from the 2003 Act of the express reference to force found in section 174(3) of the Licensing Act 1964 did not remove that power.
3. The landlord’s request to assist with ejection implicitly included a request to prevent the appellant’s immediate return under section 143(4)(b). The force used to move him through the doors was reasonable, so the constable was acting lawfully under section 143(4)(a).
4. The constable also had sufficient grounds under section 24 of the Police and Criminal Evidence Act 1984 to arrest the appellant to prevent an anticipated assault. The principle in Fraser Wood v Director of Public Prosecutions [2008] EWHC 1056 (Admin) was accepted: restraint is unlawful if the officer neither purports nor intends to arrest. In this case, however, the justices’ finding that the officer intended to arrest was necessarily inferred from the case stated, his conduct and the surrounding circumstances. His inability to announce the arrest during the violent incident did not invalidate it.

• High Court (Administrative Court): on an appeal by way of case stated, the court answered the justices’ question in the negative, dismissed the appeal and allowed the conviction to stand.