Cumberbatch v Crown Prosecution Service

Police officers assisting an unlawful arrest are not acting in the execution of their duty merely because they are assisting a fellow officer. A person may use reasonable force to resist an unlawful arrest and need not distinguish between the arresting officer and officers assisting the arrest. The position changes if the person uses unreasonable force or commits an independent, free-standing breach of the peace. Where conduct is directly linked to protesting against an assumed unlawful arrest and detention, an accompanying officer cannot rely on a separate duty to prevent a breach of the peace unless that breach is independent of the unlawful police conduct.

The Divisional Court heard two appeals by case stated concerning the execution of police duty. In Ali v The Department of Public Prosecutions, the Crown Court dismissed appeals against convictions for resisting two officers who assisted an unlawful arrest, although it allowed the appeal concerning the arresting officer.

In Cumberbatch v The Crown Prosecution Service, the Crown Court dismissed an appeal against conviction for assaulting an accompanying officer who restrained the appellant while her father was being arrested and detained under section 136 of the Mental Health Act 1983. The Crown Court had not decided whether that arrest was lawful. The central questions were whether assisting an unlawful arrest could constitute acting in the execution of duty, and whether a separate duty to prevent a breach of the peace arose.

1. Ali appeal. The arrest by PC Kenney was unlawful because the statutory requirements concerning reasonable suspicion and informing the arrested person of the grounds of arrest had not been met. Mr Ali was entitled to resist that arrest using reasonable force.
2. Officers who merely arrive to assist an unlawful arrest are not acting in the execution of their duty in doing so. The person resisting need not distinguish between the arresting officer and assisting officers. Otherwise, the right to resist an unlawful arrest would be defeated. The court regarded Christie v Leachinsky [1947] AC 573 and Bentley v Brudzinski (1982) Cr App R 217 as supporting that conclusion.
3. The position would differ if the person resisting used unreasonable force. In that event the conduct would itself be unlawful and officers restraining or arresting the person would be acting in the execution of their duties. Joyce v Hertfordshire Constabulary [1985] 80 Cr App R 298 was distinguishable because the court there had assumed that the first officer was acting lawfully.
4. Cumberbatch appeal. The assumed unlawfulness of the father’s arrest also meant that his continuing detention was unlawful. To the extent that PC Richardson formed part of the team arresting or detaining him, she was not acting in the course of her duty.
5. A police officer who reasonably believes that a breach of the peace is about to occur may take reasonable steps to prevent it. That principle did not apply because the appellant’s conduct was indissolubly linked to her protest against the assumed unlawful arrest and treatment of her father. There was no independent, free-standing breach of the peace affecting anyone else. The appellant’s motive, whether to prevent the arrest or to protest its manner, did not alter the analysis.
6. The position would differ if the appellant exceeded a reasonable response to the unlawful arrest, or if an independent breach of the peace existed. On the facts stated, neither qualification applied.
7. Both appeals were allowed. The convictions were quashed. Fines, compensation and costs paid below were directed to be restored, and the appellant’s personal travel expenses were ordered from central funds.

• High Court (Administrative Court): appeals by case stated allowed on 24 November 2009.
• Inner London Crown Court: dismissed Cumberbatch’s appeal against conviction on 20 February 2009.
• Crown Court at Aylesbury: dismissed Ali’s appeals concerning two assisting officers on 27 November and 1 December 2008, while allowing the appeal concerning the arresting officer.