D v Director of Public Prosecutions

An officer acts in the execution of duty until the officer actually acts unlawfully. Conduct which is lawful in itself is not retrospectively rendered unlawful because the officer intends it to lead to an unlawful act. Whether a person has been detained depends primarily on what was said and done, assessed as a question of fact and degree. A request to stop, reinforced by a gesture but involving neither physical force nor a threat of force, does not itself amount to detention. An assault committed while the officer remains lawfully engaged in official activity is an assault in the execution of duty, even if an unlawful detention would shortly have followed.

D appealed by case stated against his conviction by the Barking Magistrates’ Youth Court for assaulting a community support officer in the execution of her duty, contrary to section 46(1) of the Police Reform Act 2002. The officer had asked D to stop and had put out her hand, intending to keep him at the scene until a police constable could search him for drugs. D pushed past her, causing minor injuries.

The central issues were whether the officer had detained D at the time of the push, whether she had power to detain him for that purpose, and whether she was still acting in the execution of her duty.

1. Appeal dismissed. The conviction was upheld. The magistrates’ first question was answered “yes”; the second was answered “no”. The third was answered “yes”, subject to deleting the word “therefore”.
2. Whether conduct constitutes detention is primarily a question of fact and degree, provided the relevant legal framework is correctly understood. Applying Collins v Wilcock [1984] 3 All ER 374, the critical question was what the officer actually said and did, rather than her ultimate purpose.
3. The officer’s request that D stop, accompanied by putting out her hand, involved no physical contact, force or threat of force. The magistrates were therefore entitled to find that no detention had occurred at that point.
4. A community support officer had no power to detain a person so that a police constable could later search him for prohibited drugs. The powers in Part 1 of Schedule 4 to the Police Reform Act 2002 did not confer such a power on the facts.
5. The officer was nevertheless acting in the execution of her duty when she asked D to stop. That status continued until she actually acted unlawfully. It did not end when she formed an intention to carry out an unlawful detention in the future. D therefore assaulted her while she was acting in the execution of her duty.

• High Court (Administrative Court): The appeal by case stated was dismissed. The conviction by the Barking Magistrates’ Youth Court was upheld, with the answer to the third question amended by deleting “therefore”.