Tuthill v The Director of Public Prosecutions

For a lawful search based partly on police intelligence about a group, there must be a sufficient link between the intelligence and the persons searched. That link may be established by the circumstances and conduct of the group as a whole. Where a group travels in a small number of vehicles and behaves aggressively, intelligence that one vehicle is marked for weapons may, together with that conduct, provide objectively reasonable grounds to search a member of the group. A case stated must identify the magistrates’ findings of fact and the legal question for the High Court. Except where Criminal Procedure Rules Part 64.5(2) applies, it must not set out the evidence.

The claimant appealed by case stated from convictions by North Yorkshire Magistrates for using threatening words or behaviour, contrary to section 5 of the Public Order Act 1986, and resisting a police constable in the execution of his duty. The appeal concerned whether a police officer had reasonable grounds to detain him for a search under section 1(3) of the Police and Criminal Evidence Act 1984.

The magistrates’ case stated reproduced substantial parts of the evidence and was ambiguous about whether the relevant behaviour was the claimant’s movement away or the conduct of the group. The central issue was whether the group’s conduct, together with intelligence concerning one of its vehicles, supplied objectively reasonable grounds for the search.

1. Appeal dismissed in substance. The court answered the stated question in the affirmative. The convictions stood.
2. The court adopted the three-stage approach identified by Woolf LJ in Castorina v the Chief Constable of Surrey (10 June 1988, unreported): whether the officer had the necessary subjective suspicion; whether there was objectively reasonable cause for it; and, if both existed, whether the discretion to search was exercised lawfully under the Associated Provincial Picture Houses Ltd v Wednesbury Corporation principles. The subjective element was conceded.
3. Following the principles recently applied in Howarth v Commission of Police of the Metropolis [2011] EWHC 2818 (QB), intelligence concerning a group can justify searches of members where there is sufficient linkage between the intelligence and the persons searched. Here, intelligence marking one of two vehicles for weapons was reinforced by the aggressive and confrontational behaviour of the group. That combination supplied reasonable objective grounds to search the claimant.
4. The phrase referring to the claimant’s behaviour as moving away meant that he was selected first for search. Read with the magistrates’ conclusion that the search was based on the group’s behaviour as a whole, it did not limit the grounds for the search to his movement alone.
5. Part 64.5 of the Criminal Procedure Rules requires a case stated to set out facts found and the legal question. Evidence must not be included unless the question concerns whether a finding was supported by evidence. The court criticised the deficient drafting and observed that future unnecessary costs might, in an appropriate case, be recoverable under section 51 of the Senior Courts Act and Part 48 of the Civil Procedure Rules 1998. The claimant was ordered to pay the costs, with enforcement stayed without permission because he was legally aided.

• North Yorkshire Magistrates’ Court: convicted the claimant of using threatening words or behaviour and resisting a police constable in the execution of his duty on 6 December 2010.
• High Court (Administrative Court): answered the stated question by finding reasonable grounds for the search and held that the convictions stood.