James v Director of Public Prosecutions

For the purposes of paragraph 3.2 of Code A, a pat-down search and the placing of a hand on a person’s body do not ordinarily constitute a forcible search or the application of force. The position may differ where sensitive parts are touched. Force begins when physical pressure is applied, including pressure used to prevent a person swallowing concealed drugs. A search remains compliant where the person’s cooperation has been sought and reasonable force is used as a last resort because the person resists or refuses to cooperate.

The appellant appealed by way of case stated against his conviction by District Judge Henderson at Highbury Magistrates’ Court. He had been stopped by police officers who identified themselves and stated their reasons for searching him under section 23 of the Misuse of Drugs Act 1971.

After submitting to a pat-down search, the appellant concealed drug packets under his tongue and attempted to swallow them despite repeated requests to spit them out. The district judge found that the officer used no more than reasonable force to prevent him swallowing the drugs. The central issues were whether the officer’s conduct amounted to a forcible search contrary to paragraph 3.2 of Code A, and whether the evidence supported an offence under section 23(4).

1. Appeal dismissed. The district judge’s answers to both questions were upheld. The conviction under section 23(4) of the Misuse of Drugs Act 1971 was properly entered.

2. Paragraph 3.2 of Code A requires cooperation to be sought in every case. A forcible search may be made only after it has been established that the person is unwilling to cooperate or resists. Reasonable force may be used as a last resort where necessary to conduct or facilitate the search.

3. A pat-down search is not a forcible search. Nor is placing a hand on a person’s body, without applying pressure, ordinarily the application of force or a forcible search, subject to the possible exception of contact with sensitive parts of the body.

4. On the facts found, the forcible search began when the appellant attempted to swallow the drugs. The officer had no opportunity to conduct the search without applying force around the appellant’s neck because the appellant resisted the request to spit out the drugs. The force used was no more than reasonable.

5. The district judge was therefore entitled to find compliance with paragraph 3.2 of Code A and sufficient evidence of the offence under section 23(4).

The judgment records an appeal by way of case stated from the conviction at Highbury Magistrates’ Court. The High Court dismissed the appeal and upheld the district judge’s answers and conviction.