Sobczak v Director of Public Prosecutions

A police officer’s failure to comply with the mandatory procedural requirements governing a search may make the search unlawful. It does not necessarily determine whether the officer is later acting in the execution of his duty. Where a sufficient interval and change of events separates the search from later conduct, the court must assess the later conduct independently. An officer preventing further violence or attempting to reduce harm caused by police action may be acting in the execution of his duty, even if his earlier conduct technically made him a trespasser. Whether incidents are separate is a question for the court on the facts.

The appellant was convicted of assaulting a police officer in the execution of his duty, contrary to section 89(1) of the Police Act 1996. During a violent incident in a house, the officer carried out a cursory pat-down search after the appellant had emerged from a bedroom. The parties accepted that section 1 of the Police and Criminal Evidence Act 1984 did not authorise a search in a dwelling.

The magistrates nevertheless considered that the search was authorised under section 3(1) of the Criminal Law Act 1967, while finding that the officer had not complied with the requirements of section 2 of the 1984 Act. They also found that the search and the later assault were separate incidents. The central issues were whether the search was lawful, whether the officer became a trespasser, and whether he was acting in the execution of his duty when the appellant advanced towards him.

1. The appeal was dismissed. The magistrates were entitled to answer yes to the question whether the officer was acting in the execution of his duty when assaulted.
2. The officer’s purpose in conducting the pat-down search was to prevent crime by discovering whether the appellant had a weapon. The use of force in that context was authorised by section 3(1) of the Criminal Law Act 1967.
3. That did not make the search lawful. Section 2 of the Police and Criminal Evidence Act 1984 was mandatory. The officer had to take reasonable steps before searching to provide his name, police station, the object of the search and his grounds. Those matters could have been stated despite the circumstances. The search was therefore technically unlawful.
4. It was unnecessary to decide whether the unlawful search made the officer a trespasser ab initio. The magistrates found, and were clearly entitled to find, that there was a sufficient gap in time and events to make the search and the later assault separate and distinct.
5. At the time of the assault the officer was attempting to remove a police dog from a woman’s leg and restrain her. Preventing further violence and minimising harm were within his police duty. An officer acting for those purposes would be acting in the execution of his duty even if he had technically become a trespasser through an earlier unlawful search.
6. The court did not decide the difficult question whether the officer became a trespasser ab initio. The conclusion that the assault occurred while he was acting in the execution of his duty was sufficient to dispose of the appeal.

The judgment describes the matter as an appeal from the Brighton magistrates’ decision by way of case stated. The magistrates concluded that the search was justified under section 3(1) of the Criminal Law Act 1967, but that the search and assault were separate incidents and that the officer was acting in the execution of his duty. The Administrative Court upheld that conclusion and dismissed the appeal.