Elkington v Director of Public Prosecutions

For an offence of resisting or obstructing a constable, the constable must have been acting in the execution of his duty when the alleged resistance occurred. A constable has no general power physically to detain a person merely to obtain his details, decide whether to give a warning, or consider issuing a penalty notice. Detention for those purposes is unlawful and takes the constable outside the execution of his duty. Where the prosecution evidence, taken at its highest, establishes that the constable’s physical intervention was unlawful before the alleged resistance, there is no case to answer. A power that would have permitted an arrest, and an intention to avoid arrest, do not retrospectively make an unlawful detention lawful.

This was an appeal by way of case stated from the conviction of the appellant by Central Buckinghamshire Justices at Aylesbury Magistrates’ Court. The appellant had been acquitted of assaulting a police constable but convicted under section 89(2) of the Police Act 1996 of resisting him in the execution of his duty.

The constable had initially intervened after an incident involving the appellant and a police vehicle. After parking, he was still considering whether to give a warning, issue a penalty notice or take other action. When the appellant attempted to leave, the constable asked him to stop and took hold of his arm. The question was whether, at the close of the prosecution case, there was evidence on which a properly directed tribunal could convict.

1. Appeal allowed. The justices’ question was answered in the negative. There was no case to answer on the charge under section 89(2) of the Police Act 1996.
2. The relevant issue was whether the constable was acting in the execution of his duty when he took hold of the appellant. The evidence showed that he had not reached a settled decision to arrest or to take another lawful step. He wanted to detain the appellant to obtain his details and decide whether to give a ticking-off or penalty notice.
3. The constable had no power in those circumstances to compel the appellant to provide details or to detain him physically. Taking hold of him for that purpose therefore amounted to an assault. From that point the constable was no longer acting in the execution of his duty.
4. The principles in Donnelly v Jackman (1969) 54 Cr App R 229 and Collins v Wilcock [1984] 1 WLR 1172 supported the conclusion that physical contact must remain within generally acceptable standards of conduct. Whether contact is lawful is a fact-and-degree question, but the facts here could not support lawful detention.
5. The constable may have had power to arrest because of the initial incident, and his intention to avoid arrest was commendable. Neither fact rendered the detention lawful. The conviction could not stand.

• Central Buckinghamshire Justices, Aylesbury Magistrates’ Court: convicted the appellant under section 89(2) of the Police Act 1996 of resisting a constable in the execution of his duty, while acquitting him of assault.
• High Court (Administrative Court): allowed the appeal by way of case stated and answered the justices’ question no.