Marsden v Crown Prosecution Service

A police officer may enter or re-enter private premises within the scope of an occupier’s consent. The consent is construed according to common sense and the purpose for which entry was permitted. It may endure after the officer briefly leaves, particularly where the occupier continues to request police intervention and the circumstances have changed. The consent is not confined to removing a person where the officer may reasonably enter to assess the situation and continue enquiries. A person’s words revoke a licence to remain only if, objectively construed, they amount to a request to leave. Ambiguous abusive language will not revoke consent without a finding that it was intended and understood as such at the relevant time.

The appellant was convicted by Newton Aycliffe Magistrates’ Court of resisting a constable in the execution of his duty, contrary to section 89(2) of the Police Act 1996. The conviction arose after a police officer entered the appellant’s home with the consent of his partner, who was seeking police assistance in a domestic dispute. The officer left briefly and later re-entered after the appellant woke and shouted abuse through the window. The Magistrates found that the consent endured, permitted re-entry to continue enquiries, and was not revoked by the appellant’s words.

On appeal by case stated, the High Court considered whether consent was given initially, remained effective on re-entry, and was terminated by the appellant’s words.

1. The appeal was dismissed. The Magistrates had been entitled to find that the officer entered initially with the partner’s consent to speak to the appellant and establish the nature and extent of the domestic problem. The licence was to be construed in common-sense terms, having regard to the purpose for which entry was permitted.

2. The consent was enduring. The evidence showed that the partner continued to demand that the appellant be removed after the officer first left, and the Magistrates were entitled to find that consent had been reiterated. Re-entry to continue enquiries remained within the scope of that consent, notwithstanding that the officer was also motivated by his mistaken belief that the appellant’s conduct amounted to a breach of the peace.

3. The scope of the consent was not limited to entering solely to remove the appellant. In the changed circumstances, the officer could re-enter to assess the situation and continue dealing with the complaint. The reasoning in Friswell v Chief Constable of Essex Police, [2004] EWHC 3009 (QB), concerned entry without an occupier’s invitation and did not govern an entry made pursuant to enduring consent.

4. The appellant’s words did not terminate the licence. Whether words amount to a request to leave is an objective question, applying R (Fullard and others) v Woking Magistrate’s Court, [2005] EWHC 2922 (Admin). There was no finding that the officer understood the words as a request to leave at the relevant time, and they were equally capable of being mere abuse.

5. The High Court was required to exercise caution before disturbing factual findings. Such a finding could be overturned only if no reasonable tribunal could have reached it on the evidence. The alternative submission based on R v Thornley, [1981] 72 Cr App. R. 302, was not determined.

• High Court (Administrative Court): On an appeal by case stated, the court answered the Magistrates’ three questions in substance in favour of the prosecution and dismissed the appeal.
• Newton Aycliffe Magistrates’ Court: Convicted the appellant of resisting a constable in the execution of his duty.