Pinkney v Director of Public Prosecutions

For recklessness in an assault offence, the prosecution must establish the defendant’s subjective awareness of the risk of applying unlawful violence and that the defendant nevertheless took that risk. An obvious risk is insufficient if the defendant did not actually foresee it. Injury to a police officer is not essential where the offence is based on the application of unlawful violence. On the facts found, unlawful force was applied during a struggle while the defendant resisted lawful arrest. A properly directed tribunal could only conclude that the defendant was at least reckless as to the application of that force.

The appellant appealed by way of case stated against two convictions at Willesden Magistrates’ Court for assaulting police constables in the execution of their duty. The convictions arose from a struggle after two officers attempted to arrest the appellant, who was trying to escape. The case stated was sparse and referred to minor injuries suffered by the officers. The central issues were whether unlawful violence had been proved, whether the appellant possessed the necessary mens rea, and whether the District Judge had applied an impermissibly objective test of recklessness.

1. Nature of the offence. Assault may involve causing the alleged victim to apprehend imminent unlawful violence, or, where the statutory language permits, the actual application of unlawful violence. The latter form of assault was the basis of the convictions. The prosecution also had to prove intention to apply violence or recklessness as to whether violence would be applied.
2. Actus reus. The District Judge was entitled to find that unlawful violence was applied during the struggle between the appellant and the officers as they attempted to carry out a lawful arrest. The officers’ minor injuries were peripheral. Their injuries were not essential to proof of the offence, and the possible alternative causes of those injuries therefore did not determine the appeal.
3. Recklessness. The applicable test was the subjective test in R v Cunningham [1957] 2 QB 396, as explained in R v G [2004] 1 AC 1034. The prosecution had to prove that the appellant actually foresaw the risk of applying unlawful violence by taking the relevant course of action and nevertheless took that risk. A defendant cannot be convicted merely because the risk would have been obvious to a reasonable person.
4. Application and disposition. The wording of the case stated created real uncertainty about whether an objective test had been applied. If that had been the test, the District Judge would have erred. Nevertheless, the facts found established an unlawful application of force while the appellant resisted lawful arrest. On those facts, a properly directed tribunal could only conclude that the appellant was at least reckless as to the application of force. The appeal was dismissed.

• High Court (Administrative Court): On an appeal by way of case stated, the court dismissed the appeal against convictions recorded at Willesden Magistrates’ Court on 26 February 2016.