Dixon v Crown Prosecution Service

A constable may be acting in the execution of his duty while assisting an officer who is unlawfully detaining a person, where he reasonably believes that the person is about to use excessive force or commit an independent crime. The officer’s own reasonable beliefs, intentions and conduct are decisive; the defendant’s inability to distinguish between officers does not determine the legality of the assisting officer’s actions. The officer must nevertheless act for a proper policing purpose, within the general scope of his duty, and use only reasonable force. A defendant may use reasonable force to resist unlawful restraint, but unreasonable force remains an assault. The court may correct a conviction for an error of law that was not argued below, but should not remit the case merely to permit factual findings that could have been made earlier.

The appellant was convicted under section 89(1) of the Police Act 1996 of assaulting PC Dolling in the execution of his duty. The conviction followed his acquittal on allegations concerning two other constables. The Crown Court found that those officers had unlawfully attempted to detain the appellant, but that PC Dolling intervened because he reasonably believed that the appellant might be reaching for a weapon and might use unlawful force against the officers.

The Crown Court dismissed the appellant’s appeal and stated a case for the opinion of the Divisional Court. The central issue was whether PC Dolling was acting in the execution of his duty despite assisting officers whose attempted detention was unlawful.

1. Appeal and preliminary issues. The necessary extensions of time were granted. Although the appellant had not disputed below that PC Dolling was acting in the execution of his duty, that was an element which the prosecution had to prove. The court could therefore correct an error of law apparent on the facts stated. It would not remit the case for further factual findings that could have been made below, applying Kates v Jeffery [1914] 3 KB 160.
2. Applicable principles. The offence has two elements: an assault and an assault on a constable acting in the execution of his duty. A constable’s duty includes taking steps which reasonably appear necessary to keep the peace, prevent crime or protect property. The court must examine what the officer was doing, the officer’s reasonable beliefs and intentions, whether the conduct pursued a proper policing purpose, and whether the conduct was a lawful exercise of police powers. Force used to prevent crime must be reasonable. These principles were drawn from Rice v Connolly [1966] 2 QB 414, R v Waterfield [1964] 1 QB 164, McCann v Director of Public Prosecutions [2015] EWHC 2461 (Admin) and Albert v Lavin [1982] AC 546.
3. Application. PC Haroon and PC Bailey were not acting in the execution of their duty when unlawfully detaining the appellant. PC Dolling’s position was different. On the facts found, he reasonably believed that the appellant might use a weapon or excessive force, and intervened to prevent an independent crime and protect fellow officers. That provided an independent justification for his intervention. The result would have been different if he had used excessive force or continued after realising that no weapon existed.
4. The court distinguished Cumberbatch v Crown Prosecution Service and Ali v Director of Public Prosecutions [2009] EWHC 3353 (Admin) because the officers in those cases had no reason to believe that the defendants were using or about to use unlawful force. The defendant’s right to resist unlawful restraint depended on the reasonableness of his own force, not on his ability to distinguish between officers. The court also confirmed, following Oraki v Director of Public Prosecutions [2018] EWHC 115 (Admin) and Wheeldon v Crown Prosecution Service [2018] EWHC 249 (Admin), that self-defence may in principle be available according to the circumstances honestly believed by the defendant.
5. The appeal was dismissed. The court added that prosecutors should consider charging common assault in the alternative where the execution-of-duty element may be disputed.

• High Court (Administrative Court): The Divisional Court dismissed the appeal by case stated and held that the Crown Court was entitled to find that PC Dolling was acting in the execution of his duty.
• Crown Court at Harrow: The Crown Court dismissed the appellant’s appeal against conviction.
• Willesden magistrates: The appellant was convicted in relation to PC Dolling and acquitted in relation to PC Haroon and PC Bailey.