Pegram v Director of Public Prosecutions

A police officer may make moderate physical contact to attract a person’s attention, but the contact must remain within generally acceptable standards of conduct. Whether the boundary has been crossed is fact-sensitive and depends on the purpose, duration, nature and context of the contact. In a borderline case, an appellate court should be cautious before disturbing the tribunal of fact’s conclusion where the findings provide an adequate evidential basis. A person cannot rely on self-defence against justified contact unless there is evidence of a further unlawful assault. A court may decide that fairness does not require a good-character direction where the evidence is limited, stale or incomplete and the case is resolved on direct evidence.

The appellant was convicted by Bristol Magistrates’ Court of assaulting a police constable in the execution of his duty. The Crown Court dismissed his appeal on 25 May 2018. After the recorder initially declined to state a case, that refusal was quashed on judicial review and three questions were directed to this court: whether the officer was acting in the execution of his duty when he took hold of the appellant; whether self-defence arose and was properly addressed; and whether the Crown Court misdirected itself on character evidence.

The central issues were whether briefly holding the appellant’s arm while giving a public-order warning was lawful contact, whether the evidence raised self-defence, and whether a good-character direction was required.

1. Disposition. The three questions were answered respectively yes, no and no. The appeal was dismissed.
2. Execution of duty. Under Police Act 1996, section 89(1), physical detention without violence and without an intention to arrest may amount to a technical assault. However, moderate and generally acceptable contact to attract attention is lawful. The same standard applies to a police officer and an ordinary citizen, but the context includes the officer’s duty to investigate crime. The decisive question is whether the contact persisted beyond generally acceptable standards or became physical restraint without lawful arrest.
3. The officer’s grip lasted longer than a momentary touch, but the issue was borderline. It was open to the Crown Court, as tribunal of fact, to find that the contact was made to secure the appellant’s attention for a warning, in a tense public situation, and remained within acceptable standards. The appellate court should be cautious before overturning such a finding where it was reasonably open on the evidence.
4. Self-defence. The Crown Court considered the issue and was entitled to conclude that no prima facie case was raised. The officer’s justified grip supplied no unlawful act against which self-defence could operate. The evidence did not support a theory that the appellant acted to prevent a further assault, and the contact with the officer’s face was found to be accidental but reckless.
5. Character. The appellant was not entitled to a full two-limbed good-character direction. Applying R v Hunter, the Crown Court had to decide whether fairness required a limited direction. It was entitled to place no reliance on the stale and incompletely described convictions, particularly where the case turned on the direct evidence of the two principal participants. No misdirection occurred.

• High Court (Administrative Court): answered the stated questions yes, no and no, and dismissed the appeal.
• Crown Court at Bristol: dismissed the appellant’s appeal and upheld the conviction on 25 May 2018.
• Bristol Magistrates’ Court: convicted the appellant on 22 February 2018.