Case No CO/3949/2016 
Neutral Citation Number: [2017] EWHC 854 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT 
Royal Courts of Justice 
Strand
London WC2A 2LL 

Date: Friday, 3 March 2017
 
B e f o r e: 

SIR WYN WILLIAMS 
(Sitting as a Judge of the High Court) 

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Between:
 
PINKNEY 
Appellant

v 

DIRECTOR OF PUBLIC PROSECUTIONS 
Respondent 
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Ms Natalie Csengeri (instructed by Powell Spencer & Partners) appeared on behalf of the Appellant 
Mr Leslie Chinweze (instructed by the Crown Prosecution Service) appeared on behalf of the Respondent 
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J U D G M E N T (Approved) 
1.	SIR WYN WILLIAMS:  This is an appeal by way of case stated against convictions recorded at the Willesden Magistrates' Court on 26 February 2016.  On that date, the appellant pleaded guilty before District Judge Jabbitt to an offence of attempted burglary and he was found guilty of two separate offences of assaulting two police constables in the execution of their duty.  This appeal is brought against those latter two convictions.
2.	I should say at the outset that the case stated is somewhat sparse in its recital of the relevant facts as found by the District Judge.  I say that with some hesitation, since there have been many instances where this court has urged those responsible for drafting cases to focus appropriately upon the relevant facts and the questions to be answered and has deprecated the practice of reciting large chunks of the evidence given before the tribunal.
3.	Nonetheless, it is important to recognise that appeals of this kind do depend for a just resolution upon there being a concise but nonetheless detailed account of the facts found and said to support the conviction in the particular case.  One of the difficulties facing counsel appearing today and me is that, to repeat, the findings of fact in this case stated are unduly sparse.
4.	Because that is the case and because I have to maintain a sense of proportionality in an appeal of this sort, I take the view that I should rely upon those facts which are explicitly found but, where it is permissible so to do, to draw reasonable inferences as to what must have been the facts found by the District Judge in order to make sense of this appeal.
5.	The facts as I find them to be, taken mainly from the case but (as I have said) with a degree of amplification by way of proper inference, are these.  On 23 December 2015, a report was received by the police that a person was attempting to gain entry to premises at Bittacy Hill, which is in northwest London.  Two police constables in uniform attended the scene and came upon the appellant.
6.	Either immediately, or very shortly thereafter, they identified themselves as police officers and given the activities which they observed that the appellant was undertaking they immediately attempted to arrest him.  The appellant did not wish to be arrested; he attempted to run away.  The police officers followed him and there came a point when they apprehended him.  Thereafter a struggle ensued between the two police officers and the appellant which no doubt came to an end once the officers had taken the opportunity to subdue the appellant.
7.	By the end of the sequence of events which occurred as I have just described the officers had suffered minor injuries.  The fact of those injuries appears to have been of some significance in the mind of the District Judge, since they are mentioned on more than one occasion in the case stated.  Strictly, however, in respect of the two charges of assaulting police officers in the execution of their duty, the fact of injury was irrelevant.  It may be that the focus upon the injuries in this case has led to an unnecessary complication of what on the face of it from the recital of the facts which I have just given was a comparatively simple case.
8.	Let me turn from the facts to some, I hope, uncontroversial legal principles.  In law an assault is constituted if two elements are proved.  The first element to be proved is that an accused does an act which causes the alleged victim to apprehend that he is about to be the victim of unlawful violence.  The second element is that at the time that the act is committed the accused intends to cause the victim to apprehend that he would be the victim of unlawful violence, or he is reckless as to whether the victim will have that apprehension.  
9.	Strictly, an assault is to be distinguished from the offence of battery.  The offence of battery occurs when actual violence is perpetrated upon the victim.  That said, sometimes the word "assault" is used in a statutory provision in a way which connotes not just the apprehension of violence; in some instances, the word "assault" is used to describe actual violence.  So it is that the offence of assaulting a constable during the course of his duty can be committed if an accused does an act which causes the officer to apprehend unlawful violence.  It can also be committed if an accused does an act which has the effect of visiting unlawful violence upon the officer.
10.	I have no doubt that in this case it was the latter formulation of the offence which was before the District Judge.  In simple terms, what was being suggested was that during the course of a struggle between the officers and the appellant when the officers were lawfully attempting to arrest the appellant, he inflicted unlawful violence upon them.
11.	However, before the offence of assaulting the officer in the execution of his duty could be proved, it was also necessary to prove the relevant mental element.  There is no dispute between the parties that in this case that meant that the prosecution would have to prove that at the time of the act in question the appellant either intended to visit violence upon the officer or was reckless as to whether they would suffer such violence.
12.	I turn first to the issue of the actus reus of the offence, namely the infliction of unlawful violence.  As a matter of common sense, violence could only have been inflicted in the context of this case during the course of a struggle between the appellant and the police officers.  That was the factual basis put forward, and from all that I have read and heard that was the only conceivable factual basis for the unlawful infliction of violence.  
13.	Although the case stated is sparse as to the context of the struggle and what precisely occurred, it does seem to me to be clear that the District Judge was finding that a struggle occurred and that unlawful violence was inflicted during the course of that struggle.  Read as a whole, in my judgment that is the only proper understanding of the case stated.  In my judgment on the basis of the case, the submissions of the parties before me, and again, exercising a degree of common sense when drawing sensible inferences, it seems clear to me that that could have been the only basis upon which it was being suggested that the appellant inflicted violence upon the officers.
14.	I should pause at this point to deal with the issue of the injuries sustained by the officers.  I am persuaded by counsel for the appellant that in the sequence of events which occurred it is at least possible that the minor injuries which the offers sustained could have been caused other than by unlawful violence.  It seems clear that the officers chased the appellant at some point, and although it is not part of the case stated it seems clear too that there was evidence before the District Judge as to alternative possibilities as to how the injuries could have been sustained.  If injuries were crucial to this case, I would have very significant doubts about whether the case revealed sufficient factual foundation for injuries being caused by an assault.  
15.	However, as I have stressed, the injuries are not crucial to a finding of guilt in this case.  In truth, they were peripheral issues, although as it seems to me they probably assumed a greater significance than was justified during the course of the hearing below.  I am satisfied from the facts found and properly to be inferred that the District Judge was entitled to conclude that the actus reus of the offence of assault was committed by the appellant.
16.	I turn therefore to whether the relevant mens rea was also proved.  At one level, it is difficult to imagine how the appellant could not have intended to apply unlawful force to the officers if, as the District Judge found, he was struggling to resist his arrest.  However, I do not found my decision on that basis, since it is clear that the issue of recklessness did become one of significance during the course of the hearing below, and in terms the District Judge said that he based his finding of guilt on a finding that the appellant had been reckless.  That is made clear from paragraph 4(ix) of the case stated.  That leads me to the principal point taken by counsel for the appellant before me this morning, namely that in reaching the conclusion that the appellant had acted recklessly, the District Judge applied the wrong legal test.
17.	In this appeal, the parties agree that recklessness in the offence of assault would be proved against the appellant only if the test as set out in the decision in Cunningham [1957] 2 QB 396, as explained in R v G [2004] 1 AC 1034, is satisfied.  For present purposes it is sufficient if I formulate that test as follows:  Recklessness against the accused or the appellant would be proved in this case only if the District Judge was satisfied that the appellant actually foresaw the risk of visiting unlawful violence upon the police officers by taking a certain course of action, yet he went on to take that risk.  
18.	For the appellant, it is argued strongly that that was not the test applied by the District Judge.  Counsel submits that the District Judge applied an objective test in judging whether or not the appellant was reckless.  In making that submission she draws particular attention to paragraphs 4(viii) and (ix) of the case and the second question which was posed by the District Judge for the opinion of the High Court.  I will return to paragraphs 4(viii) and (ix) in a moment.  
19.	Let me first deal with the second question.  It is in these terms: 
"Even though the current legal position is that there must be subjective awareness of an unreasonable risk that does not mean one can avoid liability, absent special circumstances such as age or mental disorder, by asserting you did not appreciate a risk when it was obvious?"
In terms, in my judgment, that does seem to be suggesting that a person may be convicted of an assault on the basis of recklessness even though he did not appreciate the risk, provided the risk was obvious.  If that is the thrust of the question, in my judgment the answer to the question is that a person cannot be so convicted on that basis.  It is now clear, as I have said, that the court must examine the state of mind of the accused himself.  It is his subjective awareness which is important, not what would be objectively justified.
20.	If the District Judge did apply that test, namely the one apparently formulated in his second question, then in my judgment he fell into error.  However, it is far from clear to me that that was the test which he did apply.  One might ask rhetorically, well, if he did not apply that test, why is he asking the question ‑‑ a powerful point made on behalf of the appellant.  The answer may be simply that the District Judge wanted guidance from this court.
21.	In order to ascertain the test which was applied, one needs to read paragraph 4 of the case stated with considerable care.  There are aspects of it, particularly in paragraph 4(viii) which suggest that, at least to an extent, the District Judge was applying an objective test, i.e. what would have been obvious to a reasonable person.  There are aspects which suggest that he was applying a subjective test in accordance with Cunningham and G, in particular to be found in paragraph 4(ix).  The introduction to the question which the District Judge asked with which I have just dealt appears to demonstrate that he understood that the law was as set out in Cunningham and G since, to repeat, he begins by saying that the current legal position is that there must be a subjective awareness of an unreasonable risk.  
22.	I am sorry to be critical to an extent as to the drafting of the case but I find myself in considerable difficulty in ascertaining precisely what test the District Judge applied, not least because of the way in which paragraphs 4(viii), 4(ix) and the second question are formulated.  If the District Judge was applying an objective test, to repeat, he fell into error.  It is at least possible, however, that he was not.
23.	If matters remain there, with a considerable degree of reluctance I would allow the appeal and remit the case for a re‑hearing.  However, it is incumbent upon me to exercise proper consideration to the interests of justice when reaching a conclusion as to the final disposition of this appeal.  I am satisfied that the District Judge found as a fact that there was an unlawful application of force by the appellant upon the police officers during the course of a struggle between the officers and the appellant.  That struggle was ensuing because the appellant was attempting to escape from a lawful arrest.  I am satisfied that the judge found that an unlawful application of violence took place in those circumstances.  That being so, a properly directed District Judge or lay magistrate could only have concluded that the application of the force occurred at a time when the appellant was at least reckless as to its application.  In my judgment no other sensible conclusion is open on the facts found by the District Judge.
24.	Accordingly, notwithstanding that I have reservations about whether the District Judge applied the correct test, not least because he may have been deflected in his application of the test by the issue of how the injuries were caused, I have reached the conclusion that the answer to the first question posed, namely whether the facts found amount to the offences alleged in law, is yes.  That, in my judgment, was the only proper conclusion on the facts found in this case.  Accordingly, I dismiss this appeal.
25.	Thank you both very much for your submissions. 
26.	MS CSENGERI:  My Lord, just to make sure, the appellant is covered by legal aid.
27.	SIR WYN WILLIAMS:  That is fine.  It is part of the order now.
28.	MS CSENGERI:  I do not know whether a specific declaration has to be sent in terms of details? 
29.	SIR WYN WILLIAMS:  If it is necessary, I will make the order that you seek in terms of legal aid funding.
30.	MS CSENGERI:  I am grateful, thank you.
31.	SIR WYN WILLIAMS:  Mr Chinweze, even if you were going to ask for costs, in the light of this rather unusual case I would be inclined not to grant them to you.
32.	MR CHINWEZE:  Thank you, my Lord.
33.	SIR WYN WILLIAMS:  Thank you very much.