LAVIN (RESPONDENT)
v.
ALBERT (A.P.) (APPELLANT)
Lord Diplock
Lord Simon of Glaisdale
Lord Keith of Kinkel
Lord Scarman
Lord Roskill)
Lord Diplock
MY LORDS,
This is a very much simpler case than it was made to appear to the
magistrates who tried it and to the Divisional Court to which an appeal
by way of case stated was brought by the appellant (Albert) against his
conviction by the Brentford Magistrates Court of an offence under section 51
of the Police Act, 1964, of assaulting a constable (the respondent, Lavin)
in the execution of his duty.
The relevant facts can be stated in three sentences. As a result of
incidents that occurred when Albert tried to ” jump the queue ” at a bus
stop, Lavin, a police constable who, at the time, was at the head of the
queue, off-duty and in plain clothes, had, as the magistrates found,
reasonable grounds for believing a breach of the peace to be imminent
unless he obstructed Albert from boarding the bus out of turn. Albert’s
conduct thereafter, while he was being restrained by Lavin, during the
course of which Lavin had said that he was a constable, was found by the
magistrates to amount to a continuing breach of the peace. After being
told that Lavin was a constable, a statement which the magistrates found
that Albert in his excited state honestly but unreasonably disbelieved, Albert
struck him five or six blows in the stomach. This constituted the assault
on a constable in the execution of his duty for which Lavin arrested him
and of which he was convicted by the magistrates.
Upon those facts and findings the magistrates’ court Stated a Case that
raised the two following questions of law for the opinion of the High Court :
” 8. THE questions for the opinion of the High Court are whether:
” (i) a constable who reasonably believes that a breach of the peace
” is about to take place is entitled to detain any person without
” arrest to prevent that breach of the peace in circumstances
” which appear to him to be proper
” (ii) a person being detained in the circumstances set out above but
” who does not accept that the person detaining him is a
” constable may be convicted of assault on a constable in the
” execution of his duty if he uses no more force than is
” reasonably necessary to protect himself for what he mistakenly
” and without reasonable grounds believes to be an unjustified
” assault and false imprisonment.”
My Lords, if in the first question the adverb ” reasonably ” be treated
as inserted before the verb ” appear ” (and it is apparent from the body of
the Stated Case that this was the magistrates’ intention) the answer to each
of these questions is ” yes “.
Unfortunately in the Divisional Court the appeal proceeded on the basis,
apparently undisputed by either party, that there was only one exception
to what Hodgson J., who gave the main judgment, called ” the well-
” established principle that to detain a man against his will without arresting
” him is an unlawful act and a serious interference with a citizen’s liberty “;
and that the sole exception was where the detention was effected by a
constable in the execution of his duty. This led the learned judge into
a lengthy and erudite consideration of what must be the state of mind of a
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person charged with assault, in order to enable him to rely upon the defence
of a mistaken belief that facts existed that justified the assault as the exercise
of a lawful right of self-defence of which he would have been entitled to
avail himself if the belief had been correct. Consideration of this question
involved reference in the judgment to more than a score of reported cases
on mens rea, ” subjective ” and ” objective ” tests and related topics, which
led Hodgson, J. to the conclusion that there must be reasonable grounds
for the mistaken belief, if it is to be relied on, as a defence.
With the correctness or otherwise of this part of the judgment of
Hodgson J. your Lordships are not concerned in this appeal. The question
to which it was directed simply does not arise. What had been overlooked
in the argument in the Divisional Court and in the written cases of both
parties that were lodged in this House, is that to the well-established
principle referred to by the .learned judge, there is an equally well-
established exception, not confined to constables, that is applicable to the
instant case. It is: that every citizen in whose presence a breach of the
peace is being, or reasonably appears to be about to be, committed, has
the right to take reasonable steps to make the person who is breaking or
threatening to break the peace refrain from doing so; and those reasonable
steps in appropriate cases will include detaining him against his will. At
common law this is not only the right of every citizen, it is also his duty,
although, except in the case of a citizen who is a constable, it is a duty of
imperfect obligation.
Upon the findings of the magistrates in the Stated Case this well-
established exception was plainly applicable to the instant case. It was
drawn to the attention of counsel at the opening of the hearing before your
Lordships, when it was pointed out that this House could not deal with the
appeal on the basis of an erroneous assumption as to the applicable law
even though in the court below the case had been argued and decided on
the basis that the erroneous assumption was correct. After an adjournment
to enable counsel to verify the accuracy of the proposition as to the citizen’s
rights and duties at common law when confronted with breaches or
threatened breaches of the peace, which I have stated above, counsel for
Albert conceded that upon a correct view of the applicable law he could
no longer pursue the appeal. Even if Albert’s belief that Lavin was a
private citizen and not a constable had been correct, it would not have
made his resistance to Lavin’s restraint of him lawful.
The Divisional Court certified that the following question of law of
general public importance was involved in its decision:
” Whether a person charged with an offence of assault may properly
” be convicted if the court finds that he acted in the belief that facts
” existed which if true would justify his conduct on the basis of
” self-defence but that there were in fact no reasonable grounds for so
” believing “.
My Lords, for the reasons I have given, the Divisional Court were
mistaken in thinking that that question of law was involved in the appeal
that they were hearing. It is a hypothetical question upon which it has
not been necessary, nor would it have been proper, for your Lordships to
hear argument; and your Lordships should decline to answer it.
I would dismiss this appeal.
Lord Simon of Glaisdale
my lords.
I have had the privilege of reading in draft the speech delivered by my
noble and learned friend on the Woolsack. I agree with it; and for the
reasons given I too would dismiss the appeal.
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Lord Keith of Kinkel
my lords,
I have had the benefit of reading in draft the speech of my noble and
learned friend, Lord Diplock. I agree with it, and for the reasons he gives
I would dismiss the appeal.
Lord Scarman
my lords,
I have had the advantage of reading in draft the speech delivered by my
noble and learned friend, Lord Diplock. I agree with it; and for the reasons
he gives I would dismiss the appeal.
Lord Roskill
my lords,
For the reasons given by my noble and learned friend, Lord Diplock,
whose speech I have had the benefit of reading in draft, I too would dismiss
the appeal.
Source: https://www.bailii.org/
