Obstruction of the Police. An unpleasant (and odd) case that suggests that if the police have a right to use force to admit entry, then refusal to admit entry can amount to obstruction.
This case has been reported (though not transcribed in full) in [1993] CrimLR 534 and [1993] COD 430. These are the references which you are supposed to use in court, and you read them out as “1993, Criminal Law Review, page 534” and “1993, Crown Office Digests, page 430” respectively. I have a copy of the CrimLR report (which includes a commentary), but no transcript.
Lunt had got out of his car after an accident. The police then went to his address, and threatened to use force to enter his property unless he opened the door to them. He refused to admit entry. The police then forced entry and arrested Lunt on suspicion of driving whilst unfit through drink.
Lunt was convicted of obstruction of the police (presumably by a local magistrates’ court: the report does not say whether he then appealed to Crown Court or not, though it makes no legal difference). He appealed by ‘case stated’ (i.e. on a matter of law) to the Divisional Court, which rejected his appeal and upheld the conviction.
Lunt’s appeal appears to have been based on two things:
•Lunt’s alleged obstruction was a default (failing to open the door), and so could not amount to an obstruction under the act unless he had a legal duty to open the door to the police, which he did not. (This follows the judgments in Rice v Connolly and Dibble v Ingleton, both of which are the subject of separate TP briefings.)
•When they forced entry, the police did not first set out the legal authority on which they were acting, and so Lunt had a right to refuse admission to them, at least until they told him on what legal grounds they intended to enter.
The case was lost on both grounds. On the first ground, the fact that the police had a statutory power to force entry (under section 4 of the Road Traffic Act 1988) meant that there was an implied duty on the occupier to admit the police. The summary in Criminal Law Review states:
It was conceded that the appellant was not entitled to keep the police officers out—that was inevitable from the statutory power conferred upon the police of a right to enter. That must pre-suppose a duty on the occupier to admit and the failure to admit is, depending upon the facts and circumstances of the particular case, capable of being wilful conduct by omission. (From summary of judgment of Rose, LJ, and Waller, J)
The commentary on the case, while pointing out that “liability for omissions is exceptional in the criminal law,” says that it has been held in other cases that “the conferment of powers and the imposition of duties on the police may impliedly impose duties on others to act so as not to prevent the exercise of those powers or the performance of those duties.”
The second defence point was also lost, and the judges ruled that Lunt had no right to be told of the “precise legal authority” under which the police were acting. The commentary clearly thinks this is wrong, and contrasts the strictures on the use of force to gain entry to premises in Swales v Cox,[note] as well as quoting from Harding v Price,[note] in which Lord Goddard, CJ, said, “. . . there is all the difference between prohibiting an act and imposing a duty to do something on the happening of a certain event. Unless a man knows that the event has happened, how can he carry out the duty imposed?”
This is a nasty case, because it could be used to suggest that whenever the police have a right to use force, there is a corresponding duty to comply on our part. In that case, non-compliance, even if completely passive, could be deemed to be ‘obstruction of the police’.
However, it is clearly not a judgment that is unambiguous legally, and the point about liability for omissions being exceptional should be made if it is used against you. Also, if not used for forcing entry into a building, you can argue that it need not apply in all cases in which the police can use force. For instance, the police have a right to use force to take fingerprints or non-intimate DNA samples (in some circumstances), but a distinction is made in PACE between such samples on the one hand and, on the other hand, both intimate samples (where refusal to give consent can be made known to a court) and samples taken for a Class A drugs test (where refusal to consent is a specific offence). Surely (?) these distinctions would not be made if there was an implied legal duty to give the samples in each situation.
Anyway, as the case has not been widely reported, perhaps it won’t be used too often!
© Copyright 2001, Andrew Gray
What, “copyright”! Isn’t copyright evil? [ You better read these notes]
This briefing was written by me (with or without help from others) for Trident Ploughshares, but may be used freely and copied/distributed by others. In order to guarantee this freedom, the briefing is copyrighted and licensed under the GNU Free Documentation License (formal license statement follows).
Permission is granted to copy, distribute and/or modify this document under the terms of the GNU Free Documentation License, Version 1.1 or any later version published by the Free Software Foundation; with no Invariant Sections, no Front-Cover Texts and no Back-Cover Texts. A copy of the license is included in the section entitled “GNU Free Documentation License.”
I am not a lawyer. The briefing is not guaranteed in any way, and is not a substitute for proper legal advice. Feedback and corrections are very welcome, phone 0845 4588 368, email andrew@andrewgray.uklinux.net.
Andrew Gray, TP legal support (England & Wales)
This briefing was last revised: 12/10/2001
(See the changelog and authorship page for revision details.)