(1970) 2 CLR 141
1970 October 1
[*141]
[VASSILIADES, P., JOSEPHIDES, LOIZOU, JJ.]
ANTHONY CASTELOW AND ANOTHER,
Appellants,
v.
THE POLICE,
Respondents.
(Criminal Appeal Nos. 3177-3178).
Police-Powers and duties-Arrest-Using force Powers to make arrest-Powers to use reasonable force on persons resisting arrest-Offence of disorderly conduct, contrary to section 1.88 (d) of the Criminal Code, Cap, 154, committed in a public place in the presence of police-Police constables intervening to keep law and order and arresting offenders-And using force on them while resisting arrest-Police constables in due execution of their duty-Therefore appellants rightly convicted, inter alia, of assaulting police constables in the execution of their duties contrary to section 244 (b) of the Criminal Code.
Arrest-Powers of police to make arrest-See also supra
Police-Use of force-See supra.
Police-Powers of arrest-Use of force-See supra
Public Place-In the definition clause (section 4) of the Criminal Code, Cap.154
Words and phrases-“Public place” within the definition clause (section 4) of the Criminal Code, Cap. 154.
Sentence-Sentence of fine and binding over for disorderly conduct in a public place, assaulting police in the execution of their duties and common assault-Sections 188 (d), 244(b) and242 respectively, of the Criminal Code, Cap 154-Appellants Young persons, of good character and first offenders-Sentences held to be manifestly excessive-Varied under section 145 (2) of the Criminal Procedure Law, Cap.55
Cases referred to:
Donnelly v. Jackman [1970] 1 W.L.R. 562, at p. 564;
Rice v. Connolly [1966] 2 Q.B 414, at p.419;
Reg. v. Waterfield [1964] 1 Q.B. 164 at p.170;
Pullen and, Another v. The Republic (reported in this Part at p. 13 ante; at p. 16 [*142]
The facts sufficiently appear in the judgment of the Court, dismissing the appeals against conviction but allowing the appeals against sentence.
Appeals against conviction and sentence.
Appeals against conviction and sentence by Anthony Castelow and Another who were convicted on the 1st June, 1970, at the District Court of Limassol (Criminal Case No. 2400/70) on various counts of the offences of, inter alia, disorderly conduct and of assaulting police, contrary to sections 188 (d) and 244 (b) of the Criminal Code, Cap. 154, respectively, and the first appellant was sentenced (by Boyiadjis, D.J.) to pay a total of £60 fine and the second appellant was bound over in the sum of £200 for two years to ‘come up for judgment
St McBride, for the appellant
S. Nicolaides, Counsel of the Republic, for the respondents.
The judgment of the Court was delivered by:-
VASSILIADES, P.: The two appellants before us, are husband and wife They are both quite young; the husband a serviceman of 24 years of age, stationed at Episkopi; the wife 20 years of age. They were convicted together with another young serviceman, in the District. Court of Limassol on June 1, 1970, upon a charge filed by the local Police, containing no less than nine different counts all arising out of an incident in a public bar, in the early hours of March 1, 1970. The husband was convicted on five counts; and sentenced to fines totalling £60. The wife was convicted on two counts; and was bound over in the sum of £200 for two years to come up for judgment and sentence, if called upon; she was also ordered to pay £6.800 mils costs. They both appealed against conviction; but in the end they were allowed by the Court to amend their notice of appeal so as to cover the question of sentence also.
The facts were strongly contested at a long protracted trial of no less than four days. Six witnesses were called for the prosecution and four for the defence, including the two appellants. It all turned round the conflicting versions of the, two sides, regar4ing, partly the original incident and mostly what happened when the police tried-and finally succeeded-to arrest the husband. [*143]
The trial, Judge went patiently and carefully into the matter. At this stage we find it unnecessary to deal with all the detail which was poured into the trial over an incident of this kind, at such cost of public time and private expense.
On Saturday evening, of February 28, the young appellants together with friends, mostly of their age, were enjoying their evening with drink, food, dancing and other such lively activities. They visited more than one place of entertainment. Well after midnight (in the early hours of March 1st), they were found at a bar referred to as Loftis Bar at Paphos road in Limassol. The Manager of the place stated in evidence that there were about 80 persons in his bar at the time.
At a certain stage, while the appellants were dancing together, they got involved into unpleasantness with another dancing couple, where the male partner was an employee of the Fisheries Department in Limassol, who gave evidence as P.W.1. As usual on such occasions, each side blamed the other for the ‘origin of the trouble and again as usual one must look into both versions in any attempt to reconstruct the scene. As this was not a serious part of the incident, we do not propose dealing further with it, excepting for the observation that dancing as he was with his wife, the husband-appellant was hardly likely to have started the trouble, as alleged by the other side.
Be that as it may, the first incident seemed to have subsided; only to be followed, however, by a second one, a little further away involving some more people, which caused the manager of the bar to telephone for the Police in the hope of preventing developments. In fact a party of four policemen in uniform arrived soon after, in a land-rover. That was at about 2 a.m.; but the place was still crowded with local and other people. There seemed to be no trouble when the police arrived.
The constable in charge approached the manager who explained what happened and eventually requested the police to stay there for a while, to prevent any repetition of unpleasant incidents. One of the policemen who gave evidence, noticed the appellant-husband making a sign to the Fisheries employee who thereupon walked up to the appellant asking him what did he want? The police kept near. The husband stood up raising his hand holding a glass and uttering an insulting expression. One, of the [*144] Policemen seized the raised hand and took the glass away. The scene then developed rapidly and rather violently. Excitement and physical force set in, overshadowing any good sense and self-discipline left. Drink was now apparently influencing the scene.
The husband-appellant resisted the police intervention. The second policeman got involved in the operation of getting the husband out of the bar. The wife joined on the side of her husband. There was pushing and pulling, with occasional hitting, in this move towards, the door; and in quite succession; another scene of violence followed outside the door of the bar, when the four policeman getting the better of the husband, were trying to push him into the police land-over, while the wife was struggling to take him away from them.
Eventually, husband and wife and policemen were all in the land-over driving to the police station. But apparently still making use of their youthful physical strength than their good sense, as violence and resistance (including occasional hitting and some kicking) seems to have continued in the vehicle until they all arrived at the station. Here physical violence subsided, giving its place to reciprocal accusations and complaints for the use of violence by the other side. Eventually the matter developed in the form of a police prosecution against the couple (the appellants now before us), and a friend of theirs, with a charge containing nine counts.
It was contended at the trial Court, on behalf of the defendants, that Loftis Bar, where the incident started, was not a public place; that, in the circumstances, the police had no right to arrest either of the defendants; and; therefore, the policemen were not acting in the due execution of their duty when they used physical force in arresting and removing the defendants; while the latter were legally entitled to use such force as it was necessary to resists the unlawful arrest. The defendants, moreover, complained that they were rough-handled and injured by the policemen.
The trial Judge after an exhaustive trial preferred the version of the prosecution. Talking the view that Loftis Bar was a public place, within the meaning of the expression in section 188(d) of the Criminal Code (Cap. 154), the Judge found that the husband-defendant was committing in the presence of the police, the offence of conducting himself in a manner likely to cause a breach [*145] of the peace in a public place, contrary to that section. He, therefore, held that it was the duty of the policeman, in whose presence the offence was being committed, to intervene in order to keep law and order; and that when the defendants resisted such intervention, using violence in doing so, the policemen were entitled to arrest the defendants; and to use such force as it was necessary for that purpose.
The material part of section 188 (d) reads:
“188. The following persons-
(a)…
(d) Every person who in any public place, conducts himself in a manner likely to cause a breach of the peace ; shall be deemed idle and disorderly persons, and are liable on conviction to imprisonment for one month or to a fine not exceeding £5 or to both.”
While on the statutory provisions, we may also refer to the meaning of “public place” in the definition section (sect. 4) of the Code.
“Public place: Includes any public way and building, place or convenience to which for the time being the public are entitled or permitted to have access either without condition or upon condition of making any payment…”
In view of this definition we have no hesitation in upholding the decision of the trial Judge that Loftis Bar was at the material time a public place within section 188 (d); rejecting the submission of Mr. McBride to the contrary.
Regarding the complaints of the defendants that they suffered injuries in the hands of the police, the trial judge “did not consider it necessary-as he said-for the purpose of deciding the guilt or innocence of the accused in the present case, to make a finding on, the question of who caused such injuries, especially in view of the fact that the evidence led in this matter is so conflicting”. We agree with the trial Judge that this was not one of the issues arising from the plea of the defendants.
In the end, the judge convicted the husband-defendant on five different counts ; and acquitted him of one. And [*146] convicted the wife on two counts. He sentenced the husband to £5 fine on the count for disorderly conduct; £25 fine on the count for assaulting one peace officer a further £25 for assaulting another peace officer and £5 for assaulting the Fisheries employee. He passed sentence on the count for public disturbance, as arising from, the same facts; and, as: already stated, he ordered the wife to be bound over in the sum of £200 for two years to come up for judgment if called upon, and to pay £6.800 mils costs.
In the appeal before us, the first point taken by Mr. McBride was that Loftis Bar was not a public place within section 188 (d) of the Criminal Code. We have already dealt with that point. The’ next point taken on behalf of the appellants, is that the policemen having no sufficient cause for intervention, were not acting in due execution of their duty ; and were, therefore, counsel argued, committing an assault on the husband when they tried to seize and arrest him. In these circumstances, he and his wife were within their rights-counsel submitted-in resisting an unlawful arrest by the use of such force as was necessary for their defence.
Attractive as that argument may appear to be for the academic lawyer, the matter turns primarily on the facts in each case. Far from wishing to encourage any unnecessary interference, by policemen when young people are seeking enjoyment in the energetic way of their age, we agree with the trial Judge that it was the duty of these peace officers to proceed immediately to the place in question when called ,by the manager to help in the maintenance of peace and good order; and once they were found in the place at that time of the night and in the circumstances described by the evidence, it was their duty, we think, to keep near the trouble-makers; and to intervene by seizing the raised hand holding the glass.
The husband-appellant offered violent resistance to this intervention by the policemen. There was imminent danger of breach of the peace; and the police rightly, we think, tried to hold him and to move him out of the place. The wife-defendant, apparently under’ the influence of drink and excitement, used physical force to obstruct the police in the performance of their duty.
When people take it upon themselves to act in that manner, they must be prepared to ‘expect that’ their violence will be met by the necessary force to keep them [*147] quiet; and to take them to the nearest police station. All parties who either choose or happen to get involved in such sort of conduct, must also bear in mind that their behaviour may eventually have to be discussed in a criminal trial ; and to be considered in the calm atmosphere of a Court.
There are numerous cases where Courts and Judges expressed themselves in this connection. Quite recently in Donnelly v. Jackman [1970] 1 W.L.R. (Part 15) 562 at p. 564, Talbot J. delivering the first judgment of the Queen’s Bench Division, in a case stated for the opinion of the Court regarding whether a Police Officer was acting in excess of . his powers (and therefore not acting in due execution of his duty) in stopping the prosecutor in the street and touching him on the shoulder on suspicion, the Judge cited the words of Lord Parker, C.J. (who was actually presiding on the Bench) in Rice and Connolly [1966] 2 Q.B. 414 at p. 419, where the Chief Justice said
“It is also in my judgment clear that it is part of the obligations and duties of a police constable to take all steps which appear to him necessary for keeping the peace, for preventing crime, or for protecting property from criminal injury.”
With all respect, we unreservedly adopt this clear and concise statement of the law regarding police duty when circumstances call for intervention. Needless to say that the power to make a lawful arrest should be exercised by a police constable sparingly and where this is really necessary. Moreover, it must be stressed that in arresting a person, a constable should do no more than is reasonably necessary for that purpose; and that, if he is compelled to make use of force, the injury that he may cause to a person who resists arrest, should not be disproportionate to the injury which the constable is trying to avoid. There is another useful citation, if I may say so with respect, in the same case, of the words of Ashworth J. in Reg. v. Waterfield [1964] 1 Q.B. 164, 170, which we need not repeat in this judgment. We are clearly of opinion that there is no substance in the appeals against conviction; and both appeals must be dismissed.
Coming now to the question of sentence we think that seen in its true perspective, the matter calls for intervention by this Court as the sentence is manifestly excessive in the circumstances. [*148]
The approach of this Court to sentences imposed by trial Courts is well settled. (See Pullen and Another v. The Republic (reported in this Part at p. 13 ante; at p. 16)).it has also; been said that sentencing is an important and delicate part of the Court’s function; and that the Court must be assisted in the performance of that function by all the information required for deciding on the appropriate sentence in each case.
Here the trial Court was dealing with two young persons of good character; both of them first offenders. They got implicated in an unpleasant incident for which they were not solely to blame; and into which we need not enter again. We do not think that the sentence imposed on the count for disorderly conduct (£5 fine) may be validly criticised. But the sentence on counts 2 and 3 (£25 on each count) practically amounts to £50 fine on this appellant for resisting the attempt of the police to arrest him by force and take him out of that place. It is true that the conviction is for assaulting the police; but we think that a charge for resisting the police would fit the circumstances in which the offence was committed, much better. For practically the same offences, the trial Judge ordered the wife to be bound over to come up for judgment, refraining from imposing any fine. Moreover, one may think that resisting the two police officers need not have been made the subject matter of two counts.
We do not think, however, that at this stage we should enter further into these technicalities. The trial judge preferred convicting on the counts as they stood in the charge ; and he split the fine between the two counts. Following the same course, we will split the fine. But we think that £50 is, in the circumstances, a manifestly excessive sentence. We think that the appropriate sentence is £20 fine, split between the two counts. As regards the fine for assaulting the Fisheries employee, we think that in tall circumstances, including the fines imposed on the earlier counts, the trial Judge should not have imposed any sentence on that count.
Coming now to the sentence on counts 7 and 8 concerning the wife, we take the view that a bond in the sum of £200 hanging over the head of the appellant-wife for two years is unjustified; and should be reduced to a bond in the sum of £25 for six months. With some difficulty we have decided not to interfere with the order for the payment of £6.800 mils costs against the wife. [*149]
In the result both appeals against conviction are dismissed. The appeals against sentence are allowed; and making use of our powers under section 145 (2) of the Criminal Procedure Law, we modify the sentences as follows:-
The first appellant (accused No. 1):
On count 1, £5 fine;
On count 2, £10 fine
On count 3, £10 fine;
On count 4, no sentence;
On count 9, no sentence:
The second appellant (accused No. 3): On counts 7 and 8, to be bound over in the sum of £25 for six months, to come up for judgment if called upon; and to pay £6.800 mils costs.
Appeals against conviction dismissed.
Appeals against sentence allowed.
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