Practice and Procedure


PUBLISHED April 8, 2003

In cordoning off a crime scene in a police investigation, the owner of the land could reasonably be assumed to have granted consent.Appeal by the Director of Prosecutions ('DPP') by way of case stated against the decision of Wood Green Crown Court allowing an appeal by the respondent ('M'), on the basis of no case to answer, against conviction by Enfield Magistrates Court for an offence of disorderly conduct contrary to s.5 Public Order Act 1986, and an offence of wilful obstruction of a police constable contrary to s.89(2) Police Act 1996. The police had cordoned off a crime scene in a public area. M had attempted to proceed through the cordoned off area and was stopped by a police officer. M challenged the police's right to prohibit him from entering the area. M was arrested and convicted. On appeal to the crown court it was held that the only statutory authority for setting up a cordon was to be found in the Terrorism Act 2000. The cordoned off land was privately owned, the consent of the owner had not been obtained and no warrant had been obtained. On that basis there was insufficient evidence that the police were acting in the execution of their duty when they arrested M. Similarly there was insufficient evidence that M had caused anyone harassment, alarm or distress and there was insufficient evidence of the necessary intention to make a case to answer. The questions for the opinion of the High Court were: (i) whether the crown court was wrong in law to have held that the police on the evidence in this case had no lawful power or authority to close the public right of way over private premises by a cordon and forcibly prohibit M from using the right of way on foot against his will; and (ii) whether the court was wrong in law to have held that M had no case to answer on both the charge of disorderly behaviour within the hearing or sight of a person likely to be caused harassment, alarm or distress contrary to s.5 of the 1986 Act and of wilfully obstructing a constable in the execution of his duty contrary to s.89(2) of the 1996 Act.HELD: (1) A constable was not acting in the execution of his duty unless he was acting lawfully. (2) When seeking to investigate crime police officers did not have an unfettered right to restrict movements on private land. However, the conclusion that the police were entitled to assume consent to act as they did on this occasion was not inconsistent with the law as laid down by the Police and Criminal Evidence Act 1984 and received support from the Codes of Practice for the searching of premises by police officers. The Code proceeded on the assumption that neither a search warrant nor actual consent was needed, because consent could properly be assumed. Provided that the police did not go beyond what was reasonable in the circumstances, routine scenes of crime searches could assume the owner's consent. (3) In the present case the police were entitled to assume consent. (4) The first question and the second part of the second question had to be answered in the affirmative. (5) The first part of the second question also had to be answered in the affirmative. There had been a premature resolution of the issue of intent. The fact that two police officers did not agree in relation to one issue of fact would not normally be regarded as a "classic ground for submitting no case to answer".Appeal allowed.

[2003] EWHC 683 (Admin)