The magistrates' court had erred in holding that police officers had not been acting in the execution of their duties when temporarily restricting the movement of the respondent during the course of a drugs search on property and persons. There was no general power of arrest for obstructing a police officer in the execution of his duty.Appeal by the Director of Public Prosecutions ('DPP') by way of case stated against the decision of Mid-Sussex Magistrates' Court on 11 February 2003 to uphold a submission of no case to answer by the respondent ('M') in respect of charges of obstructing and assaulting a police officer in the execution of his duty. M had been present during the search of a two-storey property, undertaken pursuant to warrants issued under s.15 Police and Criminal Evidence Act 1984 and s.23 Misuse of Drugs Act 1971. The warrants extended not only to the property but to persons found within it. The method of the search was that a room was searched and, if found to be "sterile", could be used temporarily to contain persons that had already been searched. M was detained in a bathroom. He was asked to move into a bedroom that had been searched but refused. He was then forcibly guided into the bedroom. Once there, M ran at the police officer guarding the door and subsequently threw a cigarette lighter at the officer. M was charged under ss.89(1) and 89(2) Police Act 1996 with assaulting and wilfully obstructing a police officer in the execution of his duty. Before the magistrates, M made a submission of no case to answer that was upheld on the basis that the police officers had not been acting in the execution of their duties because, following Chief Constable of Thames Valley Police v Hepburn (2002) EWCA Civ 1841, they had had no power to detain M by restricting his movement and such restriction amounted to false imprisonment. On this appeal the DPP argued that: (i) Hepburn (supra) was distinguishable from the present case as the warrant in the former case had only extended to property and not to persons; (ii) the Code of Practice issued in respect of the 1984 Act regulated the conduct of officers during the course of a search and echoed the power in s.117 of the 1984 Act of officers to use reasonable force; (iii) the magistrates had failed to have regard to s.117 of the 1984 Act and for the need to balance the right of individuals to move freely against the need for any search to be effective; (iv) in any event, the court in Hepburn had erred in holding in paragraph 14 that if a person obstructed a police officer in the execution of his or her duty an offence was committed and a power of arrest arose, because in fact the offence under s.89(2) of the 1996 Act was not an arrestable offence and it was only if the general arrest conditions of s.25 of the 1984 Act were satisfied that a power of arrest arose.HELD: (1) The magistrates' reliance on Hepburn was misplaced and they had plainly been led into error. The crucial distinction between that case and the instant case was that in the former the search had been limited to property. The search in the present case included persons and property. There was a power to detain under s.23 of the 1971 Act and whilst the primary focus of s.117 of the 1984 Act was entry to premises, the section plainly extended to that which happened after entry and during the course of a search of property and persons. (2) Whether the force used in any case was reasonable depended on the facts and was to be gauged in the context of the purpose for which the search was carried out. The burden was on the police to show that the force used had been necessary and reasonable. Moreover, a search had to be effective and could not be so if persons were allowed to move freely during its currency. It was plain that it was reasonable to use force to restrict persons whilst a search was going on. (3) Whilst it was not for the Divisional Court to question the conclusion reached in Hepburn the reasoning in paragraph 14 might on a future occasion merit consideration. In any event, contrary to the observations there, there was no general power of arrest for obstructing a police officer in the course of his duty.Appeal allowed.
 EWHC 3005 (Admin)