Is a constable acting within the execution of his duty if he asks a person to stop in order to question him?

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Is a constable acting within the execution of his duty if he asks a person to stop in order to question him?

Yes, said the High Court in Tester v Director of Public Prosecutions (CLW/15/34/2).

On the night of April 19, 2013, the defendant, Adam Tester, was in St Albans city centre at about 3am, together with a group of people. PC Scott and Sergeant Langley saw the defendant, who was under the influence of drink, approach a shopping trolley that had been left in the street but he walked away from it after seeing the police officers.

They later saw him walk in front of a taxi. Sgt Langley left his vehicle to talk to the defendant, who ran away. Although he initially set off to pursue him, Sgt Langley stopped very shortly afterwards with the defendant stopping and turning to come back in a compliant manner. However, before he returned to the officer, the defendant raised his little finger and told him to “fuck off” before turning and running away again. Having seen and heard this, PC Scott gave chase in the police car and he pulled up alongside the defendant.

The officer shouted at the defendant to stop, but he failed to comply with the instruction and ran off again. PC Scott pursued him and, having turned a corner, saw the defendant on the other side of the road, walking towards him and removing a black top he was wearing in what the officer considered to be an attempt not to be recognised. He asked the defendant to stop, later relating that this was because he was drunk and disorderly, obstructing the highway and drunk on the highway. The defendant then lunged at PC Scott and assaulted him.

The two officers between them then managed to subdue and restrain the defendant, who was arrested. He was later charged with and convicted of assaulting PC Scott in the execution of his duty. He appealed, arguing that PC Scott had not been acting within the execution of his duty when he had asked him to stop.

The court held that although a police officer has no power (absent any express statutory power) to detain a person to question him, where a constable requests a person to stop (with a view to questioning him, but with no view to arresting him), he will be acting lawfully and in the execution of his duty provided that he does not use force, or the threat of force, to make good his request. As it is what the officer does, rather than what he intends, that matters, he will be acting within the scope of his duty if he makes a request to a person to stop, intending to detain him for the purpose of questioning him, so long as he does not use or threaten force.

Moreover, the fact that a request to stop was only made after the officer had chased and caught up with the person being requested to stop did not carry with it an implied threat of force. PC Scott had therefore been acting lawfully and the defendant’s conviction was upheld.

CLW comment

The finding that there was no threat of force was, on the facts found by the justices, perverse. The defendant made it plain that he did not wish to stop or talk to the police. He was chased both by a police vehicle and on foot.

If a person walks