Porter v Metropolitan Police

Breach of the peace – Civil trespass – Appellant remaining on showroom premises after being requested to leave – Appellant refusing to leave premises – Showroom requesting attendance of police – Police arresting appellant for breach of peace – Whether police entitled to act as agents for showroom when removing appellant – Whether arrest for breach of peace lawful

JUDGE LJ: This is an appeal from the decision of His Honour Judge Cowell and a jury sitting in the Central London County Court on 18 June 1998, dismissing the plaintiff’s claim for damages against the Commissioner of Police for the Metropolis for assault, battery, wrongful arrest, false imprisonment and malicious prosecution.

In the summer of 1993 the plaintiff made arrangements to leave her home in Cricketfield Road, Hackney and move into a new flat at 7 Crowndale Court. It was anticipated that her new tenancy would begin on 21 June. In preparation for the move she paid £100 to the London Electricity Board (‘LEB’) as security towards the cost of supplying electricity to the flat. Arrangements were made for the supply to be connected on 17 June. So she spent the day waiting at Crowndale Court for the electrician. Maddeningly, no one came.

At 13 33 on 18 June, accompanied by her infant son and three year old daughter, the plaintiff went to the LEB showroom in Kentish Town. At that time she did not enjoy the best of health. Rheumatoid arthritis had been diagnosed, and she was suffering from symptoms caused by carpal tunnel syndrome in the right hand. At the showroom she made her complaint. She was told that an electrician had been to the flat but had been unable to obtain access. She rejected that explanation because she had been present at the flat throughout the previous day, waiting for him. Although the judge proceeded on the assumption that this was accurate, at the time of her visit the staff at the showroom were adamant that an electrician had called at the flat, without receiving any response. Accordingly the plaintiff was told that the supply of electricity to her flat would not be arranged unless she paid an additional £17.50 and that the supply would, in any event, be postponed for a further three days.

The plaintiff was not prepared to accept liability for a further payment. She demanded that arrangements should be made for electricity to be supplied at her flat immediately, at no extra charge, and refused to leave the showroom until they were. She said that if necessary she was prepared to wait in the showroom all night. The staff on duty, proceeding on the basis that the failure to connect electricity arose because she had not been present to answer or had not answered the electrician’s call, refused to accept this ultimatum. The deputy manager on duty told her that if she did not leave by closing time then the police would have to be called, and it was not disputed that the plaintiff herself said:
“then you may as well call them now.”
As part of normal security arrangements at the showroom a video recording of events from her arrival until she was ejected at 14 45 was made, by three cameras in rotating succession. In the early stages the video recording, lacking sound, suggests the clash of wills, without showing any threatening gesture, or alarm, or concern among those involved, or indeed among other customers who were present.

At 14 02 the police at Kentish Town received a message from the LEB showroom:
“female refusing to leave premises.”

Two male officers went to the showroom, where they tried to mediate a peaceful resolution of the problem. One of them contacted LEB head office by telephone. They also spoke to the deputy manager and the plaintiff. Their efforts were unsuccessful. The plaintiff remained adamant that she would not leave the premises and, the LEB was not prepared to waive the further charge. Faced with this deadlock the male officers asked for assistance from two female officers who arrived at the showroom at about 14 20. Again they did their best to sort out the problem, again without success. The LEB refused to waive the additional payment and the plaintiff insisted on remaining in the shop until matters were resolved as she required. The deputy manager of the LEB requested the police to remove the plaintiff from the premises. The police tried to persuade her to leave, but she refused. They explained that they would, if necessary, have to use force to eject her from the premises, but she remained resolute.

An unpleasant and distressing incident then developed. The plaintiff physically resisted the police efforts to remove her from the chair on which she was sitting, by wrapping her legs around it. Her baby was carefully removed from the plaintiff’s arms. An officer looked after him, and the plaintiff’s little girl. There was then a struggle in the course of which four police officers tried to carry the plaintiff out of the showroom. She resisted. In the course of the struggle the group crashed into a wall and some of them, including the plaintiff, ended up on the floor. There she was handcuffed and eventually carried out of the showroom in the ‘chair position’.

The plaintiff had been in the showroom for 1hr 12mins. The struggle had lasted for approximately three minutes. None of the officers suggested that he, or she, had been deliberately struck or received any injury in the showroom, and there was no damage to property. In fairness to the officers who participated in this operation, the video provides an overwhelming impression of a calm, measured response to an unpleasant situation, with the minimum use of force consistent with their perceived obligation to remove the plaintiff from the showroom. As to the plaintiff, Mr Blaxland, on her behalf, accepted that she was doing all that she could to make it difficult for the police to remove her and that she was offering a degree of resistance to their efforts. On the basis of these concessions, and the evidence of the video, it would be a misuse of language to describe her as passive.

After the plaintiff had been carried outside she was placed in a police van. Rejecting her evidence, the jury found that she was informed at the showroom or in the police van, or both, that she was under arrest for breach of the peace. It was common ground that on this finding the officer who told her that she was under arrest was PC Ridley and that he did so after the struggle and commotion began.

It was alleged that once in the van the plaintiff bit PC Ridley. She admitted that this could have happened, accidentally. She accepted that if she had done so, the officer himself would have been entitled to believe that it had been deliberate. The fact that PC Ridley was bitten was confirmed by a medical examination later that afternoon. Photographs of the mark caused by the bite have been shown to us.

The plaintiff gave evidence that as she sat in the van, handcuffed, with her legs on the floor, police officers ‘had their feet’ on each leg and ignored her request to remove them. No suggestion of consequent injury was made. She also spoke of the pain caused to her as she was removed from the van and at the police station. Hardly surprisingly perhaps, because the defendants focused on the plaintiff’s continuing struggle in the van, culminating in the bite inflicted on PC Ridley, at trial these issues occupied a minute proportion only of the lengthy hearing,

The plaintiff was driven to Kentish Town Police Station and there detained for nearly four hours. The jury found, further, and again rejecting her evidence, that she was informed at the police station by the officer she had bitten that she was also under arrest for assault on the police. After being charged with assault on a police officer in the execution of his duty, she was released on bail. Shortly before the return date, she was informed by the Crown Prosecution Service that the prosecution would not proceed.

The electricity supply to 7 Crowndale Road was connected on 19 June, and the plaintiff and her family moved in to their new home one week, or so, later.
Several issues canvassed before the judge were repeated on appeal. To summarise, the judge concluded that the plaintiff’s continued presence in the showroom after employees of the LEB had told her to leave amounted to trespass. The police were therefore acting lawfully in using reasonable force to remove the plaintiff at their express request. The judge further held that when she resisted the efforts to remove her, her behaviour amounted to a breach of the peace and the police were entitled to arrest her.

Each of these rulings is criticised. It is argued that the plaintiff was entitled to remain in the showroom to enforce her statutory right to be supplied with electricity. Alternatively, it was contended before the judge that she was protected from any potential liability for trespass because she was acting out of necessity, to protect not only herself, but also her very young children. However even if she was a trespasser, the police were not entitled to act as agents for the LEB and use reasonable force to remove her from their premises. In any event her arrest for breach of the peace was unlawful. She did no more than resist police attempts to remove her from the showroom when the force used by them was unreasonable.

The judge ruled that there was no such evidence, either in the process of her removal, or inside the police van after her arrest. Further, in view of the plaintiff’s concessions, and the unchallenged evidence about the bite, there was nothing to suggest that PC Ridley lacked an honest belief that she had assaulted him. Therefore in relation to malicious prosecution, there was no issue for the jury.

Mr Blaxland’s further criticisms of these rulings were that the question whether unreasonable force was used by the police within the van itself, and the question of malicious prosecution, should both have been decided by the jury.

The Plaintiff as a Trespasser

Without analysing the historic origins of the civil law of trespass to land, at a very early stage in the development of the common law it was recognised that even apparently harmless intrusions onto land, without permission, can for no apparent reason escalate into troublesome disturbance, commotion and violence.

Permission to enter their premises is nowadays habitually given by owners of shopping malls, shops and stores, showrooms and offices to the public as a whole, and they are indeed usually at some pains to make their premises attractive and inviting to potential as well as actual customers. Nevertheless the owner of shop premises remains entitled to revoke the permission of any customer to enter or remain on the premises. When this right is exercised, and the customer has been requested to leave, his continued presence after a reasonable time amounts to trespass, and the owner of the shop is in his turn permitted to take reasonable steps to end the trespass by ejecting or arranging for the removal of the trespasser. At this stage, trouble and commotion, if not inevitable, are certainly possible, sometimes, depending on the customer and his or her reaction to the situation or to the owner or his employees, likely. And so the shop owner is probably wise, and certainly not open to criticism, if he asks for help from the police, whose experience of troublesome situations is much greater, and whose presence, can sometimes by itself, defuse the tension. In the interests of everyone at the scene, the peace may well be preserved when it might otherwise be broken.

Mr Blaxland suggested that the plaintiff never became a trespasser. He submitted that the showroom was open to customers to facilitate the performance by the LEB of its statutory duty as a public supplier of electricity within the Electricity Act 1989. It followed from this obligation that the LEB could not, at will, revoke the plaintiff’s licence to enter and remain in the showroom and accordingly could not eject or arrange for her ejection unless she was acting unreasonably.

Our attention was drawn to an interesting article by Kevin Gray and Susan Gray, Civil Rights, Civil Wrongs, and Quasi Public Space, [1999] EHRLR 46. This study of the circumstances in which private bodies operating in quasi-public places may refuse access to members of the public contrasts:
“the position in the English law of trespass, which permits arbitrary exclusion, with the approach as taken in the United States, Canada and Australia where the courts have recognised a doctrine of reasonable access, under which owners of quasi-public property may exclude members of the public only on grounds that are objectively reasonable.”

The thesis is that the approach to this problem in the United Kingdom and its:
“unqualified enforcement of private property rights is out of step with the approach taken in other common law jurisdictions, and . . . the law of trespass, as it applies to quasi-public spaces, needs to be modified to take account of rights of free movement and rights of assembly.”
Mr Blaxland illustrated his argument in support of the thesis by referring to Allnutt v Inglis [1810] 12 East 527 (where a warehousing monopoly, rather than trespass to land, was under consideration), and the obligations of the inn keeper at common law to provide accommodation for travellers, (graphically described by Professor Milsom in his Studies in the History of Common Law, as a ‘mysterious custom of the realm’). He also sought support from the decision in Cinnamond v British Airports Authority [1980] 2 All ER 368, [1980] 1 WLR 582 (which concerned the services to be provided by the Airport Authority established by Airports Authority Act 1975).
This argument, as the authors of the article themselves recognise, was decisively rejected in CIN Properties Limited v Rawlins [1995] 39 EG 148, [1995] 2 EGLR 130, which itself survived a challenge in the European Commission of Human Rights (Anderson & Others v United Kingdom (Application No. 33689/96) [1998] EHRLR 218).

In CIN Properties the judge had considered the rights of pedestrians using a shopping centre and concluded:
“I am however satisfied that the members of the general public, including these defendants, in their use of these pedestrian ways, or malls as they are called . . . are not to be considered as bare licensees whose rights can be revoked at will by the plaintiff . . . It seems to me that equity must step in to preserve for the public an irrevocable right to use these malls in the town centre, when they are open in accordance with the terms of the lease, even though they are passing through private property . . . I therefore find that the public have an irrevocable right to enter and use these malls whenever the doors are open but, as this right is equitable, reasonable conduct is required of those availing themselves of the facilities.”

Allowing the appeal by the leaseholder of the shopping centre, this court concluded that no such right was established. After considering the general proposition laid down in Uston v Resorts International Inc [1982] MJ 445 A2d 370 by the Supreme Court of New Jersey that:
“when property owners open their premises . . . to the general public in pursuit of their own property interests, they have no right to exclude people unreasonably but, on the contrary, have a duty not to act in an arbitrary or discriminatory manner towards persons who come on their premises,”
Balcombe LJ, with whom the other members of the court agreed, stated unequivocally that the proposition:
“had no application in English law.”

Whether this area of the law is susceptible to significant modification by incremental development of the common law, or whether the relevant principles are now so well established that legislation would be required for the purpose, even in its fully developed form the thesis would have no application to this case. This showroom was provided for the convenience of customers who were invited there to do their business with the LEB. It was no different from any other shop or office to which the public has access, and no special licence to enter and remain was sought by the customers or given by the LEB, and none was created, or can be implied, from the relevant legislation.

There was a dispute, both the plaintiff and the employees of the LEB, genuinely believing that they were right, and that the other was wrong. Assuming however, as the judge did, that it was the plaintiff who was in fact right, it is difficult to see how the non attendance of an electrician to connect the supply to her new flat, enabled her, reasonably, to insist on remaining indefinitely in the LEB premises, and prohibited the LEB from asking her to leave. The showroom was the place for report, and indeed complaint, and sitting there after the complaint was made may have, and was no doubt intended to increase pressure on the LEB to comply with the plaintiff’s demands (perhaps ahead of those of other equally deserving customers). The plaintiff’s continued presence after she had made her full complaint was not justified by her persistent demand that electricity should be supplied there and then to her new flat without further charge. Having allowed her every opportunity to do what she was entitled to do in their premises, the LEB could reasonably withdraw her permission to remain.

Necessity

Mr Blaxland did not pursue the submission in his skeleton argument that the plaintiff was justified in remaining in the showroom by necessity. This was unarguable on the facts. The plaintiff was not requiring electricity to be supplied to the home in which she was actually living, and there was not the slightest risk of injury to her health or that of either of her children. If the facts had been startlingly different, and she or her children faced an imminent threat to life or a serious health hazard which could only have been resolved by her continued presence in the showroom, some interesting issues of principle might have arisen. As it is, they do not.

Powers of the Police Officers

Mr Blaxland suggested that although the police officers who attended the LEB showroom were on duty and in uniform, they were not present nor acting as police officers in the execution of their duty. They arrived to deal with the civil wrong of trespass. In that capacity they enjoyed no powers greater than those which could be exercised in ordinary circumstances by members of the LEB staff themselves, or if the LEB had arranged to use them, guards or attendants employed by ‘civilian security’ organisations. As a matter of public policy, so Mr Blaxland argued, it is undesirable for police officers to act at the behest of private individuals engaged in a private dispute, unless there is something to suggest an actual or pending breach of the peace. If they do, they are likely to be perceived by one side or the other to be taking sides. As the only report received by the police was that the plaintiff was refusing to leave the showroom and she was not causing any trouble beyond that, there was nothing requiring their attendance.

In my judgment the obvious organisation to be contacted for assistance in a troublesome situation like the ejection of a trespasser is the police. Indeed if the police response were to the effect that ‘this is not police business’, some might sensibly ask, ‘Why ever not?’ A good example of the consequences of police inertia is provided by the tendency in earlier days to regard threatened or actual violence between spouses, or partners, as ‘only domestic’. With a more positive police response a number of unpleasant incidents of violence might have been discouraged, if not altogether avoided. Mr Blaxland’s proposal, said to be based on public policy, would create an environment in which the police would avoid, and be expected to keep clear of any involvement - ‘only civil’ - in an area of modern life affecting the community peace.

If it once became understood that the police were not expected to respond, those who could afford it would set about the recruitment of guards and security advisors to enforce their rights. They would lack the responsibility and accountability to the public owed by the police. Those who could not afford such arrangements, or had no time to make them, would call on friends and colleagues for immediate help, with the serious risk that the police would be called to the scene later rather than sooner to bring to an end a breach of the peace which their presence earlier might well have prevented. And individuals with neither the means to buy assistance, nor the support of friends or colleagues, nor the wish to become embroiled in direct physical confrontations, would, if Mr Blaxland were right, be helpless to bring a trespass on their property to an end.

In my judgment the plaintiff’s refusal to leave the showroom did not of itself constitute a breach of the peace nor justify her arrest, unless and until she resisted lawful efforts to remove her and a breach of the peace became imminent or actually occurred. (Percy v Director of Public Prosecutions [1995] 3 All ER 124, [1995] 1 WLR 1382, confirming Professor Glanville Williams’ analysis in his article, Arrest for Breach of the Peace [1954] CLR 578 at 580). The police were nevertheless undoubtedly right to respond to the telephone call for assistance from the LEB, and, subject to other demands on their resources, it would have been irresponsible for them to have informed the caller that they would not or did not allow themselves to become involved in such problems, and would not attend as a matter of principle.

Mr Blaxland further submitted that even so, the police officers were not acting in the execution of their duty, and indeed that until the time when the police officers themselves started to put their hands onto the appellant, she had been physically passive. True, she had moved her legs around the chair on which she was sitting, and made it abundantly clear that she would not leave the premises, but she had neither offered nor threatened any violence. The powers of the police at the showroom were no greater than those of any other citizen acting as agent for the LEB, and absent any apprehension of a breach of the peace, the police officers would not have been entitled to continue to remove the appellant out of the premises if, for example, the LEB had changed its mind and decided to permit her to stay.

On analysis it is not strictly necessary to decide whether the police officers were acting in the execution of their duty when they first laid hands on the plaintiff, nor whether Coffin v Smith (1980) 71 Cr App Rep 221 correctly over-ruled R v Prebble & others [1858] 1 F & F 325 and R v Roxburgh [1871] 12 Cox CC 8. In my judgment the critical question in this case is not whether they were acting in the execution of their duty, but rather whether they were acting lawfully when they seized the plaintiff physically in order to remove her from the premises.

On the question of the lawfulness of the police behaviour, whether or not R v Roxburgh was rightly or wrongly decided in relation to the execution of a police officer’s duty, Cockburn CJ observed that:
“Although, no doubt, the prosecutor might not have been acting - strictly speaking - in the execution of his duty as a police officer, since he was not actually obliged to assist in ejecting the prisoner, yet he was acting quite lawfully in doing so; for the landlord had a right to eject the prisoner under the circumstances, and the prosecutor might lawfully assist him in so doing.”

(For more recent examples of the practical application of this reasoning, see Glasbrook v Glamorgan County Council [1925] AC 270: R v Chief Constable of the Devon and Cornwall Constabulary, ex parte Central Electricity Generating Board [1982] QB 458, [1981] 3 All ER 826 particularly per Templeman LJ at page 479/480 of the former report). The present case provides another example of the same principle in operation.

The officers were not only acting lawfully when they arrived at and eventually began to remove the plaintiff from the showroom, but while so acting, even if not strictly in the execution of their duty, they were also entitled to arrest any individual responsible for or threatening or likely to cause a breach of the peace.

“. . . Every citizen in whose presence a breach of the peace is being, or reasonably appears to be about to be, committed has the right to take reasonable steps to make the person who is breaking or threatening to break the peace refrain from doing so; and those reasonable steps in appropriate cases will include detaining him against his will. At common law this is not only the right of every citizen, it is also his duty, although, except in the case of the citizen who is a constable, it is a duty of imperfect obligation.”
(Per Lord Diplock in Albert v Lavin [1982] AC 546, [1981] 3 All ER 878 at 565 of the former report).

Mr Blaxland accepted that a police officer would certainly be entitled to take the same steps as any other citizen. If, as he accepted it followed from the jury’s findings that the plaintiff was arrested after the struggle began, it also followed that if on the basis of the video recording the judge concluded that a breach of the peace had taken place, then no useful question could be asked of the jury. The judge held that it was ‘quite clear’ that there was a breach of the peace, for which the plaintiff, not passively acquiescing in her removal from the showroom, but resisting the police efforts lawfully to remove her, was responsible. I agree with him. The police officers were acting lawfully throughout the operation.

In deference to Mr Blaxland’s careful argument I should deal with the distinct question which only arises, if contrary to my view, it is indeed necessary to decide whether the police were acting in the execution of their duty when they began to remove the plaintiff from the showroom.

In my judgment this is a straightforward case. The first police officers to attend the showroom did so in direct response to a request for assistance made to their police station by a member of the public. They were at work as police officers, on duty, in uniform, when the call was received, and when they arrived. The woman police officers responded to a request for assistance from their male colleagues. They too were at work, on duty, and in uniform. These police officers were present to sort out a problem between members of the public in which there was an inherent risk of trouble, and by their presence, as well as by their efforts at persuasion, were seeking to ensure so far as they could, that the peace was maintained. If the plaintiff persisted in her refusal to leave voluntarily they were ultimately entitled to lay hands on her and physically remove her from the showroom against her wishes, again, a situation fraught with potential difficulty. This, in the end, is what they did. For the reasons already given their actions were lawful.

As I understood it, Mr Blaxland’s argument seemed to predicate that until grounds for arrest existed, the execution of the police officers’ duty was somehow postponed or deferred. I do not accept that a police officer on duty, offering practical assistance to a member of the public enforcing his civil rights, is not acting in the execution of his duty as a police officer until grounds for arrest have arisen. Police officers on duty are required to maintain and preserve the peace, if possible, before it is broken, as well as to restore it after things have gone wrong. In circumstances like the present, when police officers on duty attend a scene with potential for commotion and public disturbance, they are acting in the course of their duty to preserve the peace, whether or not they are answering a request for assistance, or attending on their own initiative, and, more important, whether or not a justified ground for arrest has arisen. Better by far for the incident to be calmed and the risk of a breach of the peace to recede than for it to progress to an imminent or actual breach, and consequent arrest.

If the plaintiff had remained truly passive throughout this incident, and her behaviour while being removed from the showroom had given no ground for arresting her, and assuming further, that after her removal she had then departed, the duty of the police officers would have been satisfactorily performed. The peace, formerly at risk of being broken, would have been preserved, and not the less preserved because the officers had assisted the LEB by exercising its right to self help. This does not create any new and undesirable elasticity in the concept of breach of the peace, or tamper with the principle that officers behaving unlawfully (even in good faith) cease to be acting in the course of their duty.

As to authority, this view is supported by the decision in Coffin v Smith [1980] 71 Cr App Rep 221, where the argument that a police officer cannot be held to be acting in the execution of his duty unless he is doing something that he is ‘compelled by law to do’, was emphatically rejected. It is also consistent with the reasoning in R v Chief Constable of Devon & Cornwall, ex parte CEGB. In that case the police were held to be entitled to be present on the site in order to intervene if a breach of the peace was imminent, or occurred. The Chief Constable’s view, that he lacked a definite ‘legal mandate’ to deploy his officers at the scene, was rejected. His assistance was sought on the basis of the CEGB’s right to prevent repeated infringements of its own civil rights. The decision not to make the order sought by the CEGB stemmed from the principle that the court should not normally make orders instructing the police how to perform their duties, rather than from any concern that officers present at the scene would not be acting in the execution of their duty until such time as a breach of the peace was imminent or had occurred.“. . . Those who see what is happening should act either by trying to persuade those obstructing to stop doing so or arresting them if they persist in their unlawful conduct. In many cases those who persist to the point of having to be arrested will commit some other offence in doing so such as obstructing . . . police officers in the execution of their duty . . .” (Per Lawton LJ at 473 E/F).

Lawton LJ (at any rate by implication) went on to confirm that a police officer could indeed be acting in the execution of his duty, despite the absence of any compulsion on him, by adding:
“If the chief constable was purporting to tell the board when it could use self help, he had no right to do so any more than the board had any right, if it ever thought it had, to call upon the chief constable to provide muscle power to remove those who are obstructing the exercise of its statutory powers. Police constables . . . do have a duty to preserve the peace no matter how unpopular that may make them . . .”

Templeman LJ rejected the argument that the police had no powers:
“in relation to passive resisters on private land.”
He went on that the police:
“on the spot must decide when to intervene,”
adding that he considered:
“that they will be fully justified in intervening if the board enter the site with the intention of completing the survey and the obstructers decline to leave.”
He ended
“this court can and does confirm that the police have powers to remove and arrest passive resisters in the circumstances which prevail at the site . . .”
(at 480d and 481c respectively).
In my judgment, in the present case, when the officers began to remove the plaintiff from the showroom, they were acting in the execution of their duty.

The use of force by the police

Mr Blaxland argued that the judge should have left the jury to decide whether the force used by the police in the police van was reasonable.
The question the judge directed himself to decide was:
“whether there is any evidence to go to the jury of excessive force being used to remove the plaintiff from the showroom or, if lawfully arrested, to take her to the police station.”
Having reminded himself that the use of force could not properly be described as excessive if what was done was necessary to achieve the plaintiff’s removal from the showroom, and considered the evidence, including that of witnesses to the incident who were concerned that it had culminated as it did, in the plaintiff’s forcible removal from the showroom, he concluded:
“there really is no evidence, given that the police were entitled to remove the plaintiff, of their using more force than was reasonably necessary in order to do so given the resistance.”

Although the correct inference from the judge’s ruling seems to be that he rejected the suggestion that excessive force was used by the police either in the showroom or in the van, he did not, as he should, make any express findings or set out his reasons for not leaving to the jury the question whether the police used excessive force in the van. In a case in which the judge had meticulously analysed each issue, this omission is explicable only on the basis that during the course of the trial events in the van appeared relevant only as part of the narrative of events linking what happened in the showroom with the plaintiff’s eventual release on bail after being charged at the police station. If the plaintiff had been unlawfully arrested and detained in the police van, it would have been unacceptable for her to be handcuffed, or for police officers deliberately to have placed their feet on her outstretched legs as she sat passively in the van. In fact the plaintiff was lawfully arrested and properly removed from the showroom, with difficulty, and the defendant’s case was that she continued to struggle in the van. One manifestation of the struggle was the bite suffered by PC Ridley. At the same time, although she complained of pain and discomfort, the plaintiff did not suggest that she was physically injured as a result of what the police officers did to her.

Doing the best I can from the transcripts put before us, I am not satisfied that the judge was wrong to conclude, as by inference he did, that there was no sufficient evidence to suggest that the force used in the van was excessive. When all the other issues at trial, both those decided by the jury as well as those decided by the judge, were resolved adversely to the plaintiff, it would be disproportionate and in a sense wholly unreal now to return this solitary, and peripheral issue, for the re-hearing which would be required to enable the facts to be more closely explored.

Malicious Prosecution

The judge directed himself that there was no evidence to suggest ‘an absence of honest belief’ by PC Ridley that he had been bitten by the defendant while executing his duty.
There was no such evidence, nor anything to suggest that PC Ridley, or any of the other officers involved, were guilty of inventing a false allegation against her, or that the decision to charge her with assaulting him in the execution of his duty was malicious.
The decision to withdraw this issue from the jury was right.

Conclusion

MAY LJ: Everyone knows how frustrating it is, if you wait in all day for someone who never arrives. This is what happened to Rita Porter, the appellant, on 17 June 1993. She had paid £100 to the London Electricity Board to supply electricity to her new home. She had arranged for an engineer to make the connection. But the engineer did not turn up. On the following day, she went with her two small children to the LEB showroom in Kentish Town Road to complain. The people there had information suggesting that their engineer had called on the previous day. So they said she would have to pay an extra £17.50 for an additional visit. She refused to pay any more and demanded that the LEB make the connection immediately which, according to her, they should have done on the previous day. There was an impasse. The LEB refused to do anything without the additional payment. She refused to leave their showroom without getting her electricity. Eventually the LEB staff told her to leave the showroom. She refused. So the LEB decided to ask the police to help.

The police arrived soon after 2 pm. We have seen the showroom video of what happened. It has pictures from three cameras shown in rotating succession. One camera has a good view of the desk at which the appellant was sitting. A second camera gives a part picture of her from a different angle. The third camera mainly shows other members of the public waiting to be attended to by LEB staff. The first two cameras give a good view of what was happening, although not every detail is shown.

At first two male police officers arrived. They are shown talking with the appellant and obviously trying to persuade her to leave. Later two women police officers arrive. They join in the conversation and again are obviously trying to persuade the appellant to leave. People were coming and going. This all went on for about 40 minutes. During this time, the appellant was for practical purposes entirely passive. She showed no undue physical agitation, let alone violence. The police officers, for their part, acted entirely calmly and professionally.

After about three quarters of an hour from the time when the police officers first arrived, they decided that the only way to get the appellant out of the LEB showroom was to remove her by force. One of the male police officers looked after the appellant’s three year old little girl. He seemed to me to do this with impeccable gentleness. Another officer took the appellant’s three month old baby from her. Again, this was done with very little fuss and commendable skill. The officers then proceeded to manhandle the appellant out of the showroom. She resisted this and there was a struggle. Early on in this struggle, the police arrested her for breach of the peace. During the struggle, she gripped the chair she was sitting on with her legs. When she stood up, she banged against a wall and later fell to the ground. She was carried out of the showroom and put into a waiting police van, in which she sat on the floor in a chair position facing the driver. The van drove to Kentish Town Police Station, where the appellant was removed from the back of the van by the police linking arms under hers. At one point, she bit PC Ridley in his arm causing him a noticeable bruise of which we have seen a photograph. At the police station, she was not dealt with for the breach of the peace for which she was arrested, but she was charged with assault on a police officer in the execution of his duty. The charge did not proceed to a prosecution, but was dropped.

Arising out of all this, the appellant brought proceedings against the Commissioner of Police alleging that the police officers assaulted her, unlawfully arrested her, falsely imprisoned her, and that she was maliciously prosecuted. She claimed that her arrest was not lawful because it was not based upon reasonable suspicion that she had been guilty of any offence or upon any other lawful authority. It was also said to be unlawful because she was not told that she was under arrest or the reason for her arrest. It was said alternatively that, if her detention was lawful, it became unlawful because of its unreasonable length. It was said that the force used in effecting her detention was grossly excessive and unreasonable and constituted an assault. It was said that the allegation that she had bitten PC Ridley was fabricated. She claimed damages, exemplary damages and aggravated damages.

Her claim was tried before HH Judge Cowell and a jury at the Central London County Court in June 1998, when her claim was dismissed. This was based largely on rulings of law made by the judge. He left three questions of fact, however, to be decided by the jury. All three questions related to whether the jury were satisfied on the balance of probabilities that the police informed the appellant that she was under arrest and why. The jury answered each of these questions to the effect that she was so informed. In so doing, they must have rejected her evidence to the contrary.

The questions which the judge answered without reference to the jury were: (a) was there a breach of the peace, (b) was excessive force used by the police, (c) was the period of detention too long and (d) was there a malicious prosecution? The judge held that there was a breach of the peace; that excessive force was not used by the police; that the period of detention was not too long; and that the prosecution was not malicious. He was entitled to reach these conclusions without reference to the jury if either they were questions of law upon which there was no real factual dispute (see Dallison v Caffery [1965] 1 QB 348, [1964] 2 All ER 610) or if there was no evidence capable of supporting the appellant’s allegations.

The judge also held that the LEB were entitled in law to eject the appellant from their premises. He said this at page 7 of the transcript of his Ruling:
“It is also the law that the occupier of the premises is entitled, having told the person to depart, to use force to eject him or her but must use no more force than is reasonably necessary to effect the ejection, and it is also the law that the occupier may himself eject the trespasser, or he may ask others to do it for him, and therefore on his behalf. It seems to me that he may ask the Police to do it for him, as well as any other agent, and if the Police do it they do it by his authority, and so on his behalf.”

The appellant’s grounds of appeal in her reamended notice of appeal are that the judge was wrong in law to rule that:
(a) the LEB were entitled to require the appellant to leave their showroom and to treat her as a trespasser when she refused to do so;
(b) the police officers were lawfully entitled to act as agents of the LEB and to use physical force to eject the appellant;
(c) the appellant’s conduct after the police officers had taken hold of her constituted a breach of the peace entitling the police officers to arrest her;
(d) there was no issue of fact for the jury concerning pleaded allegations of assault upon the appellant by the police when she was taken in the police van from the showroom to the police station; and
(e) there was no issue of fact for the jury to decide in relation to the claim for malicious prosecution.

Implicit in these grounds of appeal is an acceptance on behalf of the appellant of the jury’s findings that she was properly informed about her arrest and of the judge’s finding that the amount of force used by the police in the showroom was not excessive.

I think that the heart of this appeal is whether the appellant’s conduct in the showroom constituted a breach of the police entitling the police officers to arrest her. It is not by any means the only question, but it is central.

Conventional law says that a proprietor of premises is entitled to use reasonable force to eject a trespasser. He is entitled to use self-help to achieve this. He may ask one or more individuals to help. Forcible ejection will, of course, be unlawful if the person ejected is not a trespasser or if the amount of force used is excessive. If, in the course of being ejected, the trespasser is violent, there may be a breach of the peace justifying the trespasser’s arrest. The law was succinctly and, I think, correctly expressed by Professor Glanville Williams in an article ‘Arrest for Breach of the Peace’ [1954] Crim LR 578 at 580:
“If the person of whom complaint is made has lawfully entered the house of another, his refusal to leave on the request of the occupier is not a breach of the peace. Such refusal gives cause for ejecting him, but not for arrest (Green v Bartram (1830) 4 C & P 308; Reece v Taylor (1835) 4 Nev & MKB 469; Jordan v Gibbon (1863) 8 LT 391). However, if he attacks the occupier in order to resist ejection, this will amount to a battery, and there will be a breach of the peace for which an arrest is admissible.”

What constitutes a breach of the peace was conveniently summarised in the decision of the European Court of Human Rights in Steel v United Kingdom (1997) 5 BHRC 339 at 352 as follows:
“55. In this connection, the court observes that the concept of breach of the peace has been clarified by the English courts over the last two decades, to the extent that it is now sufficiently established that a breach of the peace is committed only when an individual causes harm, or appears likely to cause harm, to persons or property or acts in a manner the natural consequence of which would be to provoke others to violence (see paragraphs 25-28, above). It is also clear that a person may be arrested for causing a breach of the peace or where it is reasonably apprehended that he or she is likely to cause a breach of the peace (see paragraph 29 above).”

Paragraphs 25 to 28 of the judgment, to which this passage refers, contain summary references to R v Howell [1982] QB 416, [1981] 3 All ER 383 at 426, 427 of the former report; R v Chief Constable of Devon and Cornwall, ex parte Central Electricity Generating Board [1982] QB 458 at 471; Percy v DPP [1995] 3 All ER 124 at 131; and Nicol v Director of Public Prosecutions (1995) 160 JP 155, [1996] Crim LR 318 at 163 of the former report.

The Central Electricity Generating Board case is of relevance to a number of aspects of the present appeal. The CEGB were considering possible sites for a nuclear power station. They were authorised by statute to enter and survey relevant land. Objectors obstructed them so as to prevent them from doing so. The action of the objectors was a statutory offence. The CEGB asked the Chief Constable to help, but the Chief Constable declined to remove the obstructers as there was no actual or apprehended breach of the peace or unlawful assembly. The Divisional Court dismissed the Board’s application for judicial review in which they asked for an order requiring the Chief Constable to instruct police officers to help remove the obstructers. The Court of Appeal dismissed the Board’s appeal. The court held that the police had power to remove or arrest objectors if there was a breach of the peace or the reasonable apprehension of it, or an unlawful assembly. By wilfully obstructing the operations of the Board, the objectors were deliberately breaking the law, so that the Board was entitled to use the minimum of force reasonably necessary to remove those obstructing the exercise of its powers. The use of self-help in such circumstances made a breach of the peace likely. Accordingly the police were entitled to be present in order to intervene if necessary. But it was for the Board and the police to co-operate in the exercise of their respective powers and the decision of the Chief Constable not to intervene was one with which the court would not interfere. Lord Denning MR said at page 470G:
“In the first place, I must say that the leaflet issued by the organisers is completely erroneous. The Board and their contractors are entitled to manhandle the obstructers so as to move them out of the way. Every person who is prevented from carrying out his lawful pursuits is entitled to use self-help, so as to prevent any unlawful obstruction: see Holmes v Bagge (1853) 1 E & B 782, 786-787 by Lord Campbell CJ. He must, of course, not use more force than is reasonably necessary: but there is no doubt whatever that he can use force to do it.”

Lawton LJ said at page 473B:
“A statutory body can use the minimum of force reasonably necessary to remove those obstructing the exercise of its statutory powers from the area where work has to be carried out. This is the common law remedy of abatement by self-help; but it would involve the statutory body taking the law into its own hands and is, as Lord Wright said in Sedleigh-Denfield v O’Callagan [1940] AC 880, 911, much to be discouraged. There are many reasons why self-help should be discouraged. Disputes are likely to arise as to whether the minimum amount of force reasonably necessary was used. In my judgment, based on my understanding of human nature and a long experience of the administration of criminal justice, the most important reason for not using self-help, if any other remedy can be used effectively, is that as soon as one person starts to, or makes to, lay hands on another, there is likely to be a breach of the peace. Those obstructing may assert that they will allow themselves to be removed without resisting; but, when the manhandling starts, particularly if a man has to lay hands on a woman, struggling and uproar are likely to begin. I should have expected most police constables to appreciate that this is so; and as they have a duty to deal with breaches of the peace which actually occur or which they have reasonable cause for suspecting are about to occur, those who see what is happening should act either by trying to persuade those obstructing to stop doing so or arresting them if they persist in their unlawful conduct. In many cases those who persist to the point of having to be arrested will commit some other offence in doing so such as obstructing or assaulting police officers in the execution of their duty: See section 51 of the Police Act 1964. If no other offence is committed, the police constable making the arrest should take the person arrested before the local magistrates to show cause why he should not be bound over, with or without sureties, to keep the peace or be of good behaviour: see section 115 of the Magistrates Courts Act 1980.”

Templeman LJ said at page 479A:
“The police are also entitled to assist the Board by the police themselves arresting or removing or restraining the obstructers if there is an imminent danger of a breach of the peace or if a breach of the peace is committed in consequence of the resistance, threatened or actual, passive or violent, of an obstructer to his own removal and restraint.

It was suggested that the police have no powers in relation to passive resisters on private land. This is not the case. In addition to other powers possessed by the police, they are entitled to enter on private land at the invitation of the owner or at the invitation of any person who himself has the right to be on the land. The Board are entitled to enter on the site and complete the survey and they are entitled to invite the police to enter on the site to assist the Board to establish conditions under which the Board will be able to complete the survey without any outbreak of violence taking place.”

Templeman LJ further said at page 480A:
“The Board and the police may instruct the obstructers to leave the site and warn them that if they do not leave the site and remain off the site the obstructers will be liable to be forcibly removed or arrested. If after such a warning the Board enter the site with the object of completing the survey, the possibility of a confrontation with the obstructers will at once raise a danger of breaches of the peace when the Board’s workmen seek to carry out their work and find the obstructers lying in their path. An obstructer who will not leave the site unless he is forcibly removed presents a threat and danger of a breach of the peace even if he disclaims any intention of causing a breach of the peace. The Board have only acquiesced in six months interruption of the survey because they rightly fear violence if they persist. The police are only present at the site because they rightly fear violence if the Board resume their work. Even Mahatam Gandhi discovered to his sorrow that in the conduct of ordinary mortals passive resistance remains passive only so long as the resistance is successful.

The police on the spot must decide when to intervene. I consider that they will be fully justified in intervening if the Board enter the site with the intention of completing the survey and the obstructers decline to leave. But in any event the police will be entitled to intervene if an obstructer resists being carried away from the site or runs to another part of the site or tries to enter the site or tries to return to the site, thus obliging the Board’s representatives to seize him so that he may be permanently excluded. Such conduct by an obstructer, whether he calls himself a passive resister or not, will create an imminent and serious danger of a breach of the peace for which the obstructer will be responsible and liable to arrest or removal by the police.”

The conduct of the obstructers in the Central Electricity Generating Board case was of course very different from the appellant’s conduct in the present case. But certain elements of the extended passages which I have quoted remain relevant.

The appellant’s first ground of appeal challenges what I have referred to as the conventional view of the law that a proprietor of premises is entitled to use reasonable force to eject a trespasser. The submission is that she was not a trespasser. The LEB have a statutory duty under section 16 of the Electricity Act 1989 to supply electricity to the appellant’s premises. That duty, it is submitted, carries with it an obligation on the LEB to act reasonably in giving its customers or potential customers access to its showroom premises. The LEB are not in the same position as a purely private proprietor. In particular they were not lawfully entitled to eject the appellant at will without reasonable cause. Mr Blaxland submits that in this case the question of reasonableness was to be decided in favour of the appellant. But that submission depends on the antecedent question of law.

Mr Blaxland supports this submission by reference to some English authority, but also to a stimulating and comprehensive article entitled ‘Civil Rights, Civil Wrongs and Quasi-Public Space’ by Kevin Gray and Susan Gray [1999] 1 EHRLR 46. The thesis of the article is that common law jurisdictions are moving, or should move, towards a state of law in which the owner of quasi-public premises may exclude members of the public from those premises only on grounds which are objectively reasonable and rationally communicable. It is suggested that the conventional law of trespass can no longer serve as an instrument for curtailing various kinds of civil right. There is a variety of places, which may strictly speaking be private premises, to which nevertheless the public has access and from which for a variety of reasons they should not be arbitrarily excluded.

The authors recognise that the legal developments described in the article do not accord with the decision of the Court of Appeal in CIN Properties Limited v Rawlins [1995] 2 EGLR 130 - a decision which the authors describe as being of ‘feudal resonance’, but which nevertheless survived a challenge in the European Commission of Human Rights. CIN Properties Limited were proprietors of a very large shopping complex in the centre of Wellingborough. In 1991, 10 youths were charged with public order offences. CIN Properties claimed that they had been frequently guilty of nuisance at the shopping premises. CIN Properties’ solicitors wrote on their behalf banning the youths from entering the shopping centre and saying that they would take injunction proceedings to stop them. It was held at first instance on an interim injunction application that the implied invitation to members of the public, including the defendants, to enter the shopping centre could not be arbitrarily withdrawn. Subject only to a requirement of reasonable conduct, members of the public had an equitable or irrevocable right to enter and use the shopping mall during its normal opening hours. This decision was reversed by the Court of Appeal, who held that the proprietors of the shopping centre were entitled to exclude the youths. The court declined to develop the common law in the way suggested in the first instance decision.Mr Blaxland referred us in support of his submission to Allnutt v Inglis (1810) 12 East 527. The defendant in that case was Treasurer of the London Dock Company which owned what, it seems, would now be known as a bonded warehouse in which wine was deposited. They accepted a certificate from the Board of Treasury under the General Warehousing Act 43 G3 c 132 such that the business was a virtual monopoly. The issue in the case concerned, not any right to enter or remain on the premises, but as Lord Ellenborough CJ said at page 537:
“. . . whether the London Dock Company have a right to insist upon receiving wines into their warehouses for a hire and reward arbitrary and at their will and pleasure, or whether they were bound to receive them there for a reasonable reward only.”

Lord Ellenborough continued:
“There is no doubt that the general principle is favoured both in law and justice, that every man may fix what price he pleases upon his own property or the use of it: but if, for a particular purpose, the public have a right to resort to his premises and make use of them, and he have a monopoly in them for that purpose, if he will take the benefit of that monopoly, he must as an equivalent perform the duty attached to it on reasonable terms. The question then is, whether circumstanced as this company is by the combination of the Warehousing Act with the Act by which they were originally constituted, and with the actually existing state of things in the Port of London, whereby they alone have the warehousing of these wines, they be not according to the doctrine of Lord Hale obliged to limit themselves to a reasonable compensation for such warehousing? And according to him, wherever the accident of time casts upon a party the benefit of having a legal monopoly of landing goods in a particular port, as where he is the owner of the only wharf authorized to receive goods which happens to be built in a port newly erected, he is confined to take reasonable compensation only for the use of the wharf?”

The decision was that the dock company were entitled to no more than reasonable hire and reward. The headnote expresses the decision as holding that, where private property is, by the consent of the owner, invested with a public interest or privilege for the benefit of the public, the owner can no longer deal with it as private property only, but must hold it subject to the rights of the public in the exercise of that public interest or privilege conferred for their benefit. But it is clear that the decision did not really concern matters relevant to trespass. All the judgments make clear that the central question concerned the price which the Dock Company, who had the benefit of a statutory monopoly, were entitled to charge.

Mr Blaxland also referred us to Cinnamond v British Airports Authority [1980] 1 WLR 582, in which the Court of Appeal upheld a decision by the defendants to exclude under their byelaws six car hire drivers from Heathrow airport. The Court’s decision turned on questions particular to the case. It had, however, been submitted that the airport authority was in the same position as a private landlord and that they could, if they wished, prohibit anyone from entering the airport. Lord Denning MR disagreed. He said at page 587 that the rights of individuals were to be found by reference to the words of the Airports Authority Act 1975. Section 2(1) of the Act imposed a duty on the authority:
“to provide at its aerodromes such services and facilities as are in its opinion necessary or desirable for their operation.”

Lord Denning said at page 587H:
“Those words ‘in its opinion’ no doubt give the authority a discretion as to the extent of the services and facilities it provides. But once they are provided, it seems to me that there is a right in the travelling public to take advantage of those services and facilities. If a bona fida airline passenger comes to the airport, they cannot turn him back - at their own discretion without rhyme or reason - as a private landlord can.”

There is, I think, a material difference between a statutory duty to provide services at an airport and a statutory duty to supply electricity. Providing services at an airport necessarily means that people will go there to use them. The statutory duty to supply electricity does not embrace any obligation to provide showrooms, nor does it afford customers a right to remain in a showroom, if there is one, once they are asked to leave.

I acknowledge the possibility of incremental development of the common law along general lines of the kind which succeeded at first instance in the CIN Properties case. This court is bound by the Court of Appeal decision in that case if it applies, as I am inclined to think it does. It is not, however, necessary to decide whether it does or not, because I am clear that no presently possible incremental development of the law could extend to cover the facts of this case. In addition, even if, contrary to my view, the LEB showroom could be regarded as a quasi-public space to which the appellant was entitled to reasonable access, reasonable access did not extend to a right to remain there indefinitely until electricity was provided.

The second ground of appeal is that the judge was wrong to hold that the police officers were lawfully entitled to act as agents of the LEB in using physical force to eject the appellant. Mr Blaxland accepts that individuals who are not police officers can, at the invitation of a proprietor, lawfully help the proprietor, using reasonable force, to eject a trespasser. But he submits that public policy should mean that police officers should not be lawfully able to do so. He submits that the public policy should be that police officers should not interfere with the liberty of the subject other than as part of their police powers. The police would be in an invidious position, if they are to take sides in a private dispute. I have no hesitation in rejecting this submission. It is contrary to the explicit passage in the judgment of Templeman LJ in the CEGB case at page 479B, which I quoted earlier in this judgment. In principle, I think that there is every reason why the law should encourage those who are lawfully entitled to eject trespassers to ask the police to help them to do so. The dangers of individual self-help are obvious and it is far preferable for people to receive help from trained police officers than to look to friends, neighbours or passers by. In addition, since forcible ejection is inherently likely to lead to violent resistance, the police would be at hand to prevent or restrain violence in accordance with the law.

It is not, in my view, necessary in this appeal to decide whether a police officer who helps a proprietor to eject a peaceful but intransigent trespasser initially acts as an individual or as a police officer. The power to help would in practical terms be the same, whatever the answer to that question. The only likely relevance of the question would be if the trespasser assaulted the police officer or, possibly, if the trespasser obstructed what the police officer was doing. If there was an assault, there could be a question whether this was common assault or an assault on a police officer in the execution of his duty. In the present case, the appellant did not at the relevant time assault any of the police officers: so the question does not arise. Academically, R v Prebble (1858) 1 F & F 325 and R v Roxburgh (1871) 12 Cox CC8 support the proposition that the police officer is not acting in the execution of his duty. Coffin v Smith (1980) 71 Cr App Rep 221 decides otherwise and I am inclined to think that the conclusion was a necessary part of the court’s decision. It was at least in response to what Donaldson LJ said at page 225 was:
“the whole basis of Mr Staddon’s argument”
in opposition to the successful appeal by police prosecutors.

Intrinsically, I think that there would be strong common sense grounds for holding, if it were necessary, that the police officers in the present case were acting as police officers from the moment they entered the LEB showroom. They were in uniform and no one could have supposed that they were not police officers. They were responding to a sensible request for assistance when self-help by individuals would have been difficult and provocative. If there was violence or threatened violence, they would immediately be entitled and obliged to act as police officers to deal with the resulting breach of the peace. There is no practical sense in distinguishing their role at one moment from their role at the next. I am not persuaded that the practical and common sense answer in the present case would have any constitutional significance, nor would it adversely affect any one’s civil rights and liberties. The position would probably be different, depending on the facts, if a police officer, accepting an invitation to help eject a trespasser, was off duty and in civilian clothes. He would then act as the individual which he appeared to be. If the time came when there was violence and the police officer disclosed that he was a police officer and made an arrest, he would then be acting as a police officer in the execution of his duty.

The third ground of appeal is that the judge was wrong to decide that the appellant’s conduct after she had been taken hold of by the police officers constituted a breach of the peace entitling the police officers to arrest her. I agree that there was no evidence to suggest that anything which the appellant did was likely to provoke violence in others. The question was whether her own actions caused harm, or appeared likely to cause harm, to persons or property. Purely passive, limp non-cooperation would not constitute a breach of the peace, but struggling violent resistance would, unless exceptionally there was no likelihood of harm. In the present case, the judge said on page 13 of the transcript:

“I have ultimately come to the conclusion that this is a case where no useful question can be asked of the jury because the undisputed facts make it quite clear that there was a breach of the peace. The video makes it clear that the incident with the chair began at 2.41 and was followed by a struggle, initially for about a minute. It involved the removal of the baby and thereafter one sees the plaintiff going to the ground, and the struggle continues until about 2.47, when the plaintiff is taken out . . .”

The judge omits from this account the fact that at one stage in the struggle the appellant banged against the wall. Although the video does not give a complete or continuous view of everything that happened, it is sufficiently clear and sufficiently continuous to constitute incontrovertible evidence of what happened. The judge was, in my view, entitled to decide that there was no question of fact to go to the jury and he was entitled himself to decide whether the facts which the video showed amounted to a breach of the peace. In my judgment, they plainly did. The appellant was not a purely passive resister. She was struggling quite hard and she was likely to cause harm to those attempting to remove her or possibly to the children or the LEB’s property.

The fourth ground of appeal is that the judge was wrong to rule that there were no issues of fact for the jury to decide concerning allegations of assault and battery by the police when the appellant was going in the police van from the showroom to the police station. The judge dealt at length with the question whether the police had used excessive force in the showroom. He decided that there was no question here to go to the jury. He did not deal at all with the time when the appellant was in the police van. It is to be inferred that this did not feature prominently at the trial. There is no appeal in relation to the force used in the showroom. This is not surprising since, given that the police officers were lawfully entitled to proceed to eject the appellant and, when she struggled, to arrest her, the officers’ conduct as shown on the video could scarcely have been more restrained.

The appellant’s own evidence, which we have in transcript, taken at its highest did not establish all the pleaded facts for the time when she was in the police van. Her evidence really came to no more than that (a) one or more police officers put their feet on her legs as she was sitting on the floor of the van and did not remove them when she asked; (b) the handcuffs hurt and the police refused to remove them; and (c) when the police officers lifted her beneath her arms from the van, this and her feet hitting the ground hurt. No specific physical injury was established. These facts would, of course, have contributed to her case as a whole, if she established that her antecedent ejection and arrest were unlawful. But she has failed in these main parts of her case. She was lawfully detained in the police van. Even if the complaints contained in her evidence for that period are capable of amounting to something of a case of excessive force, I agree with Judge LJ that it would be inappropriate and disproportionate to remit this part alone of her case for reconsideration by a jury.

The fifth ground of appeal was that the judge was wrong to decide that there was no issue of fact for the jury to decide in relation to the claim for malicious prosecution, in particular that there was no issue relating to whether the police witnesses had an honest belief that PC Ridley was acting in the execution of his duty at the time of the alleged assault. The alleged assault was that the appellant bit PC Ridley in the upper arm. She accepted that she probably did bite him, but maintained that it was accidental as she was gritting her teeth in pain. She also accepted that PC Ridley was entitled to think that the bite had been deliberate. The pleaded case was that the assault was a malicious fabrication. The evidence established that it was not a fabrication and went nowhere to establish that it or the subsequent prosecution was malicious. The question whether PC Ridley was acting in the execution of his duty when he was bitten was only capable of one answer, once it was established that there had been a breach of the peace and that the appellant was lawfully arrested. In my judgment, the judge was entirely correct to withdraw this question from the jury.

SEDLEY LJ: I have come to the same conclusion as Lord Justice Judge and Lord Justice May; but since I have not travelled quite the same route to it, I will set out my reasons. I need not set out the history of the case, since this has been done with great clarity in the two preceding judgments, which for this purpose I adopt with gratitude.

Were London Electricity entitled to rescind Mrs Porter’s licence?

Although we did not find it necessary to hear Mr McLeod on this issue, I am prepared to accept that the answer may no longer be a cursory ‘Of course’. Both because London Electricity is a statutory undertaker providing a service essential to most people’s lives and because its shop premises, when open, constitute an invitation to the public to enter and remain there for proper purposes, it is arguable that it cannot arbitrarily or improperly exclude or expel members of the public. The valuable article ‘Civil rights, civil wrongs and quasi-public space’ by K and SF Gray [1999] EHRLR 46 demonstrates that there may be more to be said in the future on the topic than was said by this court in CIN Properties v Rawlins [1995] 2 EGLR 130. The control by the courts of the unreasonable exercise not only of public powers but of private powers donated by the state or possessing monopoly characteristics has a long history which, at least across the Atlantic, is far from spent: see PP Craig, ‘Constitutions, property and regulation’ [1991] PL 538. One aspect of the argument is that the common law has historically limited certain private powers in the public interest.

Like Lord Justice May, I do not discount the possibility of further incremental development of the common law in this field; but like him I do not think this a suitable case in which to explore the arguments because on even the most favourable assumptions of law, Mrs Porter cannot succeed on this head of her case. She and the showroom staff, each acting reasonably by their own lights, had reached an impasse. Mrs Porter, understandably angry at having waited a whole day for an electrician who never came and at then being told she must pay again for a fresh appointment, was not going to leave until she got some satisfaction. The staff, presented with a chit which recorded that the electrician had called and found nobody in, were going by the book. In this situation it could not be credibly maintained that Mrs Porter had a right to stay put indefinitely, or that the LEB had no lawful power to require her to go. Even in the new order adumbrated in the Grays’ article, London Electricity would be able lawfully to terminate her licence and to insist on her leaving. The criticism which Mr Blaxland makes of their inflexibility, taking it to be entirely legitimate, cannot on any view of the law have invested Mrs Porter with a right to sit tight or have inhibited the occupier’s right to ask her to leave. Putting it in terms of Mr Blaxland’s own test, the revocation of her licence was not unreasonable whoever was in truth in the right.

What was the extent of the constables’ powers?

I agree with Lord Justice Judge that London Electricity were entitled to call the police and that the police were right to respond to the call. But it is important to be clear why this was so.

There is long-established authority that a constable may lawfully assist others in self-help, but acting as an individual and not as a constable: R v Prebble (1858) 1 F & F 325, R v Roxburgh (1871) 12 Cox CC 8. Equally, it is clear that everyone, whether a constable or not, has both a power and a duty to detain persons committing or provoking a breach of the peace, in order to abate or prevent it: Albert v Lavin [1982] AC 546. But neither of these powers is a power of arrest. The power of arrest, the purpose of which is to bring a person before a court, will arise if a person creates or threatens to create a fracas in the course of being lawfully removed, whether the police are assisting in the removal or (as they may be wiser sometimes to do) are standing by to keep the peace while the occupier removes the trespasser.

But it is argued by Mr McLeod for the Commissioner that a constable who assists in an eviction, provided he is present in performance of his general peacekeeping function, is acting in the execution of his duty even if no crime or breach of the peace has been committed and no power of arrest has arisen. If then, he argues, the trespasser fails to co-operate and compels the officers to use force, she has caused a breach of the peace. It is on this basis that he defends the judge’s ruling, relying on the decision of a divisional court (Donaldson and Bristow JJ) in Coffin v Smith (1980) 71 Cr App Rep 221. Two constables had attended while a youth leader removed from a disco some youths who were not wanted there. They stood by while the youth leader sent the youths away. The youths went with an ill grace, then returned and attacked the officers. They were convicted of assaulting the constables in the execution of their duty. On appeal, relying the decisions in Prebble and Roxburgh, they contended that the officers had been acting in a civilian capacity and not in the execution of their duty. Of these two decisions Donaldson LJ said:
“I do not for my part think that they can be regarded as good law today.”

If it were necessary to analyse the reasoning in Coffin v Smith, I would have difficulty in accepting it as wholly correct, even though I have no doubt about the correctness of the conclusion. But as Lord Justice Judge has pointed out, the present case does not turn on whether the constables who removed Mrs Porter were acting in the execution of their duty: it turns on whether they were acting lawfully. In my judgment they were. By assisting London Electricity’s staff to evict Mrs Porter they were acting as lawfully as the staff themselves would have been had they evicted her. This is established by the decisions in Prebble and Roxburgh, which I consider still to be good law. It was not necessary for the Divisional Court to overrule them in Coffin v Smith because there the constables were acting in the execution of their duty in standing by to keep the peace, not in taking any active part in the eviction of the youths.

In the present case, by contrast, a trespasser was being removed by police constables acting as voluntary agents for the occupiers of the premises. This they were free to do. If in the course of the eviction - whoever was carrying it out - a breach of the peace occurred or became imminent, their continuing duty as constables required them to intervene by detention or arrest. Such a breach of the peace:
“is committed only when an individual causes harm, or appears likely to cause harm, to persons or property, or acts in a manner the natural consequence of which would be to provoke violence in others.”

I take this formulation from the decision of the European Court of Human Rights in McLeod v United Kingdom (72/1997/856/1065, 23 September 1998, paragraph 42) because it was on the basis of it that the United Kingdom was able to satisfy the Court that a breach of the peace was a sufficiently definite concept to entitle action taken to prevent or abate it to be regarded as action ‘according to law’. In these circumstances it would in my judgment be wholly wrong for the courts of this country now to introduce any fresh elasticity into the definition. Nothing in this court’s decision in the CEGB case, from which Lord Justice May has set out full citations, requires us to do so, particularly since that decision, despite its high authority, has been generally treated by commentators and by practitioners representing both police forces and members of the public as going further than was warranted in the ambit it suggests to breach of the peace and therefore to the power of arrest (see Feldman, Civil Liberties and Human Rights, 788-9).

Moreover, while the McLeod case was under consideration in Strasbourg this court (Beldam, Schiemann and Thorpe LJJ) was deciding Foulkes v Chief Constable of the Merseyside Police [1998] 3 All ER 705, [1998] 2 FLR 789. Consonantly with the approach of the European Court of Human Rights, Beldam LJ further defined the situation in which a preventive power of arrest, and therefore of detention, arises in this way:
“. . . where no breach of the peace has taken place in his presence but a constable exercises his power of arrest because he fears a further breach, such apprehended breach must be about to occur or be imminent . . . There must, I consider, be a sufficiently real and imminent threat to the peace to justify the extreme step of depriving of his liberty a citizen who is not at the time acting unlawfully” (per Beldam LJ at 711).

I would add that for my part I regard the decisions in Prebble and Roxburgh as good sense as well as good law. The commission of the peace rests with a constable round the clock and round the year: it does not depend on being on duty or in uniform. A constable who assists a civilian in what the civilian asserts is lawful self-help takes an inevitable risk of becoming implicated in a civil wrong or even a crime. This happened in Foulkes v Chief Constable of Merseyside [1998] 3 All ER 705. It can be readily envisaged where, for example, a constable helps someone to push-start a car which turns out to be stolen. To say that such an officer is acting lawfully if, for example, the true owner tries to stop him is fraught with problems; whereas to accept that he or she is acting lawfully so long as the person they are assisting is acting lawfully maintains a proper balance of legality but keeps the constable’s peacekeeping functions fully alive if a dispute develops.

Mr McLeod’s even more radical way of putting this case, namely that the initial minimal use of force by the police was itself a breach of the peace provoked by Mrs Porter, entitling them without more to arrest her, has only to be stated to be rejected. Not only would it create an entirely new body of satellite powers consequent on every act of self-help; it would afford indefinite powers of arrest which it would be almost impossible for the United Kingdom to defend before the European Court of Human Rights.

On the two questions addressed so far, therefore, I would conclude that London Electricity had terminated Mrs Porter’s licence to remain in the showroom, and that in assisting them to persuade or compel her to go the four constables were acting lawfully, but as volunteers and not as constables. They possessed no power of detention or arrest unless and until Mrs Porter either created a breach of the peace or made it evident that she was about to do so. The next and crucial question, therefore, is whether this is what she did.

Was there a breach of the peace entitling the constables to detain and arrest Mrs Porter?

A person who does not want to move can create major difficulties by simply going limp - something which by itself cannot ordinarily amount to a breach of the peace. Because she had two small children with her who had to be shielded from harm, Mrs Porter presented London Electricity and in turn the police with a real problem. In evidence Mrs Porter was consistent in asserting that she had at no point struggled. She had, she said, simply not co-operated in her removal. She had fallen to the floor, taking one or more officers with her, when one of her legs was taken hold of in an apparent endeavour to carry her out. On the floor her wrists were handcuffed behind her back. Equally, it is plain from the questions put to her in cross-examination that the respondent’s case was that she had been kicking and struggling and trying to bite the officers from the moment when the younger child was taken from her.

The security video supports neither account in full. On a first viewing I was inclined to think that no safe conclusion could be drawn from it; but on re-viewing it I agree with Lord Justice May that, coupled with Mrs Porter’s own evidence, it is clear that she was not simply letting herself be bodily taken out to the street: she was resisting removal in ways which were capable of causing harm to the people who were lawfully removing her. This meets the test set out in McLeod of conduct appearing likely to cause harm to other persons, taking harm to mean physical harm and judging appearance objectively, though without hindsight.

Conclusions

It follows, on my view of the law, that when Mrs Porter created a risk of harm to others by resisting lawful removal (whoever was carrying it out), the constables became empowered not only to detain her but on reaching the street (where the staff’s powers ended) to continue to detain her and if necessary arrest her if she then showed any intention other than to take her children and leave.

In relation to what happened in the police van and on arrival at the police station, while I share the concern of Lord Justice Judge that these questions were not as fully addressed as they ought to have been, I also share his view that they cannot properly be recanvassed by remission in isolation at this distance of time. They have to be laid to rest.

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Porter v Commissioner of Police for the Metropolis COURT OF APPEAL (CIVIL DIVISION) JUDGE, MAY, SEDLEY LJJ 20 OCTOBER 1999