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You are here: BAILII >> Databases >> England and Wales High Court (Administrative Court) Decisions >> Rutherford, R (on the application of) v Independent Police Complaints Commission [2010] EWHC 2881 (Admin) (22 October 2010) URL: http://www.bailii.org/ew/cases/EWHC/Admin/2010/2881.html Cite as: [2010] EWHC 2881 (Admin) |
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QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT
Strand London WC2A 2LL |
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B e f o r e :
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THE QUEEN ON THE APPLICATION OF RUTHERFORD | Claimant | |
v | ||
INDEPENDENT POLICE COMPLAINTS COMMISSION | Defendant |
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WordWave International Limited
A Merrill Communications Company
165 Fleet Street London EC4A 2DY
Tel No: 020 7404 1400 Fax No: 020 7404 1424
(Official Shorthand Writers to the Court)
MR M HOLDCROFT appeared on behalf of the Defendant
MISS A STUDD appeared on behalf of the Interested Parties
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Crown Copyright ©
"In terms of what occurred next there is basic agreement. Joseph Rutherford got out of the driving seat of the vehicle and approached the officers, leaving his brother in the front passenger seat. Both officers got out of the police vehicle and DS Barnfather spoke to Joseph Rutherford, showing him his warrant card. It is raining at this point and DS Barnfather requests that Joseph Rutherford sit in the rear of the police vehicle whilst he asks him some questions regarding the vehicle. PC Tozer approaches the Metro in order to deal with [the younger Rutherford] who is still sat in the passenger seat. PC Tozer opened the door to the Metro and spoke with [the younger Rutherford]. He showed him his warrant card. Because of the inclement weather, PC Tozer got into the vehicle. [The younger Rutherford] became uncomfortable with the officer's presence and attempted to get out of the vehicle, opening the front passenger door. PC Tozer attempted to prevent him leaving by grabbing at the boy's arm from his position in the driver's seat. During the course of this struggle PC Tozer sustains an injury to his face; the exact mechanism for this injury is disputed but it is agreed that [the younger Rutherford] was attempting to get away from the officer. From his position in the back of the police vehicle Joseph Rutherford saw PC Tozer struggling with his younger brother. He immediately gets out and runs to the driver's window of the Metro. Again, the exact facts are the subject of some dispute but Joseph manages to release his brother from PC Tozer's grip. Joseph tells his brother to run and both boys then decamp down the road and away from both officers".
"(4) Recommendations on other issues
(a) Learning points for the force -
Whilst not forming part of the Rutherford's original complaints, nor discussed in detail by this report, it would seem apparent to the investigating officers that in turning on the covert blue lights and tow tone sirens on the vehicle, DS Barnfather and PC Tozer have effectively requested [the younger Rutherford] and Joseph Rutherford to stop their vehicle. However, the officers would not be able to rely on section 163 of the Road Traffic Act 1988 (as amended by the Road Traffic Act 1991 and section 49 of the Police Reform Act 2002), as this only gives police officers in uniform the power to stop a mechanically propelled motor vehicle.
Regulations state that plain clothes police officers in unmarked vehicles can request private vehicles to stop if their vehicles are equipped with appropriate visual and audible warning equipment (i.e blue lights and two tones), but the driver would not commit any offence under the Road Traffic Act by failing to so.
DS Barnfather and PC Tozer were not directly questioned on this specific point during their tape recorded interviews, but stated that they had suspicions regarding both the vehicle and occupants. These suspicions were around the age and behaviour of the occupants, the result of the PNC check, and the type of vehicle it was. It may therefore be likely that they were relying on the auspices of section 1 of the Police and Criminal Evidence Act which gives a wide power to stop and search vehicles and persons for prohibited or stolen articles. The vehicle itself can be a stolen article for the purposes of the legislation.
Although DS Barnfather and PC Tozer's actions in this particular incident are not unlawful, it was felt prudent by the investigating officers to highlight this particular issue with the officers' management, to consider as a learning issue for their future reference when dealing in plain clothes with persons in motor vehicles".
"The primary grounds for appeal in this matter are two-fold -
(1) the lawfulness of the stop/arrest in this case has not been properly established and/or properly explained ... in particular we take issue with paragraph 82 which says that it is not in dispute that the stop of a car was lawful. Now that we have received this report and had clarification of the basis upon which our client was stopped, the question of whether or not the stop was in fact lawful is very much in dispute and this should not have been assumed".
The letter went on to say:
"Clearly as a matter of law it is important that the basis for the original stop is ascertained. It is clear and obvious that the law surrounding stopping of vehicles normally (and perhaps always) requires the officer to be in uniform. Therefore the fact that these officers were not in uniform is something that should have occurred to the investigating officers as being significant and therefore they should have dealt specifically with the question of whether or not them not being in uniform renders the stop unlawful".
The letter contended that the lawfulness of the stop mattered because all that then happened flowed from the stop.
"This appeal only needs to consider one particular point on the grounds of information; has enough information been provided to the complainant in relation to the lawfulness of the initial stop?
...
The point about the officers not providing a response was raised in Mrs Rutherford's appeal, in the statement of findings (our forms have since been revised) I stated: 'Although it is regrettable that the officers were not asked specifically under what legal provision they felt they had power to stop the boys I do not think that asking the question of the officers now will add anything to the investigators report or change the outcomes'.
The amount of time that has passed since the incident will have a significant impact on the officers' ability to provide accurate recollections, and seeing as the force legal adviser has provided a response and the officers have had the opportunity to read the report, it is unlikely they will deviate from the explanation that has been put forward."
"There is a general power to stop vehicles arising under sec 163 of the Road Traffic Act 1988. The obligation to stop under RTA 163 arises where the officers are in uniform - a failure to stop in such circumstances amount to an offence. There is nothing to prevent an officer attempting to stop a vehicle when in plain clothes and in an unmarked car however in such circumstances a failure to stop would not, in itself, be an offence. There is no power under sec 1 Pace 1984 to stop a vehicle when you are not in uniform (sec 2(9)(b) - however a section 1 pace search can be undertaken when officers are not in uniform provided they identify themselves (code A para3.9) appropriately once the stop has occurred - so the stop was lawful in this case (and there was no obligation to have reasonable suspicion to undertake the stop) and the fact that the officers were never asked about the power they deployed is not an issue - they have used the correct power even if they were not aware what it was".
"It is not therefore necessary to decide what might have been the position if the police officer had acted in excess of his powers in requiring the motorist to stop. It is, however, to be observed that precisely this position was considered by this court in Winter v Barlow [1980] RTR 209 and it was held that notwithstanding the police officer's mistaken view of his power to stop the motorist, he was, nevertheless, entitled to require the motorist to take a breath test as a result of smelling alcohol upon the motorist's breath".
It may be otherwise if the reason for requesting a vehicle to stop is capricious or oppressive, but that could not be at issue here, because the police had clear reasons providing an adequate justification for requesting the Metro to stop, namely they genuinely believed on reasonable grounds that the car had been stolen.