Neutral Citation Number: [2010] EWCA Crim 1023
Case No. 2009/04855/D3
IN THE COURT OF APPEAL
CRIMINAL  DIVISION

Royal Courts of Justice
The Strand
London
WC2A 2LL

Date: Tuesday  27  April  2010

B e f o r e:

THE LORD CHIEF JUSTICE OF ENGLAND AND WALES
(Lord Judge)

MR  JUSTICE  DAVID  CLARKE

and

MR  JUSTICE  LLOYD  JONES

__________________

R E G I N A

- v -

PAUL  BURNS
__________________

Computer Aided Transcription by
Wordwave International Ltd (a Merrill Communications Company)
165 Fleet Street, London EC4
Telephone No: 020 7404 1400; Fax No 020 7404 1424
(Official Shorthand Writers to the Court)
__________________

Miss Joanna Greenberg QC appeared on behalf of the Applicant

Mr Jonathan Devlin appeared on behalf of the Crown
____________________

J U D G M E N T

THE LORD CHIEF JUSTICE:  

1.  This application for leave to appeal against conviction, which has been referred to the full court by the Registrar, raises a short but not uninteresting point relating to offences of violence and the defences to them.  We grant leave.

2.  On 17 August 2009, in the Crown Court at Bradford, before His Honour Judge Benson and a jury, the appellant was convicted of assault occasioning actual bodily harm.  He was also convicted of committing an offence with intent to commit a sexual offence, and had earlier pleaded guilty to common assault.  The last two convictions have no bearing on the present appeal.  In due course the appellant was sentenced to concurrent sentences of imprisonment for assault occasioning actual bodily harm and the sexual offence, but the sentences were suspended.

3.  The facts are these.  The complainant was a prostitute working in Huddersfield.  In the early hours of 13 July 2008 the appellant drove to the red light area of the town.  He got out of his car and spoke to the complainant.  They agreed a price of £50 for oral sex.  The price was paid.  The appellant said that he wanted to go somewhere safe because he had seen a police car in the vicinity, so they got into his car together.  When the complainant got into the car it was understood between them that she would later be returned to the area where the journey had started.  He drove for about ten minutes to a more secluded area.  There he stopped the car.  It was in dispute whether he provided both of them with a line of cocaine which they both took, or whether he offered her cocaine which she refused.  It appears that he left the car to urinate.  On his return, according to his account, he turned on the interior light.

4.  The complainant was then seen to be less attractive than the appellant had thought.  That put him off the entire transaction.  He asked her to get out of the car.  She was not happy and refused.  He removed her from the car with force.  On his own account he pulled her out by her armpits.  She resisted.  After a struggle he removed her from the car.  She wanted to get back into it.  She asked him not to leave her where they were and struggled with him.  He pushed her away.  Eventually she stopped struggling.  He got back into the car and drove away.

5.  The complainant's account was of more serious violence.  However, it was not in dispute that as a result of the struggle she had sustained scratches and grazes to her legs, which were bleeding, and that this constituted actual bodily harm.

6.  In his evidence at trial the appellant conceded that he should have taken the complainant back to where she had been picked up.  Miss Joanna Greenberg QC, for whose submissions both written and oral we are grateful, pointed out that this concession would be a matter of courtesy rather than a matter or law.  The appellant also conceded that nothing prevented him from taking the complainant back, apart from his change of mind.  There was no other reason why, when the complainant refused to leave, he could not have taken her back.

7.  After his evidence was completed, it was submitted to the trial judge that the force used by the appellant to remove the complainant from his car, and the subsequent struggle to prevent her from returning back into it was lawful.  The judge rejected the submission.  In due course he directed the jury that, even on the appellant's account of what had happened

		"he was not entitled to use force to eject [the complainant] from that vehicle and to prevent her from getting back into it in the circumstances of this case."

The judge further directed the jury that, provided they were satisfied that the complainant had sustained actual bodily harm at the appellant's hands, as a matter of law, 

		"the force that [he] used was unlawful...."

The question in this appeal is whether the direction was correct.

8.  The contention advanced on behalf of the appellant is that, although there are no authorities directly in point, he was entitled to use reasonable force to remove the complainant from his car; alternatively, that the use of force in the circumstances which obtained here was not necessarily unlawful.  The foundation of the argument is that it is settled law that such force can be used to eject an individual from any property after he has refused to leave on request.  By refusing, he becomes a trespasser and so can be removed.  This would apply, for example, to a house.  The argument is that the principles of common law relating to an individual's home or house are analogous to those which apply in relation to his car.  It is well known that the owner of a house has the right to say who may enter and who may remain.  Similarly, the common law provides the right to remove a trespasser from his car as to remove a trespasser from his land.  That certainly applies to an individual who enters a vehicle without permission and who sought to remain there indefinitely.  It applies to the complainant who sought to remain indefinitely, notwithstanding the appellant's request that she should leave.  Although she entered with his permission, he had terminated it.

9.  On this contention it is irrelevant that the original entry by the complainant into the car was at the invitation of the appellant.  The invitation remained subject to his permission and licence, which he was entitled to remove or withdraw at any time and for any reason, and indeed without any reason or justification.  In the written submissions our attention was drawn to R v Tabbart [1693] Skinner 387, where the plaintiff desired the defendant who had come into his house to leave it and accordingly commanded that his wife put the defendant out, molliter manus imposuit.  It is an indication of how ancient the decision in Tabbart is that it was reported that the plaintiff had given his wife such a command.  Nowadays the language might be "request".  In Archbold (2010 edition) it is suggested (paragraph 19-187) that

		"It is a good defence that the battery was committed by the defendant in defence of his possession; as, for instance, to remove the prosecutor out of the prisoner's close of house; or to prevent him from entering it: Rolle Abr. 548, 1.25...."

In essence it is contended on behalf of the appellant is that these principles apply to his car.

10.  The problem with Miss Greenberg's submission is stark.  The common law is a remarkably flexible instrument; but it is perhaps worth emphasising that the flexibility of the common law, and its capacity for development, lies at least in part on its ability to reflect practical and contemporary realities.

11.  The question in this appeal is whether the violence to which the complainant was subjected was unlawful.  The appellant did not act in self-defence nor in defence of anyone else, nor to prevent a crime, nor in defence of his property from the threat or risk of damage, nor indeed for any of the purposes envisaged either by the Criminal Law Act 1967 or the Criminal Damage Act 1971 or well-established common law defences to allegations of violence which would otherwise be criminal, such as participation in sports like rugby which involve an element of violence.  Even as a matter of legal theory we doubt the validity of the analogy between the appellant seeking to remove the complainant from his car and the rights of the house or landowner to remove a trespasser from his property.  If anything, the appellant's activities could be said to amount to self-help, that is action to recover exclusive possession and occupation of his car, a concept sometimes described as recaption of property.  However, the common law itself has always been reluctant to extend the ambit of self-help to situations which may culminate in violence.  Sir Matthew Hale commented in the seventeenth century on the many times "tumults and disorders" were occasioned by the abatement (or removal) of nuisances: see Winfield and Jolowicz on Tort, 17th edition, at 22-47.

12.  More recently, in Southwark London Borough v Williams [1971] Ch 734, Edmund Davis LJ described how

		".... the law regards with the deepest suspicion any remedies of self-help, and permits these remedies to be resorted to only in very special circumstances.  The reason for such circumspection is clear -- necessity can very easily become simply a mask for anarchy."

13.  Similarly, in Lloyd v DPP [1992] 1 All ER 984, Nolan LJ said:

		"Self-help involving the use of force can only be contemplated where there is no reasonable alternative."

14.  We are invited to extend the very limited circumstances in which self-help may be used to justify activity which would otherwise constitute a violent offence.  The submission therefore requires the closest possible scrutiny.  Recognising that to be lawful the use of force must always be reasonable in the circumstances, we accept that it might be open to the owner of a vehicle, in the last resort and when all reasonably practicable alternatives have failed, forcibly to remove an individual who has entered into his vehicle without permission and refuses to leave it.  However, where that individual entered the car as a passenger, in effect at the invitation of the car owner, on the basis that they mutually understood that when their dealings were completed she would be driven back in the car from whence she had come, the use of force to remove her at the appellant's unilateral whim, was unlawful.  In any event, the resort to self-help was not justified in the circumstances of this case because the appellant could readily have regained exclusive possession to his vehicle by means not involving the use of force, that is, by simply driving the complainant back to the starting point.

15.  In these circumstances, Judge Benson's direction to the jury was correct.  The appeal is dismissed.  

16.  It was unnecessary further to consider two possible civil law questions: first, any further investigation into the principles relating to the recaption of property and the interesting disagreement between the jurisdictions in Canada, Australia and New Zealand, typified here in the differences of approach found in Clerk and Linsell on Tort, 18th edition, and Salmon and Heuston on Tort, 21st edition, to the question whether force may ever be used to recover property of which the holder's initial possession was consensual and lawful; second, in the context of any contractual licence, whether the illegality which marked this transaction would have precluded the complainant from seeking any contractual remedy for the failure to return her to the starting point.  Neither of those considerations arises in this appeal.