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United Kingdom House of Lords Decisions


You are here: BAILII >> Databases >> United Kingdom House of Lords Decisions >> Albert v Lavin [1981] UKHL 6 (03 December 1981)
URL: http://www.bailii.org/uk/cases/UKHL/1981/6.html
Cite as: [1982] AC 456, [1981] UKHL 6

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JISCBAILII_CASE_ENGLISH_LEGAL_SYSTEM

    HOUSE OF LORDS

    LAVIN (RESPONDENT)

    v.
    ALBERT (A.P.) (APPELLANT)

    Lord Diplock
    Lord Simon of Glaisdale
    Lord Keith of Kinkel
    Lord Scarman
    Lord Roskill)


    Lord Diplock

    MY LORDS,

    This is a very much simpler case than it was made to appear to the
    magistrates who tried it and to the Divisional Court to which an appeal
    by way of case stated was brought by the appellant (Albert) against his
    conviction by the Brentford Magistrates Court of an offence under section 51
    of the Police Act, 1964, of assaulting a constable (the respondent, Lavin)
    in the execution of his duty.

    The relevant facts can be stated in three sentences. As a result of
    incidents that occurred when Albert tried to " jump the queue " at a bus
    stop, Lavin, a police constable who, at the time, was at the head of the
    queue, off-duty and in plain clothes, had, as the magistrates found,
    reasonable grounds for believing a breach of the peace to be imminent
    unless he obstructed Albert from boarding the bus out of turn. Albert's
    conduct thereafter, while he was being restrained by Lavin, during the
    course of which Lavin had said that he was a constable, was found by the
    magistrates to amount to a continuing breach of the peace. After being
    told that Lavin was a constable, a statement which the magistrates found
    that Albert in his excited state honestly but unreasonably disbelieved, Albert
    struck him five or six blows in the stomach. This constituted the assault
    on a constable in the execution of his duty for which Lavin arrested him
    and of which he was convicted by the magistrates.

    Upon those facts and findings the magistrates' court Stated a Case that
    raised the two following questions of law for the opinion of the High Court :

    " 8. THE questions for the opinion of the High Court are whether:

    " (i) a constable who reasonably believes that a breach of the peace
    " is about to take place is entitled to detain any person without
    " arrest to prevent that breach of the peace in circumstances
    " which appear to him to be proper

    " (ii) a person being detained in the circumstances set out above but
    " who does not accept that the person detaining him is a
    " constable may be convicted of assault on a constable in the
    " execution of his duty if he uses no more force than is
    " reasonably necessary to protect himself for what he mistakenly
    " and without reasonable grounds believes to be an unjustified
    " assault and false imprisonment."

    My Lords, if in the first question the adverb " reasonably " be treated
    as inserted before the verb " appear " (and it is apparent from the body of
    the Stated Case that this was the magistrates' intention) the answer to each
    of these questions is " yes ".

    Unfortunately in the Divisional Court the appeal proceeded on the basis,
    apparently undisputed by either party, that there was only one exception
    to what Hodgson J., who gave the main judgment, called " the well-
    " established principle that to detain a man against his will without arresting
    " him is an unlawful act and a serious interference with a citizen's liberty ";
    and that the sole exception was where the detention was effected by a
    constable in the execution of his duty. This led the learned judge into
    a lengthy and erudite consideration of what must be the state of mind of a

    2

    person charged with assault, in order to enable him to rely upon the defence
    of a mistaken belief that facts existed that justified the assault as the exercise
    of a lawful right of self-defence of which he would have been entitled to
    avail himself if the belief had been correct. Consideration of this question
    involved reference in the judgment to more than a score of reported cases
    on mens rea, " subjective " and " objective " tests and related topics, which
    led Hodgson, J. to the conclusion that there must be reasonable grounds
    for the mistaken belief, if it is to be relied on, as a defence.

    With the correctness or otherwise of this part of the judgment of
    Hodgson J. your Lordships are not concerned in this appeal. The question
    to which it was directed simply does not arise. What had been overlooked
    in the argument in the Divisional Court and in the written cases of both
    parties that were lodged in this House, is that to the well-established
    principle referred to by the .learned judge, there is an equally well-
    established exception, not confined to constables, that is applicable to the
    instant case. It is: that 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 a citizen who is a constable, it is a duty of
    imperfect obligation.

    Upon the findings of the magistrates in the Stated Case this well-
    established exception was plainly applicable to the instant case. It was
    drawn to the attention of counsel at the opening of the hearing before your
    Lordships, when it was pointed out that this House could not deal with the
    appeal on the basis of an erroneous assumption as to the applicable law
    even though in the court below the case had been argued and decided on
    the basis that the erroneous assumption was correct. After an adjournment
    to enable counsel to verify the accuracy of the proposition as to the citizen's
    rights and duties at common law when confronted with breaches or
    threatened breaches of the peace, which I have stated above, counsel for
    Albert conceded that upon a correct view of the applicable law he could
    no longer pursue the appeal. Even if Albert's belief that Lavin was a
    private citizen and not a constable had been correct, it would not have
    made his resistance to Lavin's restraint of him lawful.

    The Divisional Court certified that the following question of law of
    general public importance was involved in its decision:

    " Whether a person charged with an offence of assault may properly
    " be convicted if the court finds that he acted in the belief that facts
    " existed which if true would justify his conduct on the basis of
    " self-defence but that there were in fact no reasonable grounds for so
    " believing ".

    My Lords, for the reasons I have given, the Divisional Court were
    mistaken in thinking that that question of law was involved in the appeal
    that they were hearing. It is a hypothetical question upon which it has
    not been necessary, nor would it have been proper, for your Lordships to
    hear argument; and your Lordships should decline to answer it.

    I would dismiss this appeal.


    Lord Simon of Glaisdale

    my lords.

    I have had the privilege of reading in draft the speech delivered by my
    noble and learned friend on the Woolsack. I agree with it; and for the
    reasons given I too would dismiss the appeal.


    3

    Lord Keith of Kinkel

    my lords,

    I have had the benefit of reading in draft the speech of my noble and
    learned friend, Lord Diplock. I agree with it, and for the reasons he gives
    I would dismiss the appeal
    .

    Lord Scarman

    my lords,

    I have had the advantage of reading in draft the speech delivered by my
    noble and learned friend, Lord Diplock. I agree with it; and for the reasons
    he gives I would dismiss the appeal.

    Lord Roskill

    my lords,

    For the reasons given by my noble and learned friend, Lord Diplock,
    whose speech I have had the benefit of reading in draft, I too would dismiss
    the appeal.

    313694 Dd 8208150 C2 11/81


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