CO/0918/2015 
Neutral Citation Number: [2015] EWHC 3017 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION 
THE ADMINISTRATIVE COURT 
Royal Courts of Justice 
Strand
London WC2A 2LL 

Friday, 24 July 2015
 
B e f o r e: 

MR JUSTICE OUSELEY 

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Between: 
THE QUEEN ON THE APPLICATION OF BILAL AZNANAG AND ABDUL‑MUTTALAB AWAD ALI 
Appellant 
v 

CROWN PROSECUTION SERVICE (APPEALS UNIT) 
Respondent 

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(Transcript of the Handed Down Judgment of
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Lucy Ginsberg (instructed by Murrays Partnership Solicitors SE1 6SW) appeared on behalf of the Appellant
Simon Heptonstall (instructed by the CPS Appeals Unit SE1 9HS) appeared on behalf of the Respondent

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Judgment
1.	MR JUSTICE OUSELEY:  This is an appeal by way of case stated against the decision of justices for the South Group Local Justice Area of London sitting at Camberwell Green Magistrates' Court on 29 September 2014.  They had to consider an allegation that the appellant assaulted a police constable, Ms Chu, in the execution of her duty.  
2.	The case in summary involved a number of police officers who attended premises to conduct an arrest relating to a serious offence.  A large crowd gathered outnumbering the police.  There was tension and abuse was being shouted.  The appellant came into contact with the police officer in this way.  She gave evidence that he was trying to push past her; she put her hand out to stop him; he ignored her; he then grabbed her right wrist and pulled her arm along her side holding it tight causing her pain and shouting at her.  Another police officer came in to assist, giving evidence of the appellant grabbing PC Chu's right arm.  
3.	The appellant gave evidence in which he said that he wanted to go into the premises to retrieve his mobile phone.  He asked the police officer to go and get his phone, but she did not reply.  She gave him four to five hard pushes and he took her hand to stop her pushing him.  The court said this in its judgment: 
"We are dealing today with a charge of assaulting a constable in the execution of her duty.  It is clear from the evidence we have heard that there were a number of police trying to gain access to a property and a number of youths were in attendance outside.  
This was a high tension situation and a lot of the evidence we have heard has been contradictory and confusing.  
Did Bilal's action in moving PC Chu's hand away from his chest constitute an assault?  
By his (the appellant) own admission PC Chu pushed him 4 or 5 times in the chest to stop him from moving forward.  All he needed to do was walk away, but he chose not to and forcefully moved her hand causing pain to her wrist.  We do believe that this constituted an assault and therefore find you guilty."  
After, it appears, receipt of the request for a case to be stated, the court added that further clarification had been provided by the justices saying: 
"By 'confusing and contradictory' evidence we were not referring to the trial issue but some of the other peripheral detail, eg, exactly how many people were attending the address.  
We had no doubts on the key issues in the trial."
4.	The two questions for the court are (i) relating to the significance of their comment that a lot of the evidence had been contradictory and confusing, and (ii) whether they were correct to reject self‑defence on the grounds that all the appellant needed to do was walk away.  
5.	Miss Ginsberg, appearing for the appellant, submits that once the justices had concluded that a lot of the evidence has been contradictory and confusing, they had no choice but to acquit.  The postscript added in the case stated, was ex post facto reasoning and should not be considered.  
6.	Dealing with the latter first, there is no authority and no justification I can see for confining the reasoning in the case stated to the words uttered by the justices at the point when they announce their decision on guilt or innocence.  The clarification they have given is entirely what I would have taken the language of "contradictory and confusing evidence" to have meant anyway, rather than that, in a state of confusion and contradiction, they simply plucked a result out of the air.  It is a commonplace for trial judges, juries and justices to be faced with a mass of contradictory and inconsistent evidence, but to be perfectly able to reach a conclusion on the key issue or issues having considered that carefully.  That is exactly what was done here.
7.	The second point concerns self‑defence.  The magistrates' reasoning is perhaps not as clear as it might be, particularly because it appears that they do not resolve the factual issue directly between the appellant and PC Chu as to exactly what happened; after all it was PC Chu's evidence that she had not pushed him.  
8.	The justices appear to have concluded that even if the appellant were right that the police officer in the execution of her duty had pushed him four or five times, nonetheless what he did constituted an assault.  It is also clear from the justices' conclusion that there was sufficient space for the appellant to walk away.  He was not penned in by a crowd behind him such that he could not move.
9.	The first point that Miss Ginsberg raises is that in reality the justices have imposed a duty to retreat on the appellant, which is contrary to what statute permits.  There is no duty to retreat.  The question of whether somebody could have retreated is a factor to be taken into account (see section 76(6A) of the Criminal Justice and Immigration Act 2008 when read with subsection (3)).  There is no dispute but that that is the law.
10.	In my judgment, the justices have not erred in their conclusion.  It has to be remembered that it is not contended, and was not contended, that the appellant had some right to push past the police officers.  The police officers were acting in the execution of their duty in preventing forward movement.  Once there had been pushing by her in the execution of her duty rather than an assault, pushing lawfully to prevent the appellant from going forward, what then was supposed to be done?  The appellant decided to prevent any further pushing by grabbing her arm and causing her pain.  
11.	The justices found that there was no need at all for him to do that.  All he needed to do was to step backwards, after all he was not lawfully going to go forwards, and the pushing would have stopped.  It may have been better if the magistrates had resolved the issue as to whether there was pushing in the chest or not, but the officer was acting in the execution of her duty in preventing the forward movement.  That just presented the appellant with this difficulty.  If he was seeking to go forward, she was entitled to stop him.  If he had continued to prevent her stopping him, he would have been interfering with her duty.  He had no sensible option, as the justices implicitly found, but to step backwards.  That was the only proportionate response, in the circumstances, to the pushing by the police officer.
12.	The justices were not imposing an unlawful duty to retreat, they were simply reaching a conclusion as to what, in the circumstances, was the proportionate response to the pushing.  They were fully entitled to conclude that the only proportionate response was to take a step backwards and walk away.
13.	Turning then to the questions: 
(1) "Having stated that 'a lot of the evidence we have heard has been both contradictory and confusing' were we correct to convict the appellant?", the answer is: yes.  
(2)"Where we correct to reject the appellant's defence of self‑defence on the basis of that all he needed to do was to walk away but he chose not to and forcibly moved her hand causing pain to her wrist?", the answer is: yes. 
14.	This appeal is dismissed.  
15.	MR JUSTICE OUSELEY:  Miss Ginsberg and Mr Heptonstall, I am grateful to you for your advocacy.  Miss Ginsberg, well done.