The issue of whether a defendant may advance self-defence on a charge of Obstruct PC (contrary to s.89(2) Police Act), in circumstances where the officer is acting within their duty, has long been an area of significant legal ambiguity and uncertainty.
This state of affairs has stemmed from an apparent contradiction between, on one hand, the general right of every defendant to run self-defence or defence of another (as enshrined in common law and s.76 Criminal Justice & Immigration Act), and, on the other, a strong line of authority from the CACD and Divisional Court, limiting the availability of the defence to situations where the officer is acting within his or her duty, see Kenlin v Gardner  2 QB 510.
As a result of a key decision handed down by the Divisional Court in January 2018, in which Claire Mawer was instructed by McMillan Williams solicitors to represent the Appellant, the law has now been clarified in favour of defendants seeking to advance the defence, in circumstances where:
- the officer was acting within his duty; and
- there has been a mistake of fact, not limited to situations where the officer(s) was wearing plain clothes.
The charge in question arose when the defendant intervened to protect his mother, who was being prevented, by a police constable, from driving away her car after it had been seized. The defendant’s intervention took the form of him removing the police officer’s arm from his mother. Following this conduct the defendant was charged with an offence of Obstruct PC.
At the Westminster Magistrates’ Court the defendant was convicted of the charge. He appealed his conviction to the Isleworth Crown Court, where Claire was instructed. After a four day re-trial the appeal was dismissed; the recorder holding that, applying Kenlin v Gardner, self-defence / defence of another is not available as a matter of law where an officer is acting within his duty, but that if it had been he would have upheld the appeal. This aspect of the Recorder’s dicta was based on his finding that the defendant heard his mother scream loudly and vociferously; that the defendant intervened in defence of his mother, removing the officer’s hand because he was alarmed at what was happening to her; and that his conduct was reasonable.
In the appeal by way of case stated, Claire successfully argued that the recorder had erred in holding that self-defence / defence of another was not available as a matter of law. Claire submitted that the Appellant’s belief in the need to defend his mother was a mistaken, but genuinely and reasonably held, error of fact. As such, he was entitled to advance the defence, irrespective of whether the officer had been acting within his duty.
In a widely reported judgment [Oraki v DPP  EWHC 115 (Admin)] the Divisional Court comprehensively reviewed the legislative framework and case law within this area, ruling as follows: “there is no reason in principle or authority why the defence should not be available to a charge of obstructing a police constable”, [§26]. On this basis, the appeal was upheld and the Appellant’s conviction quashed.
Giving judgment, Singh LJ ruled that the determinative factor would be the state of mind of the individual raising the defence, and affirmed the principle that a mistaken belief of fact, if genuinely held and even if unreasonable, would be sufficient to run the defence. Per Singh LJ [§42]:
“what the Crown Court’s findings of fact amounted to was that the appellant’s state of mind was that his mother was being assaulted by the police officers, and he intervened in order to prevent that taking place. If what he believed had been true, the defence would have been available to him. His mistake was not one simply as to law”.
This case will have a direct impact on the defence of this common summary-only charge: reversing the previous line of authority in case law and re-affirming every defendant’s right to advance self-defence or defence of another.