Obstructing or Resisting a Police Constable

For the next of our articles focusing on matters commonly dealt with by the Magistrates' Court, we thought we'd take a closer look at the offence of obstructing or resisting a police constable in the exercise of their duty.

In this article we give a whistle stop tour of the offence. We cannot possibly cover every single angle, but hope to cover the most pertinent points. As always, we'd invited readers to consult the references mentioned below if they require any further information.

Obstructing or resisting a police constable in the exercise of their duty is an offence contrary to section 89(2) of the Police Act 1996, which states the following:

• "Any person who resists or wilfully obstructs a constable in the execution of his duty, or a person assisting a constable in the execution of his duty, shall be guilty of an offence and liable on summary conviction to imprisonment for a term not exceeding one month or to a fine not exceeding level 3 on the standard scale, or to both."

This offence is triable summarily and carries a maximum penalty of one months' imprisonment and/or a fine at level 3 (currently £1,000).

Section 89(3) of the Act explains that the offence can also be committed against a constable of a police force in Scotland or Northern Ireland, if they are executing a warrant, or otherwise acting in England or Wales, by virtue of any enactment conferring powers on them in England and Wales.

Section 89(4) of the Act explains that the offence can also be committed against a person who is neither a constable nor in the company of a constable, but who is carrying out their functions as a member of an "international joint investigation team" led by a member of a police force.

Section 89(5) further explains the meaning of an "international joint investigation team".

For the purposes of the legislation the term "resist" has its normal everyday meaning, which is to (physically) oppose by the use of force.

Case law (Hinchcliffe v Sheldon [1955] 3 All ER 406) has established that "obstruct" simply means make it more difficult for a police constable to carry out their duties. Arguably this does not set the bar for the commission of an offence very high.

A person may obstruct a constable by failing to act, provided they were under a legal obligation to act in the first instance (Lunt v DPP [1993] Crim LR 534).

Referring back to section 89(3), it can be seen that there are certain elements need to be present in order for an offence to be committed.

Firstly, the constable concerned must be acting in the execution of their duty. If the actions of the constable are in anyway unlawful, then this element cannot be satisfied. It should be stressed that although the constable must be acting in the execution of their duty, they do not need to be formally on duty - e.g. it is possible to resist or wilfully obstruct an off duty constable who is lawfully performing a police duty.

Secondly, any obstruction must be a wilful act. This means the person must intend that their action (or omission) makes it more difficult for a constable to perform their duties. A person who accidentally, through either their act or omission, obstructs a police constable, is not guilty of an offence.

The Crown Prosecution Service has listed some examples of the type of conduct that might constitute an offence:

• Warning a landlord that the police are to investigate after hours drinking;
• Warning that a police search of premises is to occur;
• Giving a warning to other motorists of a police speed trap ahead;
• A motorist or suspected shoplifter who persists in giving a false name and address;
• A witness giving a false name and address;
• A partner who falsely claims that he/she was driving at the time of the accident but relents before the breathalyser procedure is undertaken;
• An occupier inhibiting the proper execution of a search warrant (if the warrant has been issued under section 23 of the Misuse of Drugs Act 1971);
• Refusing to admit constables into a house when there is a right of entry under section 4(7) of the Road Traffic Act 1988.

Plus a myriad of similar situations, one of which, as mentioned in an earlier article, is blocking the view of a police speed camera van (an offence under section 46(2) of the Police Reform Act 2002 would be applicable in the case of a speed camera van operated by someone other than a police constable).

It should be noted that a person's refusal to answer a constable's questions does not constitute obstruction in its own right (Rice v Connolly [1966] 2 QB 414). After all, anyone cautioned for an offence has the right to silence.