H, R (on the application of) v Crown Prosecution Service

1. LORD JUSTICE SCOTT BAKER: This is an appeal by way of Case Stated from a decision of the South East Northumberland Justices. The appellant was charged with an offence under section 91(1) of the Criminal Justice Act 1967 . That section provides: "Any person who in any public place is guilty while drunk of disorderly behaviour may be arrested without warrant and shall be liable on summary conviction to a fine not exceeding level 3 on the standard scale."

2. The gravamen of the offence is disorderly conduct while drunk. The facts were straight forward and are as follows. On 12th March of this year police officers were called to the Red Lion public house at Bedlington. The appellant was outside and apparently arguing with two of the door staff. He appeared to the officers to be drunk. He was arrested for being drunk and disorderly. Officers took hold of him by the arms and walked him to the police van. He started to struggle, waving his arm violently. Other officers got out of the van to help to restrain him. Inside the van he continued lashing out and shouting and he was put on the floor of the van.

3. The Justices' findings were that, on the appellant's own admission, he had consumed five pints of lager. From the police evidence as to his demeanour and his own evidence and his own admission, he was drunk. The Justices were not, however, persuaded that his behaviour was disorderly at the door of the public house. He became disorderly, however, when the police tried to put him in the police van. The Justices concluded "that the appellant therefore behaved in a disorderly manner."

4. The offence, it should be noted, is not being drunk but being guilty of disorderly behaviour in a public place while drunk. It is the disorderly behaviour that triggers the liability to arrest without a warrant. On the Justices' findings, the appellant was drunk but not disorderly outside the public house. The police were therefore, in my judgment, not entitled to arrest him without a warrant.

5. The prosecution always put its case on the basis that the appellant was behaving in a disorderly fashion outside the public house and that that was what entitled the police to arrest him. In my judgment, no offence under section 91 is committed if the appellant is drunk, then arrested, without justification, and then starts behaving in an disorderly fashion. The question posed by the Justices is in these terms: "Having made no finding of disorderly conduct at the door of the public house and having only found disorderly behaviour when the police officers attempted to place me in the police van (ie, after arrest) whether the Justices were entitled to convict me of an offence under S.91(1) of the Criminal Justice Act 1967 ."

6. I would answer that question in the negative and allow the appeal.

7. MR JUSTICE OWEN: I agree.

8. MR MITFORD: Thank you, my Lord. I also had a representation order in this case, if that is necessary for taxation, but I gather it is not.

9. LORD JUSTICE SCOTT BAKER: Thank you.