Threat can be unperceived in proving an affray
R v West London Youth Court, Ex parte M and Others
(1999) The Times, July 7th QUEEN'S BENCH DIVISIONAL COURT
The Law
Lord Justice Auld said that the issues were whether the mere possession of petrol bombs in the circumstances was capable of amounting to a threat of unlawful violence; and if so, whether the threat of violence made to unknown persons or the public at large amounted to a threat of unlawful violence towards another.
Reference was made to R v Davison [1992] Crim LR 572 and R v Sanchez [1996] Crim LR 572.
In the court's view there was no reason why an aura of menace could not amount to a threat of violence: see Taylor v DPP [1973] AC 964, 987; R v Dixon [1993] Crim LR 379, R v Robinson [1993] Crim LR 581 and R v Sharp; R v Johnson [1957] 1 QB 552.
The carrying in public of primed petrol bombs, by people in gangs out for no good was clearly capable of constituting a threat of violence, regardless of whether or not there was throwing or brandishing of weapons.
It was stressed that the mere possession of a weapon was not enough without a threat in the circumstances of the sort to constitute affray. The mere carrying of a concealed weapon would not by itself constitute affray.
As to whether the threat was towards another, the court distinguished Atkin v DPP (1989) Cr App R 199, 204. There the tight meaning given to the words "the other person" in section 4 of the Public Order Act 1986, by Lord Justice Taylor, in relation to the use of threatening words, did not apply in their entirety to the offence of affray.
It was not necessary for the prosecution to prove that the person perceived the threat: see Swanston v DPP The Times January 23, 1997, (SEE Comment below for case.). Where the threat of violence was taking form it was not necessary to prove that a person or persons present actually felt threatened. It was plain from the sight of an armed gathering in public that at least those openly displaying weapons constituted a threat of violence to anyone other than themselves, also police officers called to the scene.
The hypothetical bystander included police officers who attended whether or not they perceived a threat of violence directed at themselves.
Here, the magistrate found, that in Bengali populated East London area street gangs were territorial.
In the circumstances, his Lordship found that the threat of violence constituted a threat to anyone in the vicinity. The police officers' perception or lack of it as particular targets was immaterial.
MR JUSTICE HUGHES, agreeing, added these points:
1 The mere possession of offensive weapons did not automatically amount to a threat of unlawful violence.
2 It might do so if the weapons were visible and held in circumstances amounting to a threat of unlawful violence.
3 A group of 40 or so young men carrying petrol bombs on a concourse outside a block of flats was capable of amounting to a threat of unlawful violence. It was a reasonable inference that persons at the scene would be in fear.
4 Such petrol bombs did not have to be waved about or be brandished to constitute a threat.
5 Affray did not require the presence of a person threatened. The person of reasonable firmness was a hypothetical person often referred to as a bystander. The person threatened might be threatened although unaware, for example, his back could be turned.
6 The person threatened might be of unknown identity and the threat might be made generally in a popular place to all about; for example, people in a flat looking out through windows, those entering and leaving the concourse. The magistrate found that aside from the police no other persons were present at the scene.
7 That a police constable thought a disturbance might ensue was not by itself enough, if what he contemplated was no more than a future event. Affray required a threat.
8 On the special facts of the case the magistrate was entitled to reach that conclusion.
The Decision
The carrying of unlit petrol bombs by forty or so youths on the concourse around residential flats, where there were no members of the public nor rival gangs present, constituted an affray under section 3(1) of the Public Order Act 1986.
The Queen's Bench Divisional Court so held in dismissing an appeal of the conviction by Stipendiary Magistrate, sitting at a Youth Court of M, H and I of threatening violence towards another such that their conduct would cause a person of reasonable firmness at the scene to fear for their personal safety, contrary to section 3(1) of the 1986 Act.
Comment
In Swanston v DPP (1997) The Times, 23 January, "Victim need not give evidence", it was held that a court was entitled to hold that threatening, abusive or insulting words or behaviour were perceived by a person without hearing evidence from the victim himself. Nor was the court required to hear evidence from that victim in order to find that the offence was committed with intent.
Meaning of ‘Threat’ and ‘Unlawful Violence’
Since a threat cannot be made by words alone (Public Order Act 1986, s. 3(3)), there must be some conduct on the part of the accused; the fact that the experience was frightening does not make aggressive words sufficient Robinson [1993] Crim LR 581. However, in Dixon [1993] Crim LR 579, ordering a dog to attack was sufficient to constitute a threat, because there was conduct, the dog being used as a weapon. Since the dog did attack it is arguable that there was conduct but, had the dog not attacked, what is the conduct sufficient to satisfy s. 3(3)?
The definition of ‘violence’ in affray is different from its definition for the purposes of other provisions of the Public Order Act 1986. By s. 8, in the context of affray, violence does not include violent conduct towards property. In other words, it is limited to violent conduct towards persons. Apart from this limitation, s. 8 provides that:
‘violence’ means any violent conduct, so that–
(b) it is not restricted to conduct causing or intended to cause injury or damage but includes any other violent conduct (for example, throwing at or towards a person a missile of a kind capable of causing injury which does not hit or falls short).
In Rothwell [1993] Crim LR 626, it was held that the word ‘unlawful’ is intended to ensure that defences such as self-defence apply to offences under the Public Order Act 1986 (see also Key (24 November 1992 unreported, Afzal [1993] Crim LR 791 and Pulham [1995] Crim LR 296.
Where reliance is placed on a continuous course of conduct (as is often the case in affray– see also Woodrow (1959) 43 Cr App R 105 – and where it depends on the general nature and effect of the conduct as a whole), it is not necessary for particular incidents to be identified and proved. It might be different where the conduct constituting an affray was not continuous Smith [1997] 1 Cr App R 14.
The Test for Conduct Causing Fear
The test, as for riot and violent disorder, is whether a person of reasonable firmness present at the scene would be caused, not was caused, to fear for his personal safety. No person of reasonable firmness need actually be, or be likely to be, present at the scene (Public Order Act 1986, s. 3(4)).
In Davison [1992] Crim LR 31, the Court of Appeal, taking account of Law Commission Report No. 123, decided that the conduct to be considered is that of the defendant; and its consequences are judged by an objective standard, that is whether the hypothetical bystander of reasonable firmness (not the person assaulted) would be put in fear of his personal safety if he was there. Account may, though, be taken of the nature of the premises and scene where the incident actually took place, and of the fact that the violence was limited to those involved and that others present were not afraid Director of Public Prosecutions v Cotcher (1992) The Times, 29 December.
Rob Jerrard