Affray - NO Way, No Opposition, No Affray: The offence requires threat to person present.
(2001) The Times, March 09 2001, House of Lords
In R v West London Youth Court, Ex parte M and Others (1999) The Times, July 7; Police Journal (2000) Volume 73, No 1, page 87 the QBD said, a threat can be unperceived in proving an affray, 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.
The Queen’s Bench Decision held that 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 dismissed 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.
The Statute
Section 3 creates the statutory offence of affray and provides:
"(1) A person is guilty of affray if he uses or threatens unlawful violence towards another and his conduct is such as would cause a person of reasonable firmness present at the scene to fear for his personal safety.
(2)Where 2 or more persons use or threaten the unlawful violence, it is the conduct of them taken together that must be considered for the purposes of subsection (1).
(3)For the purposes of this section a threat cannot be made by the use of words alone.
(4)No person of reasonable firmness need actually be, or be likely to be, present at the scene.
(5)Affray may be committed in private as well as in public places."
Section 6 provides:
"(2) A person is guilty of violent disorder or affray only if he intends to use or threaten violence or is aware that his conduct may be violent or threaten violence."
Section 8 provides:
"8. In this Part—
"violence" means any violent conduct, so that—
(a)except in the context of affray, it includes violent conduct towards property as well as violent conduct towards persons, and
(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)."
Section 9 provides:
"(1) The common law offences of riot, rout, unlawful assembly and affray are abolished."
The House of Lords have allowed the Appeal
The Certified Questions
The Facts
On the evening of 21 October 1997 the police received an anonymous telephone call that approximately 30 Asian youths armed with sticks were gathering together in Canon Street Road, London E1. A marked police carrier with seven police officers was despatched to Canon Street Road and on arrival there about 6.50 pm the police carrier turned into Bigland Street where there is a block of residential flats called Luke House. The police in the carrier saw 40 to 50 Asian youths milling around in a group on a raised concourse outside Luke House, 8 or 9 of whom were carrying petrol bombs consisting of milk bottles containing petrol with a tissue wick in the mouth. When the police carrier came into view the group immediately dispersed and ran off and no violence was shown towards the police officers. The police pursued some of the group and the three appellants were captured and arrested close to Luke House. Before their capture the three appellants each threw away a petrol bomb which he had been carrying. The appellants were interviewed by the police and in the course of the interviews one of them said that he was a member of a gang called the "Canon Street Boys" who were going to have a fight with another gang called the "Barnado Boys", and the petrol bombs were going to be thrown in the fight.
The Stipendiary Magistrate findings were:
"As the police carrier came into view, the group dispersed immediately in all directions.
"Aside from the police no other persons, and in particular no member of any other gang, were shown to be present at the scene at 6.50pm."
"Officers in the carrier thought that petrol bombs were being carried and PC Brown thought that there could be."
"At no time was any fuse lit and when police came on the group there was no fighting, no shouting or throwing of any object. Nothing was said and no bottles were waved."
The Law
LORD HUTTON referred to the first question certified by the Divisional Court, namely: "whether the overt possession of a weapon may constitute a threat of violence for the purpose of affray when it is not used or brandished in a violent manner" and to the recommendation by the Law Commission, adopted by Parliament in the 1986 Act, for the abolition of certain common law public order offences, including affray, and their replacement by the statutory offences set out in that Act.
His Lordship said that giving the statutory words "threatens unlawful violence" their ordinary and natural meaning the carrying of dangerous weapons, such as petrol bombs by a group of persons could, in some circumstances, constitute the threat of violence, without those weapons being waved or brandished. That view was supported by authorities on the common law offence of affray which, as Lord Justice Auld had considered, it was permissible to take into account, since section 3 had not created an entirely new offence, but, as recommended by the Law Commission, an offence similar to the common law offence with some clarification and narrowing of its elements.
Having regard to those authorities and to other decisions in relation to section 3 his Lordship concluded that as a matter of law the carrying of dangerous weapons such as petrol bombs by a group of persons could constitute a threat of violence within the meaning of section 3(1).
Whether it did so in a particular case was a matter for the tribunal of fact to decide having regard to the facts of the case.
The second certified question as reformulated by his Lordship, was:
"In order to constitute the statutory offence of affray does the threat of unlawful violence have to be towards a person or persons present at the scene?" He said that if the point were to be determined by having regard only to the words of section 3(1) there would some degree of force in the Crown’s submission that violence could be threatened towards another person if that person were near but not present when the threatening conduct took place, or might be inferred to be in the vicinity.
But section 3(1) was enacted to give effect to the Law Commission recommendation as to the statutory definition: see Report on Offences Relating to Public Order 1982, Law Com No 123) and which the Government had been content to accept: see Review of Public Order Law (1985, Cmnd 9510, paragraph 3.15. Therefore it was permissible, and desirable, for the courts to have regard to the view of the Law Commission on the issue and to know the basis on which it recommended that threatening unlawful violence towards another, as well as using unlawful violence towards another, should constitute the offence of affray. The Law Commission and Parliament intended that the offence in section 3 should penalise those who engaged in a fight, whether they were landing blows or attempting or threatening to do so, but it was clear that in such circumstances the victim or victims were bound to be present with the offender or offenders. Accordingly it was clear that the section did not make guilty of an affray a person whose conduct constituted a threat of violence to persons who were not present.
Both Lord Justice Auld and Mr Justice Hughes in the Divisional Court recognised that the victim or victims towards whom the threat was directed had to be present. But they erred in applying that requirement to the facts found by the stipendiary magistrate and set out in the case stated.
It was not open to Lord Justice Auld to find that the overt carrying of petrol bombs constituted a threat of violence to anyone in the vicinity, including the police on arrival at the scene, because the magistrate found that no one other than the police was present at the scene and by clear implication that the group of youths constituted no threat towards the officers. Similarly it was not open to Mr Justice Hughes to find that there was a threat towards the police officers. In order to constitute an offence under section 3 there had to be a threat of violence towards another person. While the carrying of petrol bombs could constitute such a threat, it did not necessarily follow that because a person was present at a location where a gang were carrying petrol bombs there was a threat of violence towards that person. Whether there was would depend on the facts of the actual case.
The defendants were clearly guilty of criminal conduct and it would have been open to the prosecuting authorities to have charged them with the carrying of an offensive weapon contrary to section 1 of the Prevention of Crime Act 1953 or with possession of explosives contrary to section 4 of the Explosive Substances Act 1883. There appeared to be an increasing tendency to charge the offence of affray and in 2000 there were 1,891 such offences charged in the Metropolitan Police area.
The present case demonstrated that a person should not be charged with the offence unless he used or threatened unlawful violence towards another person actually present at the scene and his conduct was such as would cause fear to a notional bystander of reasonable firmness.
Lord Bingham, Lord Clyde, Lord Scott and Lord Hobhouse agreed with Lord Hutton.
The Decision
The carrying of dangerous weapons, such as petrol bombs, which were not brandished or waved, could amount to a threat of unlawful violence for the purposes of an affray under section 3(1) of the Public Order Act 1986.
However, to constitute that offence, section 3(1) required such a threat to be directed towards another person or persons actually present at the scene.
Where, therefore, a group of youths carrying primed petrol bombs intended for use against a rival gang were peacefully dispersed by police officers before the arrival of their opponents in circumstances where no unlawful violence or threat of such violence was directed towards any person in the vicinity no offence of affray was committed.
The House of Lords so held, in allowing appeals by I, M and H from the Queen’s Bench Divisional Court, dismissing their appeals by way of case stated from metropolitan stipendiary magistrate sitting at the West London Youth Court, who had convicted them in summary proceedings of affray contrary to section 3(1) of the 1986 Act.
Comment
Clearly the House of Lords are setting Guidelines to reduce the increasing tendency to charge Affray when some other suitable charge is available.
Those charged were clearly guilty of criminal conduct and it would have been open to the prosecuting authorities to have charged them under the Prevention of Crime Act 1953 (Offensive Weapon) or with possession of explosives contrary to section 4 of the Explosive Substances Act 1883. The present case demonstrates that a person should not be charged with the offence unless he uses or threatens unlawful violence towards another person actually present at the scene and his conduct is such as would cause fear to a notional bystander of reasonable firmness.
The Lords suggest these offences without going further and looking at the powers of arrest and procedure, the 1883 Act requires the consent of the Attorney General which leaves the 1953 Act the most practical.
It would make common sense to reduce the use of the Affray charge which since its move from common law to statutory had been watered down, the common law offence of Affray was only resurrected in 1957 in R v Sharp and Another [1957] 1 All E R 577. The facts of that case were.
The appellants were convicted on a count charging them jointly with having in a certain public street and highway unlawfully fought and made an affray. The evidence was that a police constable found a large crowd assembled watching a fight between the appellants on the opposite pavement. They were still aiming blows at each other, but appeared to be exhausted and their faces and clothes were covered with blood. One of them had a severe cut from a razor on his head and the other had had part of his left ear bitten off; two of his teeth had been knocked out, and he had a black eye and a cut lip. Each of the appellants blamed the other for starting the fight and the appellant S alleged that he had only acted in self-defence.
The jury were directed:-
Held –
(i) on a charge of making an affray, viz, fighting between two or more persons in a public place to the terror of the Queen’s subjects, it was sufficient, in the absence of direct evidence that any subject of the Queen was put in terror, to show that the circumstances were such that reasonable people might be intimidated or frightened, but
(ii) where a man merely defends himself and does not attack there is not an affray, and therefore the question whether one of the appellants was merely defending himself should have been left to the jury; the conviction would, therefore, be quashed.
Appeal allowed.
It is the final paragraphs of this judgement, (below) which are still germane today and well worth repeating here.
"We must now turn to the second ground of appeal. It will be remembered that the appellant Sharp contended that he only acted in self-defence after he had been set on by the other appellant, and, apparently attempted to excuse the use of a razor because he was handicapped by his crippled condition. The appellant Johnson also seems to have endeavoured to justify his conduct in biting off his opponent’s ear by the fact that he was attacked with a razor. Now as the recorder said, and we see no reason why he should not, one object in charging the appellants with an affray which is of necessity a joint offence, is that, in this class of case, each prisoner throws the blame on the other and there is a danger that, perhaps being disgusted with both and thinking each only got his deserts, a jury will acquit both if the charges are of the one wounding the other. The recorder directed the jury that it did not matter who started the fight or who was to blame and that in the present case no question of self-defence arose. Indeed, he said more than once and with emphasis that self-defence for the purpose of this case was quite immaterial. In our opinion, this goes too far. If two men are found fighting in a street one must be able to say the other attacked him and he was only defending himself. If he was only defending himself and not attacking that is not a fight and, consequently, not an affray. A man may well defend himself and then pass to the attack, which is very likely what happened here, or in repelling an attack he may use more than necessary force, and, again, that may be the case here as a razor was used. It appears to us inescapable that this raised questions for the jury. The appellant Sharp’s case was that he was attacked by the appellant Johnson and that, as a partial cripple, he used the razor to protect himself. The jury might well have rejected this as extravagant, but we do not feel able to say that they must have done so on a proper direction. The facts are such that the court is strongly inclined to apply the proviso (the proviso to s 4 of the Criminal Appeal Act, 1907), but we think on the whole that were we to do so we should be going further than we ought, and it is obvious that one cannot be convicted and the other acquitted. We reluctantly, therefore, quash the convictions.
But we have still a power that we think should be exercised, a power to exercise what is called preventive justice. Both these appellants have shown themselves to be violent and aggressive and, as such, to be blemishers of the peace. We, as Her Majesty’s judges, are also justices of the peace for every county and we propose, therefore, to exercise the powers given by the Justice of the Peace Act, 1361,34 Edw 3 c 1, (still available) and which have been confirmed by the well-known decisions in Wise v Dunning [1902] 1 KB 167, and Lansbury v Riley [1914] 3 KB 229. We order each of them to enter into a recognisance and to give a surety in the sum of £50 to keep the peace and be of good behaviour for twelve months, and, in default, to go to prison for six months".
The following Cases were referred to in that judgment
Field v Metropolitan Police Receiver [1907] 2 KB 853
London & Lancashire Fire Insurance Co v Bolands Ltd [1924] AC 836
Wise v Dunning [1902] 1 KB 167
Lansbury v Riley [1914] 3 KB 229