England and Wales Court of Appeal (Criminal Division) Decisions

IN THE COURT OF APPEAL
CRIMINAL DIVISION

		Royal Courts of Justice Strand London, WC2
		Monday, 5th April 2004

1. THE VICE PRESIDENT: On 6th February 2003, following a trial at Leeds Crown Court, before His Honour Judge Bartfield, these two appellants (father and son) were convicted on one count of affray. Andrew Rafferty was granted a conditional discharge for 6 months. Kinmond Rafferty was fined. Andrew Rafferty was acquitted on count 3 of common assault Kinmond Rafferty was acquitted on counts 2, 3 and 4 which alleged common assault. They both appeal against conviction by leave of the Single Judge on one ground only, relating to the direction given with regard to affray. Mr Carter, who represents them both renews his application for leave to advance a second ground, namely that the verdicts on count 1 were inconsistent with the acquittals on counts 2, 3 and 4, the Single Judge having refused leave on that ground.
2. The circumstances were that, on 19th May 2002, there was an altercation at the Black Horse public house in Otley between the appellants and the complainants, who were Emma and Darren Cavanagh and Mark New. The altercation arose because Andrew Rafferty had been dancing with a girl in the public house. The three complainants left the Black Horse and walked to a take-away about 200 yards away. It was the prosecution case, in relation to affray, that the two appellants arrived at the take-away in a motorcar which reached to halt, whereupon Darren Cavanagh ran inside the take-away. The appellants tried to get in while Cavanagh held the door closed. The appellants got in but then left. A few minutes later they came back and tried to get in again. Again, Cavanagh held the door closed. One of them, according to the prosecution, Kinmond Rafferty, kicked the door, causing the glass to break. It was the arrival of the car outside the take-away, the chase of the others into the take-away, the shouting and the use of force to gain entry on the second arrival which, the prosecution said, gave rise to affray.
3. Counts 2, 3 and 4 related to specific incidents of alleged assault, when it was said that one or other or both of the appellants had hit Mr New, to whom count 2 related, Darren Cavanagh, to whom count 3 related, or Emma Cavanagh, to whom count 4 related, during the course of the incident which we have more generally described.
4. The defence of both appellants was self-defence. Alternatively, if violence had been used which was unlawful in that it did not arise from or in the course of self-defence, it was not such as would have caused a person of reasonable firmness who saw what went on to fear for his or her personal safety.
5. Darren Cavanagh gave evidence for the prosecution that he had sought politely to explain to Andrew Rafferty that he should not be dancing with Emma Cavanagh, when Kinmond Rafferty arrived, lost his temper and struck Cavanagh. That, according to Cavanagh, was the beginning of the fight. Thereafter, there had been the arrival at the take-away by the appellants with Mrs Rafferty in the back of the car. The appellants alighted. Mr New went towards them saying that he did want any trouble and then went into the take-away. Cavanagh said he tried to keep the door shut, but they had got in. He said that he had cowered away in a corner of the shop and took a very substantial beating by kicks and punches from both appellants. Thereafter, the appellants had left, but then returned, this time kicking the door in.
6. Emma Cavanagh had described standing in the street and hearing the appellant shout "we'll get them". She had gone into the take-away and she saw Cavanagh go in followed by at least one of the appellants who were hitting and kicking him. She asked the people in the take-away to telephone for the police. They did not. The bigger man of the two appellants hit her twice in the face. Mark New described the car coming up at a fast pace and the appellants getting out and the older of them coming up to him and striking him so that he fell unconscious.
7. A police constable saw a laceration on the bridge of Cavanagh's nose, bruising elsewhere on his body and some redness, which could have been bruising, on Emma Cavanagh. Mr New had a lump on his head.
8. Whatever the precise nature or extent of the injuries suffered they did not attract the attention of any doctor.
9. The appellants gave evidence. Kinmond said that he had pointed out to Darren Cavanagh, in relation to the dancing, that Andrew was only 17, whereupon Cavanagh became aggressive and punched him. So they had to defend themselves. Then, outside in the street Emma Cavanagh had appeared, shouting and hysterical and had struck Kinmond causing him to stumble. Andrew had called for his mother to telephone the police and, in the take-away, he was going to try to detain Darren Cavanagh, whereas they were attacked by the two Cavanaghs.
10. Kinmond denied damaging the door or hitting Emma in the face.
11. A Mr Moore gave evidence that he had been awakened by the disturbance, gone downstairs and saw Darren Cavanagh holding a piece of pipe and using abusive language in a state of some agitation.
12. A Mr Menzies, a former licensee, who was to some extent the worse for drink, described a young man running round and kicking both the appellants over. He said someone had shouted "'phone the police". He said that Darren Cavanagh's account was nonsense. He said that it was he who was the aggressive one but he, Mr Menzies, did not think much of the incident any way and was surprised it had attracted the attention of the Crown Court.
13. The first ground on which the Single Judge granted leave relates to the adequacy or otherwise of the summing-up in relation to affray. That appears, starting at page 5E of the transcript of the summing-up and is in these terms: (it follows a direction that the jury must give separate consideration to each of the counts in the indictment):

"Count 1 I return to. It has to be shown that the defendant whom you are looking at, first of all, used or threatened unlawful violence, that is to say violence that was not being employed in the means of self-defence; secondly, it has to be used towards somebody else, not between the two of them; and thirdly, it has to be shown that their conduct taken together was such as would cause a reasonable person of reasonable firmness present at the scene to fear for his or her personal safety. Assuming for the moment that you are the reasonable person, you can put yourselves outside the take-away, because that charge is said to relate to the conduct of the two defendants after they got out of the car and until they finally got back into it again and drove off. If during that period of time you are satisfied so that you are sure that they either used or threatened unlawful violence, that is to say not in their own self-defence, and not, incidentally, by any form of accident, and it would cause a person of reasonable firmness to suffer(sic) [is the word that appears in the transcript, though Mr Carter properly takes no point on that; it may be the shorthand writer misheard the word "fear"] for his or her personal safety, if you are satisfied so that you are sure about that, guilty."

14. Mr Carter took us, in support of his submission that the direction given by the learned judge in relation to a person of reasonable firmness was inadequate, to an unreported decision of a differently constituted division of this Court in R v Plavecz (27th June 2002, Neutral Citation 2002 EWCA Crim 1802). Mr Carter, by reference to that judgment took us to a comment made by Professor Sir John Smith in a case called Davidson [1992] Crim LR 31, the terms of which are contained in paragraph 13 of the judgment in Plavecz and also to the terms of the summing-up given in that case, which are rehearsed in paragraph 22 of the judgment. In Professor Smith's comment he referred to the offence of affray envisaging at least three persons: first, the person using or threatening violence; the second, a person towards whom the violence or threat is directed, and thirdly, a person of reasonable firmness, who need not actually be or be likely to be present at the scene. As it seems to us, those three persons are precisely identified in the passage in the summing-up, in the present case, which we have already rehearsed.
15. The summing-up in Plavecz included a reference to "the hypothetical reasonable man, the person of reasonable firmness if he had seen what was there would be caused to fear for his personal safety." As we understood it, Mr Carter's submission to us is that the summing-up in the present case ought to have referred to the hypothetical reasonable man; and, if the summing-up had so referred, the deficiency about which he complains would have been remedied. Mr Carter submits that the learned judge failed to explain what he meant by "a person of reasonable firmness."
16. In our judgment, the passage in the summing-up which we have read was admirably succinct and clear. It was not, as it seems to us, incumbent upon the learned judge to refer to a hypothetical person of reasonable firmness, nor was it necessary for the judge to embark, for the jury's delectation, upon what was meant by a person of reasonable firmness. It seems to us that that is a matter which the jury would be well able to assess for themselves.
17. It is perfectly true, as Mr Carter points out, that the learned judge did not refer to Mr Menzies as an example of who might be a person of reasonable firmness. That, as it seems to us, is susceptible to two comments. First, because of his condition at the time (affected by drink) and his previous experience as a licensee, it may well be that Mr Menzies was not a particularly good example of a person of reasonable firmness. But secondly, in any event, it was not, in our judgment, incumbent upon the learned judge to produce an example from the case of someone who might be a person of reasonable firmness. What the judge did and, in our view, did perfectly adequately was to direct the jury as to the necessary elements of the offence of affray, which they must consider. In our judgment, the ground of appeal in relation to which the Single Judge granted leave must fail.
18. So far as inconsistent verdicts are concerned, during the last 10 years or so, this Court has said again and again that an appeal based on inconsistent verdicts cannot and will not get off the ground unless there is, first, a logical inconsistency between the verdicts returned by the jury. As the learned Single Judge in this case pointed out, when refusing leave in relation to this ground:

"The verdicts were not inconsistent. The assault offences required actual violence (or at least an act causing the victim to apprehend immediate violence). Affray can be committed by a threat of violence."

As it apparent from the evidence which we have summarised, the aspects of this matter which were capable of sustaining a count of affray did not hinge upon the actual administration of personal violence. They included such elements as the car arriving and screeching to a stop, chasing the people into the take-away, kicking down the door of the take-away and such like. In those circumstances, as it seems to us, there is not the beginnings of inconsistency in the jury's verdicts. We repeat yet again, in summary form, just a few of the authorities in this Court, in which the need for logical inconsistency between the verdicts to be present before such a ground can take off. We identify, for example, R v McCluskey 98 Cr App R 216, R v Bell Court of Appeal (Criminal Division) 15th May 1997, R v Clarke & Fletcher Court of Appeal (Criminal Division) transcript 30th July 1997, R v G [1998] Crim LR 483 and R v McCartney & Ors [2003] EWCA Crim 1372. Finally, we refer to an observation made by Buxton LJ in G, at page 484 of the report, which, regrettably, seems to be far less heeded than it should be. It is in these terms:

"In appeals in relation to alleged inconsistent verdicts those promoting the appeal should ensure that Bell and the instant case [that is G] are before the Court and should be in a position to explain why the general approach adumbrated in Bell should not apply."

That did not happen so far as the application to the Single Judge was concerned. It should have done. There is no arguable basis for contending that the verdicts is this case were logically inconsistent. Accordingly, leave in relation to the second ground is refused. This appeal, for the reasons already given in relation to the first ground, is dismissed.