England and Wales High Court (Administrative Court) Decisions

IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT

		Royal Courts of Justice Strand London WC2A 2LL
		16th April 2010

1. MRS JUSTICE RAFFERTY: This is an appeal by way of Case Stated by Mrs Carol Leeson from the decision of the magistrates in the Oxford City court. She appeals against their decision of 13 August 2009 convicting her of affray contrary to Section 3 of the Public Order Act 1986.
2. On 18 April 2009 an information was preferred against her alleging that on Friday 17th April 2009 she had used or threatened unlawful violence towards another and that her conduct was such as would cause a person of reasonable firmness present at the scene to fear for his personal safety. The information was heard on 13 August 2009.
3. I turn to the facts as found by the magistrates recited in their Case Stated [undated]. The respondent called as a witness of truth the appellant's partner of some quarter century, Simon O'Keefe. From the witness box he asserted that he could remember nothing save innocuous detail. He was treated as a hostile witness and cross-examined by the Crown. His witness statement was before the magistrates. Mr O'Keefe did not stand by it, explaining that the appellant had now taken responsibility for her actions and that he was appropriately supportive.
4. The background was that the appellant and Mr O'Keefe shared a house with their two children aged 13 and 6. At the incident, each child was away; neither was due that day to return. The appellant had an alcohol problem of some standing and psychiatric difficulties. The combination had been sufficient to cause problems in her relationship with her partner. In drink, she would become irrational. In general, Mr O'Keefe dealt with it by ignoring it.
5. On 17th April 2009, in the evening coming home from work Mr O'Keefe found the appellant absent and, accurately predicting she might be there, went to the local public house. There she was, apparently drunk. He went back to their home, and telephoned a mutual friend, D, for support. As he was on the telephone the appellant came back, clearly very drunk. A little while later Mr O'Keefe went upstairs for a bath, and locked the bathroom door. He heard a loud bang upon it. He opened it, and calmly the appellant walked in holding at waist height in her right hand a kitchen knife with a blade 6 inches long . She said, "I am going to kill you." Her demeanour was calm and not hysterical. The knife remained still and she made no move to attack Mr O'Keefe, nor did he believe that she would do so. Mr O'Keefe towelled the knife, took hold of her wrist, prized open each of her fingers, took the knife and threw it into the bath. He later took it back downstairs and restored it to its accustomed slot in their kitchen. He next telephoned D, before, for whatever reason, calling the police, who attended. The appellant was arrested.
6. The magistrates in their findings recorded that prior to this the appellant had never attacked Mr O'Keefe. He believed that nothing in her behaviour had been a direct threat to him, and that she had no intention of violence towards him. At the incident, the doors of the property were locked. No one was present in the house. In interview, the apellant said she had no recollection of the circumstances. At the Magistrates' Court she did not give evidence. The magistrates reminded themselves of Section 3 of sub-section 4 which reads:

"No person of reasonable firmness need actually be, or be likely to be, present at the scene."

7. They were taken to a number of authorities, including Davison [1992] Criminal Law Review 31. They reminded themselves that the second limb of affray indicates a standard for the conduct set by reference to the hypothetical individual of reasonable firmness who could but need not necessarily be at the scene to fear for his personal safety if he were there. They concluded that emphasis should be upon "could be", demonstrating at least a possibility of the presence of a third party of reasonable firmness. Further, were the intention of the Act to enable the commission of the offence when there was no possibility of the presence of such a third party, the Act would have made that plain. The bench posed to itself two questions: first, whether an offence of affray could be committed absent a real possibility of the presence of a third person; second, if it could, whether that hypothetical person would have been fearful for his personal safety in the circumstances of this case.
8. The Crown, now the respondent, argued that the wording of Section 3(4) was clear, that Section 3(5), "affray may be committed in private as well as in public places" assisted it that Davison was of little illumination. The magistrates, taken additionally to Sanchez [1996] Criminal Law Review 572 and to Placecz [2002] Criminal Law Review 837, record their opinion as follows: Davison refers to an hypothetical person who could be but need not be present. Those words are ambiguous and did not relate to any substantial point in issue in Davison where their meaning was not argued. The magistrates did not believe Davison to be a precedent clear enough to persuade them to depart from the plain statutory language of Section 3(4). D might, consequent upon the second telephone call, have come to the house prior to the arrival of the police. There was a possibility she or any other could have arrived when the appellant was in possession of the knife. It was a low possibility, but not one the Bench felt able entirely to discount. The appellant's threat to kill Mr O'Keefe, voiced whilst she held a knife, constituted a threat of unlawful violence and in context would have cause a person of reasonable firmness present to fear for his personal safety. They posed for this court this question: were we correct in deciding that an offence of affray may be committed in the circumstances of the appellant's case where, as we found, the likelihood a hypothetical person of reasonable firmness being present was low?
9. In Grounds of Appeal composed and orally developed by Mr Blake, the appellant's contention is simple: for someone to be guilty of affray, there must be at the least a possibility, real not fanciful, that an individual of reasonable firmness may be present and caused to fear for his personal safety. On these facts there was no such real possibility.
10. Submissions have proceeded in two distinct parts: first, whether upon the law the magistrates were entitled, albeit they labelled it "low", to conclude that there was a real possibility as I have rehearsed, and second whether the evidence supports this conviction.
11. I turn first to a brief review of the authorities. Sanchez is said to bear some similarity to this case. The appellant there tried to attack her former boyfriend outside a block of flats. The appellant, holding a knife, lunged at the victim, who deflected the blow and ran. This court found that the lower court had fallen into error, overlooking the requirement that the jury should be sure that a hypothetical reasonable bystander would be in fear, not the victim. This court considered the analysis of professor Sir John Smith in Davison in particular that the offence of affray is designed for the protection of the bystander; it is a public order offence. Other offences exist for the protection of persons at whom violence is aimed. A person of reasonable firmness present in a small room might fear for his personal safety. Whereas perhaps the same person observing the same conduct in an open space would not. Davison found that the consequences of the conduct of the accused were to be judged by an objective standard; in other words, whether not the individual assaulted but rather the hypothetical bystander of reasonable firmness would be put in fear of his personal safety were he present. The court in Sanchez welcomed the views of Professor Smith which it considered applied with yet greater force to the facts it considered. In Davison, the violence had been the swiping of a knife at a police officer in a room of small proportion with others present. In Sanchez, however, the violence was restricted to two individuals, the behaviour personal to them, outside a block of flats, and with ample identified opportunity for the hypothetical bystander to distance himself. A misdirection was dispositive of the appeal although the court found that even if the jury had been properly directed as to Section 3(4) it was not possible to be sure whether it would have convicted. That said, the court found it difficult to regard the facts under consideration as amounting to a public order offence. The factual basis seemed a yet more extreme example than that in Davison, where once again alternative and more appropriate offences could have been charged.
12. In Carey [2006] England and Wales Court of Appeal, Criminal 17 the Court of Appeal concluded that affray was to be defined by attention to the words within the statute, which should be given their "ordinary unglossed" meaning. We have heard submissions today that the work of the Law Commission are properly to be considered by this court, and I have reminded myself of it.
13. Now to Blinkhorn [2006] England and Wales Court of Appeal, Criminal 1416. In that case the appellant was at a drug treatment and testing order centre when his former girlfriend arrived, and jealous, slashed him to the face with a razor. She pleaded appropriately guilty and was sentenced. The appellant chased her and then the case for the Crown was he pushed her to the ground and banged her head a number of times violently against the pavement. May LJ turned, after a consideration of the facts, to the commentary of Professor Sir John Smith, to which I have referred and quoted from it in extenso. First:

"Like the common law offence ... it [affray] is designed for the protection of the bystander. It is a public order offence. There are other offences for the protection of persons at whom the violence is aimed. The definition of affray is very wide and the court [Professor Smith in Davison was considering it and Placecz] agreed with the defendant's counsel that care has to be taken to avoid extending it so widely that it would cover every case of common assault. Common assault may be very trivial so that it would not cause anyone to fear for his "personal safety" but where the assault threatened serious harm to the victim there may be evidence of affray, depending on the circumstances. The person of reasonable firmness present in a small room, as in the present case, might fear for his personal safety, whereas the same person observing the same conduct in an open space would not. The holding that the facts in the present case fall within the definition of the offence cannot be criticised, but it is somewhat remote from the kind of incident for which the offence was intended. The common law which it was intended to replace was, said the Law Commission at paragraph 3.2 'typically charged in cases of pitched street battles between rival gangs spontaneous fights in public houses, clubs and at seaside resorts and revenge attacks on individuals'."

14. May LJ went on, having rehearsed the facts, to say:

"There were not threats of force directed at anyone else. It was not the kind of offence envisaged by the Law Commission in its record, law command number 123 of 1983, [and he was referring to paragraph 3.2 as I have just done] which preceded the Public Order Act of 1986. The factual background the incident was not sufficient to sustain a charge of affray, otherwise virtually any common assault could be charged as affray."

Returning to the commentary of Professor Sir John Smith, May LJ set out its conclusion as follows:

"The decision stresses the fact that the statutory offence of affray, like its common law predecessors, is a public order offence not a supplementary offence against the person. The hypothetical person of reasonable firmness represents the public, whom it is the object of the offence to protect from being terrified by unlawful violence. In the present case the act relied on by the prosecution was, in the judgment of the court, insufficient to prove that a reasonably firm person would have feared for his safety. It is not enough for the prosecution to prove that unlawful violence also a been used. It must be unlawful violence of such a kind that a reasonably firm bystander would have feared for his safety. A common assault might be committed in such circumstances, and in such a manner as to cause such a fear, but that was not so in the case then before the court."

15. In Placecz the appellant was a doorman at a club who ejected a woman from it in a violent way, pushing her into and through its doors. Convicted of affray, he successfully appealed against conviction. Although Section 3(4) was an objective test, the court accepted that account could be taken of the scene and the reaction of those present. The court concluded that it was difficult if not impossible to find that a case of the type it considered could constitute affray.
16. The magistrates were not referred to the Director for Public Prosecutions v Cotcher [1992] the Times, 29 December 1992. This court has had the opportunity of considering it. From it can be derived the proposition that account may be taken of the nature of the premises and the scene of the incident, and that on the facts before the court the violence was limited to those involved and that others present were not afraid. Two defendants and a third male allegedly assaulted three different males in a public house and were acquitted of affray. The first element, unlawful violence, was proved. The second was not, the evidence insufficient to prove that a person of reasonable firmness at the scene would have feared for his personal safety. In Cotcher the magistrates described the assault as "clinical", focused solely and exclusively on the three victims. The Bench was justified in the opinion of this the court, in finding the evidence insufficient to support a conviction in that it was insufficient. The court agreed it was necessary for the bench to take account of the particular place where the incident occurred, and to have regard to whether a hypothetical person of reasonable firmness present would be likely to fear for his safety.
17. In my judgment the respondent must succeed on the first of the two advanced arguments. The magistrates having found that there was a low possibility nevertheless were entitled to find as they did, and that a possibility is remote is not sufficient in my view for the appellant to succeed. However, the second argument, that of the facts taken contextually, is significantly more troubling. These events took place within a matter of seconds in a room which had previously been locked in an unoccupied house with no expectation of any third party entering the house, let alone the room. In my view, the facts support the conclusion that the threat was personal. It was restricted to turbulence between the two parties involved. Though, as I have accepted, a remote incident could constitute affray, and although I have reminded myself that the hypothetical bystander in a small confined room might fear for his safety, nevertheless I struggle to see how on a review of the authorities contextually this evidence supports a conviction. These were exchanges essentially private. The authorities read together with the statute make plain that the object of the Act is to address public order. The facts in a particular case require careful scrutiny before legal principle is applied. I find it difficult to see how this turbulence, restricted as I have set out, with no realistic possibility of a third party entering, was capable of proving a public order offence. At its highest, this was a focused, directed oral threat against one man. I do not need to descend into what I would describe as fanciful examples of a burglar finding his way to the bathroom and being put in fear to reach my conclusion. Evan if a notional bystander had found entry to the bathroom, in my view any fear he may have exhibited could arguably be not for his own safety but for that of Mr O'Keefe and of the appellant. I am unable, therefore, having applied the authorities to the facts and reminded myself that they should be seen in context to say that the evidence before the magistrates supported the conviction. I cannot conclude this a reasonable bench was entitled to convict and I would therefore answer the posed question in the negative and allow the appeal.
18. LORD JUSTICE PILL: I agree. The appropriate test was stated by Simon Brown LJ in the case of Sanchez 1996 W L 1090244. That had been a jury trial and the Court of Appeal Criminal Division quashed a conviction for affray. It did so because of the inadequate direction given to the jury as to the ingredients of the offence. I need only refer to one sentence of the judgment of the court given by Simon Brown LJ:

"One simply cannot tell what the jury would have concluded had they been properly directed to focus on the nature of the assault and all the surrounding circumstances and told to imagine the reaction of the hypothetical bystander of reasonable firmness."

19. The case of DPP V Cotcher, which Rafferty J has also cited, was cited by the court in Sanchez, although it appears that a full report of the case was not available to the court. It is worth setting out fully part of the leading judgment of Macpherson J in Cotcher 1993 W L 964519, with which Evans LJ agreed. That was a prosecution appeal by way of Case Stated. This court dismissed the appeal. Macpherson J, having recited Section 3(4) of the Public Order Act 1986, continued:

"Thus, the fact that there is nobody there apart from those indulging in the violence complained of is not the end of the matter. The court has to imagine what I called in argument "a notional person of reasonable firmness" present at the scene. It is, however, to be noted that subsection (1) is qualified by those words "present at the scene" so that the magistrates must and ought to take into account the nature of the premises and the circumstances in question.

That is, as Mr Jehan rightly says, an objective test. In other words, the court has to look at the scene and imagine a person of reasonable firmness there and then consider whether there is a breach of the section. It must also be noted that the section finishes up "at the scene to fear his personal safety" so that the question of the personal safety of that person of reasonable firmness must be considered.

Ordinarily where there is violence and there is no other evidence in connection with other persons present it may be that public interest, and questions of public interest, require that magistrates should look at a case of this kind with care, when it is argued that a person of reasonable firmness would not have been affected. But in our judgment there must be cases where the surrounding circumstances show that the fight, was, so to speak, limited to those involved and entirely limited to them, and where in some cases there is direct evidence that people were not affected by what took place. It seems to us that this is a case of that kind. The use of the word, "clinically" in connection with the assault is unusual, but it may be that the magistrates were indicating that this was a fight, plainly and solely concerning those who were involved.

Furthermore, there was the evidence of the inactivity of those who were in the public house to show that certainly they showed no signs of fear themselves. If people bursts in to a public house showing violence generally and all round, it may be necessarily that persons of reasonable firmness would be affected, but that is not this case. These three men were focusing solely upon the three victims who were not prepared to give evidence.

In those circumstances it, seems to this court that the magistrates took account of all the evidence that there was. They plainly applied the correct test. They were justified in our judgment in finding that there was insufficient evidence to prove beyond reasonable doubt that a person of reasonable firmness at the scene would fear for his or her personal safety. It should be stressed, perhaps, that this is an unusual case upon its own facts, but that being so, we believe that the magistrates properly directed themselves and reached a conclusion which was reasonable."

20. Cotcher was not cited to the magistrates. Rafferty J has analysed the facts in the present case. They are very different from those in Cotcher but applying the principles stated in the cases to which she and I have referred, it was in my judgment not open to the justices to reach the conclusion they did. I agree that the question posed by the magistrates must be answered in the negative. This question posed for the opinion of the court:

"Were we correct in deciding that an offence of affray may be committed in the circumstances of the appellant's case, whereas we found the likelihood of a hypothetical person of reasonable firmness being present was low?"

20. I would answer the question in the negative, not on the degree or otherwise of likelihood of another person being present at the scene, but on the basis that on the evidence it was not open to the justices to find that a person of reasonable firmness present at the scene would fear for his safety. In all the circumstances, as analysed by Rafferty J, that finding was unjustified. The appeal is allowed. That being so, Miss Tompkins, what action should we take? Remission? Do we quash ourselves or do we remit to the magistrates with a direction to acquit?
21. MISS TOMPKINS: I think you can quash yourselves, unless I am corrected. Perhaps I am wrong.
22. LORD JUSTICE PILL: Our recollection is that we need to remit.
23. MR BLAKE: My understanding, your Lordship, is that you send a direction.
24. LORD JUSTICE PILL: Yes, then we do that. We remit the case to the magistrates with a direction to acquit the appellant.
25. MR BLAKE: There was one other matter. It is publicly funded, and I would ask for a full legal funding assessment.
26. LORD JUSTICE PILL: You have that. Any other applications?
27. MR BLAKE: On a humorous note I think we all assumed perhaps a small bathroom, but some people have palatial bath rooms.
28. LORD JUSTICE PILL: Thank you.