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
		5 February 2013

1. MR JUSTICE SILBER: Mr Samuel Freeman appeals by way of case stated against a conviction recorded against him on 23 September 2011 at Coventry Magistrates' Court of assault and of committing an affray on 27 August 2011. The original grounds of appeal raising two questions for the opinion of the High Court which were:

i. "(i) Were the magistrates correct to conclude that the person on the CCTV was the alleged victim of the assault in the absence of any evidence on this point.

ii. "(ii) Were the magistrates correct to conclude that a person of reasonable firmness present at the scene would have feared for their own personal safety given that the CCTV clearly depicted the offender's violence being solely aimed at one person, ie, the victim."

2. The appellant now accepts that it is unnecessary, and inappropriate, for this court to answer the first of the two questions because the CCTV evidence relating to this incident establishes an unlawful assault and the identity of the victim was not a material allegation within the charge. Thus, it is accepted, correctly, that it would have been sufficient for the victim of the charge to be described as, "A person to the prosecutor unknown". Therefore, I will say no more about that issue.
3. The second question is one in which the appellant invites the court to answer the question in the negative.
4. The facts found by the magistrates, as set out in the Case Stated, were first that the appellant was the person on the CCTV evidence which was played in court and second that the CCTV evidence showed an incident of an assault taking place with the result that the appellant was arrested on suspicion of assault.
5. No live witnesses were called to give evidence by the respondent, but it exhibited two agreed Section 9 statements which were read out in court. The first statement was from Luke White, a CCTV operator, who handed to Special Constable James Beckett a DVD containing the CCTV footage showing the assault in Hale Street in Coventry.
6. The second statement was from Special Constable James Beckett, who was directed to the scene of the assault while on uniform patrol on Hale Street in Coventry in company with his colleague. His statement showed that he and his colleague were given a description of the alleged offender. They then saw a male matching the offender's description getting into a black cab taxi and they ensured that their police vehicle was placed in front of the taxi. The alleged offender alighted from the taxi and the evidence was that Special Constable James Beckett noted members of the public approaching the scene in an agitated state. The alleged offender was placed into the back of the police vehicle while the man who had been assaulted approached the officers and informed them that the male in the back of the car was the one who had assaulted him. The offender was cautioned and arrested.
7. Special Constable Beckett witnessed the injuries on the victim, which were a blooded nose and swelling to the left side of the face, and his coat was covered in blood.
8. The CCTV footage was shown in court and it showed an assault taking place in Hale Street in Coventry.
9. The Case Stated also showed that the appellant contended that there was no case to answer because there was no evidence that the appellant's behaviour actually amounted in law to an affray because only two people were involved in the assault, namely the appellant and the victim, and there was no other person present who feared for their safety.
10. The Case Stated records that the respondent contended that an affray had been committed by the appellant as the close circuit television showed a number of bystanders who were present at the scene who would have feared for their safety. Thus, the magistrates stated that:

i. "We were satisfied that there was a case to answer on the affray allegation. It was not disputed by the appellant he was the man on the CCTV allegedly carrying out an assault and the CCTV clearly showed the incident in question."

11. The appellant chose not to give evidence and he was given the adverse inference direction by the magistrates' legal adviser.
12. The magistrates then concluded in paragraph 13 of the Case Stated:

i. "In respect of the information concerning the affray, contrary to section 3(1) and 7 of the Public Order Act 1986, we were of the opinion the appellant did use violence towards another. He was seen on the CCTV carrying out an assault and as a result his conduct did cause those persons present at the scene to fear for their personal safety. We noted from the CCTV footage one particular person had his hands on his head, in apparent distress, as the commotion between the appellant and the victim was happening."

13. They then concluded that a person of reasonable firmness present at the scene would have feared for his or her own personal safety given that the CCTV clearly detected the offender's violence being solely aimed at one person, ie, the victim.
14. In his clear and helpful submissions Mr Graham Russell, counsel for the appellant, makes two basic submissions. The first is that the magistrates fell into error by treating their interpretation of the reaction of those actually present at the scene as dispositive of the issue and that they did not consider, as they were bound to do, the hypothetical person of reasonable firmness.
15. It is clear from the extracts of the CCTV which were before the magistrates and before me that there were four bystanders within immediate distance of the offender's assault. One of them, a man in a dark blue shirt, raised his hands to either side of his head but did not attempt to move away. That was the person whose evidence is recorded in paragraph 13 of the Case Stated. There is also evidence of other people being present and one of them, a woman, appearing to run away.
16. It is said by Mr Russell, correctly, that none of those persons gave evidence to explain their reactions and so it is said that the magistrates should have been slow to assume an extreme reaction of immediate fear to one's personal safety without excluding other possibilities. He contended that the reaction of actual bystanders is not to be the test applied because the statutory provision makes it very clear, in section 3(1) of the Public Order Act 1986, that:

i. "A person is guilty of affray if he uses or threatens unlawful violence towards another and his conduct is such that would cause a person of reasonable firmness present at the scene to fear for his own personal safety."

17. It is true that the court can take into account the reaction of other people who were present. Indeed, that point was made clear by Evans LJ when he gave judgment in the case of DPP v Cotcher [1993] WL 964519, a decision of this court of 7 December 1992, in which he said not merely that but also that the magistrates:

i. "... are in no sense bound to conclude that the statutory test was not satisfied merely because those persons were not apparently affected, any more than they would be bound to conclude that the test was satisfied when it appeared that some bystanders were affected. It is a matter for the justices to take into account applying those objective tests."

18. In this case, it is clear and not disputed that the magistrates asked themselves the right question because that is clear from the question that has been put to this court.
19. In my view, it was quite open to the magistrates to record what they had seen, as long as they went on to ask themselves the correct statutory question. In this case that is precisely what they did. In those circumstances there can be no doubt that the way they approached this issue is correct. I stress that there is no reason why, in reaching their decision, the magistrates were precluded from looking to see how people actually reacted, as long as they went on, as they did in this case, to consider the view of the hypothetical bystander. Indeed, in an extreme case it might be relevant to see what the demeanour of the bystanders were because if, for example, they were standing around and laughing and joking about some act of violence that might well be a completely decisive factor for the fact-finder in deciding what the hypothetical person of reasonable firmness present at the scene would have concluded. Thus, I am unable to accept the complaint on that point.
20. Turning now to the second matter which has been raised, which was that the nature of violence used by the offender was insufficient, objectively viewed, to cause a hypothetical reasonable person present at the scene to fear for his own safety.

In my view it is questionable as to whether that is a proper matter to be pursued in the light of the question raised by the magistrates but I will assume that it is a proper issue.

21. The nature of the argument that has been put forward by Mr Russell is that this was a case of a single blow merely directed to a victim. He points out the courts have disapproved of the conversion of a common assault into an affray in appropriate cases. He relies on the comments made by Professor Sir John Smith in [1992] Criminal LR 31 when commenting on the case of Davison. He wrote that:

i. "Like the common law offence affray is designed for the protection of the bystander. It is a public order offence. There are other offences for the protection of the person at whom the violence is aimed. The definition of affray is very wide and the court agreed with the defendant's counsel that care had to be taken to avoid extending it so widely that it would cover every case of common assault. The common assault may be very trivial so that it would not cause anyone to fear for his personal safety but where the assault threatens serious harm to the victim there may be evidence of affray depending on the circumstances."

22. In this case the violence that was used was something that the magistrates were able to reach a conclusion about. It is noteworthy that the CCTV records that the victim was struck once in the head, the victim was on the ground and there was also evidence, to which I have referred, that the victim had a blooded nose, swelling to the left side of his face and his coat was covered in blood. To my mind that distinguishes this case from the decision relied on by the appellant, of R v Plavecz [2002] EWCA Crim 1802, where the physical contact was minimal and caused no injury and the victim didn't appear to fall to the ground. In that case Davis J, as he then was, came to the conclusion in paragraph 20 that:

i. "There was here a relatively minor, indeed trifling, assault involved in the appellant ejecting Laura Jackson through the doors of the club without her even falling over."

23. Thus, to my mind no assistance can be arrived at from that case which would suggest that the magistrates in the present case erred. Thus, in my view there is no basis for this criticism, especially as the magistrates were the judges of facts and it was open to them to reach the conclusions which they did.
24. For all those reasons, and notwithstanding the clear and helpful submissions of Mr Russell, this appeal must be dismissed. Thank you.
25. MR LODATO: My Lord, my understanding is that the appellant is publicly funded in this matter and if that is the case then there is no application for costs as it is a somewhat meaningless exercise.
26. MR JUSTICE SILBER: I think that must be right, isn't it?
27. MR RUSSELL: My Lord, he is publicly funded, my learned friend has that right, and I simply record for the record that he is in custody for other matters and is not a position to pay costs in any event.
28. MR JUSTICE SILBER: Is he in custody now?
29. MR RUSSELL: On other matters, my Lord. The sentence which he received --
30. MR JUSTICE SILBER: Thank you. It has been a well-argued case and I am very grateful to both of you.