Jersey Unreported Judgments

[2005]JRC049A

royal court

(Samedi Division)

19^th April 2005

 

Ruling concerning the definition of "Affray" and the severance of charges.

Crown Advocate A. Belhomme for the Attorney General.

Advocate S. A. Pearmain for Shewan.

Advocate M. J. Haines for Peacock.

reasons for decision

deputy bailiff:

1.        Last Friday I sat to consider certain preliminary points concerning the Assize trial which is due to begin on 16^th May.  I gave my ruling on Friday but said that I would give brief reasons in writing. 

2.        Count 1 of the indictment alleges an offence of affray against all three accused.  Sullivan has pleaded guilty; Shewan and Peacock have pleaded not guilty.  Count 2 charges breach of the peace against all three defendants and Count 3 charges malicious damage against all three defendants.  These are alternative counts to Count 1.   Count 4 alleges arson against Shewan and Peacock.  Peacock has pleaded guilty to this count, Shewan has pleaded not guilty.  The charges all arise out of an incident which took place at La Moye Prison on 22^nd June 2004.  It is alleged that the defendants barricaded themselves into B3 dormitory and, amongst other things, threatened various prison officers, set fire to various items, caused damage to the dormitory and generally created a situation where the prison officers had to don protective clothing in order to break into the dormitory to prevent further disorder. 

Definition of affray

3.        The first issue which arises is in relation to the definition of the offence of affray.  Counsel do not disagree that a convenient definition is that to be found in Brownlie's Law of Public Order and National Security (2^nd edition 1981) where, at page 141 the elements are described as:-

"(i)    Unlawful fighting by one or more persons or a display of force by one or more persons without actual violence;

(ii)       in such a manner that a person of reasonably firm character might be expected to be terrified."

4.        In this case there is no suggestion of any fighting.  What is alleged is that there was a display of force without actual violence.  In this respect Mr Haines has drawn my attention to the comments of Lord Hailsham L C in Taylor -v- DPP (1973) 2 All ER at 1108 as follows:-

"Secondly, the extent to which the 'display of force ..... without actual violence' constitutes the offence of affray even where the element of terror is present is still not wholly clear.  It seems that the brandishing of a fearful weapon does constitute the offence, and has always done so, though in most cases where this is done by an individual, a charge under the Prevention of Crime Act 1953 would now seem preferable.  From the older authorities it seems plain enough that mere words, unaccompanied by the brandishing of a weapon or actual violence, are not enough.  But all sorts of things are, arguably, a display of force.  I am anxious that nothing in this case should be construed as necessarily implying that anything less than an unlawful participation in a violent breach of the peace will be enough to satisfy the requirement."

5.        So far there is no dispute between the parties.  What divides them is as follows:-

(i)        Does a bystander have to be present where, as here, the alleged affray takes place on private premises?

(ii)       Does there have to be direct evidence that a bystander was terrified?

(i)      Does a bystander have to present?

6.        On this aspect Mr Haines referred me to the Report of the Law Commission on Offences against Public Order (Working paper No.82).  As a result of that Report the law in England was put on a statutory footing by Section 3 Public Order Act 1986.  However, for my purposes, the Report is a useful discussion of the common law as it stood before 1986.  It is clear that certain points were not fully resolved. 

7.        Mr Haines referred me to the definition of affray from Smith & Hogan Criminal Law (4^th Edition) quoted at para 2.4 of the Report:-

"2.4   The elements of the common law offence of affray are defined by Smith & Hogan in the following way:

(i)        Unlawful fighting or unlawful violence used by one or more persons against another or others; or an unlawful display of force by one or more persons without actual violence;

(ii)       in a public place or, if on private premises, in the presence of at least one innocent person who was terrified; and

(iii)    in such a manner that a bystander of reasonably firm character might reasonably be expected to be terrified

8.        Whilst it may not have been necessary for there actually to have been a bystander where the affray occurred in a public place (see R -v- Sharp (1957) 1 All ER 577, R -v- Mapstone (1963) 3 All ER 930) it seems fairly clear that the common law required the actual presence of a bystander (in the sense of an innocent person who was not complicit in the affray) in private premises.  Thus Hawkins: Pleas of the Crown (1716) Vol 1 page 487 said this:-

"It is said that the word 'affray' is derived from the French word 'effraier', to terrify, and that, in a legal sense, it is taken for a public offence to the terror of the people.  From this definition it seems clearly to follow, that there may be an assault which will not amount to an affray; as where it happens in a private place, out of the hearing or seeing of any, except the parties concerned; in which case it cannot be said to be to the terror of the public; and for this cause such a private assault seems not to be enquirable in a court leet, as all affrays certainly are, as being common nuisances."

9.        That passage was specifically proved by the House of Lords in Button -v- DPP (1966) AC 591 where it was held that an affray could be committed on private premises. 

Although the point did not arise directly in Taylor, Lord Hailsham and Lord Reid both touch upon the point.  Lord Hailsham said this at 112:-

"We were invited to express an opinion as to the extent to which persons must be proved to have been present in order to satisfy the ingredient of terror.  I do not think that on the facts of the present case, where many persons were in fact present and some where in fact terrified, it is desirable to explore this in depth.  It is possible that where the fight takes place in a public street it is not necessary to prove the actual presence of bystanders, or persons within earshot or that they were actually terrified.  It may be enough to show that the violence used was such a kind as to render the street unusable by persons of reasonable firmness by reason of the terror it was liable to cause.  I am not, for example, prepared to say that a fight between rival gangs on the front of a seaside resort, or a dual with lethal weapons on Putney Heath, would not be an affray if the prosecution failed to establish the presence of bystanders or their actual terror.  But in a private place it would be surprising if affray could be complete without the actual presence of onlookers or audience to be frightened by the sight or sound of what was occurring.  This must clearly be considered of importance since the decision in Button.  These are matters which must be canvassed in the light of cases where the facts are such as to raise the issues." 

Lord Reid said this at 114:-

"But I am much more doubtful about suggestions in some cases that no one but the combatants need be present at all or even within earshot: that it is enough that if someone had been present he would have been terrified.  As terror is an essential ingredient of the offence I think that there can be no difference in principle between violence in a public or a private place.  But that is a matter which can be decided when it arises."

10.      The requirement for actual presence was specifically removed by s 3 Public Order Act 1986 whether the affray takes place in a public or private place.  Mr Belhomme submits that the position at common law was not so settled that I should feel bound to adopt it as part of Jersey law.  He further submits that, there being no decision on the point in Jersey, I should feel free to develop the law so as to reflect the modern position as found in the Public Order Act.  I should therefore hold that there is no need for any bystander actually to be present even where an affray takes place on private premises. 

11.      I am not persuaded that it would be right for me to follow Mr Belhomme's submissions.  It is clear from Hawkins and the other authorities to which I have been referred that the essence of the law of affray is that it is to the terror of the public.  Whereas one can well see the argument that this can apply in a public place even if there do not happen to be any bystanders present at a particular moment, it is harder to see that this can apply to violent disorder in private premises if there is nobody present but those participating in the disorder.  I am satisfied that the common law of England was reasonably clear in this regard in relation to private premises and I do not think it would be right for me to hold that Jersey law is different in this respect.  I shall therefore direct the jury that, in order for there to be an affray on private property (as in this case) there must be at least one bystander (in the sense that I have described) present. 

12.      It is however clear from Hawkins and from Lord Reid that a person is present for these purposes if the incident is within his sight or hearing.  The prosecution will therefore no doubt be able to argue that prison officers who heard what was going on and any prisoners present in the dormitory who did not participate in the alleged affray were bystanders for this purpose.

(ii)       Must there be direct evidence of terror?

13.      The definition in Smith and Hogan referred to earlier suggests that, in private premises, there must be evidence that the innocent bystander was actually terrified.  This is also the view of Brownlie (see page 144).  However the only authority given for this proposition is the case of R -v- Summers (1972) Cr App 604.  It is true that in that case the Court of Appeal considered whether the bystanders were in fact frightened and concluded that they obviously were.  However the point was not the subject of any argument or discussion.  Furthermore the case predated the decision in Taylor. 

14.      Summers was cited in Taylor but nevertheless Lord Reid said this at 1114:-

"The question of terror does not arise in this case but as it was much referred to in argument and is an essential element in the offence, I think that I must say a word about it.  Undoubtedly if people are present it is not necessary to prove by their evidence that they were terrified.  It is enough if the circumstances are such that ordinary people like them would have been terrified.  I say 'would' not 'might' have been."

Lord Hailsham does not specifically comment on this aspect. 

15.      It seems to me that the law of England was uncertain on this point.  But the views of Lord Reid are always to be given the greatest consideration and in my judgment they are preferable to those expressed by Smith and Hogan and Brownlie.  The essence of affray is that it is the sort of conduct as would be likely to terrify a person of reasonably firm character.  There is thus an objective standard by which the frightening quality of the conduct is to be judged.  This would not be so if the case were to turn on the character or fortitude of the particular bystander.  Let us suppose two violent disorders of identical nature.   In the first case there happens to be a bystander of average firmness of character.  He says that he was terrified.  The elements of the offence of affray are therefore satisfied.  In the second case, the bystander happens to be a member of the SAS and says that he was not at all frightened.  However the jury is satisfied that the conduct was such as would have terrified a person of reasonable fortitude, such as the person in the first example.  Nevertheless, if the test suggested by Smith and Hogan is correct, there would be no offence of affray in this second case because there would be no evidence that the particular bystander had been terrified.  It would thus become something of a lottery as to whether particular conduct amounted to an affray or not as it would depend upon the fortitude of the particular bystanders.  This seems an unsatisfactory outcome.  Affray should be judged objectively by reference to the frightening nature of the conduct rather than by the fortitude of the particular bystanders. 

16.      I hold therefore that Lord Reid's views reflect the law of Jersey.  I therefore propose to direct the jury that they will not have to consider whether any particular bystanders in this case were terrified; they must consider whether a person of reasonable fortitude would have been terrified. 

(iii)      Severance

17.      Mr Haines has applied to sever Count 4 (arson) to which Peacock has pleaded guilty and Shewan has pleaded not guilty.  He submits that there should be a separate trial of the charge of arson against Shewan.  Underlying his submission is the contention that evidence in relation to the arson is not admissible in relation to the charge of affray.  He submits that it would be duplicitous if the evidence that Peacock had set fire to certain items in the dormitory was also used as evidence against him on the charge of affray. 

18.      I do not accept this submission.  Although it would seem that the Crown has not been wholly consistent in how it puts its case in relation to the affray (there having been a change in Crown Advocate during the course of the proceedings), Advocate Belhomme confirmed that the Crown would be arguing that everything the defendants did whilst barricaded in the dormitory is relevant and admissible in relation to the charge of affray.  This includes the barricading itself, the smashing of the windows, the setting fire to items, the resisting of the prison officers when they sought to secure the defendants' removal from the dormitory, the pushing of a prison officer and the general threats offered to prison officers and their families during the course of the incident.  Of course, threats alone do not constitute an affray (as indicated by Lord Hailsham in Taylor) but what was said is clearly relevant in support of the allegation that the various actions of the defendants amounted to a display of force.  Mr Belhomme submits that all of these matters are relevant and admissible evidence in support of the prosecution allegation that what was done amounted to a 'display of force' for the purposes of the charge of affray. 

19.      I agree.  It seems to me that the situation is analogous to the common situation where a conventional affray by fighting has taken place and, as well as the charge of affray, there are individual charges of assault against particular participants where there is clear evidence of specific assaults during the course of the affray.  Thus a particular offender will face a charge of affray and one or more charges of assault within that affray.  Indeed an example of this can be seen in one of the authorities put before me, namely R -v- Scarrow (1968) Cr App R 591.  In those circumstances the evidence in relation to the assault(s) is clearly relevant and admissible in relation to the charge of affray.  The assault forms part and parcel of the affray although the jury of course, even if convinced of the assault, nevertheless has to consider whether the elements of affray are made out against the offender (e.g. the need for bystanders to be terrified). 

20.      In my judgment the situation is the same here in relation to the arson.  Although separately charged, the fact that Peacock may have set fire to certain items is relevant and admissible in relation to the charge of affray against him.  Both charges arise out of one set of events, namely the defendants barricading themselves into the dormitory and carrying out various acts during the course of that incident.  They are clearly therefore properly charged in the same indictment and I should only order severance if satisfied that there is some special feature of the case which would make a joint trial of the counts prejudicial or embarrassing to the accused so that separate trials are required in the interests of justice. 

21.      I can see no prejudice to Peacock by reason of both charges being heard together given that evidence in relation to the arson is admissible in relation to the charge of affray.  Mr Haines submitted that, if there were a joint trial, Mr Peacock would be questioned about the matters underlying the arson charge; but that could be done even if Count 4 were severed because the evidence is relevant and admissible in relation to the charge of affray.  He also submits that, if  Peacock or Shewan conducts a cut throat defence in respect of the arson charge, this would open the way to Peacock's previous convictions going before the jury.  But that risk is inherent wherever there are joint defendants and does not amount to some special feature which would render severance appropriate in this case.  I therefore decline to order severance. 

22.      A subsidiary point arises in this connection and that is whether the jury should be told that Peacock has pleaded guilty to the charge of arson.  In my judgment they should be.  It is necessary because the jury will not otherwise be able to make sense of matters.  They will hear evidence in relation to the affray charge that Peacock set fire to certain objects.  I do not know at this stage whether Peacock accepts every such allegation in the papers but he clearly accepts sufficient to cause him to plead guilty to the charge of arson.  To that extent therefore the prosecution evidence will not be challenged.  If he gives evidence Peacock will have to admit to setting fire to items on the basis of his plea of guilty.  Thus the jury will in any event hear evidence that Peacock has set fire to certain items.  They will of course not be considering any charge of arson against Peacock because he has pleaded guilty to it.  They will only be considering a charge of arson against Shewan, who denies it.  Thus, if nothing is said, they will be left in the situation where, although there will be clear evidence that Peacock set fire to certain items, they will not hear that he has been charged with arson.  They will be left wondering why they are being asked to convict Shewan of arson and not Peacock.  There is no other explanation of this other than the correct one, namely that Peacock has been charged with arson and has pleaded guilty.  I can see no way of sensibly presenting the case to the jury in the absence of their being told that Peacock has admitted to the arson. 

23.      Furthermore I see no prejudice to Peacock in the jury being told of his plea of guilty.  The evidence of his activities in relation to setting fire to items will be before the jury in relation to the charge of affray.  If he gives evidence he will have to admit to arson.  The fact that he has additionally pleaded guilty does not prejudice him.  Indeed it might even assist him in that he will be able to argue that he has admitted to what he has done and it may therefore support him in connection with his denial of affray. 

24.      I hold therefore that this case cannot sensibly be presented to the jury without their being told of Peacock's plea of guilty and I do not think that there would be any material prejudice caused by this knowledge.  Even if there were thought to be some prejudice I consider that it is inevitable and has to give way to the need to present the case sensibly to the jury. 

Same facts founding more than one offence

25.      As a secondary submission, Mr Haines contended that, even if I were not to sever the indictment, the facts underlying the charge of malicious damage (smashing the windows) and the facts underlying the charge of arson (setting fire to certain items) should be excluded from the jury's consideration when considering the charge of affray.   In other words the prosecution should only be able to rely upon actions of the defendants other than smashing the windows and setting fire to items when considering the charge of affray.  He submitted that it was unfair that the same facts should support more than one charge. 

26.      For the reasons given earlier I do not accept this submission.  It would mean, by analogy, that, in the conventional case of an affray which includes some separately charged assaults, the jury would have to be told to exclude from their consideration the evidence in relation to the assaults when considering the charge of affray.  I see no justification for such an approach. In my judgment the jury are entitled to take into account everything a particular defendant did during the course of a particular incident when deciding whether or not the various elements of affray are made out.  In the case of affray by fighting, they are entitled to consider any assaults he carried out even if separately charged.  In the case of an affray such as this which is said to amount to a display of force, the jury are entitled to take into account any smashing of windows or setting fire to items in considering whether the elements of affray are made out.  I therefore reject Mr Haines' submission.

Authorities

Brownlie's Law of Public Order and National Security (2^nd edition 1981).

Taylor -v- DPP (1973) 2 All ER at 1108.

Report of the Law Commission on Offences against Public Order (Working paper No. 82).

Smith & Hogan Criminal Law (4^th Edition).

R -v- Sharp (1957) 1 All ER 577.

R -v- Mapstone (1963) 3 All ER 930).

Hawkins: Pleas of the Crown (1716) Vol 1 page 487.

Button -v- DPP (1966) AC 591.

Public Order Act 1986.

R -v- Summers (1972) Cr App 604.

R -v- Scarrow (1968) Cr App R 591