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|Judgments - I and Another (A.P.) (Appellants) and Another v. Director of Public Prosecutions (Respondents)
I and Another and Another (A.P.) (Appellants) v Director of Public Prosecutions (Respondents)
HOUSE OF LORDS
Lord Bingham of Cornhill Lord Clyde Lord Hutton Lord Hobhouse of Wood-borough Lord Scott of Foscote
OPINIONS OF THE LORDS OF APPEAL FOR JUDGMENT
IN THE CAUSE
I AND ANOTHER (A.P.)
(APPELLANTS) AND ANOTHER
DIRECTOR OF PUBLIC PROSECUTIONS
(ON APPEAL FROM A DIVISIONAL COUR OF THE QUEEN'S BENCH DIVISION)
I AND ANOTHER AND ANOTHER (A.P.)
DIRECTOR OF PUBLIC PROSECUTIONS
(ON APPEAL FROM A DIVISIONAL COUR OF THE QUEEN'S BENCH DIVISION)
ON 8 MARCH 2001
 UKHL 10
LORD BINGHAM OF CORNHILL
1. I have had the advantage of reading in draft the opinion of my noble and learned friend Lord Hutton. For the reasons which he gives, I would allow these appeals and respond to the certified questions as he proposes.
2. I have had the advantage of reading in draft the opinion of my noble and learned friend Lord Hutton. For the reasons which he gives, I would allow these appeals and respond to the certified questions as he proposes.
3. 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.
4. The appellants were charged with the statutory offence of affray contrary to section 3(1) of the Public Order Act 1986 and were convicted by Mr Justin Philips, a Metropolitan Stipendiary Magistrate, sitting at West London Youth Court on 22 July 1998. The appellants appealed to the Divisional Court by case stated. The three cases stated set out the facts found by the learned Stipendiary Magistrate in identical terms and two of the findings are of particular relevance to the present appeal:
It is also appropriate to set out certain other findings:
The Stipendiary Magistrate stated:
The questions set out in the case stated for the opinion of the Divisional Court were:
In his judgment in the Divisional Court ( 1 Cr App R 251, 254A) Auld LJ reformulated the questions:
5. The Divisional Court dismissed the appeals and held (1) that the visible carrying in public of primed petrol bombs by a large number of youths "obviously out for no good" was clearly capable of constituting a threat of unlawful violence and (2) that whilst there had to be someone at or in the vicinity towards whom the threat of violence could be said to be directed, in the special circumstances of this case the overt carrying of petrol bombs, highly dangerous and untargeted in their effect if exploded, constituted a threat of violence to anyone in the vicinity, including the police on arrival on the scene.
6. The questions certified by the Divisional Court as points of law of general public importance are:
7. I consider that the second certified question is not apposite and that the point to which it relates should be reformulated:
8. In its Report in 1983 on Offences Relating To Public Order (Law Com No 123) the Law Commission recommended the abolition of the common law offences of affray, riot, unlawful assembly and rout and the replacement of the first three by new statutory offences. In its Working Paper (No 82, 1982) which preceded its Report the Law Commission stated:
9. The long title of the Public Order Act 1986 states:
Section 1 creates the statutory offence of riot which is committed where 12 or more persons who are present together use or threaten unlawful violence for a common purpose and the conduct of them (taken together) is such as would cause a person of reasonable firmness present at the scene to fear for his personal safety. Section 2 creates the statutory offence of violent disorder which is committed where 3 or more persons who are present together use or threaten unlawful violence and the conduct of them (taken together) is such as would cause a person of reasonable firmness present at the scene to fear for his personal safety.
Section 3 creates the statutory offence of affray and provides:
Section 4 creates the statutory offence of conduct intended or likely to cause fear or provoke violence and provides:
Section 6 provides:
Section 8 provides:
Section 9 provides:
The First Certified Question
10. My Lords, the issue which arises on the first certified question is whether, as a matter of law, the carrying of petrol bombs by a group of persons can constitute a threat of violence where those petrol bombs are not being waved or brandished. I consider that giving the words "threatens unlawful violence" in section 3(1) their ordinary and natural meaning the carrying of dangerous weapons, such as petrol bombs by a group of persons can, in some circumstances, constitute the threat of violence, without those weapons being waved or brandished.
11. This view is supported by the authorities on the common law offence of affray. Whilst as Taylor LJ observed in Atkin v Director of Public Prosecutions (1989) 89 Cr App R 199, 204, a court is not assisted in construing words in a section creating a new offence by considering decisions of other courts in regard to the construction of an earlier section containing quite different words, section 3 of the 1986 Act did not create an entirely new offence but replaced the common law offence of affray and the Law Commission stated in para 3.1 of its Report that it considered that the new statutory offence "should be similar to the common law offence with some clarification and narrowing of its elements." Auld LJ rightly observed at page 256F that where a statutory offence replaces a common law offence the courts should approach with care indications to be found in the earlier common law as to the elements of the offence. But he also observed that section 3 mirrors the common law alternatives of actual use and threatened use of violence. Therefore I agree with the learned lord justice that it is permissible in this case to take into account the common law decisions on what constitutes a threat of violence.
12. In R v Sharp  1 QB 552, 559 Lord Goddard CJ in considering the offence of affray cited the institutional writers and said:
And, at p 560, Lord Goddard stated that an indictment for affray is one which alleges that
13. In R v Taylor  AC 964, Lord Hailsham of St Marylebone LC stated, at p 987A:
Counsel for the appellants relied on the last sentence in this passage, but Lord Hailsham recognised that it can be contended that various types of conduct may constitute a display of force, and I consider that this passage in his judgment does not assist the appellants' case but provides support for the view that the carrying of dangerous weapons by a group of persons can constitute the threat of violence. Smith and Hogan in Criminal Law 4th ed. (1978), p 757, in their definition of the common law offence, also take the view that the display of force alone can constitute the commission of an affray:
14. Other more recent cases cited by the appellants' counsel do not, in my opinion, advance the appellants' case. In R v Davison  Crim LR 31 the defendant was convicted of affray where he had "swiped" a kitchen knife towards a police officer. In R v Dixon  Crim LR 579 the defendant was convicted of affray where he and his Alsatian type dog were pursued by two police officers and cornered in the driveway of a house and he repeated "go on, go on" to the dog who ran forward and bit the police officers. No issue arose in either of those cases as to whether the carrying of a weapon could constitute a threat of violence.
15. In R v Robinson  Crim LR 581 the defendant was convicted of affray where he and his co-accused asked a motorist in an aggressive manner to drive them to a particular destination and threatened to take the car if he did not do so. Section 3(3) of the 1986 Act provides that on a charge of affray a threat cannot be made by the use of words alone, but at the trial counsel for the Crown argued that in addition to what was said there was conduct which created an aura of menace. The Court of Appeal allowed the appeal on the ground that the evidence was devoid of anything that went beyond the use of words alone. In R v Sanchez  Crim LR 572 the defendant was convicted of an affray when she had lunged at her boyfriend with a knife in a car park. On appeal the Court of Appeal quashed the conviction because the trial judge had failed to direct the jury to consider whether a reasonable hypothetical bystander would have feared for his personal safety. Again neither of these cases was concerned with the issue whether the carrying of dangerous weapons by a group of persons can constitute a threat of violence.
16. Therefore I am of the opinion that as a matter of law the carrying of dangerous weapons such as petrol bombs by a group of persons can constitute a threat of violence within the meaning of section 3(1). Whether it does so in a particular case is a matter for the tribunal of fact to decide having regard to the facts of the case. Accordingly I am in full agreement with that part of the judgment of Auld LJ where he said, at p 257C:
The Second (Reformulated) Question
17. The offence of affray, both at common law and now under statute, was primarily intended to punish a person or persons who engaged in a face to face confrontation where violence was used or threatened and where reasonably firm-minded members of the public would be put in fear. As Lord Bingham of Cornhill CJ said in R v Smith  1 Cr App R 14, 17B:
18. The appellants submit that the offence of affray requires three persons: a person who uses or threatens unlawful violence, a person at whom he directs the violence or threat (the victim), and a hypothetical bystander of reasonable firmness. The appellants further submit that the victim must be present at the scene. In support of this submission they rely on the words "towards another" in section 3(1). They contend that unlawful violence cannot be threatened towards another unless that other person is present. They rely on the judgment of Taylor LJ in Atkin v Director of Public Prosecutions  89 Cr App R 199, 204-205 where, in considering the words in section 4(1) of the 1986 Act, he said:
19. The Crown submits that where a person is in possession of a weapon, such as a bomb, which if it were detonated could cause injury to persons close to, but not present at, the location where the offender is holding the bomb, violence would be threatened towards those persons within the meaning of section 3(1).
20. The Crown also submits that in this case the group of youths were congregated near a block of residential flats at a time when people would be returning to them from work and it could be inferred that members of the public were bound to be in the vicinity even if they were not present at the scene where the youths were gathered.
21. The Crown further submits that the judgment of Taylor LJ in Atkin v Director of Public Prosecutions on the meaning of the words "uses towards another person threatening words" in section 4(1) of the 1986 Act does not assist in deciding the meaning of the different words in section 3(1) "uses or threatens unlawful violence towards another".
22. If the point were to be determined by having regard only to the words of section 3(1), there would be some degree of force in the Crown's submissions, because I think that giving the words their ordinary meaning violence can be threatened towards another person even if that person is not present when the threatening conduct takes place. But section 3(1) was enacted to give effect to the recommendation of the Law Commission in its Report and in paragraph 3.15 of the White Paper setting out its proposals for the reform of Public Order Law (1985) Cmnd 9510 the Government stated in relation to affray that it was "content to accept the Law Commission's proposed statutory definition". Therefore it is permissible, and indeed desirable, for the courts to have regard to the view of the Law Commission on this 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 (see: R v Shivpuri  AC 1, 21B and M/S Aswan Engineering Establishment Co v Lupdine Ltd  1 WLR 1, 14E).
23. In its Report the Law Commission discussed the elements of the statutory offence of affray which it was recommending and explained why, contrary to its earlier view, it considered that threats of violence, without the actual use of violence, should also constitute the offence. It is desirable to set out the relevant paragraphs in full: