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24. Therefore it is apparent that the Law Commission and Parliament intended that the offence set out in section 3 should penalise those who engage in a fight, whether they are landing blows, or attempting to land blows, or threatening to land blows, but it is also clear that in such circumstances the victim or victims are bound to be present with the offender or offenders. Accordingly I regard it as clear that the section does not make guilty of an affray a person whose conduct constitutes a threat of violence to persons who are not present. This conclusion also derives support from the requirement in subsection (1) that the conduct of the offender is such that it would cause a bystander "present at the scene" to fear for his personal safety. The concept of presence at the scene suggests that the notional bystander would be in the presence of both the offender and the victim. It is also relevant to observe that there is no reported case of affray where the victim was not present at the scene where the accused threatened violence.
25. In the Divisional Court Auld LJ stated, at pp 258 and 259:
"In my judgment, where there is a threat of violence taking the form of a gathering of armed persons in a public place, it is not necessary to prove that a person or persons present actually felt threatened (see Swanston v Director of Public Prosecutions, [(1996) 161 JP 203]. It is plain from the sight of an armed gathering in public that at least those openly displaying their weapons constitute a threat of violence to someone. That could be any local resident or other member of the public who happened to see them and also police officers called to the scene. The hypothetical bystander, for whose protection the offence of affray is primarily designed, is not to know precisely when and where and towards whom the threatened violence will occur. It is enough for him that there is such a threat to someone which puts him in fear.
This is not introducing into the offence of affray a notional victim of threatened violence to join the notional bystander of reasonable firmness. There must have been someone at or in the vicinity towards whom the threat of violence can be said to have been directed. Often that can readily be inferred where such behaviour takes place in a public place, and, as I have said, may include police officers who attend, whether or not, when there, they perceive a threat of violence directed towards themselves. The circumstances of explosive devices such as those here would constitute a threat towards anyone in the immediate vicinity and in all directions, whatever their lack of connection with those charged or their role at the scene.
Here, the obvious inference from the scene of a threat of violence by the group of armed youths towards someone other than themselves had as its background the magistrate's unchallenged finding that in that part of the East End of London there were street gangs who were territorially based and that there was bad blood between them. He was entitled also, in the special circumstances of this case, to find, as he did, that the diffuse threat of violence, inherent in the overt carrying of petrol bombshighly dangerous and untargeted in their effect if explodedconstituted a threat of violence to anyone in the vicinity, including the police on arrival on the scene. The police officers' perception, or lack of it, of themselves as particular targets is immaterial.
Accordingly, I would answer "yes" to the second question, that of whether a threat of violence towards an unknown person or persons or the public at large at the scene amounts to a threat of unlawful violence towards another.
It follows from what I have said that it is not necessary to answer the third question, which goes in the main to the police witnesses' own perception of a threat of violence. The fact that they did not speak of a threat, in the form, say, of brandishing the petrol bombs either at others or themselves, and that one of them merely thought, whether before or on arrival at the scene, that there could be a disturbance, does not mean that there was no evidence, on the facts as found by the magistrate, of a threat of unlawful violence towards another or others. For the reasons he gave and which I have in substance and at greater length repeated, there plainly was."
Hughes J stated, at pp 260 - 261:
"5. Affray does require the presence of a person threatened. The person of reasonable firmness who is referred to in section 3(1) is a hypothetical person. He is often conveniently referred to as the 'hypothetical bystander'. He represents the standard by which the gravity of the behaviour is to be judged and he demonstrates that this public order offence is designed for the protection of the public. But although the bystander is hypothetical, the person threatened with unlawful violence is not. It seems to me possible that the person who is threatened may be unaware of it, for example, if his back was turned. However, the person threatened must exist and he or she must be there.
6. Such person threatened may, however, be of unknown identity. Moreover, a threat may be made generally in a populous place to all about. In a case like the present, that might include the men, women and children able to see from the windows of the flats, or those who were entering or leaving at a little short of 7 pm. Even without the evidence of such a person being given to the court, a court is entitled in an appropriate case to conclude, as a matter of fact, that such persons were indeed threatened by the conduct of the defendant. Indeed, in the present case, someone telephoned the police. However, in the present case, the magistrate has specifically found, as follows:
'Aside from the police no other persons and in particular no member of any other gang was shown to be present at the scene at 6.50 pm'.
He has therefore not found, as he might perhaps have done, that others were there and were threatened. A finding that there was no one there to be threatened but anyone who might appear in the future would be likely to be threatened is not sufficient.
7. That a police constable thinks that a disturbance might ensue is not by itself enough. If what he contemplates is no more than a future event, there is no present threat. Affray requires a threat rather than a risk of a future threat.
8. On the special facts of this case, for the reasons that have been fully explained by Auld LJ, the magistrate was entitled to conclude that, whether or not the police officers said that they felt threatened, the threat was a general one, and was in fact made towards them at a time when they were present."
26. Therefore both Auld LJ and Hughes J recognised that the victim or victims towards whom the threat is directed must be present. But I consider, with respect, that they erred in applying this requirement to the facts as found by the Stipendiary Magistrate and set out in the case stated. It was not open to Auld LJ to find that the overt carrying of petrol bombs constituted a threat of violence to anyone in the vicinity, including the police on arrival at the scene, because the Magistrate found that no one other than the police was present at the scene, and he also found by clear implication that the group of youths constituted no threat towards the police as the group dispersed immediately the police carrier came into view. Similarly it was not open to Hughes J to find in paragraph 8 of his judgment that there was a threat towards the police officers. In order to constitute an offence under section 3 there must be a threat of violence towards another person. Whilst the carrying of petrol bombs can constitute a threat of violence, it does not necessarily follow that because a person is present at a location where a gang are carrying petrol bombs there is a threat of violence towards that person. Whether there is a threat of violence towards a person present at the scene constituted by the carrying of a weapon or weapons will depend on the facts of the actual case, but that issue does not arise in the present case because, apart from the police officers towards whom there was no threat, no one was present at the scene.
27. Accordingly I would answer "Yes" to the first certified question and "Yes" to the second (reformulated) question and would allow the appeals on the ground which I have stated in relation to the second question. I think that the third certified question was intended to relate to a situation where a person threatened was not present at the scene, and therefore it does not now arise for consideration.
28. The appellants were clearly guilty of criminal conduct and it would have been open to the prosecuting authorities to have charged them with the carrying of an offensive weapon contrary to section 1 of the Prevention of Crime Act 1953 or with possession of explosives contrary to section 4 of the Explosive Substances Act 1883. It appears that there is an increasing tendency to charge the offence of affray and in the year 2000 there were 1,891 offences of affray charged in the Metropolitan Police area. The present case demonstrates that a person should not be charged with the offence unless he uses or threatens unlawful violence towards another person actually present at the scene and his conduct is such as would cause fear to a notional bystander of reasonable firmness.
LORD HOBHOUSE OF WOODBOROUGH
For the reasons given by my noble and learned friend Lord Hutton, with whose speech I agree, I too would allow these appeals and answer the questions as he proposes.
LORD SCOTT OF FOSCOTE