Court of Appeal
| Published date | 01 October 2010 |
| DOI | 10.1350/jcla.2010.74.5.652 |
| Date | 01 October 2010 |
| Subject Matter | Court of Appeal |
The Meaning of ‘Present Together’
R v NW [2010] EWCA Crim 404
Keywords
Public order; Police; Violent disorder; Present together
The defendant had become embroiled in an altercation with a police
officer who was attempting to arrest her. A large crowd, said to be
between 40 and 100, gathered, some of whom tried to prevent the arrest
taking place whilst others abused the officer and his colleague. The
defendant, and two others who had been present at the scene, were
charged with violent disorder (Public Order Act 1986, s. 2). The defend-
ant argued that, as the others were not acting in concert with her, she
could not be convicted under s. 2. The judge rejected a plea of no case to
answer and directed the jury inter alia that they could convict if they
were sure that at least three persons were present and were using or
threatening violence such as would cause a person of reasonable firm-
ness present at the scene to fear for his or her personal safety. Following
this direction, the defendant was convicted.
The defendant appealed on the grounds that the judge should have
accepted the submission of no case to answer and that, in any case, the
judge had misdirected the jury. The appeal turned on the meaning of
the words ‘present together’ in s. 2.
HELD, DISMISSING THE APPEAL, the words ‘present together’ in s. 2
meant ‘being in the same place at the same time’. On this basis, the judge
was correct in rejecting the submission of no case to answer and in his
direction to the jury.
COMMENTARY
This case shows how easily a minor individual incident in a public place
can escalate to a major confrontation involving additional numbers of
individuals, especially where, as here, the events take place in a town
centre. Offences under ss 1 and 2 of the Public Order Act 1986 are
characterised by the need to recognise the increased seriousness of the
threat to public order and, consequently, to members of the public
arising from a situation where numbers of people become involved. The
impact on the public is a factor the courts have consistently emphasised
when sentencing, see, for example, R v Rees [2006] 2 Cr App R (S) 20.
The relevant part of s. 2 provides:
(1) Where three 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, each of the persons using or threatening
unlawful violence is guilty of violent disorder.
(2) It is immaterial whether or not the three or more use or threaten
unlawful violence simultaneously.
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The Journal of Criminal Law (2010) 74 JCL 394–404
doi:10.1350/jcla.2010.74.5.652
The Meaning of ‘Present Together’
As with any offence requiring minimum numbers, there may be an issue
as to whether this requirement is satisfied on any given set of facts. A
number of early cases under s. 2 involved consideration of computation
of numbers for the purpose of this offence. It has long been established
that, in relation to offences requiring minimum numbers as part of their
definition, it is possible to convict fewer than the minimum number as
long as there is evidence that at least the minimum number of people
were involved (see, for example, R v Beach and Morris (1909) 2 Cr App R
189). The same principle has been applied to s. 2 in some early cases
under the 1986 Act. In R v McGuigan and Cameron [1991] Crim LR 719,
for example, two defendants were convicted of violent disorder whilst a
third was acquitted. It was held, on appeal, that the convictions could
not stand, as there was no evidence that any others were involved and,
therefore, there were not at least three people using or threatening
violence as required by s. 2.
Where, however, reliance is placed on the involvement of others who
are not before the court, the defence must know the case it has to meet
and convictions will be overturned where there is uncertainty as to this.
Thus, in R v Mahroof [1989] Crim LR 72, M was involved in an alterca-
tion in which others were alleged to have been involved, but only three
of the alleged participants were charged with violent disorder. Of these,
M was convicted while the other two were acquitted. It was held that
M’s conviction could not stand as the two others charged were acquitted
whilst the involvement of the further two was not disclosed in the
indictment. Similarly, in R v Worton [1990] Crim LR 124, whilst there
was evidence that 8–10 people were taking part in a fight, only four
were charged with violent disorder, of whom two were convicted and
the charge in respect of the fourth allowed to lie on file. As the judge had
failed to warn the jury that they could only convict if they were satisfied
that there were at least three participants, it followed that the convic-
tions of the two defendants must be quashed. Equally, the requirement
that the participants should be using or threatening unlawful violence
means that a question might arise as to whether any of the violence was
lawful, for instance by being used in self-defence. In R v Fleming [1989]
Crim LR 658, for example, although there were four men fighting, the
court accepted that two were using force aggressively whilst the other
two were defending themselves. As a result, only two participants were
using unlawful force and, in the absence of a third person doing so, their
convictions for violent disorder were quashed.
The offence of violent disorder does not, as the offence of riot (Public
Order Act 1986, s. 1) does, require that the three or more are acting with
a common purpose. The Law Commission (Offences Relating to Public
Order, Law Com. No. 123 (1983) paras 5.29, 6.11–6.12, 6.23–6.25)
regarded the notion of common purpose as a hallmark of riot and did
not propose to extend its use beyond that offence. The government
adopted this view (Review of Public Order Law, Cmnd 9510 (1985) paras
3.4, 3.18) and this particular, and significant, distinction between the
ingredients of riot and violent disorder duly appeared in ss 1 and 2 of the
Public Order Act 1986. It was always envisaged that violent disorder
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The Journal of Criminal Law
would be the normal charge brought in respect of serious outbreaks of
public disorder, with the offence of riot only being used exceptionally
(Review of Public Order, above at para. 3.13). The difficulties in proving a
common purpose that might have been thought to inhibit charges of riot
from being brought at common law are diminished, though not elimi-
nated, under the 1986 Act by virtue of the provision in s. 1(3) allowing
common purpose to be inferred from conduct and the liberal inter-
pretation given to the concept in cases such as R v Jefferson [1994] 1 All
ER 270.
The requirement, common to ss 1 and 2, that the three or more must
be ‘present together’ is not, however, free of difficulty as it is capable of
being interpreted in ways signifying a greater or lesser degree of associ-
ation. In common with many terms in the 1986 Act, the phrase ‘present
together’ is not defined. An obvious approach is simply to regard the
words as ordinary English words and leave their meaning to the tribunal
of fact—an approach which, whilst not without controversy, has been
adopted for many of the terms in the 1986 Act. Such an approach...
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