Divisional Court
| DOI | 10.1350/jcla.2008.72.2.482 |
| Date | 01 April 2008 |
| Published date | 01 April 2008 |
| Subject Matter | Divisional Court |
Divisional Court
Affray and the Test for Excessive Force in Relation to
Self-defence
Duffy vChief Constable of Cleveland [2007] EWHC 3169 (Admin)
Keywords Public order; Defences; Criminal law; Unlawful violence;
Affray
On 26 June 2006, both the appellant and another (S) were seated
separately in a restaurant in Middlesbrough. Both men had been drink-
ing and there was pre-existing enmity between them from a previous
incident. At around 11 pm, the appellant was joined by a friend and the
two of them approached S. The appellant and S started to shout at each
other and the police were called. By the time the police arrived at the
restaurant, the two men had started to fight and continued to fight. The
police tried to intervene and one of the police officers was injured. Other
people, who were present at the scene, stated that they were frightened
and feared unlawful violence.
Following arrest, S stated that while he might have initiated the fight,
he had no memory of the incident as he was drunk. Giving evidence in
police interview, the appellant stated that he was acting in self-defence
and that S had thrown the first blow. In November 2006, both S and the
appellant were convicted at Teesside Magistrates’ Court of affray con-
trary to s. 3 of the Public Order Act 1986. Section 3(1) of the 1986 Act,
so far as is relevant here, provides that a person is guilty of affray if he
uses or threatens unlawful violence towards another and his conduct is
such as would cause a person of reasonable firmness present at the scene
to fear for his personal safety. Based on the evidence provided by the six
police officers who were in attendance at the restaurant, it was found
that both men were engaged in the fighting, neither more vigorously
than the other and that either the appellant or S could have retreated or
stopped fighting. The judge therefore stated that, as such, either could
have taken simple avoiding action and no matter how momentary their
behaviour, their action was unnecessary and as such unlawful.
The appellant was unsuccessful in raising the issue of self-defence and
his subsequent conviction for affray was appealed by way of case stated.
The questions being asked of the Divisional Court were first, whether
the court was entitled to conclude that there was a point during the
course of the incident when the appellant’s action ceased being legitim-
ate self-defence and, secondly, whether there was a duty on the appel-
lant to retreat or, in some other way, refrain from using force himself
whilst remaining under attack from a third party, in this case, S.
H
ELD
,
ALLOWING THE APPEAL
, the Divisional Court stated that despite
the questions posed by the case stated, the real issue centred on the fact
that during the trial, the judge had failed to make reference to any
subjective element in respect of self-defence. The court held that it was
95The Journal of Criminal Law (2008) 72 JCL 95–101
doi:1350/jcla.2008.72.2.482
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