I v DPP. ; M v DPP. ; H v DPP
| Jurisdiction | England & Wales |
| Judge | LORD BINGHAM OF CORNHILL,LORD CLYDE,LORD HUTTON,LORD HOBHOUSE OF WOODBOROUGH,LORD SCOTT OF FOSCOTE |
| Judgment Date | 08 March 2001 |
| Neutral Citation | [2001] UKHL 10 |
| Date | 08 March 2001 |
| Court | House of Lords |
[2001] UKHL 10
HOUSE OF LORDS
Lord Bingham of Cornhill
Lord Clyde
Lord Hutton
Lord Hobhouse of Wood-borough
Lord Scott of Foscote
and Another
My Lords,
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.
My Lords,
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.
My Lords,
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.
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:
"(f) As the police carrier came into view, the group dispersed immediately in all directions.
"(k) Aside from the police no other persons, and in particular no member of any other gang, were shown to be present at the scene at 6.50pm."
It is also appropriate to set out certain other findings:
"(e) Officers in the carrier thought that petrol bombs were being carried and PC Brown thought that there could be a disturbance.
"(i) At no time was any fuse lit and when police came on the group there was no fighting, no shouting or throwing of any object. Nothing was said and no bottles were waved.
"(j) In the Bengali-populated East End, the street gangs are territorial and there is bad-blood between the various gangs."
The Stipendiary Magistrate stated:
"I was of the opinion that in this part of London, with its agreed contemporary history of gang warfare, the presence of this group of youths (approximately a quarter of which was armed with petrol bombs) would threaten with violence any member of the public alighting upon the scene, whether that member of the public was a resident, a passer-by or a police officer; and although, with the exception of the officers in the carrier, there was no evidence of anyone to whom it could be said the threat was directed, the offence of affray in this instance was made out as the armed group had congregated in public and constituted a general threat to the public at large, and that a person of reasonable firmness present at the scene of this incident would have feared for his or her safety."
The questions set out in the case stated for the opinion of the Divisional Court were:
"1. Was I correct in deciding that a conviction for affray under Section 3(1) of the Public Order Act 1986 can be recorded without evidence being adduced that any person was or believed himself to have been subjected to or threatened with violence?
2. Was I correct in my ruling that a threat of violence towards a hypothetical person or persons or the public at large is sufficient to constitute a threat 'towards another,' and that this threat could be inferred from the evidence that police alighting on this scene thought that petrol bombs were being carried and one officer thought there could be a disturbance."
In his judgment in the Divisional Court ( [2000] 1 Cr App R 251, 254A) Auld LJ reformulated the questions:
"1. Whether the mere possession of petrol bombs in the circumstances was capable of amounting to a threat of unlawful violence?
2. If so, whether a threat of violence towards an unknown person or persons, or the public at large, amounted to a threat of unlawful violence 'towards another'?
3. And if so, whether such a threat could be inferred from the evidence of the police that they thought members of the group were carrying petrol bombs and that one officer thought there could be a disturbance?"
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.
The questions certified by the Divisional Court as points of law of general public importance are:
"(1) "Whether the overt possession of a weapon may constitute a threat of violence for the purpose of affray when it is not used or brandished in a violent manner."
(2) "Whether in order to constitute a threat for the purpose of affray it must be directed at a particular person or whether it is sufficient, providing that there is another or others present, that it is directed generally against anyone present."
(3) "Whether, in order to constitute a threat for the purposes of affray, the threat must be perceived as such by a person against whom it is directed."
I consider that the second certified question is not apposite and that the point to which it relates should be reformulated:
"In order to constitute the statutory offence of affray does the threat of unlawful violence have to be towards a person or persons present at the scene?"
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:
"4.3 The common law offence of affray is typically charged in cases of pitched street battles between rival gangs, spontaneous fights in public houses, clubs and at seaside resorts, and revenge attacks on individuals. The offence is apparently rarely resorted to in the context of demonstrations or protests where disorder has broken out, although there is nothing in law to prevent a charge of affray being brought where serious fighting is involved in those circumstances."
The long title of the Public Order Act 1986 states:
"An Act to abolish the common law offences of riot, rout, unlawful assembly and affray and certain statutory offences relating to public order; to create new offences relating to public order …"
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:
"(1) 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.
(2) Where 2 or more persons use or threaten the unlawful violence, it is the conduct of them taken together that must be considered for the purposes of subsection (1).
(3) For the purposes of this section a threat cannot be made by the use of words alone.
(4) No person of reasonable firmness need actually be, or be likely to be, present at the scene.
(5) Affray may be committed in private as well as in public places."
Section 4 creates the statutory offence of conduct intended or likely to cause fear or provoke violence and provides:
"(1) A person is guilty of an offence if he—
(a) uses towards another person threatening, abusive or...
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