Notes Of Cases

Date01 July 1965
DOIhttp://doi.org/10.1111/j.1468-2230.1965.tb01091.x
Published date01 July 1965
NOTES
OF
CASES
WHO
ARE
"
THE
PUBLIC
))
?
THERE is an extraordinary dearth of authority concerning the com-
mon law misdemeanour
of
affray: though it
is
briefly mentioned by
Coke, Hale, Dalton, Lambard and Hawkins, there appear to have
been only two reported cases in which
it
was considered, until
R.
v.
Sharp and Johnson
reached the Court of Criminal Appeal in
1957.
Some dicta of Lord Goddard's in this case2 showed that
he regarded the offence as one which could only be committed in
a
public place-a view that had been generally accepted for over
a century. In
R.
v.
Hunt and SwantonS
in
1845
it
was ruled that
the accused could not be indicted
for
making an affray, since the
place where they fought was
a
considerable distance from the
highway, and was to a11 intents and purposes a private one; and
in
R.
v.
O'Neill,"
an Irish case decided in
1871,
it
was held that
an indictment for affray which did not aver that the fighting took
place in a public street
or
highway would be bad. A direction by
Thesiger
J.
confining the offence to
a
public street was approved
obiter
by the Court of Criminal Appeal in
R.
v.
Allan5
in
1963.
But in other recent cases at first instance the expression
''
public
place
))
had been more widely interpreted,
so
as to cover public-
houses,6 a dance hall and
a
private proprietary club,8 if the general
public were allowed access to them.
In
R.
v.
Button and Swain9
fighting had taken place at an
annual dance held by a darts league in a scout hall; admission
to the dance was by tickets which were distributed gratis to the
members
of
the club, a limited surplus of tickets being given
for
distribution to the licensees
of
the fourteen public-houses
in
which
the league's members played their darts matches. The defence
submitted that there was no case to answer, arguing that on the
evidence the scout hall ws not a public place at the material time
since the public were not allowed to go there. In reply, counsel
for
the
Crown
contended that
''
public
')
in relation to this offence
1
[1957]
1
Q.B.
552.
2
Ibid.
at pp.
559-560:
he defined an affray
as
"a
real
disturbance
of
the
peace
by two persons fightinu each other in public instead
of
settling their
differences in the royal courts?*
3
(1845) 1
Cox C.C.
177,
per
Alderson
€3.
4
(1871)
I.R.
6
C.L.
1.
5
[1965]
1
Q.B.
130
at
p.
135.
6
R.
v.
Clark
(1963) 47
Cr.App.R.
203
(Howard
J.);
R.
V.
Maprtonr
[I9633
3
All
E.R.
930
(Paul1
J.).
7
R.
v.
Momis
(1963)
47
Cr.App.R.
202
(Marshall
J.).
8
R.
v.
Kane
[1965] 1
All
E.R.
705
(Barry
J.).
9
[1965]
2
W.L.R.
992; [1965]
1
All
E.R.
964
(C.C.A.:
Lord
Parker
C.J.,
Marshall
and
Widgery
JJ.).
466
JULY
1966
NOTES
OF
CASES
467
only meant in the presence
of
members of the public, and that the
offence could
be
committed on private premises.
MacKenna
J.,
after reviewing the
old
authorities and the cases
mentioned above, agreed that the requirement that the offence be
committed
in
a public place had originally crept into the law by
error; but he held that it was by now
a
communis
error,
which he
was bound to accept as the law. He then defined
a public place
as a place
to
which the public,
or
any substantial portion of the
public, have access at the material time
lo;
and he directed the jury
that they might find that the scout hall was such a place. The
Court of Criminal Appeal held that this direction erred in a way
which was favourable
to
the accused, and dismissed their appeals;
it held that it
is
not the law that an affray can only be committed in
a public place, and said that
where two
or
more persons fight in the
presence of persons who neither participate in nor encourage the
fighting and thereby some of these persons are frightened
or
put in
fear, then the offence of affray is complete.”
l1
The erroneous restriction
to
public places originally arose out
of an ambiguity of the word
public.” Coke referred to affray as
a
‘‘
publique offence,” meaning by this an offence
‘‘
wherein the
King hath an interest and which is not, like a private offence,
merely actionable at the suit of the injured party
lZ;
that is, he
meant what Lambard
l3
and other writers
l4
meant by
common
wrong,” and was not referring
to
the place in which the offence
was committed. Hawkins, after quoting Coke’s statement, said
that
it seems clearly
to
follow, that there may be an assault which
wilt not amount to an affray; as where
it
happens in
a private
place,
out
of
the hearing
or
seeing of any, except the parties con-
cerned; in which case
it
cannot be said
to
be
to
the terrOr of the
people.”
l5
Blackstone, citing only Hawkins, then defined affray
as “the fighting of two
or
more persons
in some public place,
to
the terror of His Majesty’s subjects.”
l6
He added that “if the
fighting be
in private,
it
is no affray but an assault.”
l7
But the
mischief was done: most later writers
l8
quoted Blackstone more
or
less verbatim, and the mistaken restriction to
a public place
thus became the law.
10
[1965] 2 W.L.R.
992
at p.
1002;
“651
1
All E.R.
964
at p. 971.
11
[1965]
2
W.L.R.
992
at p. 1005; [1965]
1
All E.R.
964
at p.
973.
12
3
Inst.
158.
13
Ewenarcha
(1624 ed.), pp. 1%-L26.
14
Dalton,
Country Justice
(1727 ed.), p.
38;
Termes
de
la
Ley
(1721 ed.), p. 29.
15
1
Hawk.P.C., Chap.
63,
s.
1
(my
italics).
16
4
B1.Comm.
145
(my
italics).
17
Ibid.
(my italics). And Blackstone, like Hawkins, Hale and
Dalton,
referred
to a constable’s power
to
break down
a
locked
door
to
suppress
an
affray:
though
one can of course lock the
doors
of
a
public place.
18
e.g.,
Archbold
(1822 ed.), p.
377,
(35th ed.),
8.
3591;
Russell
on
Crime
(1843
ed.), p.
291,
(12th ed., 1964), pp. 263-264; Stephen,
Digest
(9th
ed.,
1950),
art. 89; see also the
fifth
Report of the Commissioners
on
Criminal
L3w
(1840),
p.
90.
An exception was
Burn’s
Justice
of
the
Peace
(la%), p. 34.

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