R v Button ; R v Swain
| Jurisdiction | England & Wales |
| Judge | MR. JUSTICE MARSHALL,THE LORD CHIEF JUSTICE |
| Judgment Date | 23 February 1965 |
| Judgment citation (vLex) | [1965] EWCA Crim J0223-2 |
| Court | Court of Criminal Appeal |
| Docket Number | No. 2656/64 No. 2657/64 |
[1965] EWCA Crim J0223-2
IN THE COURT OF CRIMINAL APPEAL
Royal Courts of Justice
The Lord Chief Justice of England (Lord Parker)
Mr. Justice Marshall
and
Mr. Justice Widgery
No. 2656/64
and
No. 2657/64
MR. R. STOCK, Q.C. and MR. G. MacDONALD appeared as Counsel for the Appellant Button.
MR. E. WYNNE THOMAS appeared as Counsel for the Appellant Swain.
MR. J. R. PLATTS-MILLS, Q.C. and MR. J.H. INSKIP appeared as Counsel for the Crown.
These two appellants, together with six other young men, were charged before Mr. Justice MacKenna at Bristol Assizes with making an affray. After an extended trial they were each convicted and sentenced to three months imprisonment.
Button was also charged with unlawful wounding and Swain with common assault. On these offences each were found guilty and received a further sentence of three months imprisonment to run concurrent with the sentence in respect of the affray.
No appeal has been entered in respect of these charges and the sentences on all charges have already been served.
On the 20th. November 1964 both appellants filed applications for leave to appeal against their convictions in respect of the affray.
The ground was the same in both cases
"That the trial Judge erred in law in directing the Jury that a public place for the purposes of the law relating to affray was a place to which the public or a substantial number thereof might be permitted to resort."
On the 11th. December 1964 Mr. Justice MacKenna gave a certificate under Section 3 (b) of the Criminal Appeal Act 1907 that
"The case involves questions of law about the nature of the offence of making an affray.
(i) Whether it is an essential element of that offence that the fighting complained of should be in public and if it is
(ii) Whether I misdirected the Jury about the meaning of 'in public.'"
The facts relevant to the issue we have to consider can be stated quite shortly.
On the 22nd. May 1964 the Radstock and District Darts League held their annual presentation of prizes and dance in the Scouts Hall at Radstock in Somerset. The League had 183 registered members. They were all men who formed a number of teams to play darts in fourteen public houses in the Radstock area.
The dance was purely a social affair organised by the Officers and Committee of the League. Admission was by ticket for which no charge was made. The number of tickets issued was limited by decision of the Officers and Committee.
The tickets were distributed among members of the League. Each member had a number of tickets which they could distribute among their relatives and friends and a limited surplus of tickets were made available to the licencees of the fourteen public houses for distribution at their discretion among their customers.
No member of the public could obtain tickets save through these stated channels.
The Scout Hall was a private building and had to be hired for the occasion.
Whilst the dance proceeded a doorkeeper was posted to see that only ticket holders entered. About 200 attended and if any non ticket holders did get into the Hall during the dance they were an insignificant few.
Whilst the dance was in progress a number of youths among whom were the two appellants, created disturbances in the Hall and a number of fights developed and some damage done.
Nothing turns on the details of these fights and disturbances which the prosecution alleged constituted an affray.
At the very beginning of the trial the point that this Court has to consider arose in the course of a motion made on behalf of all the accused to quash the Affray Count in the indictment. This count had been framed in the following terms - that all the accused
"On the 22nd. May 1964 at Radstock in the County of Somerset unlawfully fought and made an affray."
Relying on the authority of Regina v O'Neill (1871) 6 Irish Reports, Common Law Series p. 1 it was submitted that the want of any reference to a public place rendered the indictment bad. That it was necessary to detail the actual place and then aver that it was a "public place".
In the course of this submission it was stated that the prosecution were seeking to "raise an experimental form of indictment."
Indeed in his reply to the submission Mr. Platts-Mills who led for the prosecution vigorously argued that the wording, of Count 1 was sufficient since it was not an essential ingredient of the offence of affray that it should take place in a public place or highway. It was sufficient that the affray takes place in the presence of members of the public who are thereby frightened or put in fear.
At this stage the learned Judge gave no ruling on this point. He refused to quash the Count and exercising his powers under Section 3 of the Indictments Act 1915 he ruled that the Count should be amended so as to read "at the Scout Hall, Radstock" and the trial proceeded.
At the end of the case for the prosecution the defence submitted that they had no case to answer, since on the evidence the Scout Hall at Radstock was not a "public place", only a particular and limited class of persons being entitled to be present at the function. It was a private social function open only to selected ticket holders. The tickets were not available to the general public and before a private building can be regarded as a public place for the purposes of the offence of affray, the general public must be present as of right or by leave.
The following cases were relied on to support this submission
Timothy v Simpson (1835) Crompton Meeson & Roscoe Reports 757 .
R. v Hunt , Swanton & Ors. (1845) 1 Cox p. 177.
R. v Sharp (1957) l. Queen's Benth p. 552 .
R. v Morris & Ors. 47 Criminal Appeal Reports 202 .
R. Allen & Ors. (1965) 2 All England Reports 897 .
R. v Mapstone & Ors. (1963) 3 All England Reports 930 .
R. v Waters 47 Criminal Appeal Reports 154 .
R. v Beaumont (1964) Criminal Law Review 665 .
This Court has read and considered all these cases but we do not regard it as necessary to refer to them in detail. It is clear that they all were decided on the basis that the offence of affray, being an offence against the public, must either take place in a public place or street or if committed in a geographically private place or building, the general public or a substantial element of it must be present by licence or by right at the material time.
In reply Mr. Platts-Mills returned to and repeated his earlier submission that "public" in relation to the offence of affray only meant in the presence of members of the public and it mattered not if such members of the public were present whether the offence was committed in a public place or highway or on premises that were private.
He traced the origins of this common law misdemeanour through the old authorities.
These this Court has read and considered with care. We feel that we cannot do better than to read the clear and admirable terms in which MacKenna J., dealt with these authorities. "The parties do not agree about the nature of the offence of making an affray. The seven defendants charged with the offence contend that it is one of six essential elements that the fighting shall be in a public place which the general public are entitled to use as of right or which they are permitted to use. The Prosecution have argued that it is not essential that the place shall be public in either of these senses, or indeed in any sense at all. That there should be uncertainty about the elements of this ancient offence is regrettable. The need for modification of our criminal law, which is ancient, does not grow less with time.
"The argument began with a quotation from page 157 of the 3rd volume of Coke's Institutes: 'An affray is a publique offence to the terrour of the King's subjects, and is an English word, and so called, because it affrighteth and maketh men afraid and is enquirable in a leet as a common nusans.' It is clear that the word 'publique' applied by Coke to this offence is not used to describe the place of its commission. A little further on in the Institutes at page 174 he writes that 'a libeller ……… committeth a publick offence, and may be indicted therefore at common law.' This cannot possibly refer to the place where the libellous offence is committed. Again at page 209 he writes: 'If a man be taken by the King's writ in an action for debt or another private action, the plaintiff may discharge the gaoler of him, and set him at liberty, though he be in execution; but if he be taken in an appeal of death, robbery, rape etc. the plaintiff cannot discharge him, because it is a publique offence, wherein the King hath an interest and he may after nonsuit by the plaintiff be arraigned at the King's suit.' A public offence is one in which the King has an interest and which is not, like a private offence, merely actionable at the suit of the injured party.
"Lanbard's Eirenarcha, 1624 edn. at pages 125-6 was also cited: 'The words Affray and Assault, be indifferently bled of most men, and that also in some of our Booke cases: but yet (in my opinion) there wanteth not a just difference betweene them.' This means in the author's opinion there is a difference between the two offences. He continues: 'For, Affray is derived of the French effraier which signifieth to terrifie, or bring Feare, which the Law understandeth to be a common wrong, and therefore it is inquirable and punishable in the turne of the Sherife, and in a Leete. Otherwise it is of an assault as it seemeth by those verie bookes.' Lambard's 'common wrong' is the equivalent of Coke's ...
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