Taylor v DPP (on Appeal from the Court of Appeal (Criminal Division))
| Jurisdiction | England & Wales |
| Judge | Lord Hailsham of St. Marylebone, L.C.,Lord Reid,Lord Morris of Borth-y-Gest,Lord Guest,Lord Cross of Chelsea |
| Judgment Date | 04 July 1973 |
| Judgment citation (vLex) | [1973] UKHL J0704-1 |
| Date | 04 July 1973 |
| Court | House of Lords |
[1973] UKHL J0704-1
House of Lords
Lord Chancellor
Lord Reid
Lord Morris of Borth-y-Gest
Lord Guest
Lord Cross of Chelsea
Upon Report from the Appellate Committee, to whom was referred the Cause Taylor against Director of Public Prosecutions (on Appeal from the Court of Appeal (Criminal Division)), that the Committee had heard Counsel as well on Tuesday the 5th, as on Wednesday the 6th, days of June last, upon the Petition and Appeal of Vincent Taylor of 3, Liddington Street, Basford in the City of Nottingham, praying, That the matter of the Order set forth in the Schedule thereto, namely an Order of Her Majesty's Court of Appeal (Criminal Division) of the 9th of October 1972, might be reviewed before Her Majesty the Queen, in Her Court of Parliament, and that the said Order might be reversed, varied or altered, and that the Petitioner might have the relief prayed for in the Appeal, or such other relief in the premises as to Her Majesty the Queen, in Her Court of Parliament, might seem meet; and Counsel having been heard on behalf of the Director of Public Prosecutions, the Respondent to the said Appeal; and due consideration had this day of what was offered on either side in this Cause:
It is Ordered and Adjudged, by the Lords Spiritual and Temporal in the Court of Parliament of Her Majesty the Queen assembled, That the said Order of Her Majesty's Court of Appeal (Criminal Division), of the 9th day of October 1972, complained of in the said Appeal, be, and the same is hereby, Affirmed, and that the said Petition and Appeal be, and the same is hereby, dismissed this House.
My Lords,
On 21st August, 1971, a fight took place at the Strelley Social Club in the City of Nottingham. Tables were overturned. Beer was thrown all over the place. Some of the spectators were screaming and plainly frightened. Among those fighting were the Appellant, Taylor, whose name was originally Lowndes, two police officers, who had come to the Club to arrest the Appellant, and the Appellant's two brothers, David and Michael Lowndes.
All three brothers were subsequently tried at the Nottingham Crown Court. The indictment contained a number of counts of which the only one relevant to this appeal was making an affray. The defence of each of the three brothers was self-defence. This, if made good, is a good defence to a charge of affray. (See R. v. Sharp, R. v. Johnson [1957] 1 Q.B. 552). There were two trials. At the first, one brother was acquitted, but the jury failed to agree as to the other two, one of whom was the Appellant. At the second trial, another brother was acquitted, but, by a majority of ten to two, the jury convicted the Appellant. The question then arose whether this conviction could stand in the light of the two acquittals. In other words, can a man be guilty of making an affray if, though others be fighting, he alone is fighting unlawfully to the terror of other persons?
The Court of Appeal (Karminski L.J.; O'Connor and Forbes J.J.) answered the question affirmatively and dismissed the appeal against conviction. They certified that a question of general public importance was involved, but refused leave to appeal to the House of Lords. Leave was subsequently given by the Appeal Committee. Thus, the question comes before your Lordships' House.
Only one other factual element in the case needs to be mentioned. After dismissing the appeal against conviction, the Court of Appeal went on to allow an appeal against sentence, reducing an original sentence of three years imprisonment to one of nine months. In doing so, they explained that they proceeded partly on the basis that the two acquitted brothers had largely instigated the fight, and partly on the basis that, in the light of the defence of self-defence, and the two acquittals, the conviction of the Appellant must be taken as meaning that the Appellant had started by lawfully defending himself, but ended by using too much force.
The offence of affray is a very ancient common law misdemeanour for which the penalties are at large. The offence has been brought into extensive use, after a long period of relative desuetude, only since the end of the last war and, since Button v. D.P.P. [1966] A.C. 591, when your Lordships' House removed the supposed limitation that to be guilty of affray the fighting must occur in a public place, indictments for affray have been successfully brought in respect of fights in private premises of various kinds.
From the first, as was conceded by Counsel for the Appellant, at least in one class of case, the offence of affray could be committed by a single person, namely, that mentioned in the Statute of Northampton (2 Ed. III c. 3). This Statute, however, seems to have been largely declaratory of the Common Law, but prescriptive of an additional remedy. It forbids amongst other things the carrying or brandishing in public of unusual or terrifying weapons. The Statute of Northampton was relied on to sustain an indictment as recently as 1903. (See R. v. Meade (1903) 19 T.L.R. 540). The Statute itself has been repealed as obsolete or unnecessary by the Criminal Law Act, 1967, no doubt partly as the result of the enactment of the Prevention of Crimes Act, 1953. But, whether or not this example of the Common Law offence of affray still lives on, the fact that the crime of affray could be committed by a single person at least in this class of case is not without its importance in determining the result of the present appeal. Counsel for the Appellant was fain to argue that this class of affray was a separate species, and could be ignored for the purpose of deciding the ingredients necessary to constitute the commoner form in which the offence occurs as the result of a fight between two or more contestants. But, for reasons which will emerge, I do not think it possible to treat it as a totally separate offence in this way.
The classical definition of affray repeated, though not always in precisely the same language, over and over again in the older text books was that it was fighting by two or more persons [in some public place] to the terror of the King's subjects (cf. Blackstone Commentaries (1769) IV p. 145), and with the omission of the words in square brackets which he demonstrated to have been added as the result of an error, Lord Gardiner, L.C., adopted this definition in Button v. D.P.P. ( supra) when he said at p. 625:
"The essence of the offence is that two or more fight together to the terror of the Queen's subjects".
On this, and on some observations of Lord Goddard C.J. in Sharp supra (at p. 561) to the effect that affray was essentially a joint offence. Counsel for the Appellant largely founded his submission which was to the effect that a party could only be guilty of the offence if not only he, but at least some other, was guilty of fighting unlawfully.
As the Court of Appeal pointed out, this submission cannot live consistently with the decisions in Scarrow (1968) 52 Cr.App.R. 591 or Summers (1972) 56 Cr.App.R. 604 from which it appears fairly clearly, if they are to be supported, that a person is not to be acquitted of affray simply because his victim acts lawfully, as for instance by retreating, or simply warding off the blows aimed at him by the accused. I cannot myself see how, if this is so, it can fail to follow that if his opponent is actually fighting, but fighting lawfully, for instance, in self-defence or to effect a lawful arrest or rescue, an accused person indulging in unlawful violence against that opponent may be guilty of making an affray. Indeed, at one moment in Scarrow Lord Parker is reported as saying in terms:
"It may well be that if two people fight and one is acting in self-defence that man cannot be said to be guilty of an affray, but it would appear to this Court that there is no reason why his attacker, whether acting alone or jointly with another attacker, should not be held guilty of the affray."
That case was expressly followed by Edmund Davies L.J. in Summers ( supra), and by O'Connor J. in delivering the judgment of the Court of Appeal in the instant case. I am certain that they were right, and, though I endorse the actual decision in Sharp ( supra) to the effect that self-defence is an answer to a charge of affray I am quite certain that the two passages in Lord Goddard's judgment in that case at p. 561 to the effect that affray "is of necessity a joint offence" and that if a man is "only defending himself that is not a fight and consequently not an affray" cannot be supported and do not represent an accurate statement of the law. It is, of course, true that before an affray of the type which consists in a fight can take place at least two persons must be present, but it does not follow from that that each of them is guilty of the affray. Making an affray consists in the unlawful participation in the fight, and one may be participating unlawfully when others are participating lawfully. If this were not so the most ludicrous results would follow. In the first place, it must follow that to prosecute one of a number of defendants to conviction, it would be necessary for the prosecution, in addition to excluding the possibility of a defence of self-defence in the defendant himself would also have to exclude the possibility of such a defence in at least one of his co-defendants. Counsel for the Appellant conceded that if two assailants attacked one or more victims who did not retaliate, the offence of affray was complete, but he was driven to argue that if one man had attacked the same victims he would have been innocent of affray, though if one of these victims defended himself with slightly more force than was necessary, the first man became once again...
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