I and Another and Another v. Director of Public Prosecutions

The House of Lords considered the scope of the statutory offence of affray under section 3(1) of the Public Order Act 1986. It held that the visible carrying of dangerous weapons (for example, primed petrol bombs) by a group can, in appropriate circumstances, amount to a threat of unlawful violence within the meaning of section 3(1) even if the weapons are not waved or brandished. However, the court held that the threat must be directed towards a person or persons actually present at the scene; a threat to persons not present does not satisfy section 3(1). The court answered the certified questions by allowing the appeals on the ground that, on the facts found by the magistrate, no person other than the police was shown to have been present and there was no evidence of a threat to the police.

This case arose after the appellants were arrested near a block of flats while in a group some of whom were carrying petrol bombs. They were convicted of affray under section 3(1) of the Public Order Act 1986 by a stipendiary magistrate. On case stated the Divisional Court dismissed their appeals and certified questions of law for the House of Lords.

The issues before the House of Lords included:

• whether the overt possession of a weapon may constitute a threat of unlawful violence for the purpose of affray where the weapon is not brandished;
• whether the threat for the purpose of affray must be directed at a person present at the scene or may be to persons not present;
• whether the threat must be perceived by the person towards whom it is directed.

The House of Lords reasoned that section 3(1) was enacted to reflect the Law Commission's intention that the statutory offence should be similar to the common law offence and that threats of violence (as well as actual use) should be within its scope. Drawing on common law authorities, the court concluded that visible carrying of dangerous weapons by a group may amount to a threat of unlawful violence, but whether it does so depends on the facts. The court placed emphasis on the presence requirement in section 3(1), noting the provision that the conduct must be such as would cause a person of reasonable firmness present at the scene to fear for his personal safety, and on the Law Commission's analysis that affray is aimed at confrontations where victims are present. Applying those principles to the facts found by the magistrate (who had found that, apart from the police, no other persons were shown to be present and that the group dispersed on sighting police), the House of Lords concluded there was no threat towards any person actually present and allowed the appeals.

The court observed that alternative offences such as possession of an offensive weapon or unlawful possession of explosives could have been charged in the circumstances and cautioned against extending affray beyond its proper scope.

Appeal allowed. The House of Lords held that (1) the carrying of dangerous weapons by a group can, in appropriate circumstances, constitute a threat of unlawful violence under section 3(1) of the Public Order Act 1986 even if the weapons are not brandished; but (2) the threat must be directed towards a person or persons actually present at the scene — conduct threatening persons not present does not satisfy section 3(1). Applying those principles to the facts found by the magistrate, there was no threat towards any person present and the convictions could not stand.

Convictions at West London Youth Court (stipendiary magistrate) on 22 July 1998; appeals by case stated to the Divisional Court ([2000] 1 Cr App R 251) which dismissed the appeals and certified questions of law; appeals allowed by the House of Lords [2001] UKHL 10.