I and Another (A.P.) (Appellants) and Another v. Director of Public Prosecutions (Respondents) I and Another and Another (A.P.) (Appellants) v Director of Public Prosecutions (Respondents)

For an affray under section 3(1) of the Public Order Act 1986, a defendant must use or threaten unlawful violence towards another person who is actually present at the scene. A general risk of future violence towards absent or unidentified persons is insufficient.

The visible carrying of dangerous weapons by a group can constitute a threat of unlawful violence without brandishing or using them. Mere possession is insufficient. The tribunal of fact must find threatening circumstances and a threat directed towards a person present. The conduct must also be such that a hypothetical person of reasonable firmness present at the scene would fear for personal safety.

Three youths formed part of a large group gathered outside residential flats. Several members carried primed petrol bombs. The group dispersed when a police carrier appeared, and the appellants discarded petrol bombs while being pursued. No fighting, shouting, brandishing or throwing occurred. Apart from the police, nobody was shown to be present, and the group did not threaten the officers.

The appellants were convicted of affray under section 3(1) of the Public Order Act 1986. The Divisional Court dismissed their appeals by case stated, holding that the visible carrying of petrol bombs could constitute a threat to anyone nearby, including the police: [2000] 1 Cr App R 251.

The central questions were whether overt possession of a weapon could amount to a threat without violent use or brandishing, and whether affray required a threat towards a person actually present at the scene.

1. The appeals were allowed unanimously. Lord Hutton delivered the leading speech. Lord Bingham, Lord Clyde, Lord Hobhouse and Lord Scott agreed with his reasons and proposed answers.

2. Per Lord Hutton, the words “threatens unlawful violence” in section 3(1) of the Public Order Act 1986 bear their ordinary and natural meaning. The carrying of dangerous weapons, including petrol bombs, by a group can in some circumstances amount to a threat without the weapons being waved or brandished. Whether it does so is a question of fact. Mere possession, particularly possession of a concealed weapon without threatening circumstances, is insufficient.

3. The common-law authorities were relevant with appropriate caution. The statutory offence replaced common-law affray and retained its alternatives of actual and threatened violence. Those authorities supported the conclusion that a display of force may constitute a threat even without actual violence.

4. Per Lord Hutton, section 3 requires the threatened violence to be directed towards another person who is actually present at the scene. The Law Commission materials showed that the offence was aimed principally at fighting and face-to-face confrontations, including blows which landed, attempted blows and threatened blows. The statutory reference to the hypothetical person of reasonable firmness “present at the scene” also indicated the presence of both offender and victim.

5. The Divisional Court correctly recognised that an actual victim had to be present but erred in applying that requirement. The magistrate had found that nobody other than the police was present. The group dispersed immediately when the police appeared, which implied that no threat was directed towards the officers. The presence of a person near armed individuals does not by itself establish that violence is threatened towards that person.

6. The first certified question was answered yes: overt possession of a weapon may constitute a threat without violent use or brandishing. The reformulated second question was also answered yes: the threat must be towards a person present at the scene. The third question, concerning perception of the threat, did not arise. The convictions for affray were therefore set aside.

1. House of Lords: The appeals were allowed unanimously. The House held that no affray was established because no person towards whom violence was threatened was present at the scene.
2. Divisional Court of the Queen’s Bench Division: The appeals by case stated were dismissed. The court held that openly carrying primed petrol bombs could constitute a threat of violence towards anyone in the vicinity, including the police: [2000] 1 Cr App R 251.
3. West London Youth Court: A Metropolitan Stipendiary Magistrate convicted the appellants of affray under section 3(1) of the Public Order Act 1986.