Rafferty, R. v

For affray, a jury must decide whether the defendant used or threatened unlawful violence towards another and whether the conduct would cause a person of reasonable firmness at the scene to fear for personal safety. A concise direction stating those elements is sufficient. The judge need not explain the hypothetical person further or identify an actual witness as an example.

An appeal founded on allegedly inconsistent verdicts requires a logical inconsistency. Acquittals of specific assaults do not conflict with an affray conviction where the affray could rest on threats, pursuit and other conduct not requiring proof of actual personal violence.

Father and son were convicted at Leeds Crown Court of affray arising from an altercation outside a public house and at a nearby take-away. They were acquitted of several counts alleging common assault.

They appealed their convictions. Their permitted ground challenged the adequacy of the direction on the person of reasonable firmness. They also renewed an application for leave to argue that the affray verdicts were inconsistent with the assault acquittals. The central issues were whether the affray direction was legally sufficient and whether the verdicts were logically inconsistent.

1. Appeal dismissed. The judge’s direction accurately identified the elements of affray. It required the jury to be sure that each appellant used or threatened unlawful violence towards another and that their conduct would cause a person of reasonable firmness at the scene to fear for personal safety.
2. The direction was sufficiently clear and succinct. The judge was not required to add that the reasonable person was hypothetical, to explain that expression further, or to select an actual witness as an example. The jury could assess the ordinary meaning of a person of reasonable firmness for themselves.
3. Leave to advance the inconsistent-verdict ground was refused. Such a challenge can proceed only where the verdicts are logically inconsistent. Specific assault counts required proof of actual violence, or an act causing apprehension of immediate violence. Affray could instead be based on threatening conduct.
4. Here, the evidence capable of supporting affray included the vehicle’s arrival, the pursuit into the take-away, attempts to gain entry and damage to the door. The affray verdicts therefore did not depend on proof of the assaults of which the appellants were acquitted. There was no logical inconsistency.

• Court of Appeal (Criminal Division): convictions for affray upheld; the appeal was dismissed.
• Leeds Crown Court: on 6 February 2003, the appellants were convicted of affray and acquitted of specified common-assault counts.